J-A05003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

BOHDAN CHAC,

                         Appellant                   No. 2830 EDA 2014


          Appeal from the Judgment of Sentence of May 19, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008766-2012


BEFORE: OLSON AND OTT, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                              FILED APRIL 14, 2016

      Appellant, Bohdan Chac, appeals from the judgment of sentence

entered on May 19, 2014, as made final by the denial of Appellant’s post-

sentence motion on September 29, 2014. We affirm.

      The able trial court has thoroughly summarized the evidence that was

presented during Appellant’s jury trial. As the trial court explained:

        On May 6, 2012, at around 10:00 p.m., [Appellant] shot
        and killed Linda Raudenbush as she came down the stairs
        from the second floor of 3302 Fairdale Road in Philadelphia.
        [Appellant] shared this residence with Ms. Raudenbush, his
        common-law wife, and their [26-year-old] son, David Chac.
        In November 2011, [18-year-old] Sara Ayyash moved into
        this residence as [Appellant’s] girlfriend against the wishes
        of her mother, Angela Garland. Ms. Ayyash had been
        communicating with [Appellant] on Facebook since May
        2010. At that time, [Appellant] was around [55] years old
        and Ms. Ayyash was [16] years old. Their relationship
        turned sexual in November 2010 when Ms. Ayyash began to
        electronically send [Appellant] pornographic photographs
        and videos. [Appellant] was partially paralyzed and Ms.

*Former Justice specially assigned to the Superior Court.
J-A05003-16


       Ayyash helped care for him during the period they lived
       together.

       During the period she lived with [Appellant], Ms. Ayyash
       was permitted to visit her mother about three [or] four
       times. In fact, she had visited her mother the weekend
       before the murder. On May 6, 2012[,] Ms. Ayyash returned
       to [Appellant’s] residence and found him and Ms.
       Raudenbush in the middle of an argument.            At some
       point[,] Ms. Ayyash got involved in the argument and threw
       a book at [Appellant] after he insulted her. When Ms.
       Ayyash approached [Appellant], he pulled her hair. Ms.
       Raudenbush then approached [Appellant] and bit his foot.
       Shortly thereafter, Ms. Ayyash and Ms. Raudenbush
       retreated upstairs.     Later, Ms. Raudenbush went back
       downstairs to continue the argument.             When Ms.
       Raudenbush reached the bottom of the stairs, she leaned
       toward [Appellant] and yelled at him.          In response,
       [Appellant] sat upright in his hospital bed, extended his
       right arm, pointed his gun at Ms. Raudenbush and shot her
       in the left chest. Ms. Raudenbush fell forward on the stairs.

       On May 6, 2012, at about 10:22 p.m., Police Officer Robert
       Francisco responded to a radio call about a person
       screaming at 3302 Fairdale Road. Within minutes, Officer
       Francisco arrived on location and encountered Rowena
       Wolfe-Paupst, who had called 911 after observing Ms.
       Ayyash waiving a white rag from inside the second floor
       bedroom window of the residence. Officer Francisco exited
       the vehicle, looked up at the window and saw Ms. Ayyash
       screaming and waiving the white rag. He attempted to
       communicate with Ms. Ayyash while she was in the window,
       but he could not understand her responses. Given the
       apparent urgency, Officer Francisco opened the unlocked
       front door and went inside. He announced his presence as
       he walked into the hallway, but did not receive any
       response.

       As Officer Francisco continued to walk down the hallway[,]
       he saw [Appellant] who was sitting upright in his hospital
       bed inside the living room, wearing a green Phillies T-shirt.
       Officer Francisco stated: “[t]here is a woman waving a rag
       upstairs at the window for help. What’s going on here?”
       [Appellant] stated that he did not know what happened

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       because he had been asleep. Once inside the living room,
       Officer Francisco saw the deceased, Ms. Raudenbush, lying
       on the stairs with blood all over the front of her dress. Ms.
       Raudenbush’s body was at the bottom of the stairs leading
       to the second floor, about five or six feet away from
       [Appellant’s] bed. Her feet were touching the stairs, and
       her upper body was wedged between the wall and a second
       hospital bed which was covered with clutter.           Officer
       Francisco immediately called rescue.

       Officer Francisco then saw Ms. Ayyash standing at the top of
       the stairs and asked her to come downstairs to tell him
       what happened. She replied that the victim shot herself.
       Ms. Ayyash told Officer Francisco that she did not see Ms.
       Raudenbush shoot herself, but that she had heard the
       gunshots. Officer Francisco then asked Ms. Ayyash why she
       had not called [the] police, and she replied that she was too
       scared to call. Later, when Detective Gross responded to
       the scene and asked Ms. Ayyash if she had heard gunshots,
       she told him no. Officer Francisco then confronted Ms.
       Ayyash about this inconsistency, and she responded that
       she did hear gunshots. Immediately after Ms. Ayyash’s
       reply, [Appellant] said: “[y]ou didn’t hear a gunshot. I had
       the movie Scarface on and that’s what you heard. You
       didn’t hear any gunshot.” Officer Francisco again asked
       [Appellant] if he had heard or seen anything and [Appellant]
       cavalierly responded: “[n]o, I don’t know anything about
       it.” [Appellant’s] son was not home and Officer Francisco
       did not see anyone else inside the house. At trial, Detective
       Joseph McDermott, the assigned homicide investigator,
       stated that a video obtained from a Rite Aid store located at
       Academy Avenue and Byberry Road showed the son
       entering [the Rite Aid] at 9:53 p.m. and exiting at 10:02 or
       10:06 p.m. Detective McDermott [testified] that David
       Chac then walked “quite a distance” to return home.

       When the medics arrived to care for the victim, Officer
       Francisco observed a black gun, later identified as a CZ75
       [nine-millimeter] semi-automatic black pistol, lying upside
       down on the second hospital bed on the room. Officer
       Francisco secured the gun while Ms. Raudenbush received
       medical attention. The gun was later submitted to the
       Firearms Identification Unit for examination. . . .


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       At 10:45 p.m., Linda Raudenbush was pronounced dead
       inside the residence. At trial, Dr. Marlon Osbourne testified
       as an expert in forensic pathology. After performing an
       autopsy on the victim’s body, Dr. Osbourne concluded to a
       reasonable degree of medical certainty that the cause of
       death was one gunshot wound to the chest. The bullet
       perforated Ms. Raudenbush’s left lung, heart, and aorta.
       The bullet entered her left chest cavity and fractured her
       fourth and fifth rib anteriorly. The bullet then lacerated the
       upper lobe of her left lung and traveled through the left
       ventricle of her heart. The bullet further lacerated her
       thoracic aorta and traveled into her eighth thoracic
       vertebra, where a fragment was retrieved. There was no
       exit wound on her body.          Due to these injuries, Ms.
       Raudenbush was bleeding internally and she had one liter of
       clotted and liquid blood inside her left chest cavity.

       After performing the autopsy, Dr. Osbourne further
       concluded to a reasonable degree of medical certainty that
       the manner of death was homicide, and not suicide or
       accident. Dr. Osbourne opined that the path of the bullet in
       the victim’s body was consistent with testimony that the
       victim went to the bottom of the stairs and leaned over
       toward [Appellant] before she was shot. Dr. Osbourne also
       observed that the gunshot wound was an irregular ovoid
       shape and had no soot, stipple[,] or muzzle imprint around
       it. He explained that soot, a black stain, is present when
       the muzzle of a gun is within six inches to one foot from the
       victim’s body. Stipple, an abrasion on the skin or hole in
       the clothing, is present when the muzzle of the gun is within
       two and one-half to three feet from the victim’s body. A
       muzzle imprint is present once a gun has been pressed
       against the victim’s skin. Because there was no soot,
       stipple[,] or muzzle imprint around Ms. Raudenbush’s
       gunshot wound, Dr. Osbourne concluded that the muzzle of
       the gun was farther than two and one-half to three feet
       away from the victim because one or all three of these
       indicators would have been present had the victim
       committed suicide.       For these reasons, Dr. Osbourne
       concluded that a suicide had not occurred in this case.

       During the autopsy, Dr. Osbourne performed a toxicology
       test on Ms. Raudenbush and discovered 70 micrograms per
       deciliter of ethanol, less than 50 micrograms per liter of

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       codeine, and less than 30 micrograms per liter of
       alprazolam (Xanax). Dr. Osbourne found that the alcohol in
       the victim’s body was less than the legal driving limit and
       that the levels of alprazolam and codeine were minimal.
       Consequently, Dr. Osbourne concluded to a reasonable
       degree of medical certainty that the drugs and alcohol found
       in Ms. Raudenbush’s body did not contribute to her death.

       On May 7, 2012, at about 7:00 a.m., Police Officer Terry
       Tull arrived at the crime scene and began to take
       photographs. When Officer Tull went inside the residence,
       he encountered a cluttered living room containing two
       hospital beds. [Appellant] was sitting on one hospital bed,
       about seven feet away from the foot of the stairs where the
       victim’s body was located. The other hospital bed was
       covered with clutter. Ms. Raudenbush’s body had been
       slightly repositioned by responding medics who had
       attempted to resuscitate the victim. The dining room was
       impassable because it was piled high with clutter. Officer
       Tull further observed two bullet holes in the first floor ceiling
       of the main hallway that led to the living room. Given the
       cluttered state of [Appellant’s] house, Officer Tull used
       trajectory probes to determine the path the bullets traveled.
       Based on his training and experience, Officer Tull
       determined that the trajectory probes pointed toward
       [Appellant’s] bed. As a result, Officer Tull concluded that
       the gun was fired from [Appellant’s] bed.

       A search warrant was obtained for the residence. However,
       both Ms. Ayyash and David Chac, who arrived at some point
       after the murder, were transported to Northeast Detectives
       to be interviewed before it was executed. [Appellant] was
       transported to Aria Torresdale Hospital due to his medical
       condition.    Before [Appellant] was transported to the
       hospital, Detective John Hopkins retrieved the green Phillies
       T-shirt and the red shorts that [Appellant] had worn on the
       day of the murder. These items were bagged separately
       and submitted to the forensics laboratory for gunshot reside
       testing. After [Appellant] was transported to the hospital,
       Detective Hopkins recovered one blue comforter, two bed
       sheets, and one pillow from [Appellant’s home] hospital
       bed. These items were bagged separately and submitted to
       the forensics laboratory for gunshot residue testing. He
       also recovered a black Action Arms pistol case for the CZ75

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         [nine-millimeter] pistol and one metal magazine containing
         a [nine-millimeter] round.        Officer Tull then moved
         [Appellant’s] bed and the surrounding clutter and began to
         search for projectiles.     Officer Tull found three fired
         cartridge casings under the rear of [Appellant’s] bed. Two
         of the fired cartridge casings were about one and one-half
         feet apart from each other. No other fired cartridge casings
         were recovered from the residence.

         On May 7, 2012, at 11:54 a.m., Detective Tim Lynch
         interviewed [Appellant] while he was inside an emergency
         room treatment cubicle. Detective Hopkins and Sergeant
         Hendershot were also present.        During this interview,
         [Appellant] appeared alert and answered the detective’s
         questions. He did not appear to be under the influence of
         drugs.    After the interview, Detective Lynch provided
         [Appellant] the opportunity to review the written statement.
         However, [Appellant] refused to sign the statement.1 . . .
____________________________________________


1
  On May 7, 2014, the following questions were asked by Detective Lynch
and answered by [Appellant]:

         Detective Lynch: What happened last night in your home?

         [Appellant]: Sara got home around 5:00 p.m. or 6:00 p.m.
         My wife tried to grab some of my pills. It was some of my
         Ambien and my Tylenol 4. I was getting a bath from my
         son at that time. She came to get the pills and I pushed
         her away with my right foot. She bit my foot. My son told
         her to go away. She went upstairs. She had hit me in the
         face with something. After she left I noticed that I had a
         bloody nose. I yelled up to her that I was going to act on a
         letter that I got from the 8th District. The letter said the
         police knew I was being abused. I also told her I was going
         to call the [D.A.] I took [two] Xanax [and] an Ambien. I
         tried to get YouTube on to put me to sleep. I just woke up
         a while later. I noticed a Scarface clip was playing and
         music playing. I was trying to go back to sleep. I got
         woken up by a police officer who was knocking and he came
         in. Before I fell asleep I sent my son to Rite Aid. I had
         [two] guns near me when I went to sleep. As far as I know
         neither had bullets in them. I took the bullets out.
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)


         Detective Lynch: Which guns did you unload?

         [Appellant]: Smith [and] Wesson Bodyguard .38 (snub
         nose, shroud hammer, nickel, brown wood handle) C[Z]75
         []9mm (black auto).

         Detective Lynch: Did you unload the guns yourself?

         [Appellant]: Around [two] weeks ago I pulled out the clip of
         the CZ75. If I felt danger at night sometimes I put the clip
         back in.

         Detective Lynch: Are you able to unload the gun and clear
         the chamber by yourself?

         [Appellant]: I can unload it, but not clear the chamber. My
         left hand doesn’t work.

         Detective Lynch: Was the CZ75 loaded last night?

         [Appellant]: I thought it was unloaded. It’s possible I may
         have put the clip in [two] days ago.

         Detective Lynch: When was the last time you saw Linda
         alive?

         [Appellant]: When she went upstairs.

         Detective Lynch: What time was that?

         [Appellant]: Early evening. I’m not sure.

         Detective Lynch: Where did you put the CZ75 magazine
         when you remember taking it out?

         [Appellant]: On the left of the bed. Down in a drawer thing.

         Detective Lynch: Where was the CZ75?

(Footnote Continued Next Page)


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          On May 14, 2012, at 11:50 a.m., Detective McDermott
          interviewed [Appellant] inside his residence.    Although
          [Appellant] was not under arrest, [] Detective McDermott
          read him his [Miranda2] rights. [Appellant] indicated that
          he understood the warnings. He also appeared coherent,
          alert, and able to understand English. [Appellant] did not
                       _______________________
(Footnote Continued)

          [Appellant]: In a box on my right side on the bed next to
          me.

          Detective Lynch: Was it within reach?

          [Appellant]: Yes.

          Detective Lynch: Did you hear any gunshots last night?

          [Appellant]: Yes. When I woke up I heard them on
          YouTube. There were a lot of shots at the end of the movie.

          Detective Lynch: How do you think Linda was shot?

          [Appellant]: I have no idea. I don’t know if someone came
          in and tried to shoot her and maybe she got shot.

          Detective Lynch: Did you fire your CZ75 last night?

          [Appellant]: No.

          Detective Lynch: When was the last time you did fire a gun?

          [Appellant]: Years ago.

          Detective Lynch: Is there anything else that you want to
          add?

          [Appellant]: No.

[N.T. Trial, 5/14/14, at 146-150 (some internal brackets omitted); see also
Commonwealth’s Exhibit 27].
2
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                            -8-
J-A05003-16


         state at any point during this interview that he wished to
         invoke his right to a lawyer or right of silence. When the
         detectives first arrived at the residence, [Appellant] paid
         them no attention. Instead, [Appellant] used his computer
         until he was asked to focus on the interview.            While
         [Appellant] used his computer, Detective McDermott
         observed that [Appellant] had full use of the right side of his
         body. He moved the computer mouse and wrote inside a
         notepad with his right hand and pulled himself upright with
         his right arm. [Appellant] also used his right hand when he
         pointed and told Detective McDermott where he kept his
         gun. During the interview, [Appellant] closed his eyes when
         he was asked about the murder.             He also had no
         explanation for the bullet holes in the ceiling. Conversely,
         [Appellant] responded to questions pertaining to what
         occurred before and after the murder. Detective McDermott
         interviewed [Appellant] for about one hour. When Detective
         McDermott returned to his office, he memorialized this
         interview in a memorandum.3            During the informal

____________________________________________


3
 Detective McDermott summarized [Appellant’s] account of what happened
before the incident:

         He had said that him and Linda were fighting all day, and
         that Linda and Sara went upstairs. And then he used to
         keep his CZ pistol next to him for protection. And then next
         thing he remembers was the police waking him up. He
         doesn’t know – the police officer says there is a woman
         laying over here. This is what the police officer – I don’t
         think that’s in here – that the police officer woke him up
         and said something about a woman laying there, and he
         couldn’t see over there.

         Then I said something about Sara saying something about
         him hollering up. That’s when he closed his eyes. Then he
         was saying about the Scarface movie being on, and he
         doesn’t remember how it got on, and that must have been
         the gunshots. Then I asked him about the bullet holes that
         were in the ceiling and he didn’t know nothing about that.

[N.T. Trial, 5/15/14, at 119-120; see also Commonwealth’s Exhibit 29].



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       interview, [Appellant] denied the detective’s request to
       submit to a formal interview.

       Ms. Ayyash provided five different statements to police
       concerning this incident. On May 7, 2012, at 3:00 p.m.,
       Ms. Ayyash was interviewed by Detective Lynch at
       Northeast Detectives.     In that statement, Ms. Ayyash
       asserted that she did not know what happened and that she
       did not hear anything. During that interview, the detectives
       confiscated Ms. Ayyash’s gray short sleeve T-shirt,
       sweatpants, and underwear. These items were bagged
       separately and submitted for gunshot residue testing. On
       that same day, at 2:30 p.m., Ms. Ayyash was interviewed a
       second time by Detective Lynch. In that statement, Ms.
       Ayyash told Detective Lynch about the argument that
       occurred before the shooting.       Ms. Ayyash also told
       Detective Lynch that she heard two “quick pops” after Ms.
       Raudenbush went down the stairs. Ms. Ayyash stated that
       she was at the top of the stairs when she heard this noise.
       Ms. Ayyash also stated that she asked [Appellant] “What did
       you do?” after observing the decedent half standing and half
       slumped at the base of the stairs. She told Detective Lynch
       that [Appellant] stated to her: “Shut the fuck up.” In
       response, she told [Appellant] that she would not say
       anything and asked him why he did it. She then ran into a
       bedroom, shut the door and waved the white rag out of the
       second floor window for help.

       At 6:55 p.m., Ms. Ayyash gave a third statement. During
       this interview, she provided details about her relationship
       with [Appellant] and identified [Appellant] from a
       photograph. On May 17, 2012, at 2:50 p.m., Ms. Ayyash
       gave a fourth statement to Detective McDermott, and
       Detective (now Sergeant) Vince Rodden. After being shown
       a photograph from the crime scene, Ms. Ayyash marked “X”
       where [Appellant] normally kept his semi-automatic gun
       and marked “G” where [Appellant’s] gun was found after
       the shooting. On October 26, 2012, at 6:00 p.m., Ms.
       Ayyash gave a fifth statement to Detective McDermott. In
       that statement, Ms. Ayyash said that she saw sparks fly
       from the gun. On July 25, 2012[,] Ms. Ayyash testified at
       [Appellant’s] preliminary hearing that she and Ms.
       Raudenbush drank alcohol after they retreated upstairs
       following the argument. At trial, Ms. Ayyash stated for the

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J-A05003-16


       first time that she saw [Appellant’s] arm extended before
       hearing gunshots and seeing Ms. Raudenbush fall forward
       on the stairs. She also stated that [Appellant] threatened
       her when she was at the top of the stairs, telling her that
       she was next. Ms. Ayyash explained that she had received
       counseling after providing the detectives her statements
       and testifying at the preliminary hearing and that she now
       wanted to “tell the whole truth.”

       At trial, Police Officer Ronald Weitman testified as an expert
       in firearms and ballistics testing. He received the ballistics
       evidence and prepared a report after conducting an
       examination. The CZ75 semi-automatic [nine-millimeter]
       Luger gun contained 12 live [nine-millimeter] Luger
       cartridges inside even though it had the capacity to hold
       [17] cartridges.       In addition to confirming the gun’s
       operability, Officer Weitman found that it loudly fired bullets
       in close quarters. Officer Weitman also received the three
       [nine-millimeter] Luger fired cartridge casings expelled from
       the CZ75 gun when it was test-fired. He found that the
       fired cartridge casings were similar to each other. He also
       discovered that the fired cartridge casings ejected to the
       right and to the rear when the gun was fired.            After
       analyzing this evidence, Officer Weitman concluded to a
       reasonable degree of scientific certainty that the three fired
       cartridge casings recovered from [Appellant’s] residence
       were fired from the CZ75 semi-automatic gun.

       Officer Weitman further concluded to a reasonable degree of
       scientific certainty that the ballistics evidence was
       consistent with testimony that [Appellant] extended his
       right hand, held the gun, and shot the victim. Officer
       Weitman based his conclusion on the trajectory probes that
       pointed toward [Appellant’s] bed, the location of the three
       fired cartridge casings found behind [Appellant’s] bed, and
       the way that the fired cartridge casings ejected from the
       gun. Officer Weitman further opined that the fired cartridge
       casings would have been found within the area of the body
       if the killing had been self-inflicted.

       Officer Weitman also received the bullet jacket fragment
       and fragment pieces that the medical examiner retrieved
       from Ms. Raudenbush’s body. Officer Weitman opined that
       a bullet can fragment when it penetrates two hard ribs.

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       Although the bullet jacket was torn, Officer Weitman was
       still able to determine that it was [nine-millimeter] because
       the base diameter was intact. After comparing the bullet
       jacket fragment to the recovered fired cartridge casings,
       Officer Weitman concluded that the bullet jacket had been
       fired from the same gun because they had the same
       projectile design. On June 13, 2012, Officer Tull manually
       examined the CZ75 gun and found no fingerprints.
       Although the gun was not submitted for DNA testing,
       [Appellant] admitted his ownership of the weapon to the
       police.

       At trial, Gamal Emira testified as an expert in gunshot
       residue testing and forensic science. Mr. Emira reviewed
       the criminalistics report prepared by Francis Padayatty, who
       received and examined [Appellant’s] green Phillies short
       sleeve T-shirt, one blue twin comforter, one light blue bed
       sheet, one yellow bed sheet, and one pillow. These items
       were stubbed and a scanning electron microscope was used
       to search for gunshot residue particles on the bedding and
       the clothing. A stub is aluminum, rounded and covered with
       double-sided carbon tape, which easily transfers any
       particle from a garment. The scanning electron microscope
       uses an electron beam and magnifies each particle up to
       100,000 times. Mr. Emira explained that the presence of
       gunshot residue particles on a person’s clothing indicated
       either that the person fired the gun, that the person was
       within six or seven feet of the fired gun, or that the person
       touched a surface covered with gunshot residue particles.

       [Appellant’s] T-shirt was stubbed four times. The first stub
       from the front right sleeve contained nine gunshot residue
       particles. The second stub from the back right sleeve
       contained [13] gunshot residue particles. The third stub
       from the front left sleeve contained eight gunshot residue
       particles.   The fourth stub from the rear left sleeve
       contained eight gunshot residue particles. [Appellant’s]
       shorts were not tested.       The stub from [Appellant’s]
       comforter contained one particle.          The stub from
       [Appellant’s] light blue bed sheet contained nine gunshot
       residue particles. The stub from [Appellant’s] yellow bed
       sheet contained two gunshot residue particles. The stub
       from [Appellant’s] pillow contained one particle.        Ms.
       Ayyash’s T-shirt was also examined and stubbed four times.

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       The first stub from the front right sleeve of the T-shirt
       contained four particles. The second stub from the rear
       right sleeve contained six particles. The third stub from the
       left front sleeve contained [12] particles. The fourth stub
       from the left rear sleeve contained six particles. Because
       the gunshot residue particles were discovered on the T-
       shirt, the other two items retrieved from Ms. Ayyash were
       not tested for gunshot residue particles.

       Mr. Emira noted that it is more reliable to test someone’s
       clothing rather than their hands. He explained that gunshot
       residue particles remain on clothing longer than a person’s
       hands. The gunshot residue particles can be easily removed
       from a person’s hands if the person wipes their hands on
       themselves, on another person or on a surface[,] or if the
       person sweats. A person’s hands could be tested for the
       presence of gunshot residue particles only if they were
       immediately covered with an evidence bag. However, if the
       recovered clothing is properly stored in an evidence bag,
       then it can be submitted to the forensics laboratory for later
       analysis because the gunshot residue particles will not
       disappear.

       Mr. Emira opined that the presence of gunshot residue
       particles on [Appellant’s] bedding and clothing was
       consistent with testimony that [Appellant] fired a gun from
       his hospital bed. Mr. Emira noted that gunshot residue
       particles could be found within seven feet from where the
       shooting occurred.    Mr. Emira further opined that the
       presence of gunshot residue particles on Ms. Ayyash’s T-
       shirt was consistent with testimony that Ms. Ayyash came
       downstairs after the shooting, stepped over the victim’s
       body, sat at the foot of [Appellant’s] bed, and touched
       [Appellant]. Mr. Emira explained that a person can easily
       transfer gunshot residue particles to another person by
       touching the person or the person’s clothing. Mr. Emira
       made these conclusions to a reasonable degree of scientific
       certainty.

       On May 24, 2012, [Appellant] was arrested. On June 5,
       2012, Detective McDermott executed a search warrant on
       the computers inside [Appellant’s] house and submitted
       them to the forensics laboratory for examination. The
       forensics laboratory discovered that [Appellant’s] computer

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         hard drive contained pornographic videos sent from Ms.
         Ayyash.

                                           ...

         On May 13, 2014, [the trial court] heard a motion to
         suppress [Appellant’s] statements and denied same.
         Thereafter, on May 19, 2014, the jury [found Appellant
         guilty of] first-degree murder and possession of an
         instrument of crime [(hereinafter “PIC”)]. On that same
         day, [Appellant] was sentenced to life imprisonment without
         the possibility of parole.[4]

Trial Court Opinion, 6/26/15, at 1-14 (some internal citations omitted).

       Following the denial of Appellant’s post-sentence motion, Appellant

filed a timely notice of appeal. Appellant raises four claims on appeal:

         1. Did the trial court err in denying [Appellant’s] motion to
         suppress his statement given on May 7, 2012 because (1)
         he was in custody and interrogated without Miranda
         warnings when he was transported to and held in the
         hospital at police direction, then surrounded by police,
         heavily medicated, and not permitted to leave; and (2) the
         statement was not voluntary as he was medicated, not able
         to leave, exhausted, and was viewed and treated as a
         suspect?

         2. Did the trial court err in denying the motion to suppress
         [Appellant’s] statement given to police on May 14, 2012
         because both the statement and the waiver of his Miranda
         rights were involuntary as the conditions surrounding the
         interrogation showed he was medicated, treated like a
         suspect, unable to leave, and had already been coerced to
         provide an earlier involuntary and un-Mirandized
         statement?


____________________________________________


4
 The trial court sentenced Appellant to serve a concurrent term of two-and-
a-half to five years in prison for PIC.



                                          - 14 -
J-A05003-16


         3. Was the verdict of first degree murder against the weight
         of the evidence where the Commonwealth’s primary witness
         gave separate and significantly conflicting statements, had
         gun powder residue on her shirt, the firearm was found in a
         position in which [Appellant] was incapable of leaving it,
         and none of the other evidence presented by the
         Commonwealth established [Appellant’s] guilt?

         4. Where the undisputed evidence established that the
         decedent attacked, stole from and injured the [Appellant]
         over the course of a mostly uninterrupted violent fight and
         initiated the final confrontation, was the evidence
         insufficient to sustain a verdict of guilty of first degree
         murder rather than a voluntary manslaughter beyond a
         reasonable doubt?

Appellant’s Brief at 5.

      We have reviewed the briefs of the parties, the relevant law, the

certified record, the notes of testimony, and the opinion of the able trial

court judge, the Honorable Sandy L. V. Byrd. We conclude that there has

been no error in this case and that Judge Byrd’s opinion, entered on June

26, 2015, meticulously and accurately disposes of Appellant’s issues on

appeal. Therefore, we affirm on the basis of Judge Byrd’s opinion and adopt

it as our own. In any future filings with this or any other court addressing

this ruling, the filing party shall attach a copy of the trial court opinion.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2016

                                      - 15 -
                                                                                                  Circulated 03/24/2016 03:16 PM




           IN TIIE COURT. OF COMMON PLEAS OF PIDLM)ELPHIA COUNTY
                            CRil\tlINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                                            CP-51-CR~0008766-2012


                  v.                                                    SUPERIOR COURT


BOHDANCHAC                                                              2830 EDA 2014
                                                 ..........

                                            ··.OPINION
Byrd, J.                                                                                                   June 26, 2015


       This case was tried before tbis court, sitting with a jury, commencing on May 13, 2014.

On May 13, 2014, this court heard a motion to suppress defendant's statements and denie.dsame.

Thereafter, on May 19, 2014, the jury convicted defendant of first-degreemurder and-possession

of an instrument of crime. On that same day, defendant was sentenced to life imprisonment

without the possibility of parole. Shortly thereafter, defendant filed a post-sentence motion,
                   .                       .                      .
which was denied by operation of law on September 29, 2014. On Octob~r 2, 2014, ~efendru~.t

filed a notice of appeal. Defendant was- ordered to file a Statement of Matters Complained of on

Appeal on October 20~ 2014. On .November 10, -2014, he filed a Preliminary Statement· of

Matters. Complained of on Appeal due t~ an incomplete set of notes of testimony. . Defendant

filed a Supplemental Statement of Matters Complained of on Appeal on January 29, 2015.
  .            .                             .           .                       "




                       .flLED                                       ·   CP-51-CR-OJO!f768-2012 Co1nm. v. Chae, Bohdan ·
                                                                           ·               Op!r.Jco                   ·
                       JUN,~ 6 2015·
             : Criminal Appeals u·nit                                   . . II 1111111 11111111111
             ·i First Judicia\.District of PA_                                      '7312542491




           . ~.

Commw. v. -Bohdan Chae                                Page 1 or36
                                    STATEMENT            OF FACTS

        On May 6, 2012, 'at around 10:00 p.m., defendant shot and killed Linda Raudenbush as

she came
     .   down the stairs from
                         ..   the. second floor
                                            . .
                                                of 3302 Fairdale Road. in Philadelphia.
                                                                               .

Defendant shared this residence with Ms, Raudenbush, his common-law wife, and their twenty-

six (26) year old son, David Chae. In November 2011, eighteen: (18) year-old Sara Ayyash

moved into this residence     as defendant's girlfriend against     the wishes of   her mother,   Angela

Garl~d. Ms. Ayyash had been communicating               with defendant   on Fa~ebook since May 2010.

At that time, defendant was around fifty-five (55) .years old and Ms .. Ayyash was .sixteen (16)

years old. · Their· relationship turned sexual in November 2010 when Ms .. Ayyash began to ·

electronically send defendant pornographic photographs and videos, . Defendant was partially

paralyzed and Ms. Ayyash helped care for him during the period they. lived ·together.               N.T.

05/13/14, pp. 201"272; N.T. 05/14/14, pp. 7"101, 116-133.

       During the period she lived with defendant, Ms. Ayyash was permitted to visit her mother

about three to four times. In fact, she had visited her mother the weekend before the murder. On

May 6, 1012 Ms. Ayyash returned to defendant's residence. and found him and Ms. Raudenbush

in ·the middle of an argument. · At some point Ms. Ayyash got involved in the argument ~d

threw a book at defendant after he insulted her. When Ms . Ayyash approached· defendant, he
                .                 .
pulled her hair. Ms. Raudenbush then approached 'defendant and bit his foot. Shortly thereafter,

Ms. Ayyash and Ms. Raudenbush retreated upstairs.                Later, Ms. Raudenbush went back

do;nstairs to. co~tinue the argument, When .Ms. ~aud~nbush reached the bottom of the stairs,

she leaned toward defendant   and yelled   at him.:   In response, defendant. sa~ upright in his hospital

bed, extended his right arm, pointed his gun at Ms.: Raudenbush and shot he~ in the left chest ..




Commw. v. Bohdan Chae                           Page 2 of36
Ms. Raudenbush fell forward on the stairs. N.T. 05/13/14, pp. 20·1~272; N.T. 05/14/14,        pp. 7-

101, 116~133.

       On May 6, 2012, at about 10:22_ p.m., Police Officer Robert Francisco responded to a

.radio call about a.person screaming at 3302 Fairdale Road. Within minutes, Officer Francisco

arrived on location and encountered Rowena Wolfe-Paupst, who had called 911 after observing

Ms. Ayyash waving a white rag from inside the second floor bedroom window of the residence.

Officer Francisco exited the vehicle, looked up· at the window and saw Ms. Ayyash screaming

and waving the white rag. He attempted to communicate with Ms.Ayyash while she was in the

window, but he could not understand her responses. · Given the apparent urgency, Officer

Francisco opened the unlocked front door and went inside. He announced his presence as he

walked into the hallway, but did not receive any response. N.T. 05/13/14, pp. 151-200,

       As Officer Francisco continued to walk down the hallway he saw defendant who ~as

sitting upright in his hospital bed inside the living room, wearing a green Phillies.T-shirt. Officer

Francisco stated: "There is a woman waving a rag upstairs at the window for help. What's going

on here?" Defendant stated that he did not know what happened because
                                                                .
                                                                      he had been
                                                                               .
                                                                                  asleep.

Once inside the Jiving room, Officer Francisco saw the deceased, Ms. Raudenbush, lying on the

stairs with blood all over the front of her dress. Ms. Raudenbush's body was at the bottom of the
        .                .
stairs leading to the second floor, about five or six feet away from defendant's bed. Her feet

were touching the stairs, and her upper body was wedged between the wall and a second hospital.

bed which was covered with clutter.        Officer Francisco immediately called rescue.        N.T.

05/13/14, pp. 151-200.
                                                  .     .
       Officer Francisco then saw, Ms. Ayyash standing at the top of the stairs and asked her to.

come downstairs to tell him what happened.         She replied that the victim shot herself. Ms.



Commw. v. Bohdan Chae                         Page 3 of 36
Ayyash told Officer Francisco that she did not see Ms. Raudenbush shoot herself, but that she

had heard the gunshots. Officer Francisco then asked Ms. Ayyash why she had not called police,

and she replied thatshe ·was too scared to call. Later, when Detective Gross responded to the

scene and asked Ms. Ayyash if she had heard gunshots, she told him no. Officer Francisco then

confronted Ms. Ayyash about this inconsistency, and she responded that she did hear gunshots.

Immediately after Ms. Ayyash's reply, defendant said: "You didn't .hear a gunshot. I had the

.movie Scarface on and that's what you heard. You didn't hear any gunshot." Officer Francisco

again asked defendant if he had heard or seen anything an~ defendant _cavalierlyresponded: "No,

I don't know anything about it." Defendant's son was not home and Officer Francisco did not

see anyone else inside the house. At trial, Detective Joseph McDermott, the assigned homicide

investigator, stated that a video obtained from a Rite Aid store located at Academy Avenue and

Byberry Road showed the son entering at 9:53 p.m. and exiting at I 0:02 or 10:06 p.m. Detective

McDermott stated that David Chae then walked "quite a distance" to return home. Detective

N.T. 05113/14,pp. 151-200; N.T. ·os/15/14, pp. 125-126.

       When the medics arrived to care for the victim, Officer Francisco observed a black gun,

later identified as a CZ75 .9mm semi-automatic black pistol, lying upside down on the second

hospital bed in the room. Officer Francisco secured the gun while Ms. Raudenbush received

medical attention.   The gun was later submitted to the Firearms Identification             Unit for

examination. At I0:45 p.m., Linda Raudenbush was pronounced dead inside the residence. At

trial, Dr. Marlon Osbourne testified as an expert in forensic pathology. After performing an·

autopsy on the victim's. body, Dr. Osbourne concluded to a reasonable degree of medical
                                .                                      .
certainty that the cause of death was one gunshot wound to the chest. TI1e bullet perforated Ms.
                                                                                     '
                                                                                     1and
Raudenbush's left lung, heart, and aorta. The bullet
                                                .
                                                     entered her left chest
                                                                       .    cavity          fractured



Commw. v, Bohdan Chae                       Page 4 of36
  her fourth and fifth rib anteriorly,    The bullet then lacerated the upper lobe of her left lung and

  traveled through the left ventricle of herheart,    The bullet further lacerated her thoracic aorta and

  traveled into her eighth thoracic vertebra, where a fragmentwas retrieved .. There was no exit

  wound on her body. Due to these injuries, Ms, Raudenbush ~as bleeding internally and she had

  one liter of clotted and l~quid blood insideher left chest cavity. N.T . 05/13/14, pp. 151~200; N:T. ·

  05/14/14, pp. 186-216 .:

         · After performing the autopsy, Dr. Osbourne further concluded to a reasonable ~egree of

  medical certainty that the manner of death. was homicide, .and not suicide or acci~ent.             Dr.

  Osbourne opined 'that the path of the bullet in the victim's body was consistent with testimony

. that the victim went to the bottom     of the stairs and leaned over toward   defendant b.efm;e she was


                                    . the gunshot wound was an irregular ovoid. shape and had
 shot. Dr. Osbourne also observed-that

 no soot, stipple or muzzle imprint around it He explained that soot, a black stain, is present

 when the muzzle of a gun is within six inches to one foot from the victim's body.            Stipple, an

 abrasion on the skin or hole in the.clothing, is present when the muzzle of the gun is within two

 and one-half to three feet from the. victim's body. A muzzle
                                                       .      . imprint is present once a         gun has
                                                                                                       .

 been pressed against the victim's skin. Because there was no .soot, stipple or muzzle imprint

 around Ms. Raudenbush's      gunshot wound, Dr. Osbourne concluded that the muzzle of the gun

 was farther than two and one-half to three feet away from the victim because one or all three of
                                                                                .·   .   .
 these indicators would have beenpresent had the victim committed suicide. For these reasons;
                         .                                      .                             .
·Dr.Osbourne. concluded that a suicide hadnot occurredin this case. N.T. 05/14/14, pp. ·186-216.

         During the autopsy, Dr. Osbourneperformed          a-·toxicology test on Ms. Raudenbush and"

~ discov_ered 70 micrograms per deciliter of ethanol, less· than ·50 micrograms per liter of codeine,

 and. less than 30 micrograms per liter of alprazolam (Xanax),           Dr. Osbourne found that· the



 Commw.    v. Bohdan   Chae                       Page 5 of36
 alcohol in the victim's body was less than the legal driving limit and that the levels of alprazolam

 and codeine were minimal.     Consequently, Dr .. Osbourne concluded to a reasonable degree of

medical certainty that the drugs and alcohol found in Ms. Raudenbush's body did not contribute

to he! death. N.T. 05/14/14, pp. 186-216.

        On May 7, 2012, at about 7:00 a.m., Police Officer Terry Tull arrived at the crime scene

and began t~ take photographs,     When Officer Tull went inside the residence; he encountered a

cluttered living room containing two hospital beds. Defendant was sitting on one hospital bed,· ·

about seven feet away from the foot of the stairs where the victim's body was located. The other

hospital bed was covered with clutter, Ms. Raudenbush's body had been slightly repositioned by

· responding medics who had attempted to resuscitate the victim;            The dining room was

impassable because it was piled high with clutter. Officer Tull further observed two bullet holes

in the first floor ceiling of the main hallway that led to the living room. Given the cluttered state

of defendant's house, Officer Tull used trajectory probes to determine the path the bullets

traveled. Based on his training and experience, Officer Tull determined that'the trajectory probes

pointed toward defendant's bed. As a result, Officer Tull concluded that the gun was fired from

defendant's bed. N.T, 05/14/14, pp. 15-72.

        A search warrant was obtained for the residence. However, both Ms. Ayyash and David

Chae, who arrived at some point after the murder, were transported to Northeast Detectives to be

interviewed before it was executed, Defendant was transported ta Aria Torresdale Hospital due

to his medical condition.    Before defe~dant was ·transported to the hospital,. Detective John

Hopkins retrieved the green Phillies T-shirt and the red shorts that defendant had worn on the

day of the mu_rder. These items were bagged separately and submitted tothe forensics laboratory

for gunshot residue testing. After defendant was transported to the hospital, Detective Hopkins



Commw. v. Bohdan Chae                         Page 6 of36
     recovered one blue comforter, two bed sheets, and ~me pillow from defendant's hospital bed. ·

     These items were bagged separately and submitted to the forensics laboratory for gunshot
                                                                                       I


 residue testing. He also recovered a black Action Amis pistol case for the CZ75 .9mm pistol and
        •-r'·.:       •           '
           .                                                      .
 one metal magazine containing a .9mm round. Officer Tull then moved defendant's bed and the .

 surrounding clutter and began to search for projectiles. Officer Tull found three fired cartridge

 casings under the rear of defendant's bed. Two of the fired cartridge casings were about one and

 one-half feet apart from each other. No other fired partridge casings were recovered from the

 residence. N.T. 05/14/14, pp. 137-186; N.T. 05/15/14,.pp. 15-72.
                                                      .                            .
                  ~n May 7, 2012, at 11 :54 a.m., Det~ctive Tim.Lynch interviewed defendant while he was

 inside an emergency room treatment cubicle. Detective Hopkins and Sergeant Hendershot were

 also present.             During this interview, defendant appeared alert and· answered 'the 'detective's
                                                                               .
 questions. He did not appear to be under the influence of drugs, After the interview, Detective

 Lynch provided defendant the opportunity to review the written statement. However, defendant

 refused to sign· the statement.'                    On May .14, 2012,                     at 11 :50 a.m., Detective McDermott




 I
     On May 7, 2014, the following questions were asked by Detective Lynch and answered by defendant:

                          [Detective Lynch]:        . What happened last night at your ho~e?
                            [Defendant]:                Sara got home around 5:00 p.m. or 6:00 p.m. My
                           wife tried to grab some of my pills. It was some ofmy Amblen and my Tylenol
                           4. I was getting a bath from my son at that time, She came.to get the pills and I
                           pushed her away with my right foot. She bit my foot. My son told her to go
                           away. She went upstairs. She had hit me in the face with something. After she
                           left I noticed that I bad a bloody nose. I yelled up to her that I was going to act
                           on a letter that I got from the· 8th District. Tue letter said the. police knew .I was
                           being abused, I also told her I was going to call the DA. I took 2 Xanax & an
                           Amblen, I tried to get You'Iube on to put me tosleep, I just woke up a while
                           later. I noticed a Scarface clip was playing and music playing. I was trying to
                           go back to sleep. I got woken up by a police officer who was knocking and he
                           came in. Before I feli asleep I sent my son ~o Rite Aid. I had 2 guns near nte
                           when I went to sleep. As far as I know neither had bullets in them. I took the
                          .bullets out.
                                                                          ,.

                          [Detective !.,,ynch]:           Which guns did you unload?

· Commw. v. Bohdan Chae                                          Page 7 of 36
interviewed defendant inside his residence. Although defendant was not under arrest, Detective



                [Defendant]:            Smith & Wesson Bodyguard .38 (snub nose, shroud,
                hammer, nickel, brown wood handle) Cl.75 .9mrn (black auto)
                [Detective Lynch]:          Did you unload the guns yourself?
                [Defendant]:                Around 2 weeks ago I pulled out the dip of the
                CZ15. If I felt dan~er at night sometimes Iput the clip back in. ·
                [Detective Lynch];         Are you able to unload the gun and·clear the chamber
                by yourself?
                [Defendant}:                I can unload it, but not clear the chamber. My left
                hand doesn't work.
                [Detective Lynch}:         Wa<c, the CZ75 loaded last night?

                [Defendant]:                 I thought it was unloaded. It's possible I may have
                ptJt the clip in 2 days ago.
                [Detective Lynch]:         When was the last time you.saw Linda alive?
                [Defendant]:               When she went upstairs.
                [Detective Lynch]:         What time was that?
                [Defendant]:               Early evening. I'm not sure.
                [Detective Lynch]:         Where did you put the CZ75 magazine when you
                remember taking it out?
                [Defendant]:               On the left of the bed Down in a drawer thing.

                [Detective-Lynch]:         Where was the CZ75?
                [Defendant]:               In a box on my rightside on the bed.next to me.
                [Detective Lynch]:         Was it within reach?
                [Defendant]:               Yes.
               . [Detective Lynch]:        Did you hear any gunshots last night?
                [Defendant]:               Yes .. When I woke up I heard them on You'Iube,
              · There were a lot of shots at the end of the movie.
                (Detective Lynch]:         How do you trunk Linda was shot?
                [Defendant]:               I have no idea. I don't know if someone came in and
                tried to shoot her and maybe she got shot.
                {Detective-Lynch]:        · Did you fire your CZ75 last night?
                [Defendant):               No.
                £Detective Lynch]:         When was the last time you did fire a gun?
                [Defendant]:               Years ago.
               . [Detective Lynch]:        Is there anything-.elsethat you want to add?
                [Defendant]:               No.
N.T. 05/14/14, PP: 146~150;Commw. Exh. 27.


Commw. v. · Bohdan Chae                             Page 8 of36·
 Detective McDermott read him his Miranda rights. Defendant indicated that he understood the

 warnings. He also appeared coherent, alert, and able to understand English. Defendant did not
                                                           .                                    .   .
 state at any .point during this interview that he wished to invoke his right to a lawyer or right of

 silence. When the detectives first arrived at the residence, defendant paid them no attention.

Instead, defendant used his computer until he was asked to focus on the interview.                        "While

defendant used his computer, Detective McDermott observed that defendant had full use of the

right side of his body. He moved the computer mouse and wrote inside a notepad with his right

hand and pulled himself upright with his right arm. Defendant also used his right hand when he

pointed and told Detective McDermott where he kept his gun. During 'the interview, defendant

closed his eyes when he was asked about the murder. He also had no explanation for ·the bullet

holes in the ceiling.      Conversely, defendant responded to questions pertaining to what occurred

before and after the murder. Detective McDermott interviewed defendant for about one hour.

When Detective McDermott returned to his office, he memorialized this interview in a

memorandum.'          During this informal interview, defendant denied the .detective's request to

submit to a formal interview. N.T. 05/14/14, pp. 137-186; N.T. 05/15/14, pp. 105-150.




2
    Detective McDermott summarized defendant's account of what happened before the incident:
                   He had said that him and Linda were fighting all day, and that Linda and Sara
                   went upstairs. And then he used to keep his CZ pistol next to him for protection.
                   And then next thing he remembers was the police waking him up. He doesn't
                   know - the police officer says there is a woman laying over here. This is what ·
                   the police officer- I don' t think that's in here - that the police officer woke him
                   up and said something about a woman laying there, and he couldn't see over
                   there.
                   Then I said something about Sara saying something about him hollering up.
                   That's when he closed his eyes. Then he was saying about the Scarface movie
                   being on, and he doesn't remember·how it got on, and that must have been the
                   gunshots. Then I asked him about the bullet holes that were in the ceiling and
                   he didn't know nothing about that.
N.T. 05/15/14, pp.11-9-120; Commw. Exh. 29.

Commw. v. Bohdan Chae                                  Page 9 of 36
        Ms. Ayyash provided five different statements to police concerning this incident.       On

May 7, 2012, at 3:00 a.rn., Ms. Ayyash was interviewed by Detective Lynch at Northeast

Detectives.   In that statement, Ms. Ayyash asserted that she did not know what happened and

that she did not hear anything.   During that interview, the detectives confiscated   Ms. Ayyash's
gray short sleeve T-shirt, sweatpants, and underwear,     These items were bagged separately and

submitted for gunshot residue testing.      On that same day, ~t 2:30 p.m., Ms. Ayyash was

interviewed a second time by Detective Lynch.       In that statement, Ms. Ayyash told Detective

Lynch about the argument that occurred before the shooting.          Ms. Ayyash also told Detective

Lynch that she heard two "quick pops" after Ms. Raudenbush went down the stairs. Ms. Ayyash

stated that she was at the top of the stairs when she heard this noise. Ms. Ayyash also stated that

she asked defendant "What did you do?" after observing the decedent half standing and half

slumped at the base of the stairs. She 'told Detective Lynch that defendant stated to her: "Shut

the fuck up." In response, she told defendant that she would not say anything and .asked him
                                                                 .                    .
why he did it. She then ran into a bedroom, shut the door and waved the white rag out of the

second floor window for help.      N.T. 05/13/14, pp. 201-272; N.T. 05/14/14·, pp: 7-101; N.T.

05/15/14, pp. 105-150.

       At 6:55 p.m., Ms. Ayyash gave a third statement.       During this interview, she provided

details about her relationship with defendant and identified defendant from a photograph.       On

May 17, 2012~ at 2:50 p.m., Ms. Ayyash gave a fourth statement to Detective Mcfrermott, and

Detective (now Sergeant) Vince Rodden.     After being   shown a photograph from the crime scene,

Ms. Ayyash marked ''X" where defendant normally kept his semi-automatic gun and marked

"G,' where defendant's gun was found after the shooting. On October 26, 2012, at 6:00 p.m.,

Ms. Ayyash gave a fifth statement to Detective Mcffermott.      In that statement, Ms. Ayyash said



Commw. v. Bohdan Chae                        Page 10of36
 that sh_e saw sparks from the· gun.        On July 25, 2012 Ms. Ayyash testified at defendant's

 preliminary hearing that she and Ms. Raudenbush drank alcohol after they retreated upstairs

 following the argument. At trial, Ms. Ayyash stated for the first time that she .saw defendant's

 arm extended before hearing gunshots and seeing Ms. Raudenbush fall forward on the stairs ..

 She also stated that defendant threatened her when she was at the top.of the stairs, telling her that

 she was next.       Ms. Ayyash explained that she had received counseling after providing the

detectives her statements and testifying at the preliminary hearing and that she now wanted to
                                     .                .
"tell the whole truth." N.T. 05/13/14, pp. 201-272; N.T. 05/14/14, pp. 7-101; N.T. 05/15/14, pp.

 105-150.

           At trial, Police Officer Ronald Weitman testified as an expert in firearms and ballistics

testing.      He received the ballistics    evidence and prepared    a report after conducting     an

· examination.     The CZ75 semi-automatic       .9mm Luger gun contained 12 live .9lllill Luger

cartridges inside even though it had the capacity to hold seventeen (17) cartridges. In addition to

confirming the ~'s.         operability, Officer Weitman found that it loudly fired bullets in close

quarters. Officer \Veitm~ also received the three .9mm Luger fired cartridge casings recovered

from "defendant's residence and compared them to the fired cartridge casings expelled from the

CZ75 gun when it was test-fired. He found that the fired cartridge casings were similar to each

other. He also discovered that the fired cartridge casings ejected to the right and to the rear when

the gun was      fired.   After analyzing this evidence, Officer Weitman concluded to a reasonable

degree of scientific certainty that the three fired cartridge
                                                           .  casings recovered
                                                                          .     from defendant's

residence were fired from the CZ75 semi-automatic gun. N.T. 05/15/14, .PP· 73-103.

           Officer Weitman further concluded to a reasonable degree of scientific certainty that the

ballistics evidence was consistent with testimony that defendant extended his right hand, held the



Commw. v. Bohdan Chae                            Page 11 of 36
 gun, and shot the victim.   Officer Weitman based his conclusion on the trajectory probes that

 pointed toward defendant's bed, the location of the three fired cartridge casings found behind

 defendant?s bed, and the way that the fired cartridge casings ejected from the      gun.   Officer.

 Weitman further opined that the fired cartridge casings would have been found within the area of .

 the body if the killing had been self-inflicted. N.T. 05/15/14, pp: 73-103.

        Officer Weitman also received the bullet jacket fragment and fragment pieces that the

 medical examiner retrieved from Ms. Raudenbush's body. Officer Weitman opined that a bullet

can fragment when it penetrates two hard ribs. Although the bullet jacket was torn, Officer

Weitman was still able· to determine that it was .9mm because the base diameter was intact.

After comparing the bullet jacket fragment to the recovered fired cartridge casings, Officer

Weitman concluded that the bullet jacket had been fired from the same gun because they had the

same projectile design. On June 13, 2012, Officer Tull manually examined the CZ75 gun and

found no :fingerprints. Although the gun was not submitted for DNA testing,_ defendant admitted.

his ownership of the weapon to police. N.T. 05/15/14, pp. 73-103.

    . At trial, Gamal Emira testified as an expert in gunshot residue testing and forensic

science. Mr. Emira reviewed the criminalistics report prepared by Francis Padayatty, who

received and examined defendant's green Phillies short sleeve T-shirt, one blue twin comforter,
                                      .     .
one light blue bed sheet, one yellow bed sheet, and one pillow. These items were stubbed and a

scanning electron microscope was used to search for gunshot residue particles .on the bedding

and the clothing. A_ stub is aluminum, rounded and covered with double-sided carbon tape,

which easily transfers any particle from a garment. The scanning electron microscope uses an

electron beam and magnifies each particle up to 100,000 times. Ml'. Emira explained that the
                         .                                                                  .
presence of gunshot residue particles on a person's clothing indicated ei~er that the person fired



Commw. v. Bohdan Chae                        Page 12 of 36
the gun, that the person was within six to seven feet of the fired gun, or that the person touched a

surface covered with gunshot residue particles. N.T. 05/1404, pp. 217-272.

       Defendant's T-shirt was stubbed four times. The first stub from the 'front right sleeve

contained nine .gunshot residue particles. The second stub from the back right sleeve 'contained

thirteen gunshot residue particles. The third stub from the front left sleeve contained. eight

gunshot residue particles. The fourth stub from
                                            .
                                                the rear left sleeve contained eight gunshot
                                                                                      .


residue particles. Defendant's shorts were not tested. The stub from defendant's comforter

contained one particle. The stub from defendant's light blue bed sheet contained nine gunshot

residue particles. The stub from defendant' s yellow bed sheet contained two gunshot residue

particles. The stub from defendant's pillow contained one particle. Ms. Ayyash's Twshirt was

also examined and stubbed four times. The first stub from the front right sleeve of the T-shirt

contained four particles. The second stub from therear right ~leeve contained sh particles. The

third stub from the left front sleeve contained twelve particles. The fourth stub from the left rear

sleeve contained six particles. Because the gunshot residue particles were discovered on the T-

shirt, the other two items retrieved from Ms. Ayyash were not tested for gunshot residue

particles. N;T. 05/14/14, pp. 217-272·.

       Mr. Emira noted that itis more reliable to test someone's clothing rather than their hands.

He explained that gunshot residue particles remain on clothing longer than a person's hands.

Tue gunshot residue particles can be easily removed from a person's hands if the person wipes

their-hands on themselves, on another person or on a surface or if the person sweats. A person's

hands could be tested for the presence of gunshot residue particles only if they were immediately

covered with an evidence bag. . However, if the recovered clothing is properly stored. in an




Commw. v. Bohdan Chae                        Page 13 of36
    evidence bag, then it can be submitted. to the forensics laboratory for later analysis because the

    gunshot residue particles will not disappear. N.T. 05/14/14, pp. 21.7-272: ..

            Mr. Emira opined that the presence of gunshot residue particles on defendant's bedding.

    and 'clothing was. consistent with testimony that defendant fired a gun from his hospital ·bed. Mr.

    Emira noted that gunshot residue particles could be found within _seven feet from where the

    shootingoccurred.      Mr. Emira further opined that the presence of gunshot residue particles on

              . Tvshirt was· consistent with testimony that
    Ms. Ayyash's                                         . Ms. .Ayyash came downstairs. after
                                                                                           . the

    shooting, stepped over the victim's          body, sat at the foot of defendant's    bed, and touched ·

    defendant.    Mr. Emira explained that a person can easily transfer.gunshot residue particles to

    another pers?n by touching the person ~r · the person's clothing.              Mr. Emira. made these
     .                                      .
    conclusions to a reasonable degree of scientific certainty. N.T. 05/15/14? pp·. 217-272.

            On May· 24, 2012, defendant was ·arrested.              On June 5, 2012, Detective Mcfrermott

executed a search warrant on the.coniputers inside defendant's house andsubmitted them to the

forensics laboratory for · examination.             The forensics laboratory discovered that defendant's

computer hard drive contained pornographic videos sent from Ms. Ayyash, N.T. 05/15114, pp.

105-150.

                   STATEl\iENT        OF-MATTERS          COMPLAINED        OF ON APPEAL

           Defendant     raised the following. issues in his· Supplemental          Statement   of Matters

Complained of on Appeal, in accordance with Pennsylvania Rule of Appellate Procedure

1925(b)3:

                    (a) Where the undisputed evidence established that the decedent
                        argued with; bit, hit, and injured the appellant over the course .
                        of a mostly' uninterrupted violent fight and initiated the final
                        confrontation,
                           . .         was not the. evidence insufficient
                                                                     .      to. sustain ' a .


3
    The following is a verbatim account pf defendant's Statement.

Commw. v. Bohdan Chae                                  Page 14 of36
                     verdict of .guilty of first degree murder rather than voluntary
                     manslaughter?"                                                 .
                 (b) Was not the verdict of first degree murder against the weight of
                     the evidence where the Commonwealth's primary witness gave
                     separate .and significantly conflicting statements, had gun
                     powder residue on her shirt, the firearm was found ina position
                     in which appellant was incapable of leaving it, and even if
                     appellant had fired the gun, the evidence was much more
                     consistent with voluntary manslaughter . 'thin first degree
                     murder? ·
                 (c) Did the trial court err in denying appellant's motion to suppress
                     appellant's statementgiven on May 7, 2012 because (1) he was·
                     in custody and interrogated without Miranda warnings when.he
                     was transported to and .held in the hospital at police direction,
                     then surrounded by police, heavily medicated, and not
                     permitted to leave; and (2) the statement was not voluntary as
                     he was medicated, not able to leave, exhausted, and was
                     viewed and treated as a suspect?
                 (d) Did the trial· court err in denying the motion to suppress
                     appellant's statement given to police on May 14, 2012 because
                     both the statement and the waiver of his Miranda rights were
                     involuntary as the· conditions surrounding the interrogation
                     showed he was medicated, treated like a suspect, unable to
                     leave, and had already been coerced to provide 'an earlier
                     involuntary and un-Mirandized statement?
                 (e) Did the trial court err in allowing the Sara Ayyash to. testify
                     regarding her experiences years earlier of losing her virginity,
                     difficulty with friendships, .and being bullied in school, as well
                     as allowing her mother, Angela Garland, to testify to similar
                     evidence where the facts are irrelevant and prejudicial,




           -                           .
4 · Theissues raised in ( a) to (d) of defendant's Supplemental Statement of Matters Complained of on Appeal are
essentially identical to the issues raised in (a) to (c) of his Preliminary Statement of Matters Complained of on
Appeal, In.addition to raising those issues, defendant raised the following issue in his Preliminary Statement:
                 (d) Did the trial court err in allowing Angela Garland to testify regarding her
                 attempts to seek law enforcement intervention, appellant's statements and
                 demeanor during phone conversations, Sara·Ayyash's relationships with other
                 friends, and that Ayyash needed appellant's permission to see her sick brother
                 because the statements constitute hearsay, call for speculation, are attempts to
                 backdoor impermissible character evidence, and are otherwise irteleyant?

Commw. v. Bohdan Chae                               Page 15 of 36
                                            DISCUSSION

          Defendant first claims that there was insufficient evidence to convict him of first-degree

murder and possession of        an instrument of crime. When evaluating whether the evidence was
                            .        -

sufficient to sustain a conviction, the court "must view the evidence in the light most favorable to

the Commonwealth as verdict winner, accept as true all the evidence and all reasonable

inferences upon which, if believed, the jury could properly have based its verdict, and determine

whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable

doubt." Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). In applying this
                                                .       .
test, "the entire record must be evaluated and all evidence actually received must be considered."

Commonwealth v. Distefano, 782 A.2d 574, 582 (Pa. Super. 2001) (quoting Commonwealth v.

Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)).

          The "question of any doubt regarding the facts and· circumstances established by the
     ..
Commonwealth is for the fact-finder to resolve unless the evidence-is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the combined circumstances."

Commonwealth v. Costa-Hernandez, 802 A.2d 671, 675 (Pa. Super. 2002). Further, "it is for the

fact finder to make credibility determinations, and the finder of fact may believe all, part or none

of a witness's testimony." Commonwealth v. Mack, 850 A.2d 690, 693 (Pa. Super. 2004). In

Commonwealth v. Geiger, 475 Pa. 249, 254, 380 A.2d_ 338, 340 (1977), the courtheld that "[tjhe
                        .                                               ..
Commonwealth must indeed prove ev.ery element ·of a crime beyond a reasonable doubt in order

to sustain a valid conviction for that crime." The Commonwealth may meet thi~ burden by
                                             . .
presenting "wholly circumstantial evidence.'> Commonwealth v. Williams, 615 A.2d 416} 418

(Pa. Super. 1992). See also Commonw~alth v. Cox, 460 Pa. 566, 569, 333 A.2d 917, 918 (1975)




Commw. v, Bohdan Chae                          Page 16 of 36
 (holding that "[i]t is well established in Pennsylvania that circumstantial evidence alone may be

 sufficient to determine commission of a crime and convict the accused of it"),

         In     this case, the Commonwealth   proved beyond a reasonable doubt that defendant was

 guilty of the crimes charged.          To convict an individual       of first-degree       murder,    "the
                                                                 .             .
 Commonwealth must prove beyond a reasonable doubt that the defendant acted with malice and

 a specific
   \
            intent to kill, that a human
                                    .    being was unlawfully killed, that the defendant committed

 the killingand that the killing was intentional, deliberate and-premeditated."         Commonwealth v.

 Chamberlain, 612 Pa. 107, 129, 30 A.3d 381-, -394 (2011), cert. denied, 132 S. Ct. 2377 (2012).
     .                       .
 See also 18 Pa. C.S. §2502(a), (d). In Commonwealth v. Hare, 486 Pa. 123, ~29, 404 A.2d 388,

 391 (1979),
     .
             the court explained that "[mlalice will be found if the actor
                                                                        . committed. a killing with·
 an intent to kill].]"   ·

         In Commonwealth v. Chambers, 602 Pa. 224,.245, 980 A.2d 35, 47 ·(2009), cert. denied,

 560 U.S. 928 (2010), the court held that "the specific intent to kill can b€ formed in a fraction of
                                              .                                                     .
 a second, and may be found whenever the defendant acts with a conscious purposeto bring about

the death of the victim." See also Commonwealth         v. Agle, 449 Pa.   187, 190, 296 A.2d 741, 742

(1972) (explaining       that specific intent to kill "may be found from a defendant's           words or

conduct"), See also Commonwealth v. Sattazahn, 631 A.2d 597, 602 (Pa. Super. 1993) (holding

. that "[a] specific intent to kill can be inferr~d from the circumstances .surrounding an unlawful

killing"); Commonwealth v. Austin, 575 A.2~ 141, 154 (Pa Super.            l990)   (holding that. "[mjalice

may be inferred from the attending circumstances").        In Commonwealth v. Fisher, 564 Pa. 505,

51_8, 769 A.~d 1116, 1124 (2001), cert. denied, 535 U.S. 906 (2002), the court noted that

"[p
. ]remeditation. and. deliberation·
                            .,.
                                    exist whenever
                                           .
                                                   the assailant. possesses
                                                                      .     the conscious purpose

lo bring about death."



Commw.    .V.   Bohdan Chae                       Page 17 of36
         Here, the evidence shows that defendant sat upright in his hospital bed, extended his right

 arm, pointed his CZ75 semi-automatic pistol at Ms. Raudenbush, and shot her as she came down

 the stairs of their residence,     Although defendant was partially paralyzed, testimony established

 that he had full use of his right arm and hand.                 Thus, defendant cannot claim that he was

 physically incapable of committing this· crime. By introducin~.this evidence, the Commobwealt~
                                        .                    .
 proved beyond a reasonable doubt that defendant committed first-degree murder.                     Certainly,

 defendant's conduct was the product of premeditation .and deliberation,               See Fisher, 564 Pa. at
                       .                                                    .
 517, 769 A.2d at 1124 (holding that "[tjhe period of reflection                     nece~sary to constitute

 premeditation may· be      very brief; in fact,       the design to· killean be formulated in a fraction of a

 second").

         Defendant's conduct further exhibited malice and specific intent to kill as he shot Ms.

 Raudenbush, who was unarmed, in her left chest within close range, causing irreparable damage

 to her vital body organs. See Commonwealth v. Holley, 945 A.2d 241 (Pa. Super. 2008) (holding
                                                   .                                          .
 that a defendant's intent can be proven by direct or circumstantial evidence). Indeed, "[sjpecific

 intent to kill as well as malice can be inferred from the use of a deadly weapon upon a vital part

 ofthe victim's body." Commonwealth v.. Padilla;622 Pa. 449, 461, 80 A.3d 1238, 1244 (2013),
                                            .                                                            .       .
 cert. denied, 134 S.Ct. 2725 (2014). See-Commonwealth v. Bond, 539 Pa. 299, ?05, 652 A:2d
                                    .                    .
 308, 311 (1995) (noting 'that a gu?- is "clearly a deadly weapon"}; Commonwealth v. Solano, 5 88

 Pa. 716, 736, 906 A.2d 1180, 1192 (2006), cert. denied, 550 U.S .. 93~ (2007) (noting that one of

· the factors that "weighs in on. the element of intent', is "the precise distance from which the

 bullets were fired"); Commonwealth v. Rodgers, 500 Pa. 405, 4.09, 456 A.2d 1352, lJ54 (1983)

 (ruling that   a shotgun   fired within short rang~ of the victim "establishes the specific intent to talce

 life"); Commonwealth v. Davis, · 491 Pa. 363, 421 . A.2d · 179. (1980) (holding that the·



 Commw. v. Bohdan Chae                                   Page 18 of 36
 Commonwealth established specific intent to kill through evidence that defendant shot unarmed

 victim); Commonwealth
               . :-
                       v, Chine, 40 A.3d 1239, 1242 (Pa. Super. 2012).(holding that evidence
      . .                                                                    .
 or defendant shooting an "unsuspecting, unarmed" victim clearly indicated specific intent to kill

 and malice).

          At trial, Dr. Osbourne testified as an expert in forensic pathology and concluded to a

reasonable degree of medical certainty that the cause of Ms. Raudenbush's death was one

gunshot wound to her left chest. The bullet entered her left chest and perforated her left lung,

heart, and aorta. The bullet did not exit Ms. Raudenbush's body. Instead, it was retrieved from

her eighth thoracic vertebra .. As a result, Ms. Raudenbush bled internally and had about one liter

of blood inside her left chest cavity. See N.T. 05/14/14, p. 194 (forensic pathology expert

confirming that the heart, lung, and aorta are vital parts of the body). In addition to determining

the cause of death, Dr. . Osbourne concluded
                                      . .
                                             to a reasonable degree of medical certainty that the

mannerof death was homicide.' There was no evidence that Ms. Raudenbush's death resulted

from suicide, accident or natural causes. There was no soot, stipple or muzzle imprint around the

gunshot wound. Dr. Osbourne noted that one or all of these indicators would have been present

had the gunshot wound. been self-inflicted. Instead, the path of the bullet and the absence of

soot, stipple or a muzzle imprint was consistent with testimony that defendant shot and killed the

victim.

          The Commonwealth- also presented ballistics evidence that directly pointed· to defendant

as the shooter. At trial, testimony established that the trajectory of the two bullet holes in the

ceiling pointed toward defendant's bed.· When police searched behind defendant's bed, they
           .                             .     .                 .
recovered three fired cartridge casings under the rear of his bed. They also found the murder

weapon, one CZ75 .9mm semi-automatic black pistol. At trial, Police Officer Weitman stated



Commw. v. Bohdan Chae                         Page 19 of 36
  that the fired cartridge casings would have been found close to the victim> s body                   if. she   had

  committed-suicide.    Officer Weitman also stated that the location of the trajectory probes and the·
        .                                       .

  fired cartridge casings further established t~at the gun was fired from defendant's bed.                   After

 test-firing defendant's CZ75 gun and comparing those fired cartridge casings to the three ,9mm

 fired cartridge casings recovered from defendant's residence, Officer Weitman concluded to _a

 reasonable 'degree of scientific certainty that the ~ecovered fired cartridge casings were fired

 from defendant's gun.      Officer Weitman also concluded to a reasonable degree of scientific

 certainty that the bullet jacket fragment retrieved from the victim's body was. fired from.

 defendant's gun because it had the same rib impressions and same caliber.

       · In   addition to this ballistics evidence, defendant's t~shirt, comforter, bed sheets, and

 pillow were submitted to the forensic laboratory for gunshot residue testing.              Mr.    Gamal Emira

 testified as a forensic science expert and concluded to a reasonable degree of scientific certainty
                                  .                                                                .
 that gunshot residue particles werepresent on these items. Mr. Emira opined that the presence of

 gunshot residue particles ·on defendant's bedding         and clothing was consistent with testimony that
 defendant fired a·
        .
                       gun from   his bed.   Mr. Emira further opined that the presence' of gunshot
                                                                      .
 residue particles on Ms. Ayyash's T-shirt was consistent with testimony that 'she came

 downstairs after the shooting. and touched defendant. According to             Mr.       Emira, a person can

 easily transfer gunshot r~sidue particles to another person by touching the person or the person's
                              .                       •                               •            I

 clothing.    Contrary to defendant's position, trial testimony, ballistics evidence and forensic

· evidence directly pointed lo him as the perpetrator of this killing.         In light. of .these     facts, the
                                                                .                       .
 Commonwealth proved beyond a reasonable doubt. that defendant was guilty of first-degree

murder. Therefore, therewas sufficient evidence to convict defendant of this offense.
                                      .                                                        ~   .




Commw. v. Bohdan Chae                               Page   20 of 36
        As stated above, defendant was convicted of possession of an instrument of crime.

 Section 907 of the Crimes Code provides that- a defendant. is guilty of this offense when he

"possesses any instnunent of crime with. intent to employ it criminally."     18 Pa. C.S. §907(a).

An instrument of crime is "[a]nything specially made or specially adapted for criminal. use" or

"[a]nything used for criminal purposes and possessed by the actor under circumstances not

manifestly appropriate for lawful uses it may have." 18 Pa. C.S. §907(d). In this case, the facts

clearly show that defendant possessed a gun with the intent to commit first-degree murder

against Ms. Raudenbush. See Commonwealth v. Stokes, 38 A.3d 846, 854 (Pa. Super."2011)

(holding that "[i]t is ·undisputed that a   gun   can -be an instrument of crime').   Indeed, trial

testimony, ballistics and forensic evidence established that defendant .possessed a CZ75 semi-

automatic· pistol and that he used it to shoot and kill Ms. Raudenbush. Based on these facts, the

Commonwealth proved beyond a reasonable doubt that defendant possessed an instrument of

crime. Accordingly, there was sufficient evidence that defendant was guilty of this offense.

       In raising a sufficiency· 'claim, defendant contends· that the Commonwealth did not

sufficiently link him to the crimes with which he was charged. However, in Commonwealth v.

Sullivan, 472 Pa. 129, ·1so, 371 A.2d 468, 478 (1977), the court ruled that "it is not necessary

that each piece of evidence be linked to the defendant beyond a reasonable doubt. It is only

necessary ... that the
                     . combination. of evidence link the defendant to the crime beyond
                                                                                    . ·a

reasonable doubt." As noted by the above discussion, the combination of evidence presented by

the Commonwealth proved beyond a reasonable doubt that defendant. committed first-degree

murder and possession of an instrument of crime.           Consequently, defendant's sufficiency

challenge cannot prevail.:




Commw. v. Bohdan Chae                        Page 21 of36
        Defendant next claims that the verdict was against the weight of the evidence.        A new

trial will be granted on this basis «only when the jury's verdict is so contrary to the evidence as

to shock one's sense of justice."    Commonwealth v. Vanliivner, 599 Pa. 617, 630, 962 A.2d
                           .                .
1170, 1177 (2009), cert. denied, 559 U.S. 1038 (2010).. In reviewing whether the verdict was

against ~e weight of the evidence, the. trial court must exercise its discretion in determining

whether« .'certain facts are so clearly of greater weight that to ignore them or to give them equal

weight with all the facts is to deny justice.' " Commonwealth v. Widmer, 560 Pa. 308, 320, 744

~.2d 745, 752 (2000) (quoting Thompson v. Philadelphia, 507 Pa. 592, 601, 493 A.2d ~69, 674

(1985)). The appellate court's review "is limited to whether the trial judge's discretion was

properly exercised, and· relief will only be granted where the facts and inferences of record

disclose a palpable abuse of discretion." Commonwea_lth v. Diggs, 597 Pa. 28, 39, 949 A.2d 873,

879 (2008), cert. denied, 556 U.S. 1106 (2009). In this case, defendant has not pointed to any

evidence that should have been accorcled greater, lesser or equal weight than the evidence that

was already introduced at trial. Mo~eovcr, the jury arrived at its verdict after giving due
                   .                    !
consideration to all relevant and propertr admitted evidence.

       In raising a weight of the evid"r~c claim, defendant points to "separate and significantly

conflicting statements" provided by     i   Conunonwealth witness. However, defendant cannot

obta~ relief on this basis. See ComJ.J nwealth v.. Price, 616 A.2d 681, 685 (Pa. Supe_c H92)

(holding that "any conflict in the tes · ; ony goes to the credibility of the witnesses and is solely

to be resolved by the f actfinder"). As. ~e court held in Commonwealth v. B/aken~y, 596 Pa. 510,

523, 946 A.2d 645, 653 (2008), cert. dJnied, 555 U.S. 1177 (2009), a new trial cannot be granted
                                        I



"merely because of some· conflict in 1·e~imonyor because the judge woul~ reach a different

conclusion on the same facts, but           hould only do so in extraordinary circumstancesj.]"



Commw. ~- Bohdan Chae                           Page22 of36
  Certainly, it 'is solely "within the province of the jury as fact-finder to .resolve all issues of

 credibility, resolve conflicts in evidence, make reasonable inferences from the evidence, believe

 all, none,. or some of the evidence, and ultimately                adjudge       [the defendant] ·guilty,,,

 Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006). The jury's verdict clearly

 demonstrates that it exercised   its lawful   duty as fact finder and resolved    any conflicting   evidence

 in the light most favorable to the Commonwealth.             Consequently, defendant's claim has no

 merit.

          Defendant further challenges the sufficiency of evidence by arguing that the evidence

 supports a voluntary manslaughter conviction rather than a first-degree murder conviction.                In

 challenging the jury's verdict, defendanthighlights that he and the decedent were involved in a

 heated argument prior to -the murder.         In Commonwealth v. Cox, 546 Pa. 515, 539, 686 A.2d

 1279, 1291 (1996), cert. denied, 522 U.S. 999 (1997), the court explained that the crime of

 voluntary manslaughter "involves a killing in a sudden and intense passion resulting from a

 serious provocation or an unreasonable belief in 'self-defense."        Voluntary manslaughter "is an

 appropriate verdict for 'heat of passion' killings, where, 'at the time of the killing, [the

. defendant] acted under sudden and "intense passion [ due to] serious provocation by the victim.' "

 Commonwealth v. Kim, 888 A.2d 841, 853 (Pa. Super. 2005) (quoting Commonwealth v.

 Thomas, 552 Pa. 621, 640, 717 A.2d 468, 477 (1998), cert. denied, 5.28 U.S. 827 (1999)).

 Specifically, heat of passion includes "emotions such as anger, rage, sudden resentment or terror,·

which renders the mind incapable of reason." Commonwealth v. Speight, 544 Pa. 451, 467, 677

A.2d 317, 324-325 (1996), abrogated on other grounds by Commonwealth v. Freeman, 573 Pa.

 532, 827 A.2d 385 (2003), cert. denied, 543 U.S. 822 (2004).




 Commw.    v: Bohdan   Chae                       Page 23 of36
        In Commonwealth v. Copeland, 554 A.2d_5.4, 57 (Pa. Super. i988), the court explained

that - "[tjhe passion which will reduce an unlawful killing to voluntary manslaughter must be

caused. by le gaily adequate provocation."   The law "is quite explicit that the determination of
            .                                                        .
whether · ~ certain quantum of provocation is -sufficient to support the defense of voluntary

manslaughter is purely an objective standard."   Commonwealth-v. McCusker, 44S Pa.' ~82, 389~

292 A.2d 286, 289 (1972).      In determining whether there was serious provocation, one must
        .                               .                               .
consider '' 'whether a reasonable [person] confronted by the same series· of events, would·

become impassioned to the extent that his mind would be incapable of cool-reflection.'''·    Kim..

888 A.2d at 853 (quoting-Commonwealth v. Galloway, 485 A.2d 776, 783 (Pa. Super. 1984)).

        Here, the jury was equipped with clear and legally · accurate instructions defining first-

degree murder, third-degree     murder,   and voluntary   manslaughter· before they .engaged in

deliberations.   Aft~r being provided with those instructions, the jury found defendant guilty of

first-degree murder instead of third-degree murder or voluntary manslaughter.   The jury's verdict
                                                              .                                .
was supported by sufficient evidence that defendant intentionally shot and killed the victim

                              '
within close range. Although defendant and the victim bad been involved in an argument prior

to the shooting, defendant was not subjected to serious provocation that created a sudden and

intense passion rendering him incapable of cool reflection.        See, e.g., Commonwealth v.

Hutchinson, 611 Pa. 280, 25· A.3d 277 (Z-011), cert. denied, 132 S.Ct. 2711 (2012) (holding that"

the defendant was not sufficiently provoked into .heat of passion by argument with victim

occurring shortly before murder 'or by other serious issues in relationship); Commonwe~lth v...

Frederick,
.
           508 Pa. 527, 534, 498 A.2d 1322, 1325 (1985) (holding that evidence of the
                                         .                                     .

defendant and the victim· arguing before murder and having a. "stormy           love affair" was

insufficient evidence of voluntary manslaughter);   Commonwealth v. Walters, 431 Pa. 74, 244


Commw. v. Bohdan Chae                        Page 24 of 3"6
A.2d 757 (1968) (holding that there was insufficient evidence that defendant killed in heat of

passion after the victim argued with and cursed at the defendant prior to the murder);

Commonwealth v. Robinson, 452 Pa. 316, 323, 305 A.2d 354, 358 (1973) (reiterating principle

that "no words of provocation, reproach or slight assault are sufficient to reduce a ~omicide to

voluntary manslaughter").

       By finding defendant guilty of first-degree.murder, the jury found insufficient evidence

of defendant killing in a sudden and intense passion resulting from a serious provocation. Even

if sufficient provocation existed, the jury's verdict indicates that it found defendant had a

sufficient cooling period to reasonably regain the capacity to reflectand respond· in a civil and

non-violent manner. See Commonwealth v. 'Rivers, 557 A.2d 5, 9 (Pa. Super. 1989) (instructing

that even "[ijf sufficient provocation exists, the fact finder must also determine whether the

defendant actually acted in the heat of passion when he committed the homicide and thus

whether the provocation led directly to the killing or whether there was a sufficient 'cooling'

period so that a reasonable man Would have regained his capacity to reflect"). As previously

discussed, there was sufficient evidence proving that defendant possessed the specific intent to

kill and acted with malice when he murdered the victim. See Commonwealth v. Whitfield, 475

Pa. 297, 303, 380 A.2d 362, 365 (1977) (explaining that "[t]he gravamen of ~oth murder of the

first degree and voluntary manslaughter, as distinguished from murder, h<?wever,. is the lack of

malicein the legal sense of that term"); Commonwealth v-, Pirela, 510 Pa. 43, 51, 507 A.2d 23,

27 (1986) (quoting Commonwealth v. Berry, 461 Pa. 233, 237, 336 A.2d 262, 264 (1975), which

noted that voluntary. manslaughter "is a concession to the infirmity _of human nature, not an

excuse for undue or abnormal. irascibility'}     Indeed, it is well-settled that the court "may
                                                                                              .
                                                                                                not

substitute its judgment for that of the fact-finder." Commonwealth v. Goins, 867 A.2d 526, 528



Commw. v. Bohdan Chae                          Page 25 of36
 (Pa. Super. 2004). See also Commonwealth v. Sinnott, 612 Pa. 321,.331, 30 A.3d 1105, 1110

 (2011) (explaining that "the critical inquiry is not whether the court believes .the evidence

 established guilt beyond a reasonable doubt, but whether the evidence believed by the fact-finder

 was sufficient to support the verdict"). In light of these legal principles, the jury's verdict may

 not be overturned. 'See Commonwealth v. Leonhard, 485 A.2d 444,. 446 (Pa. Super. 198~)

 (hold!ng that the court may not. "remove from the jury its responsibility to decide the degree of

 culpability"). Consequently, defendant cannot obtain relief on this basis.

            Defendant next argues that this court erred in denying his motion to suppress the two

 statements that he provided to police. When reviewing a challenge to the suppression court's

 ruling, the appellate court is bound by .the suppression
                                                   .      court's findings of fact so long as they are

supported by the record. Commonwealth v. Chandler, 505_ Pa. 113, 477 A.2d 851 (1984). The

appellate court will reverse this court's decision        H   'only if there. is an error in the legal

conclusions drawn from those findings.',, Commonwealtb v. Basking, 970 A.2d 1181, 1187 (Pa.

Super. 2009) (quoting Commonwealth v. Hill, ·874 A.2d 1214, 1216 (Pa. Super. 2005)). Thus,

the appellate court considers "whether the suppression court properly applied the law to the facts

of the case." Commonwealth v. Ruey, 586 Pa. 230, 240, 892 A.id 802, 807 (2006).

            In cases where the defendant's motion to suppress has been denied, the appellate court

will   H   'consider only the. evidence of the prosecution's witnesses and so much of the evidence for

the defense as, fairly read in the context of the record as a whole, remains uncontradicted.' " In

re J.V., 762 A.2d 376, 379 (Pa; Super. 2000) (quoting Commonwealth v. Reddix, 513 A.2d 1041,

1042 (Pa. Super. 1986)).         Our Superior Court has held that "it is the sole province of the

suppression court to weigh the credibility. of the witnesses. . . .. Further, the suppression court

judge is entitled to believe all, part or none of the evidence presented."         Commonwealth v.


Commw. v. Bohdan Chae                            Page 26 of36
Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995) (citation omitted). It is the Commonwealth's

burden to prove by a preponderance of the evidence that the evidence challeng~d by a defendant

in his motion to suppress is admissible. See Basking. The suppression of evidence is a remedy

. available in instances where the infringement not 'only .violates the Pennsylvania Rules of

Criminal Procedure, but "also implicates fundamental, constitutional concerns, is conducted in

bad-faith or has substantially prejudiced the defendantj.]" Commonwealth ~- Mason, 507 P.a.

396, 407, 490 A.2d 421, 426 (1985).

       Contrary to defendant's position; his federal and state constitutional rights were· not

violated
      . as he was not entitled to -the provision of Miranda 'warnings during
                                                                         .
                                                                             either interview.. In

Commonwealth ·v: Busch, 713 A.2d 97, 100 (Pa. Super. 1998), the court held that '~[i]t is well-

settled that the police are .'only required to advise a person of his Miranda rights if that person is

subjected to custodial interrogation.'' To   «   <trigger the safeguards of Miranda, there mu~ be

both custody and-interrogation.'''' Commonwealth v. Cruz, 71 A.3d 998, 1003 (Pa.·Super. 2013)

(quoting Commonwealth. v. Heggins, 809 A.2d 908, 914 (Pa. Super. 2qo2)): In· Commonwealth
                 .                                                            .               .
v. Baker, 24 A.3d 1006, ) 019 (Pa. Super. 201 l),: the court e~p_lained 'that "police detentions

become custodial when, under the totality of the circumstances, the conditions and/or duration of
                                                                    .                .
the detention
     .        become
                .    so coercive as to constitute the functional equivalent of arrest."
                                                                                   .      Police

"[ijnterrogation occurs. where the police should know
                                                   .
                                                      that their words or. actions
                                                                            . .    are
                                                                                     . reasonably
likely to elicit an incriminating response from the suspect." Commonwealth v. · Ingram, 814 A.2d

2641 271 (Pa. Super. 2002).

       In effect, 'lt]he test for determining whether a suspect is being subjected to custodial

interrogation so as to necessitate Miranda warnings is whether he is physically deprived of his

freedom in any significant way or.is placed in a situation in which he reasonably believes that.his



Commw. v. Bohdan Chae                         Page 27 of36
freedom of action or movement is restricted by such interrogation."         Commonwealth v. Chacko,

500 Pa. 571, 577, 459 A.2d 311, 314 (1983). In making this determination, the court considers

several factors before concluding that a defendant was subjected to custodial interrogation.        In

Busch, the court observed that:

                   Among the factors the court utilizes in determining, under the
                   totality of the circumstances, whether the detention became so
                   coercive as to constitute the functional equivalent of a formal arrest
                   are: the basis for the detention; the duration; the location; whether
                   the suspect was transferred against his will, how far, and why;
                   whether restraints were used; the show, threat or use of force; and
               · . the methods of investigation used to confirm or dispel suspicions.

Id, 713 A.2d.at 101 (quoting Commonwealth v. Peters, 642 A.2d 1126, 1130 (Pa. Super. 1994)).

       In this case, the detectives were not required to provide defendant with Miranda warnings

when they interviewed him on May 7, 2012 and on May 14,. 2012.               On neither occasion
                                                                                           .
                                                                                                 was

defendant in· custody as he was not restrained or kept against his will by police.          Before the

detectives conducted the first interview, defendant was -transported to the hospital q_1.1e to his

medical condition.     See, e.g., Commonwealth v. Perry, 710 A.2d 1183 (Pa·. Super. 1998)

(rejecting the defendant' s argument that his immobilization in the hospital room during police

questioning rendered him subject to custodial interrogation); Commonwealth v, Ellis, :549 A.2d

1323, 1333 (Pa. Super. 1988) (concluding that the defendant was not subjected to custodial

interrogation because the restraints on his freedom "were those caused by his medical condition,
           .                                                                     '

as opposed to any action on the part of the police").          When the second interview occurred,

defendant was inside his own home . in the presence of a family member.                     See, e.g.,

Commonwealth v. Mannion, 725 A.2d 196. (Pa. Super. 1999) (concluding that the defendant was

not subjected to custodial interrogation when police questioning occurred in her home because
                                        ,.

there was no evidence of intimidation or restriction of freedom by police).



Commw. v. Bohdan Chae                           Page 28 of36
        Although the detectives informed defendant that he was being questioned about the

 murder' of Ms. Raudenbush, defendant was free to stop the interviews whenever he               :wfshed to do
 so. Even if defendant was considered a-suspect at the timeythat fact alone was not enough to

 conclude that he was subjected to custodial interrogation. See Commonwealth v. Page, 965 A.2d
                  .                                             .
 1212, 1218 (Pa. Super.-2009) (ruling that "[tjhe fact that the police may have 'focused' on the

individual being questioned or that the .interviewer believes               the   interviewee is a suspect is

irrelevant to the issue of custody").       fu both instances, defendant's              freedom of action or

movement was not restricted as      a result of .police interrogation.        As previously mentioned, the

detectives did not place any restraints upon defendant.                 Rather, defendant's · freedom of

movement was limited solely by his physical disability; a factor beyond police control. See, e.g.,
                                .                                   .
Commonwealth v. Johnson, 556 Pa. 216, ~39, 727 A.2d 1089, 1100 (1999) (determining that the

defendant's «inability to leave [during police questioning] was not the result of any action of

restraint by the police, but was due to his physical condition at the time'} There is also nothing

in the record to· suggest that the interviews were long in duration. Furthermore, the detectives
         .                                            '                        .


did not threaten or use force on defendant.     In fact,   the detectives wore plainclothes and did not
                                                                        .               .
display their guns on either occasion. Neither did the detectives employ any illegal investigative
                                                                                    .            .

methods."

        During neither interview was defendant intimidated, coerced or deceived into making his

statements.   Rather, his decision was freely and deliberately made. When defendant made this

choice, he was fullyaware of the consequences of his decision. He was alert and comprehended
                                                                        .                   .
the questions that he ans':'ered .. After en gaging· the detectives .throughout both interviews,
              .                     .
defendant exercised his freedom to decline further participation in the. interviews. After the first
                                                                                                        ...
                                                                                                        .     ::.-



interview,' defendant refused to. sign the written statement.                During the second informal



Commw. v. Bohdan Chae                          .Page 29 of 36
interview, defendant deniedthe detective's request to conduct a formal interview and to provide

a written statement. In both instances, defendant's refusal evidenced his awareness that he was

free to conclude each interview at any t~e.          Although the· detectives provided Miranda warnings

to defendant before he gave his second statement, those warnings. were gratuitous becaus~

defendant was not in custody. See Ellis, 549 A.2d at 1329 (holding that "Miranda warnings are ·

only required prior to custodial interrogations"), In light of the above, it is clear that defendant
                                          •      •                        •   •,!




was not entitled to Miranda warnings on either occasion.              Tue evidence further supports the

conclusion that defendant made these statements knowingly,                    intelligently,        and voluntarily.

Consequently, both of defendant's statements were admissible as they were not made in violation

of any state or federal constitutional -right,

          Defendant also contends that this court erred in allowing Sara Ayyash and Angela

Garland to testify about prior life experiences that Ms. Ayyash encountered such as losing her
                               .                                  .
virginity, having difficulty with friendships, and being bullied in school. It is well settled that

"[qjuestions concerning the admissibility of evidence lie within the sound discretion of the trial

court, and [the appellate court] will not reverse the 'court's decision on such a question absent
                                                                                                .         .               a:
clear abuse of discretion."        Commonwealth v. Chmiel, 558 Pa. '478, 493, 738 A.2d 406, 414

(1999).     An evidentiary ruling "will not be disturbed <unless that ruling reflects manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support _as to be 'clearly
                                                                                            .                         .


erroneous.'"        Commonwealth· v . Bozyk, 987 A.2d 753, 756 (Pa .. Super. 2009) (quoting

Commonwealth v. Einhorn, 911 A.2d 960, 972 (Pa. Super. 2006)).
                                                                 .              .
          In Commonwealth:v. Rqth, 531 A.2d 1133;. 1140 (P~.. Super. 1987), the court held that
                                                              .                     .                             .
"[a] basic requisite for the admlssibllity of any evidence in a criminal case is that it be competent
   .        .   .                                                     .                 .             .       .


and relevant." ._See 'alsoPe. R. Evid. 402 (stating that "[ajll relevant evidence is admissible,



Commw. v. Bohdan Chae                            Page 30 of36
except as otherwise. provided by Jaw'}     Relevant evidence "is that which tends to establish facts

in issue or in some degree advances the inquiry and is therefore probative."           Commonwealth v.

Impellizzerri, 661 .A.2d 422, 428 (Pa. Super. 1995). Surely; "[njot all relevant" _evidence is

admissible, and a trial court may
                              .   exercise its discretion to exclude relevant evidence that
                                                                                        . may
                                                     .          .                                     .
confuse, mislead or prejudice the jury." Commonwealth v. Byrd, 598 A.2d 1.011, 1014 (Pa.
                                  .                                         .

Super. 1991). In Commonwealth v, Enders, 595 .A.2d 600 (Pa. Super, 1991), the court explained

that "[a] pieceof evidence. is of essential evidentiary value· if the needforit clearlyoutweighs the

likelihood of it inflaming the minds and passions of the jurors."                   Id. at 604 '(quoting

Commonwealth.v. Comvay, 534 A.2d 541, 544 (Pa. Super. 1987)).

       Here, the challenged testimony wasrelevantin showing Ms. Ayyash's state of mind. The·

introduction of this- evidence was an attempt to .aid the jury in. making sense out of. how Ms,

Ayyash
 .
       entered into" such. an inappropriate
                               .
                                            relationship and why she remained even . after being

mistreated by defendant. This evidence also provided potential reasons for ·th~ inconsistencies in

Ms: Ayyash's   statements .to police. Those reasons included Ms. Ayyash being afraid to share

details about the incident and desiring to protect defendant. Given her troubled history, the jury
                     .                      .                                   .
could reasonably infer how and why- Ms. Ayyash easily succumbed to defendant's control and·

manipulation. before, during, and immediately after the murder .. Thus, there was no error in
                                      ..
p~rrnitting this evidencedue to its essential evidentiary value.

       In his Preliminary Statement of Matters Complained           of on Appeal, defendant asserts that
.this.
.      court erred in permitting Ms. Garland to testify regarding . her attempts to. se~k law·

enforcement    intervention, regarding     defendant's   statements and 'demeanor         during phoD:e

conversations, and regarding Ms. Ayyash needing defendant's permission to leave his house to
  .                                                                   .
visit her .sick brother. There was no error in admitting Ms. Garland's
                                                             .
                                                                       testimony concerning these
                                                                                              .



Commw. v. Bohdan Chae                           Page 31 of 36
 matters.    Generally, "[ejvidence of a crime, wrong, or other act is not admissible to prove a
                                                         .                               .
 person's character in order to show that on a particular occasion the person acted in accordance

· with the character." Pa. R. Evid, 404(b)(l).    Nevertheless, such evidence "may be admitted for

 another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,

 identity) absence of mistake, or lack of accident." Pa R. Evid, 404(b)(2).

     . · In Commonweal~h v. Passmore, 85? A.2d 6?7, 7_11. (Pa. Super. 2004), the court held that

 "[ejvidence of prior bad acts is also admissiblewhere       the particular crime o~ act was part of a
         .                             .                                         .
 chain, sequence, or natural development of events forming the history of a case." This exception

 is "aJso known as the 'complete. story' rationale, i.e., evidence· of other criminal .acts is

 admissible 'to complete the story of the crime on trial by proving its immediate context of

 happenings near in time and place.',, 'Commonwealth v. Lark, 518 Pa. 290, 303, 543 A.2d 491,

 497 (1988) (quoting McCormick, Evidence §.190 (1972 2~ ed.). Furthermore, Pennsylvania

 Rule of Evidence 404(b) "is not -limited to evidence 'of crimes that have been proven beyond a

 reasonable doubt in court. It encompasses both prior crimes and prior wrongs and acts, the latter

 of which; by their 'aature, often lack 'definitive proof;'.,,    Commonwealth v. Lockuff, 813. A.2d

 857, 8~1 (Pa. Super. 2002) (emphasis omitted).

      . Here, the testimony of   Ms.' Garland concerning     def~ndant' s prior bad acts _were admitted·
                                                                                                '

 for reasons other than to show ills action in conformity therewith. Ms. Garland's testimony was

probative because it showed the nature of the relationship between defendant and her daughter,
                                                     .                  .
                                             .                              .        .
Ms, Ayyash.        See, e.g., Commonwealth v. 'Rogers, 615 A.2d 55·· (Pa': Super. · 1992);

 Commonwealth v. Ramos, 532 A,2d 22 (Pa. Super. 1987), and Commonwealth v. Colson, .507 Pa.

 440, 490 A.2d 811 (19.85), abrogated on other grounds by Commonwealth v. Burke, 566 Pa. 402,

 78 l.A.2d 1136 (2001) (affirming trial 'court's admission of evidence of other crimesor prior bad


 Commw. v. Bohdan Chae ·                         Page 32 of 36,
    acts to show relationship of parties). 'Similar to the evidence challenged above, this evidence

 provided .. the jury With a contextual background and corroborated .other evidence· that defendant

 acted in a controlling and manipulative manner toward Ms. Ayyash, 5 Contrary to .. defendant>s

argument, thi~ evidence was _not_ introduced for the. inadmissible :purpose of showing that

 defendant was a person of bad character or that he had criminal tendencies.

            Although the contested evidence may have been disturbing, it was nonetheless relevant,

See Commonwealth v. Sasse, 921 A.2d 1229, 1234 (Pa. -Super. ·2007) (explaining that

"[ejvidence is relevant if it has any tendency to make the existence· of any· fact that is of
                          .                                                                                           .

consequencemore           or less probable than it would be without the evidence"). As the court held in

Commonwealth v. Dillon, 592 Pa. 351, 367, 925 A.2d 131, 141 (2007)~ 'Te]viden~e will riot be

prohibited merely because it is harmful to the defendant.'>                      This court is not          H   'required to

sanitize the trial 'to eliminate all unpleasant facts from the jury's consideration where those facts

are relevant to the issues at hand[.J'."            Id. (quoting Commonw.ealthv. Lark, 518_ Pa. 290, 310;

543 A.2d 491, 501 (1988)). Thus, there was no error inadmitting this relevant eviden~e at trial.

5
    Before admitting this evidence, this court reasoned outside the pr~ence of the jury:
                             There are two things here. One, you have attempted to get into these e-
                    mails because you contend 'the defendant was abusive toward the witness and
                    that he was controlling, and I don't think anybody could read this and disagree,
                    The defense has strenuouslyobjected, and in the main I have ruled in their favor
                    according - to benefit to the' defendant.
                            There is very much before this jury the question 'of why she, Ms.
                    Ayyash, has either changed her story or been less than forthcoming, If" they
                     believe .her at this juncture. And I thlnk the Commonwealth should be allowed
                     to demonstrate; A, there is corroboration for the victim's testimony which is
                     conceivably evidence of controlling behavior by the ·defendant; and B, absent
                     some idea from the mother. about-the controlling nature of the relationship, the
                     2013 revelation.makes very' little sense. So I'm inclined to let it in for those
                     purposes, I am sympathetic to the defendant's position that if she is to testify 'in
                   · the fashion that you've suggested, that it be limited. I don't want her to go off·
                     and on and on about ugly things the defendant said to her, if yte can convey the
                     idea that he. wanted to be - to separate her from her mother so that he could
                    'control her, that's admissible. It should be done with as little prejudice jo the
                     defendant as possible.
N.T. 05/14/i4,pp.106-107.


Commw.. v. Bohdan Chae                                   Page 33 of 36.
            Indeed, before permitting the contested portions of testimony elicited from Ms. Ayyash

    and Ms. Garland, this court determined that the probative value outweighed any potential

prejudice to defendant. See Commonwealth                  v. Owens,   929 A.2d 1187, 1191 (Pa. Super. 2007)

(reiterating principle from Commonwealth v. Broaster, 863 A.2d 58 8, 592 (Pa .. Super. 2004), that

"[bjecause all relevant Commonwealth evidence is meant to prejudice a defendant, ... 'exclusion

is limited to evidence so prejudicial that it would inflame the jury to make a decision based upon

something other than the legal propositions relevant to the case").                     Moreover, any potential

prejudice that may have inured to defendant was cured by a cautionary instruction to the jury.6

See Commonwealth v. King, 959 A.2d 405, 417 (Pa. Super. 2008) (ruling· that "where other
     .                      .
crimes evidence is offered for a legitimate purpo~e, ... and a limiting instruction is provided, the

prejudicial effect of the evidence generally yields to its probative value"); Commonwealth v.

Claypool, 508 Pa. 198, 206, 495 A.2d 176, 179 (1985) (holding that "such evidence must be

accompanied by a cautionary instruction which fully and carefully explains to the jury the

limited purpose for which that evidence has been admitted"); Commonwealth v Strickland, 452
                                                                '
                                                                           .
A.2d 844, 847 (Pa. Super. . 1982) (concluding that a trial judge's cautionary instructions to the

jury were sufficient to ensure a fair and impartial trial because of the well-settled principle that

"juries can be trusted to follow the trial court' s instructions'}             In addition to this cautionary jury


6
    This court provided the following instruction to the[ury:

                              Ladies and gentlemen, you've now heard evidence from both Ms.
                    Ayyash and Ms .. Garland tending to show that the defendant was engaged in
                    improper conduct for which he is not now on trial._. I am speaking of the
                    testimony of both women to the effect that the defendant had a sexual
                    relationship with Ms. Ayyash before she turned 18. This evidence is.before you
                    for the purpose of tending to show the nature· of the relationship between the
                    parties, to wit, Ms. Ayyash and Mr. Chae.
                              You must not regard this evidence as showing 'that the defendant is a
                    person of bad character or criminaJ tendencies from which you might be inclined
                    to infer guilt in this case.
N.T. 05/14/14,pp. 122~123.

Commw. v. Bohdan Chae                                   Page 34 of36
 instruction, defendant had ample opportunity to counter the Commonwealth's        theory regarding

 the relevance of this evidence. Thus, defendant's argument has no merit.

           Even if this contested evidence was erroneously admitted, its admission was harmless

 error as it was not the sole contributing factor to the jury's verdict.   Harmless error is shown

, when "(I) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the

 erroneously admitted evidence was merely cumulative of other untainted evidence which was

 substantially similar to the erroneously admitted evidence; or (3) the properly admitted and

 uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error so

 insignificant     by comparison that the error could not have· contributed       to the verdict."

 Commonwealth v. Laich, 566 Pa. 19, 29, 777 A.2d 1057, 1062-1063 (2001). As the court held in

 Commonwealth v. Passmore, 857 A.2d 697 (Pa. Super. 200f)," '[t]he harmless error doctrine, as

 adopted in Pennsylvania, reflects the reality that the accused is· entitled to a fair trial, not a

 perfect trial:'   H   Id at 711 (quoting Commonwealth v. Drummond, 775 A.2d 849, 853 (Pa. Super.

 2001)).

           In this case, the evidence of guilt was so overwhelming that the alleged error could not

 have contributed to the verdict. See Laich, 566 Pa. at 29, 777 A.2d at 1062 (ruling that "an error

 is harmless only if [the appellate court is] convinced beyond a reasonable doubt that there is no

reasonable probability that the error could have contributed to the verdict'').      Although the

 challenged portions of Ms. Ayyasli's testimony and Ms. Garland's testimony were helpful to the

 Commonwealth, it was not the only evidence presented against defendant.            As the above

 discussion established, the challenged portions of testimony were merely corroborative of other

evidence the Commonwealth introduced to prove defendant's guilt beyond a reasonable doubt

Thus, defendant is not entitled to relief.


 Commw. v. Bohdan Chae                          Page 35 of 36
      Accordingly, in light of the foregoing, the judgment of sentence should beAFFIRt\1ED.




Commw. v. Bohdan Chae                     Page 36 of36
