J-S04001-16



                               2016 PA Super 68

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

KENNETH JOHN KONIAS, JR.,

                          Appellant                  No. 881 WDA 2014


          Appeal from the Judgment of Sentence February 18, 2014
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0007539-2012


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

OPINION BY BOWES, J.:                               FILED MARCH 18, 2016

       Kenneth John Konias, Jr. appeals from the judgment of sentence of life

imprisonment for first-degree murder, and a consecutive sentence of ten to

twenty years imprisonment for robbery, imposed on February 18, 2014,

after a nonjury trial. We affirm.

       Appellant’s convictions arose from an incident on February 28, 2012,

when Michael Haines died as a result of a gunshot wound to the back of the

head. Appellant admitted to shooting Mr. Haines, but maintained he acted

in self-defense. The Commonwealth’s evidence in support of Appellant’s

convictions was as follows. In February 2012, Appellant was employed as an

armored truck driver for Garda Cash Logistics (“Garda”). On February 28,

2012, Appellant was assigned to work with the victim, Michael Haines, an


*
    Retired Senior Judge assigned to the Superior Court.
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individual with whom he had never worked prior to that day. The two men

were assigned to Truck 5678, and responsible for a route that included stops

at Rivers Casino, the Ross Park Mall Home Depot, and JC Penney, among

other locations.

      Truck 5678 was separated into three compartments.      Located at the

front of the truck was a driver's area. This area was accessible only from

the exterior driver-side door. The driver’s area was composed of one seat

and a waist-high flat area extending to the right-hand side of the truck, so

there was no passenger seat.    Directly behind the driver’s seat, a sliding

door separated the driver's area from the hopper, the intermediate area of

the truck. A portion of the door, which slid open to rest behind the driver,

extended approximately four inches into the doorway.

      The hopper area, where the victim was seated, contained one chair

located on the right-hand side of the vehicle. Adjacent to the hopper chair,

another waist-high flat area extended to the left side of the truck.

Numerous United States postal bins, which Garda utilized to separate

various items within the truck, were upright and neatly organized on top of

this flat area. The hopper area was accessible only from the exterior via a

door on the right side of the vehicle.   The final truck compartment, which

was the storage area, was separated from the hopper area by a metal fence.

That area could only be accessed from the rear doors on the truck.




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      On the day in question, Appellant and Mr. Haines arrived early at each

stop along their assigned route.    Appellant and the victim collected and

scanned bags of money, printing out a receipt for each customer directly

from the scanner.   The hand-held scanner employed by Appellant and the

victim hung in a charger located on the wall of the hopper area of the truck.

On this particular day, after scanning each bag, Appellant placed the bags of

money in the hopper area of the truck rather than in the rear storage area,

as was customary.

      Following the pick-up at the Ross Park Mall Home Depot, Appellant’s

truck pulled to a stop and parked in the lot for approximately three minutes.

During this time, Appellant shot the victim in the back of the head at close

range with a .9 millimeter handgun. Shortly thereafter, the truck exited the

parking lot, traveling toward McKnight Road. Surveillance cameras stationed

along McKnight Road recorded Appellant’s truck driving towards downtown

Pittsburgh.

      Appellant drove the truck toward Garda’s headquarters, parking it

under the Thirty-First Street Bridge with the victim’s body still facing the

rear of the truck in the step-down portion of the hopper area.      Appellant

traveled by foot to the Garda parking lot, retrieved his personal vehicle, and

returned to the truck. Upon returning, Appellant loaded his personal vehicle

with $2,323,252 from the hopper area of the truck. He placed paper towels

in the step-down area of the hopper to soak up the victim’s blood, activated

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the vehicle’s four-way flashers, left the engine running, and locked the truck

before fleeing the scene.         The truck was eventually located by a Garda

employee around 4:30 p.m., and thereafter, Pittsburgh Police Detective

Ryan Rable arrived at the scene.

       Upon his arrival, Detective Rable met with several Garda employees.

He and Detective Margaret Sherwood, together with several other officers,

inspected the vehicle. Mr. Haines was deceased by the time the truck was

discovered by Garda employees.             Furthermore, U.S. postal bins situated

inside the hopper area were upright, exhibiting no signs of damage. 1          In

addition, the victim was found with his uniform shirt tucked in and buttoned.

Finally, his identification badge was still in its plastic holder, clipped to his

left pocket, and attached to a breakaway cloth lanyard.

       An examination by the forensic biologist found no tears or separations

on the victim’s shirt. The victim’s pants also showed no signs of tearing or

separation. An examination by the forensic pathologist noted the cause of

the victim’s death was a single gunshot wound to the back of the head. The

victim sustained no further injuries, abrasions, bruises, or scratches.       No

signs of a struggle were observed inside the truck.


____________________________________________


1
   Testimony makes clear that, during transport of the truck to a nearby
garage, a single postal bin situated upon the hopper chair tipped, causing
items to fall onto the victim.



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       Following his flight from the truck, Appellant returned home, removed

his blood-stained, Garda-issued jacket containing a .9 millimeter shell

casing, showered, and stashed portions of the money stolen from the truck

at various locations in and around the Pittsburgh area for his friends and

family to recover.        Specifically, Appellant left $24,000 in a bag at his

grandmother’s gravesite, $252,000 in a bag under his father’s vehicle, and

$10,000 in a work boot located on the porch of a friend’s residence.2

Appellant then stole a license plate to replace the plate on his personal

vehicle, and discarded his cellular telephone along Route 51.        Appellant

absconded to Florida with the remaining money stolen from the Garda truck.

       Appellant was apprehended in Florida on April 24, 2013. At the time

of his arrest, Appellant possessed four forms of fraudulent identification, and

a stolen credit card. A search of his Florida residence revealed a loaded .9

millimeter firearm, as well as the victim’s firearm, which was taken at the

time of his death. Subsequent investigation revealed that Appellant sought

aid in attempting to flee to Haiti.

       Appellant retained private counsel.       On August 15 and October 9,

2013, he filed motions seeking funding for a forensic expert, clothing

analysis, and a forensic psychologist. The August 15, 2013 motion asserts,

“Although [Appellant]’s family members have retained within counsel for the
____________________________________________


2
    Officers ultimately recovered this portion of the money.



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purposes of representation at trial, [Appellant] is now indigent and cannot

afford the costs of retaining a privately retained forensic expert for the areas

of ballistic fire arms, clothing analysis, and forensic psychology.” Motion To

Appoint Forensic Experts in Ballistic Firearms, Clothing Analysis and Mental

Health Behavioral Forensic Psychologist, 8/15/13, ¶ 11.

      On October 9, 2013, Appellant again requested funding, stating,

“Although [Appellant]’s family members have retained within counsel for the

purposes of representation at trial, [Appellant] is now indigent, and so is his

family, and cannot afford the costs of retaining a privately retained

psychological expert.” Motion to Approve the Payment of Expert Fees for a

Behavioral Forensic Psychologist By Allegheny County, 10/9/13, ¶ 5. Neither

motion contained information regarding Appellant’s income, expenses,

liabilities, or other financial information necessary to aid the court’s

determination of his financial status.     In addition, the motions were not

accompanied by any affidavits averring Appellant’s inability to pay for the

requested experts. The motions were denied by orders dated August 20 and

October 10, 2013, respectively.

      A nonjury trial commenced on November 6, 2013 and concluded in a

conviction. The trial court rejected Appellant’s position that he acted in self-

defense during a struggle with the victim.          Following his conviction,

Appellant’s counsel sought to withdraw. The court granted this motion, and

a public defender was appointed by court order on December 18, 2013. On

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February 18, 2014, the court imposed the mandatory sentence of life

imprisonment without parole for first-degree murder, as well as, a

consecutive term of ten to twenty years for robbery. Timely post-sentence

motions were denied. This appeal followed. Appellant raises the following

issues for this Court’s consideration:

         I.   Did the Court err in failing to provide expert funding, or
              even to conduct a hearing on the need for funding, where
              the defense made two separate requests for experts to
              counter Commonwealth evidence and each request was
              supported by allegations of indigency?

        II.   Did the Court err in permitting a Detective to testify to the
              ultimate issue, namely whether a struggle had ensued
              before the shooting, where her testimony was speculative
              and based on facts outside her personal knowledge?

       III.   Was the verdict rendered contrary to the weight of the
              evidence where, when viewed in its entirety, the evidence
              was not consistent with first degree murder?

Appellant’s brief at 4.

       Appellant first contends that the trial court erred in denying without a

hearing his request for public funds to hire experts to assist in his defense.

It is well-established that indigent defendants have a right to access the

same     resources   as   non-indigent   defendants   in   criminal   proceedings.

Commonwealth v. Curnutte, 871 A.2d 839, 842 (Pa.Super. 2005). The

state has an “affirmative duty to furnish indigent defendants the same

protections     accorded     those   financially   able     to   obtain    them.”

Commonwealth v. Sweeney, 533 A.2d 473, 480 (Pa.Super. 1987).



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Procedural due process guarantees that a defendant has the right to present

competent evidence in his defense, and the state must ensure that an

indigent defendant has fair opportunity to present his defense.       Ake v.

Oklahoma, 470 U.S. 68, 76 (1985).

      However, “[t]he provision of public funds to hire experts to assist in

the defense against criminal charges is a decision vested in the sound

discretion of the court and a denial thereof will not be reversed absent an

abuse of that discretion.”   Commonwealth v. Cannon, 954 A.2d 1222,

1226 (Pa.Super. 2008) (citations omitted).      Appellant argues it was an

abuse of discretion to deny his motions without a hearing to establish the

need for experts and Appellant’s inability to pay. He asserts that the mere

fact that a defendant has retained private counsel does not automatically

indicate all other costs and fees associated with the defense can be met.

      In sole support of his position, Appellant points to the statements

contained within the August 15, 2013 and October 13, 2013 motions

requesting funding from the court. Appellant characterizes the statements

as averring that “all funds have been used by counsel, that the client and his

family have exhausted their financial means, that the defendant was

incarcerated, indigent, and therefore in need of the court to grant funding

for necessary experts to dispute the Commonwealth’s evidence, and to

investigate the mental health and faculties of [Appellant].” Appellant’s Brief

at 23-24.

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      In light of these statements, Appellant argues, the failure to conduct a

hearing in which counsel could explain the need for funding denied him his

right to present a full and fair defense.      Furthermore, Appellant asserts,

without citation to authority, that “denying a defendant funding to explore

potential defenses or evaluate mental health is a denial of due process.”

Appellant’s brief at 26.

      This Court has not established factors a trial court must consider in

exercising its discretion when making a determination of indigency for the

purpose of appointing an expert. However, as we did in Cannon, we look

for guidance to principles established for assessing indigency in determining

whether a party may proceed in forma pauperis, or is entitled to the

appointment of counsel. Cannon, supra at 1226.

      In Cannon, we noted a party seeking to proceed in forma pauperis is

“required to file a petition and an affidavit describing in detail the inability to

pay the costs of litigation,” including the information from the applicant

regarding, “present or past salary and wages, other types of income within

the preceding year, other contributions for household support, property

owned, available assets, debts and obligations, and persons dependent for

support.” Id.      Following the filing of this affidavit, the trial court must

“satisfy itself of the truth of the averment of an inability to pay the costs of

litigation.” Id.    A trial court, in exercising its discretion in determining

whether a defendant is indigent for the purposes of in forma pauperis, “must

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focus on whether the person can afford to pay and cannot reject

allegations in an application without conducting a hearing.” Id. (emphasis

added, citations omitted).

      Similarly in Cannon, we looked to principles elucidated by our

Supreme Court as to what constitutes indigency in relation to a defendant’s

request for the appointment of counsel.            The Supreme Court opined,

“[a]mong other factors that may be relevant to a defendant’s financial ability

to hire private counsel are the probable cost of representation for the crime

charged and the defendant’s liabilities.” Id. at 1226-27 (emphasis added,

citations omitted).

      The framework we developed in Cannon, supra, presumes a trial

court, in determining whether a defendant is indigent and entitled to the

benefit of public funding, has accurate information regarding the financial

status of the applicant from which it may exercise its discretion. It therefore

follows that, only after the defendant has provided some reliable information

as to his inability to pay, is the trial court “bound to satisfy itself of the truth

of the averments of an inability to pay” by conducting a hearing. Id.

      We observe, “[t]he Commonwealth is not obligated to pay for the

services of an expert simply because a defendant requests one.” Curnutte,

supra at 842.         We agree with Appellant that merely retaining private

counsel does not, in itself, establish he was not indigent.              However,

Appellant’s failure to supply the trial court with, at a minimum, any financial

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information substantiating his inability to pay, is fatal to his argument.        A

mere averment of indigency and inability to pay is not sufficient to trigger

the necessity for a hearing under Cannon. The defendant must make some

specific showing of a financial hardship for the court to afford relief.

       Therefore, we find the trial court did not abuse its discretion in denying

Appellant’s motions where Appellant failed to provide at least a modicum of

financial information within his motions. Any financial information Appellant

wished to produce at a hearing was available at the time of filing of those

motions, and inclusion of that information, at a minimum, is necessary to

enable judicial consideration of whether a hearing is necessary to determine

the truth of those averments. This contention fails.

       Appellant next contends the trial court erred in permitting Detective

Sherwood to testify, over defense objection, as to whether a struggle

occurred in the Garda truck, or whether anyone may have altered the

interior of the truck prior to investigation.      Appellant’s brief at 34.   Citing

Pennsylvania Rules of Evidence 7013 and 702,4 concerning lay and expert

____________________________________________


3
  Pa.R.E. § 701 states, “If a witness is not testifying as an expert, testimony
in the form of an opinion is limited to one that is: (a) rationally based on
the witness’s perception; (b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and, (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.”
4
  Pa.R.E. § 702 states, “A witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of
(Footnote Continued Next Page)


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testimony, respectively, Appellant argues Detective Sherwood was permitted

to present prejudicial opinion testimony concerning the crime scene,

although she was not offered as an expert witness.

       A review of the record reveals the following exchange: “Q: Now, with

respect to your observations was there anything that would lead you to

believe   that   there     was    struggle       or   a   violent   confrontation   or   any

confrontation inside that –. A: No.” N.T. Trial, 11/6/13, at 50.                    Defense

counsel objected to this testimony on the grounds of speculation, arguing

the witness could not testify beyond her personal observations as to what

occurred before she arrived on the scene. The court implicitly sustained the

objection by instructing the prosecutor to rephrase his question, which he

did.   “Q:   With respect to the bins and the items there did you locate

anything that had fallen out of a bin? A:                 No, and in answer to [defense

counsel]’s objection I can say definitively that nobody else was inside the

hopper area of that truck.” Id. at 50-51.

       After the witness’s unprompted response, defense counsel did not

object, made no objection or motion to strike on any basis. “In order to

                       _______________________
(Footnote Continued)

an opinion or otherwise if: (a) the expert’s scientific, technical, or other
specialized knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
and, (c) the expert’s methodology is generally accepted in the relevant
field.”



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preserve an issue for review, a party must make a timely and specific

objection at trial.” Commonwealth v. Stokes¸ 78 A.3d 644, 653

(Pa.Super. 2013) citing Commonwealth v. Griffin, 684 A.2d 589, 595

(Pa.Super. 1996). Moreover, “[a] party complaining, on appeal, of the

admission of evidence in the court below will be confined to the specific

objection there made.”    Commonwealth v. Bedford, 50 A.3d 707, 713

(Pa.Super. 2012) (citation omitted).

      Defense counsel initially objected to Detective Sherwood’s answer.

However, after the trial court required the prosecutor to rephrase the

question, which he did, defense counsel made no further objection. Nor did

he move to strike Detective Sherwood’s statements from the record when

she volunteered evidence that had been the subject of an objection that was

sustained.    We find defense counsel’s failure to object to Detective

Sherwood’s statements constitutes a waiver of the issue. Stokes, supra.

      Assuming, arguendo, the issue was properly before us, the trial court,

sitting as the trier of fact, “is presumed to know the law, ignore prejudicial

statements, and disregard inadmissible evidence.”        Commonwealth v.

Smith, 97 A.3d 782, 788 (Pa.Super. 2014).          Furthermore, in order to

constitute reversible error, an error in the admission of evidence must have

contributed to the verdict. “An error may be considered harmless only when

the Commonwealth proves beyond a reasonable doubt that the error could

not have contributed to the verdict.”    Commonwealth v. Brooker, 103

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A.3d 325, 332 (Pa. Super. 2014) (citations omitted). Moreover, “this burden

is satisfied when the Commonwealth is able to show,” inter alia, “the error

did not prejudice the defendant or the prejudice was de minimis.” Id.

      Here,   Detective        Sherwood     was      only   one   of   the   experienced

investigative officers and experts who testified to the orderly appearance of

the hopper area of the truck, and the lack of any signs of an altercation

between Appellant and the victim.            In addition to testimony from various

officers as to the condition of the interior of the truck, the trial court, in

rejecting self-defense, also relied on reports from the forensic biologist and

forensic pathologist indicating neither the victim’s clothing nor other injuries

on his body indicated evidence of a struggle.               In light of the presumption

that the trial court ignored and disregarded Detective Sherwood’s statement

as well as other evidence confirming no altercation occurred, we find the

admission of Detective Sherwood’s statement to be harmless.

      Appellant’s final contention is that the trial court committed an abuse

of   discretion   when    it    rejected    his     weight-of-the-evidence    challenge.

Appellant argues his first-degree murder conviction was contrary to the

weight of the evidence because the testimony and evidence was more

consistent with justifiable self-defense.

      When we review a weight-of-the-evidence challenge, we do not

actually examine the underlying question; instead, we examine the trial

court’s exercise of discretion in resolving the challenge. Commonwealth v.

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Leatherby, 116 A.3d 73, 82 (Pa.Super. 2015). This type of review is

necessitated by the fact that the trial judge heard and saw the evidence

presented. Id. Simply put, “One of the least assailable reasons for granting

or denying a new trial is the lower court’s conviction that the verdict was or

was not against the weight of the evidence and that a new trial should be

granted in the interest of justice.” Id.       A new trial is warranted in this

context only when the verdict is “so contrary to the evidence that it shocks

one’s sense of justice and the award of a new trial is imperative so that right

may be given another opportunity to prevail.”              Commonwealth v.

Morales, 91 A.3d 80, 91 (Pa. 2014).

      Of equal importance is the precept that, “The finder of fact. . .

exclusively weighs the evidence, assesses the credibility of witnesses, and

may choose to believe all, part, or none of the evidence. Commonwealth

v. Sanchez, 36 A.3d 24, 39 (Pa. 2011) (citation omitted) see also

Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) (“A

determination of credibility lies solely within the province of the factfinder.”);

Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.Super. 2006) (“It is

not for this Court to overturn the credibility determinations of the fact-

finder.”).

      Here, the trial court found no evidence presented as to the defendant’s

purported fear for his own safety, state of mind, nor any evidence of a

struggle between Appellant and the victim giving rise to a reasonable belief

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in imminent danger of death or serious bodily harm. Rather, the trial court

found the interior of the narrow and confined spaces within the Garda truck

showed no signs of a struggle having occurred, postal bins were upright and

unbroken, the victim’s shirt remained tucked in and untorn, and the victim’s

identification badge remained clasped to his left-pocket and attached to a

breakaway cloth lanyard.

      Furthermore, the trial court found no evidence from which one could

infer that it was necessary for Appellant to use deadly force to repel an

attack being perpetrated upon him by the victim.        Instead, the trial court

credited the testimony, and was persuaded by evidence, indicating that the

victim died from a fatal gunshot wound to the back of the head. The trial

court noted that Mr. Haines suffered no other injuries, abrasions, bruises, or

scratches consistent with a struggle.

      Therefore, upon review of the record, we agree with the trial court that

it was well within its right as the ultimate fact finder to weigh the evidence in

such a manner. We can discern no abuse of discretion on the part of the

trial court in concluding the verdict was not against the weight of the

evidence.

      Based on the foregoing discussion, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2016




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