J-A23035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                    Appellee             :
                                         :
           v.                            :
                                         :
ANTHONY LEE BUSH,                        :
                                         :
                    Appellant            :           No. 926 WDA 2013

      Appeal from the Judgment of Sentence entered on April 29, 2013
            in the Court of Common Pleas of Allegheny County,
               Criminal Division, No. CP-02-CR-0002740-2012

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED SEPTEMBER 30, 2014



imposed following his convictions for murder of the third degree and

endangering the welfare of a child. See 18 Pa.C.S.A. §§ 2502(c), 4304. We

affirm.

      The trial court set forth the relevant factual and procedural history,

which we adopt for the purpose of this appeal.     See Trial Court Opinion,

1/22/14, at 1-4.1

      On appeal, Bush raises the following questions for our review:

      I. Did the trial court err in failing to give an involuntary
      manslaughter jury instruction as sought by trial counsel?




1
  We note that Bush filed a timely court-ordered Pennsylvania Rule of
Appellate Procedure 1925(b) Concise Statement of Matters Complained of on
Appeal.
J-A23035-14

        II. Was it error to permit the testimony from several medical
        personnel regarding the efforts to revive [Donovan McKee
                                                    of death was not at
        issue and the evidence was not only cumulative but, more
        importantly, more prejudicial than probative, intended merely to
        inflame the passions of the jurors?

        III. Did the trial court err in admitting photographs into evidence
        of what looked like blood stains in the apartment[,] when these
        spots were never determined to be blood, no proof was given
        that, if it was blood, who the blood belonged to or how long it
        had been there?

Brief for Appellant at 6 (capitalization omitted).

        In his first claim, Bush contends that the trial court erred in denying



manslaughter.2 Id. at 15-29. Specifically, he argues that the testimony of

Dr. Barbara Ziv, a forensic psychiatrist, reg

was sufficient to show a version of the evidence that would tend to support a

verdict of involuntary manslaughter.      See id. at 16-29. Specifically, Bush

argues that his treatment of Donovan mirrored the treatment he received as

a child, and that he did not understand the consequences of his actions. Id.

at 21. Bush claims that he acted recklessly and grossly negligent when he

2
    The Crimes Code defines involuntary manslaughter as follows:

        § 2504. Involuntary manslaughter

        (a) General rule. A person is guilty of involuntary
        manslaughter when as a direct result of the doing of an unlawful
        act in a reckless or grossly negligent manner, or the doing of a
        lawful act in a reckless or grossly negligent manner, he causes
        the death of another person.

18 Pa.C.S.A. § 2504(a).


                                    -2-
J-A23035-14

beat Donovan to death and thus an involuntary manslaughter instruction

should have been provided. Id. at 17, 22-23, 24, 25, 29.

       In its Opinion, the trial court analyzed the relevant law regarding

requests for a jury instruction, and set forth its reasons for denying the

involuntary manslaughter instruction. See Trial Court Opinion, 1/22/14, at

4-5.

evidence did not support a jury instruction on involuntary manslaughter, and

                                                                   See id.

       In his second claim, Bush asserts that the trial court erred in allowing

the testimony of several medical personnel who attempted to revive

Donovan when he arrived at the emergency room. Brief for Appellant at 30.

Bush argues that because the cause of death was not in question, such

testimony was unnecessary, and merely served to prejudice the defense by

eliciting an emotional response from the jury. See id. at 30-38.

       Here, the trial court analyzed the relevant law regarding the admission

of evidence, and set forth its reasons for determining that the testimony was

relevant and non-prejudicial.    See Trial Court Opinion, 1/22/14, at 9-11.

Upon review, we agree with the sound reasoning of the trial court, and we

adopt its analysis for the purpose of this appeal. See id.

       In his third claim, Bush argues that the trial court erred in admitting

photographs of the various stains throughout the apartment because they

had not been tested to determine that they were, in fact, blood stains. Brief



                                  -3-
J-A23035-14

for Appellant at 39-41. Bush also argues that even if the stains were blood,



blood. Id. at 41. Further, Bush claims that because the evidence did not



photographs, as well as the testimony related to the stains, was irrelevant

and prejudicial. Id. at 41-44.

      Our standard of review regarding the admissibility of photographs is as

follows:

            The admission of photographs is a matter vested within
      the sound discretion of the trial court whose ruling thereon will

      determining whether the photographs are admissible, we employ
      a two-step analysis. First, we consider whether the photograph
      is inflammatory.      If it is, we then consider whether the
      evidentiary value of the photograph outweighs the likelihood that
      the photograph will inflame the minds and passions of the jury.
      Even potentially inflammatory photographs are admissible when
      the photographs are of such essential evidentiary value that
      their need clearly outweighs the likelihood of inflaming the minds
      and passions of the jurors.

Commonwealth v. Solano, 906 A.2d 1180, 1191-92 (Pa. 2006) (citations

omitted).

      Here, the trial court set forth its analysis regarding the admissibility of

the photographs.    See Trial Court Opinion, 1/22/14, at 20-22.        Upon our

review, we conclude that the trial court did not abuse its discretion in

admitting the photographs, and we adopt its analysis for the purpose of this

appeal. See id.

      Judgment of sentence affirmed.


                                  -4-
J-A23035-14

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/2014




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                                                                            i
    IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                                                ,
                           CRIMINAL DIVISION


    COMMONWEALTH OF PENNSYLVANIA


                            v.                          CC, 201202740       I

    ANTHONY BUSH,

                                     Defendant


                                                 OPINION


           The Defendant has appealed from the judgment of sentence eJtered on April 29, 2013. A
                                                                            !
    review of the record reveals that the Defendant has failed to present any meritorious issues on
                                                                            I

    appeal and, therefore, the judgment of sentence should be affirmed.

           The Defendant was charged with Criminal Homicide 1 and Endangering the Welfare of a
                                                                            :
Child (EWC)2 in relation to the beating death of his 11-year-old step~on. At the conclusion of a

jury trial held before this Court, the Defendant was found guilty of ~ird degree murder and the

EWe charge. He appeared before this Court on April 29, 2013 and w~s sentenced to consecutive
                                                                            I



tenns of imprisonment of 20 to 40 years at the third degree murder        Ch~ge and three and one half
                                                                            !
(3 lh) to seven (7) years at the EWC charge. Timely Post-Sentence Motions were filed and were
                                                                            I
denied on May 2, 2013. This appeal followed.

           The evidence presented at trial established that the   Defend~t lived in the Knoxville
                                                                            !
section of the City of Pittsburgh with his girlfriend, Cynthia McKee, ~eir five (5) year-old son,
                                                                            I


Vincere, and her II year-old son from another relationship, DonoVrn. The Defendant had a


1   18 Pa.C.S.A. §2S01(a)
2   18 Pa.C.S.A. §4304
                                                                                    Circulated 09/05/2014 03:01 PM




history of beating Donovan. On the morning of February 11,2012, he Defendant awoke angry

at Donovan for the child's failure to do his homework the night efore, and decided to beat

Donovan that day. During the course of that day, the Defendant be t Donovan repeatedly with

wooden Kendo swords and a wood 2x2 until they broke, then he use a metal barbell to continue

the beatings. At approximately 8:50 p.m., the Defendant called C nthia at her job at a pizza

shop and asked where he could find a needle and thread. He located the items and proceeded to

"stitch" up deep gashes on Donovan's head and ann, first pouring al ohol directly into the deep,

open wounds, while Donovan screamed. Eventually, Donovan lost consciousness and became

cold. Cynthia retumed home from her job at approximately 10                  .m. and noticed her son's

condition. The Defendant instructed her to say that he fell out of a         indow. Despite Cynthia's

observation of her son's condition, the call to 911 was not made until one (1) hour and 40

minutes later.

       Pittsburgh Police Officers arrived at the scene first and fo nd the Defendant holding

Donovan, saying that he was sorry and it was all his fault. The poli' e began CPR on Donovan

and the paramedics took over resuscitation efforts when they a ived.                  After a lengthy

resuscitation effort, paramedics were able to get a pulse and immediat ly transported Donovan to

Mercy Hospital, a Levell Trauma Center. By the time of his arriv             the pulse obtained by the

paramedics had been lost again, and Mercy initiated resuscitation fforts. Once a pulse was

regained, Mercy personnel assessed Donovan's injuries, which includ d:

           •     Left posterior upper arm bruising (Trial Transcript, p. 1 0);

           •     Left hand laceration in stages of healing (T.T., p. 140);

           •     Skull deformity and hematoma (T.T. p. 140);

           •     Left foreann laceration - healing (T.T. p. 140);




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                •    Left arm laceration - healing (T.T. p. 140);

                •    Puncture wound to left calf (T.T. p. 140);

                •   Right shin laceration (T.T. p. 140);

            •       Left knee laceration (T.T. p. 141);

            •       Right thigh laceration (T.T. p. 141);

            •       Right ann bruising (T.T. p. 141);

            •       Right shoulder lacerations and abrasions (T.T. p. 141);

            •       Right clavicle laceration (T.T. p. 141);

            •       Left arm laceration with homemade suture and thread in arm (T.T. p. 141);

            •       Right arm laceration (T.T. p. 141);

            •       Right ann defonnity (T. T. p. 141);

            •       Bruising over entire body (T.T. p. 141);

            •       Branding marks to right leg (T.T. p. 141); and

            •       Left leg lacerations both fresh and healing (T.T. p. 141).

When his heart had been beating continuously for 20 minutes, he was transported to Children's

Hospital by the specially-trained Children's trauma transport team.

       Upon his arrival at Children's Hospital, Donovan's pulse was very weak and he had no

measurable blood pressure. He was given multiple doses of epinephrine to keep his heart rate up

while an assessment began. It was noted that in addition to the injuries documented by Mercy,

that his pupils were fixed and dilated (T.T. p. 148), his lower back was bruised (T.T. p. 149) and

his abdomen was distended (T.T. p. 149). Donovan continued to lose pulses, and three rounds of

CPR with epinephrine ",,-ere performed. Eventually, Donovan was pronounced dead at 2A5 a.m.

The autopsy performed by Dr. Shakir revealed that Donovan's death had not been caused by a



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 single blow, but rather that the multiple blows to the different parts of his body caused blood

 vessels throughout his body to rupture and to bleed into his tissue and eventually resulted in a fat

 embolism in his lungs. Dr. Shakir opined that because the vessels were small and the bleeding

 oeeun'ed slowly, had Donovan received prompt medical treatment and a blood transfusion, his

 life could have been saved (TT. p. 274).

         The Defendant's natural son, Vincere, was in the apartment that day and witnessed the

 beatings.   He was separately transported to Children's Hospital and was found to have no

 InJunes.

        On appeal, the Defendant raises a number of claims directed to the evidence and jury

 instructions. They are addressed as follows:

 1.     JUly Instructions

        Initially, the Defendant argues that this Court erred in denying his request for a jury

 instruction on involuntary manslaughter. This claim is meritless.

        "In reviewing a challenge to the trial court's refusal to give a specific jury instruction, it

is the function of [the appellate] court to determine whether the record supports the trial court's

decision. In examining the propriety of the instructions a trial court presents to a jury, [the

appellate court's] scope of review is to detelmine whether the trial court committed a clear abuse

of discretion or an error of law which controlled the outcome of the case. A jury charge will be

deemed erroneous only if the charge as a whole is inadequate, not clear or has a tendency to

mislead or confuse, rather than clarify, a material issue. A charge is considered adequate llllless

the jury was palpably misled by what the trial judge said or there is an omission which is

tantamount to fundamental error. Consequently, the trial court has wide discretion in fashioning

jury instructions. The trial court is not required to give every charge that is requested by the


                                                                                                                )
                                                 4
                                                                                Circulated 09/05/2014 03:01 PM




 parties and its refusal to give a requested charge does not require reversal unless the Appellant

 was prejudiced by that refusal." Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super.

 2013).

          Pursuant to Section 2504 of our Crimes Code, involuntary manslaughter involves "the

 doing of an unlawful act in a reckless or grossly negligent manner or the doing of a lawful act in

 a reckless or grossly negligent mamler." 18 Pa.C.S.A. §2504(a). "Since our Supreme Court's

 decisions in Commonwealth v. White, 490 Pa. 179,415 A.2d 399 (1980) and Commonwealth v.

 Williams, 490 Pa. 187, 415 A.2d 403 (1980), it has been settled that 'in a murder prosecution, an

involuntary manslaughter charge shall be given only when requested, where the offense has been

made an issue in the case and the trial evidence reasonably would support such a verdict.'"

Commonwealth v. Banks, 677 A.2d 335, 343 (Pa.Super. 1996).

          At trial, the evidence established that the Defendant woke on the morning of February 11,

2012, with the intent to beat Donovan, with sticks, as a plll1ishment for his behavior. The assault

began in the morning and spanned the entire day. The Defendant used multiple weapons to beat

the child and when one broke, he selected another to continue the beatings.       He never sought

medical treatment for the child. The Defendant did not deny the beatings or othenvise contradict

this evidence; rather, his defense centered on his abusive childhood and its residual effects on

his bchavior. The evidence presented demonstrated willfulness and an intent to conduct and

continue the beatings, as befits a homicide charge, but there was no evidence presented which

indicated that this killing was in any way accidental or that would support the reckless or grossly

negligent mental state of involuntary manslaughter. Because the evidence did not support a

charge of involuntary manslaughter, this Court was well within its discretion in refusing to give

the instruction. This claim must fail.



                                                                                                           " .• j
                                                                                                                    )
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                                                                                Circulated 09/05/2014 03:01 PM




2.      Vincere's Statement to Officer Lane

       Next, the Defendant argues that the trial court erred in allowing the testimony of Officer

Angie Lane regarding what Vincere told her. This claim is also meritless.

       The "standard of review regarding the admissibility of evidence is an abuse of discretion.

'The admissibility of evidence is a matter addressed to the sound discretion of the trial court

and ... an appellate court may only reverse upon a showing that the trial court abused its

discretion' ... 'An abuse of discretion is not a mere error in judgment but, rather, involves bias,

ill will, partiality, prejudice, manifest tmreasonableness, or misapplication of law. '"

Commonwealth v. Collins, 70 AJd 1245, 1251 (Pa.Super. 2013), internal citations omitted.

       Pittsburgh Police Officer Angie Lane was the first police officer to arrive on the scene.

After the paramedics arrived and took over resuscitation efforts, she went to the children's'

bedroom, where another officer had found Vincere on a safety sweep of the apartment. It was

decided amongst the officers that Officer Lane would stay with Vincere. Upon entering the

room, Officer Lane spoke to Vincere, and she recounted the conversation as follows:

       Q.      (Ms. Pellegrini): So he rolled over and he said hi. What did you tell him?

       A.     (Officer Lane): I said, "Hello. My name is Angie and I'm a police
              officer. I heard there was a fight here and I just wanted to make sure that
              you're okay."

       Q.     What does he say?

       MS. MIDDLEMAN: Objection. Hearsay.

       MS. PELLEGRINI: May we approach?

       THE COURT: You may.

       (A discussion at sidebar was held as follows):

      MS. MIDDLEMAN:           My objection is that it's hearsay without an acceptable
      exclusion.



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MS. PELLEGRINI: Your Honor, I would argue that it's an excited utterance to
the child obviously.

THE COURT: Tell me this witness comes next?

MS. PELLEGRINI: She asks him what happened, that there was a fight and she
[sic] says no. Poppy and mom was fighting. Poppy was mad at Donovan and he
hit him with sticks.

THE COURT: Okay. I'll allow it.

Q.     I'm just going to ask you to repeat the last things you said. You wanted to
       make sure that he was okay.

A.     That's correct.

Q.     What did he say to you?

A.     At the point where the officers shut the door, that's when he rolled over
       and that's when I had approached him and said, "I just wanted to make
       sure you're okay," and told him I was there because we heard there had
       been a fight.

       He said, "I'm okay. I wasn't in the fight. The fight was between Donovan
       and Poppy."

Q.     What else does he tell you?

A.     I asked rum who Poppy was. He said that was his father. And he said
       Poppy came in and hit Donovan with sticks. And I can't even remember
       how many sticks he had. But he hit him with sticks until- he told me that
       Donovan had been crying, and he said eventually Donovan just stopped
       crying and he fell asleep up in the top bunk.

Q.     After he said Donovan fell asleep on the top bunk, did he tell you what
       else happened to Donovan?

A.     He said that-

MS. MIDDLEMAN: I ask -I'm sorry, Officer. I also object to this as hearsay as
well.

THE COURT: Okay. I'll ovelTule ...

Q.    So after he said that Donovan fell asleep, did he tell you what his Poppy
      did then?



                                       7
                                                                                Circulated 09/05/2014 03:01 PM




         A.          He said Poppy later came in and pulled him out of the bed and took him
                     out and laid him on our couch.

         Q.      Did you ask him, Vincere, where he was when this happened?

         A.      Vincere-

         Q.      Let me rephrase it. Did Vincere tell you that he stayed in the bedroom
                 when Poppy dragged Donovan out of the bed?

         A.      Yes. He did tell me that he had stayed in the bedroom.

 (T. T. p. 50-52).

         Rule 803 of the Pennsylvania Rules of Evidence states, in relevant part:

        Rule 803.          Exceptions to the Rule Against Hearsay - Regardless of Whether
                           the Declarant is A vailable as a Witness

                 The following are not excluded by the rule against hearsay, regardless of
                 whether the declarant is available as a witness:

                 ... (2)   Excited Utterance. A statement relating to a startling event or
                           condition, made while the declarant was under the stress of
                           excitement that it caused

Pa.R.Evid.803(2).

        "To corne within the excited utterance exception to the hearsay rule, a statement must be:

    'a spontaneous declaration by a person whose mind has been suddenly made subject to an

overpowering emotion caused by some unexpected and shocking occurrence, which that person

had just participated in or closely witnessed, and made in reference to some phase of that

occurrence which he perceived, and this declaration must be made so near the occurrence both in

time and place as to exclude the likelihood of its having emanated in whole or in part from his

reflective faculties.'... There is no precise rule as to the length of time passing between the

event and the alleged excited utterance ... except it must be 'so near the occurrence in both time

and place as to exclude the likelihood of its having emanated in whole or in part from his




                                                  8
                                                                                Circulated 09/05/2014 03:01 PM




 reflective faculties' ... Length of time is an element that must be weighed along with other

 considerations. It varies with the circumstances from case to case. It does not alone decide

 admissibility. The question is not how long one or when one is seized by an event, but rather

was he seized at all. Time itself is not dispositive and is determined, ad hoc, case by case."

 Commonwealth v. Watson, 627 A2d 785, 788 CPa.Super. 1993), internal citations omitted.

        Here, the evidence established that Vincere was in the home and witnessed the Defendant

beating Donovan repeatedly over the course of the day and then being dragged from his bed.

After witnessing the horrific beatings of his brother, Vincere hid under his covers. Officer Lane

was the first person who spoke to Vineere, and as soon as she did, he immediately recounted

what had happened.

        Given the circumstances, Vineere's statements clearly fell with the purview of the excited

utterance exception to the hearsay rule. The statements were made at Vineere's first opportunity

to speak to anyone outside of his family and they were made spontaneously, in response to

question about Vineere's own health and well-being. The statements made by the obviously

frightened child were not the product of reflected thought, and were, in fact, corroborated by the

Defendant's own confession. The statements were clear hearsay exceptions, and this Court was

well within its discretion in allowing their admission. This claim must fail.

3.     Medical Testimony of Drs. Rockacy and Conti and Social Worker Mary Thompson

        Next, the Defendant argues that this Court erred in allowing the testimony from medical

witnesses Drs. Rockacy and Conti and social worker Mary Thompson because their testimony

was both irrelevant and prejudicial. This claim is meritless.

       At trial, the Commonwealth presented the testimony of Dr. Douglas Rockacy, the Mercy

Hospital Emergency Room attending physician who resuscitated and treated Donovan, Mercy




                                                 9
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Hospital Social Worker Mary Thompson who documented Donovan's injuries, made a report of

suspected child abuse and helped arrange his transport to Children's Hospital and Dr. Kavitha

Conti, the Children's Hospital Emergency Room attending physician who treated and

resuscitated Donovan, documented his injurics and evcntually pronounced him dead.          Defense

counsel objected to their testimony as being both prejudicial and irrelevant:

       MS. MIDDLEMAN: I have a motion in limine with regard to the next three
       witnesses.

       My understanding is Dr. Rockacy, Mary Thompson and Dr. Conti will be
       testifying about efforts made to resuscitate Donovan at Mercy Hospital, and they
       will also be testifying about their observations regarding his i~uries.

       My objection is that we have Dr. Shakir to testify, who will be testifying in detail
       about each injury and how that injury contributed to the death of Donovan
       McKee.

       The testimony from the doctors who tried to save him will be merely repetitive in
       an effort to engage the emotion and sympathy of the jury.

       MS. PELLEGRINI: Judge, this child was not deceased at the time. Any medical
       treatment and efforts to save him and the docwnentation of his injuries at the time
       when he was treated are relevant to this case.

       THE COURT: I am constrained to agree with the Commonwealth, and the
       motion in limine is denied.

       MS. MIDDLEMAN: Thank you.

(T.T. p. 99-100).

       The admission of evidence      IS   controlled by Rule 402 of the Pennsylvania Rules of

Evidence, which states:

       Rule 402.      General Admissibility of Relevant Evidence

               All relevant evidence is admissible, except as otherwise provided by law.
               Evidence that is not relevant is not admissible.

Pa.R.Evid. 402.




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         "In determining the admissibility of evidence, the trial court must decide whether the

evidence is relevant and, if so, whether its probative value outweighs its prejudicial effect. ..

 'Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a

fact at issue more or less probable, or supports a reasonable inference or presumption regarding

the existence ofa material fact.'" Commonwealth v. Hawk, 709 A.2d 373, 376 (Pa. 1998). As

noted above, the admission of evidence is within the discretion of the trial court. See Collins,

supra.

         At the time Drs. Rockacy and Conti and Ms. Thompson treated and assessed Donovan's

injuries, he was still alive thus, as Ms. Pellegrini pointed out, their testimony forms part of the

nalTative of the events leading to Donovan's death.       A careful examination of their testimony

reveals that it is not cumulative, but rather concerned each of their individual roles in Donovan's

treatment

         Neither was the testimony of any of the three particularly graphic or gratuitous.

Donovan's new or recent injuries as they appeared upon his arrival to the hospital were relevant

to the beatings he sustained and the cause of his death, and the old injuries were similarly

relevant to the endangerment count, which was charged as a course of conduct.

         As discussed more fully below (see Issue #5, below), the guilty finding at third degree

murder demonstrates that the jury was not prejudiced or otherwise so affected by the testimony

as to be unable to render a lesser verdict than that which the evidence clearly supported. The

testimony of Drs. Rockacy and Conti and of Ms. Thompson was relevant, non-prejudicial and,

thus, clearly admissible and this Court did not err in allowing it. This claim must fail.




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4.      Post-Arrest Silence

        Next, the Defendant argues that the Commonwealth erred in eliciting testimony regarding

thc Defendant's post-arrest silence, and that this Court erred in denying a mistrial in that regard.

Though the Court sustained the Defendant's objection to the testimony, it did not err in denying

a mistrial. This claim is rneritless.

        Pittsburgh Police Officer Brandon Nee was one of the officers on the scene and

eventually transported the Defendant to the Zone 3 Headquarters. During Ms. Pellegrini's direct

examination of Officer Nee, the following occurred:

        Q.      (Ms. Pellegrini): At some point did it become your responsibility with
                your partner Officer Connelly to transport the defendant in this case back
                to headquarters?

       A.       (Officer Nee): Yes.

       Q.       Was he allowed to put clothing on?

       A.       Yes.

       Q.      And how did you transport him? Did you have a marked vehicle?

       A.       Yes, we had a marked Chevy Impala.

       Q.      And he was placed in the back?

       A.      Correct.

       Q.      And how long do you think it would take to get from the Knox Avenue
               address to headquarters on the North Side?

       A.      It was five to ten minutes. It was raining out.

       Q.      When you took the defendant out of the building, the Knox Avenue
               building, had Donovan been taken away by paramedics yet?

       A.      Yes.

       Q.      Do you know where Vincere was?




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                                                                        Circulated 09/05/2014 03:01 PM




 A.      I'm not surc where he was at that time.

 Q.      And do you know where Cynthia was?

 A.      Yes.

 Q.      Was she still in the building, in the apartment building?

 A.     Yes, she was.

 Q.     During that five to ten minute ride, did the defendant say anything to you?

 A.     No.

 Q.     Did he ever once ask about Donovan?

A.      No.

Q.      Did he ever ask?

MS. MIDDLEMAN: Your Honor, I object to this and ask that we approach.

THE COURT: You may.

(A discussion was held at sidebar as follows):

MS. MIDDLEMAN: He was handcuffed and placed in a police car. He was
under arrest. He said nothing. He didn't ask any questions. That's post-arrest
silent [sic].

He doesn't - he has the right to remain silent at that JXlint.

THE COURT: I agree. You can't comment on his silence.

MS. PELLEGRINI: Okay.

THE COURT: I can give them a cautionary instruction, however I think: it will
just make it more obvious. Plus the truth is, it apparently was a statement made
eventually.

MS. MIDDLEMAN: Yes, but-

TJ-JE COURT: I mean if you want me to, I can caution them.

MS. MIDDLEMAN: No, I think a cautionary instruction would just draw more
attention, but I think -



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           THE COURT: 1 agree.

           MS. MIDDLEMAN: -if I don't ask for a mistrial- so I have to ask for a mistrial.

           THE COURT: I'll deny a mistrial.

           MS. MIDDLEMAN: Okay. Thank you.

 (T.T. p. 75-77).

           Generally speaking, "a trial court is required to grant a mistrial only where the alleged

prejudicial event may reasonably be said to have deprived the defendant of a fair and impartial

trial...    Review of a trial court's denial of a motion for a mistrial is limited to determining

whether the trial court abused its discretion. An abuse of discretion is not merely an error of

judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-

will ... discretion is abused. A trial court may grant a mistrial only where the incident upon which

the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a

fair trial by preventing the jury from weighing and rendering a true verdict. A mistrial is not

necessary where cautionary instructions are adequate to overcome prejudice." Commonwealth

v. Fortenbaugh, 69 A3d 191, 193 (Pa. 2013), internal citations omitted.

           Our Courts have been "consistent in prohibiting the post-arrest silence of an accused to

be used to his detriment." Commonwealth v. Maury, 992 A.2d 162, 176 (Pa.Super. 2010).

However, "if the Conunonwealth mentions a defendant's post-arrest silence, the court might still

be able to cure any prejudice through prompt and adequate cautionary instructions...              To

evaluate whether cautionary instructions can cure a reference to a defendant's post-arrest silence,

'court must consider (1) the nature of the reference to the defendant's silence; (2) how it was

elicited; (3) whether the district attorney exploited it; and (4) the promptness and adequacy of the




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cautionary instructions... If the reference to the defendant's silence was such that it incurably

compromised the jury's objectivity and would deprive the defendant of a fair trial, then the court

should grant a mistrial. .. A reference to a defendant's postMarrest silence could also constitute

harmless error... The reference is harmless error if: the appellate court concluded beyond a

reasonable doubt that the eITor could not have contributed to the verdict. If there is a reasonable

probability that the eITor may have contributed to the verdict, it is not harmless. In reaching that

conclusion, the reviewing court will find an error harmless where the uncontradicted evidence of

guilt is so overwhelming, so that by comparison the eITor is insignificant. If a reference to a

defendant's postMan'est silence is hannless eITor, then a new trial is not warranted." rd.

       Although the Defendant is correct that the Commonwealth did improperly refer to his

postMarrest silence, it is also clear from the record that the reference was merely a harmless error.

The line of questioning was quickly objected to by defense counsel, so the reference to his

silence was minimal.     In contrast to the overwhelming evidence of the Defendant's guilt -

including his own confession - the brief reference was minor in comparison. Reviewing the

record in its entirety, there is no reasonable argument that this brief reference caused or

contributed to the guilty verdict in any way.

       It also bears mention that this Court offered to give a cautionary instruction, but that

defense counsel declined because she felt it would draw more attention to the reference.

Although this Court feels her strategy was sound and her decision wise, it was willing to give the

instruction and would have done so had she requested.

       Ultimately, it is clear that while the Commonwealth did eIT in commenting on the

Defendant's postMaaest silence, that error was harmless and did not rise to the level of prejudice




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 such that a mistrial was required. This Court was well within its discretion in denying defense

 counsel's request for a mistrial. This claim must fail.

 5.      Autopsy Photos

         The Defendant next argues that this Court erred in admitting the autopsy photos because

 they were more prejudicial than probative and were only used to inflame the passions of the jury.

 This claim is meritless.

        It is well-established that "photographs of a murder victim are not per se inadmissible and

 it is a decision within the sound discretion of the trial court. Only an abuse of discretion will

constitute reversible error." Commonwealth v. Funk:, 29 A.2d 28, 32 (Pa.Super. 2011). "When

considering the admissibility of photographs of a homicide victim, which by their very nature

can be unpleasant, disturbing and even brutal, the trial court must engage in a two-step analysis:

First a [trial]   COUlt   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. Ifthe 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." Commonwealth v. Johnson, 42 A.3d 1017, 1033-4 (Pa. 2012).

        Photographs may be admitted when they are "probative of the element of specific intent

to kill." Commonwealth v. Bro\Vll, 711 A.2d 444, 453 (Pa. 1998). As our Supreme Court held

in Commonwealth v. Rush, 646 A.2d 557 (Pa. 1994), "the condition of the victim's body

provides evidence of the assailant's intent, and, evcn where the body's condition can be

described through testimony from a medical examiner, such testimony does not obviate the

admissibility of photographs." Commonwealth v. Rush, 646 A.2d 557, 560 (Pa. 1994). In that

case, the Court noted that "although there was testimony [rom a medical examiner regarding the




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condition of the victim's body, admission of the photographs was well grounded. The photos

served to provide the jury with a better understanding of the crime scene. They also exposed the

malicious manner in which the murder was committed. The jurors, by gaining insight into the

full extent of the harm wrought, were placed in a better position to assess the nature and intent of

the crime's perpetrator. 'A jury can often best perform its function if it has not been unduly

insulated from gaining a full understanding ofthe crime itself. ", rd.

       Here, the Commonwealth introduced a number of autopsy photographs depicting the

numerous injuries covering Donovan's body over defense counseJ's objection. After reviewing

the photographs and some discussion with counsel, this Court found that the photographs were

not repetitive or overly gruesome so as to render them prejudicial, but requested that one

photograph of the victim's entire body be cropped:

       THE COURT: Okay. I would say certainly there are enough of them. One of the
       victim nude, his genitals are blacked out covered up.

       MS. MIDDLEMAN: Yes, Your Honor.

       THE COURT: There's only one. The rest of them, although there are a ton of
       them, do not seem to be particularly repetitive.

       I would point out for the record that the excess blood, if there was any that
       existed, has been wiped away, and I do think they have probative value. So your
       objection will be overruled.

       ". THE COURT: I don't think this one is necessary.

       MS. PELLEGRINI: The first one?

       THE COURT: Yes.

       MS. PELLEGRINI: That's fine. I can take that out.

      THE COURT: I'm going to exclude the first one with the genitals covered. I
      think there arc enough that the rest of them - it's just a little shocking.




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MS. PELLEGRINI: Right. Just so the Court is aware that the reason that I chose
and I would argue to use it, and I'll go back and double check, and I might have
another photograph, is there's one distinct bruise on his chest that the doctor is
going to say could have been caused by the two-by-two.

THE COURT: He can probably testify to that, and if there's no problem with the
cross -

MS. PELLEGRINI: What if] cropped the picture?

THE COURT: Yeah, crop it like from the hips down. We are going to crop No.
 1.

MS. MIDDLEMAN: Your Honor, there are photographs of every part of that
child's body, and I understand the boy laying on the cold, hard, metal autopsy
table - I understand that the prosecution would like to present that so the jury can
be upset and inflamed -

MS. PELLEGRINI: No.

MS. MIDDLEMAN: - but that's the only real evidentiary value that that has,
because we have separate photographs of his head and his arms and his chest. We
don't need that one.

MS. PELLEGRINI: Okay, first of all, just for the record, I'm not using these
photographs to inflame the emotions of the jury.

MS. MIDDLEMAN: I apologize.

THE COURT: Speak to me.

MS. MIDDLEMAN: There's the risk that it will inflame. I apologize for that
characterization. I did not mean it in that manner.

MS. PELLEGRINI: I will make every attempt, Your Honor, to crop the first
photograph.

THE COURT: Thank you ...

 ... MS. MIDDLEMAN: But I would just on the first autopsy photograph - I
apologize to the Court and Ms. Pellegrini, it has the potential [or inflaming the
jury and it isn't necessary.

THE COURT: It is what it is and the jury can be inflamed by most of the
evidence that the Commonwealth has prcsented herc.




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        So I was inclined to allow the first photograph in anyhow, but I do think since he
        was a young child, that I would prefer that it be cropped.

        MS. PELLEGRINI: Sure. I'll see what we can do.

        THE COURT: Thank you. Get a pair of scissors and cut it off.

(T.T. p. 179-182).

        The nature of this case - where Donovan was beaten to death by many blows to many

parts of his body - makes photographs of his body and injuries particularly important. Much as

in the Rush and Brown cases, above, the bruises, scars and gashes on Donovan's body were the

visual manifestation of the Defendant's intent, and it was important for the jury to have an image

of the damage and injury the Defendant caused. Even though the Defendant admitted to the

beatings, his defense attempted to mitigate or excuse his actions by discussing his bad childhood

and his psychiatric diagnoses. The photographs were necessary for the jury to envision the intent

involved in the infliction of so many blows.

        It is also significant that the Defendant was convicted of third-degree murder, rather than

first-degree. To this Court's mind, the evidence presented clearly demonstrated the malice and

specific intent necessary to support a conviction of first-degree murder. The fact that the jury

instead retwned a verdict of third-degree murder indicates that they were not overly prejudiced

or in any way overcome with emotion such that they were unable to render a fair verdict. The

photos clearly did not influence the jury's verdict or prejudice them in any way. As this Court

has often stated, all evidence presented by the Conunonwealth is, by its very nature, prejudicial

to the Defendant. The photos were certainly not more prejudicial than any of the other evidence

and this Court \vas well within its discretion in permitting their admission. This claim must fail.




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6,      Crime Scene Photos

        Finally, thc Defendant argues that this court erred in admitting photographs of the blood

stains throughout the apartment because the police never tested the stains to establish they were

actually blood, This claim is meritless.

        During the testimony of Homicide Detective Scott Evans, the Commonwealth introduced

a number of photographs of blood splatter and staining throughout the apartment and in

Donovan's bedroom. During Detective Evans' testimony, it was revealed that the mobile crime

unit did not process the various blood stains, even though they had been requested to. By the

time it was discovered months later, the scene had already been released.

       At trial, Detective Evans viewed various photographs and identified what appeared to be

blood ~ though he could not state with certainty that it was blood:

       Q.       (Ms. Pellegrini): What about the wall?

       A.       (Det. Evans): There appeared to be staining, bloodstaining along this wall,
                blood splatter.

       MS. MIDDLEJ\1AN:          I object to the Detective's conclusion that that's
       bloodstaining unless it was tested.

       THE COURT: I think he said it appeared to be. So I'll overrule the objection ... '

       ... Q.   Beginning with Commonwealth Exhibit 26, what do you         ~   what do you
                see?

       A.       In the hallway area here on the base molding, there appears to be a free
                falling blood drop on the base molding.

       Q.       Commonwealth Exhibit No. 27?

       A.       What appeared to bc blood smearing on the walls and the molding of the
                doorway leading into the batlrroom" .

       ... MS. MIDDLEMAN: Your Honor, can we approach?

       THE COURT: Yes.



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        (A discussion at sidebar was held as follows):

        MS. MIDDLEMAN: Given that the prosecution has elicited evidence that these
        suspicious looking stains were never analyzed and never tested and never
        swabbed, it would appear that they are unable to prove that they were blood.

        Even if they were able to prove that they were blood or had the look of blood,
        they can't prove whose blood it was or how long it was there. Therefore, making
        them irrelevant to the case.

        So I make a motion in limine with regard to photographs and conversation and
        discussion about the mysterious stains in the apartment.

        THE COURT; I think as long as we go with what appears to be blood or browo-
        red stains, then the jury can draw their own conclusions. Your objection is
        overruled.

(T.T. p. 89, 91-2, 93).

       A review of the record reveals that there was no testimony that the stains actually were

blood, merely that they appeared to be blood to a homicide detective with many years of

experience. This distinction was carefully made throughout the testimony. Although the blood

was not tested to detennine its origin, that it was Donovan's is a fair assumption since he was the

only person with open wounds in that apartment, he had just been subjected to a series of violent

beatings and his blood was found on the broken 2x2 used in the beatings and on the bed sheets

immediately near and directly below the bedroom blood spatter (See T.T., p. 173-174, 200-201).

       This argument is somewhat disingenuous given defense counsel's admission in her

closing argument. She stated:

       MS. MIDDLEMAN: Things happen because they happen. Not because they're
       somebody's fault or that it even makes a difference. But it is what it is.

       The detective on this case said, "I told them to test for blood. They didn't test for
       blood. I'm sorry."

       I'm not saying it's not blood. I'm not a moron. It's probably blood. But we
       don't know whose. We don't know how long. 1 suspect it's a reasonable
       inference that it's Donovan's blood.



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(T.T. p. 459). Although Ms. Middleman qualified her statement by saying "we don'! know

whose. We don't know how long," she admits it was a reasonable inference to conclude that the

stains were blood and that the blood was Donovan's - just as this Court allowed the jury to draw

their O\VIl conclusions from the evidence.

       Ultimately, as with the other evidentiary issues, the evidence is relevant and clearly more

probative than prejudiciaL     As the Rush Court noted, the photos give the jury a better

understanding of both the crime scene and how the murder was committed. See Rush, supra. As

discussed repeatedly, above, had the jury been so overcome with emotion or blinded by prejudice

caused by this testimony, they would certainly not have been able to return a verdict to the third-

degree homicide charge. This Court was well within its discretion in allowing the testimony and

photographs. This claim must fail.

       Accordingly, for the above reasons of fact and law, the judgment of sentence entered on

April 29, 2013 must be affirmed.



                                             BY THE COURT:




   January 22, 2014




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