J-S35019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MARGARITA GARABITO,

                         Appellant                   No. 1670 EDA 2015


     Appeal from the Judgment of Sentence Entered February 20, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0000468-2010


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JUNE 20, 2016

      Appellant, Margarita Garabito, appeals from the judgment of sentence

of life imprisonment without the possibility parole (plus a consecutive term

of 22½-45 years’ imprisonment), following her conviction for first degree

murder and related offenses. Appellant contends that the trial court violated

her right to due process when it refused to instruct the jury on the defense

of duress.    Appellant also alleges prosecutorial misconduct due to the

prosecutor’s suggesting that the defense had paid its expert witness to lie.

After careful review, we affirm.

      The following facts were adduced at Appellant’s jury trial:

            At trial, the Commonwealth presented the testimony of
      Philadelphia Police Detectives Gregory Santamala and Norma
      Serrano, Philadelphia Police Corporal Maria Santa, Philadelphia
      Police Officer Christopher Reed, Philadelphia Fire Service
      Paramedic Raymond Mulderig, Assistant Medical Examiner Dr.
      Marlon Osbourn, Dr. Diego Jaramillo, Dr. Cindy Christian, Ethel
J-S35019-16


     Elizabeth Horsey, Glenny Ferreira, Yolonda Deliz-Arroyo, Wanda
     Torres, Amy Ozenbaugh, Denise McGovern, Jose Lorenzo,
     Patricia Lane, Joshua Tyson, and Idaly Irizarry-Zayas.
     [Appellant] testified on her own behalf and presented the
     testimony of Dr. Jonathan Arden, Margaret Lorenzo, Cathy
     Garabito, Salvador Lorenzo, Gladys Lorenzo, Edwin Silva, and
     Julian Lorenzo.     Viewed in a light most favorable to the
     Commonwealth as the verdict winner, the evidence established
     the following.

           Charlenni Ferreira ("Charlenni”) was born in the Dominican
     Republic to Domingo Ferriera ("Domingo") and Rosalie Almeida
     in October of 1998. Domingo moved to the United States while
     Charlenni was three years old, leaving Charlenni in the care of
     her mother. Ultimately, Domingo moved to Philadelphia and
     began dating, and living with, [Appellant]. In May 2005, when
     Charlenni was six years old, Domingo arranged to have
     Charlenni join him in Philadelphia with [Appellant] and her
     children. When Charlenni first moved to Philadelphia, she was a
     happy, healthy child. However, in 2006, Charlenni's behavior
     and demeanor changed. In addition, Charlenni began wearing
     long pants and shirts, even in summer months. [Appellant]
     began to require Charlenni's adult older sister, Minty Ferreira
     ("Glenny["]), who did not live with [Appellant], to have an
     appointment to visit the home.

            While Charlenni visited the school nurse, Amy Ozenbaugh,
     during her first grade year (2005-2006) for minor illnesses, her
     visits increased in her second grade year (2006-2007) and
     included visits for scrapes and bruising on her face, which
     ultimately prompted Ozenbaugh to file a report with the
     Department of Human Services ("DHS") in October of 2006. The
     DHS investigation revealed that Charlenni had multiple bruises
     and scrapes, as well as other marks under her clothing and a
     missing toenail. However, while the DHS investigation was
     ongoing, Charlenni's visits to Ozenbaugh decreased and the
     investigation was ultimately closed in March of 2007.

           In June, 2007, Ozenbaugh noticed a round "puffy" area on
     Charlenni's lower back. While being examined, Charlenni stated,
     unprompted, that nobody was hitting her and that she was never
     "having any children because [she] would hate to have to hit
     [her] children if they were bad."




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            During her third grade year (2007-2008), Charlenni again
     had multiple visits to the nurse's office for fever, stomach aches,
     chest pain, and foot pain. Charlenni also complained of leg pain
     and pain in walking. After Charlenni reported back pain, a
     subsequent examination by the school nurse, Denise McGovern,
     revealed a small ulcer on Charlenni's back. McGovern directed
     [Appellant] to take Charlenni to hospital, which [Appellant] failed
     to do.

            During her fourth grade year (2008-2009), Charlenni
     reported multiple times to McGovern's office for stomach ache
     and fevers. In October of 2008, family members and other
     individuals in Charlenni’s life began noticing that Charlenni
     walked with a limp. In December of 2008, Charlenni began
     regularly wearing a hair weave. By April of 2009, Charlenni's
     ability to walk had deteriorated significantly, prompting
     McGovern to begin stressing the need for [Appellant] to take
     Charlenni to obtain a physical examination for her gait.
     [Appellant] excused Charlenni's walk by stating that Charlenni
     had fallen from the stairs and that she was overweight.
     [Appellant] explained Charlenni's hairpiece by stating that
     Charlenni wanted to have long hair.

           McGovern again emphasized the need for [Appellant] to
     take Charlenni to a doctor to get a school physical at [the]
     beginning of Charlenni's fifth grade year (2009-2010). While
     [Appellant] ultimately took Charlenni to Dr. Ramesh Parchuri on
     September 12, 2009, McGovern was not satisfied with the
     examination performed by Dr. Parchuri and wanted [Appellant]
     to return Charlenni to the doctor for further examination.

           Charlenni's father, Domingo, left Philadelphia for a month
     long trip to the Dominican Republic on September 18, 2009,
     returning on October 18, 2009. Charlenni did not report to
     school on Friday, October 16, 2009, or the following Monday
     through Tuesday, October 20-21, 2009.

           In the early morning on October 21, 2009, [Appellant]
     woke her son and Charlenni in order to take them to school.
     Charlenni stated that she was not feeling well and needed to
     vomit. While Charlenni did not vomit in the bathroom, where
     [Appellant] had taken her, Charlenni did vomit upon returning to
     her bed and fell unconscious. At approximately 8:30 a.m.,
     [Appellant] called 911 and paramedics responded to
     [Appellant]'s house shortly thereafter.        Paramedics saw


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     Charlenni lying on the bed unresponsive and attempted to start
     CPR, but Charlenni's mouth purged a bloody black vomit. At
     that time, medical personnel believed Charlenni was dead and
     that any further resuscitation efforts would be futile. Charlenni
     was transported to St. Christopher's Hospital, where she was
     pronounced dead at 9:01 a.m.             Upon arriving at St.
     Christopher's, Charlenni's body was examined and doctors
     noticed that Charlenni's rectum was torn.         Realizing that
     Charlenni's death might involve a sexual assault, Medical
     personnel called police to the hospital.

           While waiting at the hospital that morning, [Appellant]
     provided a statement to police, stating that Charlenni had
     wanted to throw up that morning but could not. [Appellant]
     further stated that Charlenni threw up and fainted upon
     returning to her bed. As the interview continued, [Appellant]
     told police that Charlenni had not been feeling well for a few
     days before her death and that she had fallen the night before.
     [Appellant] was ultimately transported to the Homicide Unit at
     police headquarters at approximately 11 a.m.

            The Philadelphia Medical Examiner's Office conducted
     Charlenni's autopsy later that same day at 2:30 p.m. Present
     for the autopsy were several members of the Medical Examiner's
     staff, as well as Dr. Cindy Christian from the Children's Hospital
     of Philadelphia and Detective Philip Nordo from the Philadelphia
     Police Department.      The external examination revealed that
     Charlenni suffered from scarring and bruising on her face, neck,
     chest, back, arms, and legs. Doctors also discovered a seven
     inch by four inch gaping wound on the left side of Charlenni's
     head, which had been covered by a hair weave that was affixed
     to Charlenni's scalp by bobby pins, which penetrated Charlenni's
     skin and scar tissue. Charlenni's skull was visible in this wound.
     While medical gauze had been placed between Charlenni's skull
     and the hair weave, the wound had received no additional
     medical intervention.      Charlenni's skull also had signs of
     fractures and trauma and was thicker than it should have been
     as a result of healing from repeated injury.         The external
     examination also showed that Charlenni suffered from a
     "cauliflower ear[,"] where her left ear had deformed due to
     repeated injury. Additionally, Charlenni had relatively recent
     trauma to her anus and vagina, suggestive of sexual trauma.

           An internal examination of Charlenni revealed that
     Charlenni suffered from traumatic brain damage, specifically in

                                   -4-
J-S35019-16


        her hippocampus. Charlenni also had multiple bone fractures, of
        various ages, in her left hip, left arm, left shoulder blade, and
        ribs. As a result of the fractures to her ribs, Charlenni developed
        a pleural empyema over a period of several days prior to her
        death, which caused 750 milliliters of fluid to build up in her lung
        cavity, collapsing her lung and starving her body of oxygen.
        This pleural empyema ultimately caused Charlenni's death.

              While doctors were conducting Charlenni's autopsy, police
        began questioning [Appellant] concerning the prior few days.
        Acting on information received from the autopsy, Police
        Lieutenant Reihl asked [Appellant] about the wound on
        Charlenni's head. When asked about the wound, [Appellant]
        struck her chest with her hand and stated, "I did it. I did it with
        a broomstick." [Appellant] was then given her Miranda warnings
        in Spanish. [Appellant] then repeated her statements about the
        events of that morning. When asked how Charlenni got her
        bruises, [Appellant] stated that she had "hit [Charlenni] with a
        metal broomstick handle over her head. There was blood. I put
        cotton in the cut and the I place[d] hair on top of the cut and on
        top of the cotton so no one would see it." [Appellant] stated she
        would hit Charlenni with brooms or "with whatever was near
        [her] to pick up."      [Appellant] further confessed to hitting
        Charlenni on the prior Thursday with her hand. [Appellant] also
        stated that Domingo never slept in Charlenni's room and did not
        strike her.     [Appellant] stated that she had been hitting
        Charlenni for over a year, but that the head wound was only
        three months old.

Trial Court Opinion (TCO), 8/24/15, at 2-7.

        Appellant was tried by a jury for first-degree murder, 18 Pa.C.S. §

2502(a), conspiracy (first-degree murder),1 18 Pa.C.S. § 903, endangering

the welfare of a child, 18 Pa.C.S. § 4304, and possessing an instrument of




____________________________________________


1
    Appellant’s co-conspirator, Domingo, committed suicide prior to trial.




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crime, 18 Pa.C.S. § 907.2 The trial occurred on February 3-20, 2015, with

the jury reaching a verdict on February 20, 2015.            The jury convicted

Appellant of all the aforementioned offenses.        Appellant was immediately

sentenced to life imprisonment without the possibility of parole for first-

degree murder, a consecutive term of 20-40 years’ imprisonment for

conspiracy, and another consecutive term of 2½-5 years’ imprisonment for

possession of an instrument of crime.            Appellant filed a timely, post-

sentence motion, setting forth numerous claims, which was denied on May

27, 2015. Appellant then filed a timely appeal.

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

and the trial court issued its Rule 1925(a) opinion on August 24, 2015.

Appellant now presents the following questions for our review:

          A. Whether the trial court violated Appellant[’s] fundamental
             due process right to a fair trial by denying the defense
             request for a jury instruction on duress pursuant to
             Appellant’s theory of defense that she did not have a
             specific intent to murder[,] and did not act or fail to act out
             of malice toward the child victim[,] but rather acted or
             failed to act out of fear of her abusive husband?

          B. Whether the Commonwealth[’s] attorney engaged in
             prosecutorial misconduct by arguing to the jurors that they
             should not credit Dr. Arden’s testimony on the grounds
             that his testimony favorable to the defense was not
             rendered in good faith by him as an expert in forensic
             pathology[,] but was simply contrived testimony
             specifically requested by and purchased by the defense?
____________________________________________


2
  Appellant was charged with additional offenses, which were nolle prossed
prior to trial and, therefore, are not relevant to the instant appeal.



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Appellant’s Brief, at 2.

      Appellant’s first claim concerns the trial court’s denial of her request

for a jury instruction on duress. “Duress is a defense to criminal culpability.”

Commonwealth v. Markman, 916 A.2d 586, 606 (Pa. 2007).

      In deciding whether a trial court erred in refusing to give a jury
      instruction, we must determine whether the court abused its
      discretion or committed an error of law. Where a defendant
      requests a jury instruction on a defense, the trial court may not
      refuse to instruct the jury regarding the defense if it is supported
      by evidence in the record. When there is evidence to support
      the defense, it is for the trier of fact to pass upon that evidence
      and improper for the trial judge to exclude such consideration by
      refusing the charge.

Commonwealth v. DeMarco, 809 A.2d 256, 260-61 (2002) (citations,

quotation marks, and footnote omitted).

      The duress defense is codified as follows:

      (a) General rule.--It is a defense that the actor engaged in the
      conduct charged to constitute an offense because he was
      coerced to do so by the use of, or a threat to use, unlawful force
      against his person or the person of another, which a person of
      reasonable firmness in his situation would have been unable to
      resist.

      (b) Exception.--The defense provided by subsection (a) of this
      section is unavailable if the actor recklessly placed himself in a
      situation in which it was probable that he would be subjected to
      duress. The defense is also unavailable if he was negligent in
      placing himself in such a situation, whenever negligence suffices
      to establish culpability for the offense charged.

18 Pa.C.S. § 309. Thus, our Supreme Court has held that:

      [I]n order to establish the duress defense, the evidence must
      show that: (1) the defendant was subject to a present and
      impending threat of death or serious bodily injury; (2) the
      defendant had a reasonable fear that the threatened harm would


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     be made against him; and (3) the defendant had no reasonable
     opportunity to escape the threatened harm except by
     committing the criminal act.

DeMarco, 809 A.2d at 259.

      Instantly, Appellant argues:

             In the present case, [Appellant] was charged [with]
     murder in the first degree which required proof beyond a
     reasonable doubt that [Appellant] had the specific intent to kill
     the child, and charged in the alternative with third degree
     murder which required proof of malice on her part. In her
     defense[,] [Appellant] testified at length to Domingo Ferreira's
     threatening behavior and her fear for herself and her children if
     she exposed Ferreira's abuse of Charlenni. Given that evidence
     of record it was not for the court to decide that the jury could
     not reasonably find that [Appellant] did not have a specific intent
     to kill and did not act or fail to act out of malice toward the child
     by reason of her fear of Ferreira. Rather, it was solely the
     province of the jury to decide whether and to what extent
     [Appellant]'s fear of Domingo Ferreira affected her state of mind
     with regard to her conduct toward Charlenni and[,] to that
     end[,] [Appellant] was entitled to a jury instruction on duress.
     In fact, as acknowledged in the trial court's Opinion (at 25),
     citing []DeMarco, 809 A.2d [at] 261[], "(w)here a defendant
     requests a jury instruction on a defense, the trial court may not
     refuse to instruct the jury regarding the defense if it is supported
     by the evidence in the record[."] The court's analysis in its
     opinion of the applicability of duress to the facts of the case and
     claim that defense of duress did not apply was nothing more
     than a disguised usurpation of the exclusive role of the jury to
     decide the facts.       The court was entitled to believe that
     [Appellant]'s claim of being constantly in fear for herself and her
     children of the gun–toting Ferreira and her claim that her fear
     persisted … even while he was away due to his and others'
     phone calls were not credible. But the court was not entitled to
     undercut the meaningfulness of [Appellant]'s testimony as to her
     defense by refusing to properly instruct the jury just because the
     court did not believe it. Accordingly, in view of the foregoing …
     the trial court's refusal to instruct the jury on duress in
     connection with the theory of defense presented by defense
     counsel on behalf of [Appellant] violated [Appellant]'s due
     process right to a fair trial.


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Appellant’s Brief, at 22-23.

      We disagree.     Initially, it is not true that Appellant’s testimony

regarding Domingo’s abuse was ‘undercut,’ at least not completely, by the

decision not to include a duress instruction to the jury.   The jury was not

precluded from considering Appellant’s testimony as it was relevant to her

mens rea for the charged offenses. The court’s decision merely precluded a

specific, affirmative defense, which would have been an absolute defense to

Appellant’s criminal culpability if accepted. Therefore, the decision did not

usurp the jury’s consideration of Appellant’s testimony altogether.

      Nevertheless, we must consider whether there were sufficient facts to

suggest that the defense of duress was supported by the record. The trial

court indicates that Appellant was not entitled to a duress instruction

because:

      [T]he evidence at trial failed to support an inference that
      [Appellant] did not have a reasonable opportunity to escape
      threatened harm except by continuing to engage in the abuse of
      Charlenni. At trial, [Appellant] repeatedly stated that Domingo
      threatened her life, Charlenni's life, the lives of [Appellant]'s
      children, and his own life if [Appellant] informed police of the
      abuse which, [Appellant] claimed, Domingo had inflicted on
      Charlenni. However, Domingo was out of the country for a
      month shortly before Charlenni's death, returning three days
      before Charlenni died. During that month, Charlenni sustained
      additional injuries that led to her death. Clearly, no "person of
      reasonable firmness in [that] situation would have been unable
      to resist" any threats from Domingo to refrain from saving the
      life of a ten–year old child. 18 Pa.C.S. § 309(a).          While
      [Appellant] testified that she never contacted police or any
      medical professional while Domingo was out of the United States
      because he "had people," N.T., 2/17/15[,] at 207-208,
      [Appellant] never testified whether this occurred within the

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J-S35019-16


      month prior to Charlenni's death or how Domingo oversaw her
      actions during the remainder of the time he was absent. N.T.
      2/17/15[,] at 64-65.

            [Appellant] had, at least, an entire month prior to
      Charlenni's death in which she could have taken Charlenni to the
      hospital, reported Domingo's alleged abuse, or simply stopped
      continuing the abuse that [Appellant] herself inflicted. N.T.[,]
      2/17/15 at 188-189. [Appellant] was not entitled to a duress
      instruction.

TCO, at 26.

      We agree. Under the test enunciated in DeMarco, Appellant was not

subject to a “present and impending threat” during the month that Domingo

was out of the country. DeMarco, 809 A.2d at 259. Appellant argues that

her fear of Domingo, specifically, a fear of violence being done to her and/or

her children if she had reported Domingo’s abuse or Charlenni’s injuries,

‘persisted’ during this time; however, the presence of such fear, alone, is not

the applicable standard. That fear must exist in a context where a person of

“reasonable firmness” would not have sought help for this chronically abused

child. See 18 Pa.C.S. § 309(a). The defense simply did not present facts

sufficient to permit the jury to reach that conclusion.

      Although there is no case law directly on point, our conclusion is

supported generally by a survey of duress-related case law. In each of the

following cases, where it was found that a duress instruction was required,

the evidence of threatened (or inflicted) harm was far more “present and

impending” than in the present case.          DeMarco, 809 A.2d at 259.    For

instance, in Markman, the defendant had been “subjected to duress by [her

codefendant] during and immediately prior to the kidnapping and homicide”

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for which she was convicted. Markman, 916 A.2d at 609. Despite contrary

evidence that Markman potentially had numerous opportunities to abandon

the joint criminal enterprise,

      there was also evidence to the effect that: [Markman] had been
      subjected to terrorization, assaults, and death threats over a
      two-day period immediately prior to these events; she had
      already tried to escape through both the front and back doors of
      the trailer, and each time had been violently restrained from
      doing so by [the codefendant]; and [the codefendant] was at all
      relevant times in close proximity to [Markman] and in possession
      of a hunting knife.

Id.

      In DeMarco, the defendant, charged with perjury and related

offenses, claimed they were committed under duress, but was refused a

duress jury instruction. Our Supreme Court reversed his conviction because

it found “the evidence introduced at trial was sufficient to create an issue of

fact for the jury regarding whether Appellant was subject to duress under

Section 309 and whether the exception in Section 309(b) applie[d].”

DeMarco, 809 A.2d at 264. DeMarco made false statements to authorities

about another man’s, Frank Larwa’s, involvement in damaging two cars, but

DeMarco had presented evidence that:

      Larwa shot him with a B.B. Gun, choked him, and threatened to
      deprive him of his social security checks or kill him if he did not
      corroborate Larwa's account of how his cars came to be
      damaged. Appellant also presented evidence of his situation
      when the threats occurred, including that he: (1) suffers from
      seizures, (2) is borderline mentally retarded with a third grade
      intellectual level, (3) receives social security because he is
      mentally disabled, and (4) was living with Larwa without



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      transportation or sufficient money to move to alternative
      housing.

Id. at 263 (footnote omitted).

      In both DeMarco and Markman, the evidence clearly showed that the

threats giving rise to the appellants’ duress claims were made just prior to,

or contemporaneous with, the criminal acts for which they were convicted.

By contrast, in Commonwealth v. Pelzer, 612 A.2d 407 (Pa. 1992), our

Supreme Court held the defendant was not entitled to a duress instruction in

a case involving the kidnapping and murder of a sixteen-year-old boy,

Alexander Porter, by the appellant and two cohorts, including Henry Daniels.

Pelzer had admitted to participating in the kidnapping, and “admitted firing

the shots wounding Porter's neck and back, but claimed that he did so only

because Daniels pointed a gun at his head and told him to shoot Porter.”

Id. at 413. However, while Porter was being held by his kidnappers for over

two days, Appellant left his cohorts on multiple occasions; yet, he repeatedly

returned to them. Our Supreme Court held that it was

         abundantly clear that [the] appellant had frequent
         opportunities to withdraw from the conspiracy if that had
         been his intent, but he repeatedly returned voluntarily to
         continue the criminal operation. His self-serving statement
         also implies that throughout the episode he was being
         coerced into participating in brutal acts which were
         repugnant to his kinder nature. Nothing, however, can be
         more obvious than that he knowingly placed himself [in] a
         situation in which it was probable that he would be
         subjected to duress. As a matter of law, then, the defense
         of duress was not available to [the] appellant. His own
         assertions defeated any claim of duress, and there was no
         other evidence supporting the defense, so it was proper for
         the trial court to refuse to charge the jury on duress.


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Id. at 414. Thus, despite Pelzer’s factual claim that he was forced to shoot

Porter at gunpoint, our Supreme Court affirmed the rejection of a duress

jury instruction because certain other undisputed facts clearly established

that Section 309(b)’s duress defense exception applied.            Similarly, here,

despite evidence that Appellant was terrorized by Domingo over several

years, it was undisputed that he was out of the country for an entire month

just prior to Charlenni’s death.

       Moreover, even if the jury believed that Appellant was under

surveillance by third-parties beholden to Domingo during this time,3

telephone-based threats would not constitute an immediate threat of harm

comparable      to   that   at   issue   in    DeMarco   or   Markman.     As   the

Commonwealth notes, we have previously rejected claims that threats made

over the telephone permitted a justification defense to illegally carrying a

firearm. See Commonwealth v. Merriwether, 555 A.2d 906 (Pa. Super.

1989) (holding threats of violence received by the defendant over the

telephone “do not constitute [a threat of] clear and imminent harm” because

“he could have notified the authorities and informed them of these threats”).

Thus, for all the aforementioned reasons, we conclude that the trial court did



____________________________________________


3
 Although Appellant testified to this effect, the trial court indicates, as noted
above, that there was no testimony regarding specific phone calls or other
surveillance by such third-parties during the month prior to Charlenni’s
death.



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not abuse its discretion, or otherwise commit an error of law, when it

refused to instruct the jury on the defense of duress.

      Next, Appellant contends that the prosecutor engaged in prosecutorial

misconduct during the Commonwealth’s closing argument. She argues: “By

claiming that Dr. Arden ‘made up a finding in order to come to the

conclusion that he was being paid to come to,’ the prosecutor was arguing

implicitly that defense counsel connived to pay Dr. Arden to render a false

opinion.” Appellant’s Brief, at 20.

            It is well settled that a prosecutor has considerable latitude
      during closing arguments and his arguments are fair if they are
      supported by the evidence or use inferences that can reasonably
      be derived from the evidence. Commonwealth v. Paddy, []
      800 A.2d 294, 316 ([Pa.] 2002).              Further, prosecutorial
      misconduct does not take place unless the “unavoidable effect of
      the comments at issue was to prejudice the jurors by forming in
      their minds a fixed bias and hostility toward the defendant, thus
      impeding their ability to weigh the evidence objectively and
      render a true verdict.”         Id.   Prosecutorial misconduct is
      evaluated under a harmless error standard. Commonwealth v.
      Cousar, [] 928 A.2d 1025, 1042 ([Pa.] 2007).

Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008).

      Appellant    presents    a      two-stage   argument     regarding     the

Commonwealth’s comments about Dr. Arden’s credibility.          First, Appellant

argues that there is no evidence that Dr. Arden ‘made up’ any of his

findings, much less that he did so deliberately in exchange for payment.

Essentially, Appellant contests that the prosecutor’s comment was not

premised on any fact adduced at trial or any reasonable inference derived

from those facts. Second, Appellant contends that this misconduct was not


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harmless error, “because the statements not only challenged Dr. Arden’s

credibility[,] they [also] constituted an attack on defense counsel and the

legitimacy of his having retained an expert with the court’s approval.”

Appellant’s Brief, at 27.

      We need not reach the second part of Appellant’s claim, because

Appellant has simply failed to meet her burden to demonstrate that

misconduct occurred.        The critical issue addressed by the prosecutor’s

comment was with regard to a specific rib fracture sustained by Charlenni.

The Commonwealth’s expert and Dr. Arden agreed that this rib injury was

the ultimate cause of death; however, they differed in their respective

estimates   of   when       Charlenni    likely   sustained   that   injury.   The

Commonwealth’s expert estimated that the injury occurred between 8-15

days before Charlenni’s death.          Dr. Arden believed the injury could have

occurred as recently as 2-4 days before her death. These experts’ testimony

was critical because other evidence had established that Domingo arrived

home from the Dominican Republic approximately three days before

Charlenni’s death. Thus, the Commonwealth’s expert’s testimony eliminated

Domingo as a potential cause of that injury, whereas Dr. Arden’s expert

testimony did not.    Therefore, resolution of this conflicting evidence was

essential to establishing Appellant’s causation of Charlenni’s death and,

consequently, her culpability for homicide.

      Dr. Arden’s estimate of the timing of the injury was based, in some

part, on the formation of a callus on the damaged rib following the injury.

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Dr. Arden testified during direct examination that the X-ray of the injury

showed “just the barest hint of a visible callus.” N.T., 2/10/15, at 35. Later,

during cross-examination, Dr. Arden conceded that “the barest hint of [a]

visible callus … cannot be seen on [an] X-ray prior to one week.” Id. at 59.

He then stated, based on the microscopic evidence that, “knowing what I

know, that’s not a callus, no.” Id. at 60.

      It is certainly true that Dr. Arden could have been giving a nuanced

opinion that only appeared to differ from his prior statement when pressed

for specificity beyond what the evidence could actually provide. Dr. Arden

repeatedly made the point that what he may have perceived, visually, on the

X-ray was not supported by the microscopic examination of the injury. Id.

at 59 (stating that “the totality of the findings of both that X-ray and the

microscopic examination do not describe a true soft callus and do not get to

the state of a minimum of a week”) (emphasis added). Nevertheless, there

was enough of an apparent contradiction to permit an inference (albeit not

the only possible inference), that Dr. Arden had changed his mind between

direct- and cross-examination.    Importantly, however, Appellant makes no

attempts in her brief to establish, by reference to the facts and testimony of

record, why such an inference was not possible or, otherwise, not

reasonable.




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       Additionally, as the trial court notes, Dr. Arden testified during voir

dire, and without objection, that “he was being privately retained and paid

for his consultation.”4     TCO, at 23 (citing N.T., 2/10/15, at 14-15). Thus,

the fact that Dr. Arden was paid for his work in this case, and the fact that a

reasonable inference could be drawn that Dr. Arden changed his testimony

between direct- and cross-examination, allowed the prosecutor to make his

case to the jury that Dr. Arden’s testimony was biased by a financial

motivation.

       We note that while it is improper for a prosecutor to express his

“personal belief as to the credibility of the defendant or other witnesses[,]”

“a   prosecutor      may      comment          on   the   credibility   of   witnesses.”

Commonwealth v. Chmiel, 889 A.2d 501, 544 (Pa. 2005).                         Moreover,

“[p]rosecutorial misconduct will not be found where comments were based

on the evidence or proper inferences therefrom or were only oratorical flair.”

Commonwealth v. Hawkins, 701 A.2d 492, 503 (Pa. 1997).


____________________________________________


4
  This was probably not objectionable in any event. Dr. Arden was
responding to voir dire questions presented by defense counsel, and:
       Impeachment of an expert witness by demonstrating partiality is
       permissible. Smith v. Celotex Corp., []564 A.2d 209, 214
       ([Pa. Super.] 1989) (citing Grutski v. Kline, []43 A.2d 142
       ([Pa.] 1945)). It is proper to ask an expert witness his fee for
       testifying, as well as whether he has a personal friendship with
       the party or counsel calling him.

J.S. v. Whetzel, 860 A.2d 1112, 1120 (Pa. Super. 2004).



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     Here, we conclude that Appellant has failed to convince this Court that

the prosecutor’s comment was anything more than oratorical flair, or that it

had no foundation in Dr. Arden’s testimony and proper inferences derived

therefrom. Thus, we find this matter comparable to language we permitted

in Commonwealth v. Smith, 995 A.2d 1143, 1162-63 (Pa. Super. 2010)

(holding permissible a prosecutor’s statement, that the defense expert was a

“hired gun,” where the credibility of his testimony was called into doubt

during cross-examination, and where he testified that he primarily worked as

a defense expert). Thus, having concluded that there was no prosecutorial

misconduct, we need not consider Appellant’s harmless error argument.

     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016




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