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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                        :
                                               :
ADAM ROSEN,                                    :            No. 1260 EDA 2014
                                               :
                           Appellant           :


                  Appeal from the PCRA Order, April 9, 2014,
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No. CP-46-CR-0005182-2001


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                                FILED MAY 11, 2015

        Appellant appeals the order denying his second petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Finding no error on appeal, we affirm.

        Appellant was originally convicted by jury trial of first degree murder

on May 2, 2002 in connection with the June 30, 2001 stabbing death of his

wife. On June 6, 2003, this court affirmed the judgment of sentence, and on

October 2, 2003, our supreme court denied appeal.                   Commonwealth v.

Rosen, 830 A.2d 1052 (Pa.Super. 2003) (unpublished memorandum),

appeal denied, 832 A.2d 436 (Pa. 2003).                     On September 27, 2004,

appellant filed his first PCRA petition. While the petition was dismissed on

March 1, 2005, on November 23, 2005, this court reversed on the basis that

trial   counsel   was     ineffective   in   failing   to   call   character   witnesses.
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Commonwealth v. Rosen, 890 A.2d 1105 (Pa.Super. 2005) (unpublished

memorandum), appeal denied, 906 A.2d 542 (Pa. 2006).

      On July 21 and 22, 2008, appellant was tried at a bench trial, and was

again convicted of first degree murder.     On December 8, 2009, this court

affirmed the judgment of sentence, and on April 25, 2012, our supreme

court affirmed this court.     Commonwealth v. Rosen, 988 A.2d 146

(Pa.Super. 2009), affirmed, 42 A.3d 988 (Pa. 2012).

      On April 5, 2013, appellant filed the instant, counseled PCRA petition.

Following a hearing on March 3, 2014, appellant’s PCRA petition was denied

by order entered April 9, 2014. This timely appeal followed.

      Appellant raises a single claim of ineffective assistance of trial counsel

on appeal indicating that counsel’s failure to rebut the testimony of the

Commonwealth’s medical expert, Dr. Ian Hood, with conflicting expert

medical opinion was ineffective. The particular testimony to which appellant

objects is as follows:

            Q.    Doctor, when we spoke, you had mentioned
                  something about this not being an overkill?

            A.    Yes. That’s really a term of art.      It has no
                  particular scientific basis.

                  It’s a matter of experience, in that -- where
                  there’s a lot of emotion involved. You see it a
                  lot in domestic cases, particularly homosexual
                  males is where it was first described. Then the
                  person who’s doing the killing just continues to
                  flail away with whatever weapon they’re using
                  at the victim, long after the victim has ceased
                  to struggle.


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                  We call that overkill. It is often characterized
                  by a multiplicity of wounds, much more than
                  you see here.        And clear evidence of the
                  wounds being inflicted on somebody. There is
                  no bruising anymore. So you have a couple of
                  dozen wounds that are clustered in one area,
                  all going in the same way, indicating that the
                  individual is no longer moving, and that we
                  would call overkill.

            Q.    Are the injuries to Hollie consistent with an
                  overkill, in your opinion?

            A.    Not in number and not in their distribution,
                  either. She’s clearly moved while being --
                  while sustaining these wounds.

Notes of testimony, 7/21/08 at 110-111.

      Essentially, appellant complains that he was relying upon his alleged

rage or heat of passion to negate the specific intent to kill necessary for a

first degree murder conviction and that this testimony served to vitiate that

defense. Appellant calls attention to the fact that the trial court specifically

found a specific intent to kill based upon the victim’s wounds. (Appellant’s

brief at 17.) Appellant asserts that expert medical opinion was available to

indicate that the wounds were consistent with rage or heat of passion.

      We find no error with the PCRA court’s holding.        After a thorough

review of the record, the briefs of the parties, the applicable law, and the

well-reasoned opinion of the PCRA court, it is our determination that there is

no merit to the question raised on appeal. Judge Demchick Alloy’s thorough,

23-page opinion, filed on June 16, 2014, comprehensively discusses and



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properly disposes of the question presented.     We will adopt it as our own

and affirm on that basis with the following additional analysis.

      We find that although Judge Tressler relied upon the wounds, it was

not because they indicated a lack of rage or heat of passion. It is fortunate,

in this regard, that we are reviewing a bench trial, because when the trial

judge announced his decision, he related the reasoning behind his decision,

and in so doing, allowed this court to look into the mind of the finder-of-fact.

While the trial judge did base his decision on the wounds, he clearly did not

rely on Dr. Hood’s testimony as negating appellant’s assertion of heat of

passion:

                  Now, I don’t think the Commonwealth has
            proven beyond a reasonable doubt that the initial
            argument did not occur downstairs. There is no
            evidence that the former Mrs. Rosen was not an
            instigator in the argument.

                  However, when they went upstairs, things
            changed drastically, and I don’t think that that had
            anything to do with the argument they were having
            or the fact that she might even have threatened him.

                  I think it had everything to do with the fact
            that he had finally come down with his decision as to
            what he was going to do with his wife. I base that
            on the wounds.

                   First of all, there is no doubt in my mind that
            the chest wound occurred before the neck wound.
            That chest wound was wide. It was gaping. It was
            three inches long. It went through two ribs. It was
            five inches deep. That was the power. It entered
            the upper left lobe of the lung.




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               The most important thing about that was there
          was a moving motion, as was described by
          Doctor Hood, which meant there was a struggle.
          She was alive.

                The reason that that gaping hole was an
          inch-and-a-half across was because, as she moved,
          the knife, in turn, stayed solid, and she turned with
          her body; that widened the hole.

                I don’t doubt that the first witness that we had
          -- I forget his name -- the gentleman going to the
          bar, for the bar exam. I don’t doubt that he heard a
          scream. I’m confident, beyond a reasonable doubt,
          that that is the scream he heard.

               The other gentleman was walking the dog.
          Mr. Winters pointed out he didn’t hear anything.

               That’s because, I looked at the record, and he
          was never asked by anybody at any time. That’s
          why there was no evidence of that.

                I believe that at the time that that scream
          went, that that was when the knife was in her chest.
          And in order to silence her, because of that scream,
          that’s when Adam plunged the knife into her neck,
          and he did it with the intention of killing her.

                Then to even further prove that intent, after
          she had had her part of her voice box sliced off and
          her jugular cut -- by the way, that was another
          three-and-a-half inch long by one-and-a-half inch
          crossway wound, and that went six or seven inches
          deep. I believe Doctor Hood said it almost came out
          the other side of her throat. That certainly was a
          wound that was intended to kill.

                Then on top of that, she’s now rolled over or
          slides down. The knife wound in the upper back
          goes in so deep it goes into the right lung. Then,
          again, there is some type of movement, although not
          nearly as much.



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                     Then finally, the three stabs at the bottom of
               the upper body. They’re each four inches deep.
               They go right in and come right out. At that point,
               there is absolutely no resistance.

                     So I think that the evidence shows beyond a
               reasonable doubt that, although he might not have
               originally started the fight -- he might not even
               have, originally, intended to kill her, at that moment,
               the moment the fight started, there is no doubt in
               my mind that he did intend to kill her when he stuck
               that knife into her chest, and, certainly, when he
               slashed her throat to keep her quiet. The only way
               he could do that was to kill her, and, also, the
               wounds in the back, to make sure she was dead.

Notes of testimony, 7/21/08 (Day Two) at 41-44.1

      The trial court clearly based its finding of a specific intent to kill on the

lethal nature of the chest and neck wounds. “It is well-settled that specific

intent to kill can be established through circumstantial evidence such as the

use   of   a    deadly   weapon    on   a   vital   part   of   the   victim’s   body.”

Commonwealth v. Johnson, 107 A.3d 52, 66 (Pa. 2014).                       Of course,

stabbing a person in the abdomen would supply specific intent under this

formula; however, how much more certain is death than when the left chest,

where the heart is located, or the throat, with its vital arteries and veins, is

slashed deeply open?        This patently indicates that appellant specifically

intended to kill his wife. We also agree with the court that the stabbing of




1
 Both trial transcripts are dated July 21, 2008, although they are marked as
occurring over two days.


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the victim’s back, where she now no longer moved in response, was done to

insure that she was, in fact, dead.

      Finally, a defendant asserting a claim of ineffective assistance of

counsel must show that: 1) the underlying legal claim has arguable merit;

2) counsel had no reasonable basis for his or her action or omission; and

3) defendant suffered prejudice as a result. Commonwealth v. Watkins,

108 A.3d 692, 702 (Pa. 2014). Since the trial court relied upon the utterly

lethal nature of the chest and neck wounds to find a specific intent to kill,

and not upon any implication by Dr. Hood’s testimony that this was not a

rage or heat of passion killing, we find that expert medical testimony

countering Dr. Hood would not have changed the result at trial; hence, we

find no prejudice and no ineffectiveness.

      Accordingly, having found no merit to the issue on appeal, we will

affirm the order entered below.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2015




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