J-A23001-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
ABRAHAM MITCHELL,                          :
                                           :
                   Appellant               : No. 1309 WDA 2012

           Appeal from the Judgment of Sentence March 19, 2012,
                 Court of Common Pleas, Allegheny County,
              Criminal Division at No. CP-02-CR-0016261-2010

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED SEPTEMBER 09, 2014

       Abraham Mitchell (“Mitchell”) appeals from the March 19, 2012

judgment of sentence entered by the Allegheny County Court of Common

Pleas following his conviction of third-degree murder and carrying a firearm

without a license.1 Specifically, Mitchell asserts that the trial court abused

its discretion by permitting the Commonwealth to admit a photograph that

depicted the victim’s body after the shooting. Upon review, we affirm.

       The trial court summarized the facts of the case as follows:

             On November 13, 2010, [Mitchell] and Bradley Smith
             arranged to purchase fifteen bricks of heroin from
             Duerryl Whitaker for $3,750. The purchase was
             facilitated and arranged by Jasmine Howard and
             Clarence White, who were relatives and friends of
             Whitaker. (T.T. 191, 197, 244, 453, 459, 729-733).
             That evening Howard and White drove to the
             Carnegie section of Allegheny County and picked up


1
    18 Pa.C.S.A. §§ 2502(c), 6106(a)(1).
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          [Mitchell] and Smith. They returned to Howard’s
          apartment in the Crafton Heights section of the City
          of Pittsburgh where they awaited Whitaker’s arrival.
          (T.T. 41-42, 49, 193-194, 456, 729-730, 732). At
          approximately 7:00 P.M., Whitaker arrived with a
          small cardboard box containing the heroin. (T.T.
          196, 751, 774-775). Whitaker had a brief
          conversation with Howard in her bedroom and then
          went to the living room where he approached
          [Mitchell] and Smith to discuss the heroin purchase.
          T.T. 196-197, 244-245, 247, 458, 750).

          The money and drugs were placed on the couch for
          the transaction, but Smith took back the money
          when he saw that Whitaker had only brought
          approximately thirty bundles of heroin. (733-735,
          747, 751, 753, 780). When Smith took back the
          money, Whitaker stated, ‘No, whoa, whoa, nah,’ and
          a struggle ensued between Smith and Whitaker.
          (T.T. 754). Whitaker managed to get on top of
          Smith, and Smith pulled out a .22 revolver and shot
          it once, not striking Whitaker. Smith and Whitaker
          began to struggle over the gun, and [Mitchell] pulled
          out a .380 semiautomatic and fired a shot into the
          couch. Howard ran into her bedroom to retrieve her
          handgun while Smith and Whitaker continued to
          struggle. [Mitchell] ran over to Whitaker and shot
          him multiple times (‘emptied the gun’), and fled the
          apartment. (T.T. 198, 250, 252-255, 735-739, 742-
          743, 755, 760, 780). Smith, now freed from the
          struggle as a result of Whitaker being shot by
          [Mitchell], also shot Whitaker, grabbed the heroin,
          and fled the apartment. (T.T. 199, 210, 255-256,
          743, 760). Howard pursued Smith and shot him in
          the leg as he ran down the hallway outside the
          apartment. [Mitchell] and Smith escaped down a
          staircase to the outside of the building. (T.T. 199-
          201, 224, 257, 269, 761-763, 789, 793).

          Howard returned to her apartment to find Whitaker
          unresponsive and lying on his face. After turning him
          over, she called 911 and yelled out the window for
          help. (T.T. 201-202). Whitaker was pronounced dead



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          on scene by responding paramedics. (T.T. 43). As a
          result of being shot a total of seven times, Whitaker
          suffered a perforated lung, spleen, stomach,
          pericardium, aorta, and femoral vein, as well as a
          fractured rib and left shoulder. The cause of death
          was multiple gunshot wounds to the trunk, and the
          manner of death was homicide. (T.T. 410, 412-416,
          418-419, 450).

          The gunshots inside Howard’s apartment alerted
          Victory Security guard Ian Clinton, who saw
          [Mitchell] and Smith emerge from the building.
          Clinton drew his weapon and ordered both fleeing
          shooters to stop. (T.T. 383-385, 387). [Mitchell] and
          Smith disregarded Clinton and fled down the fence
          line adjacent to the building, with Clinton in pursuit
          and continuously ordering them to stop. (T.T. 385).
          [Mitchell] jumped down a steep hill to a parking lot
          below, and escaped through a pathway. (T.T. 340-
          341, 385). Smith jumped down the hill and fell,
          dropping the box of heroin. He limped to the
          pathway without the heroin. (T.T. 341-342, 349-350,
          385, 389). Clinton pursued Smith until Clinton
          tripped at the entrance to the pathway. The pathway
          led to the Crucible Street side of the apartment
          complex and access to a Port Authority busway. (T.T.
          341, 385-386). Unable to continue the pursuit,
          Clinton returned to the apartment building and gave
          a detailed description of what Smith was wearing
          and his direction of flight to City of Pittsburgh Police
          on scene. Officers Aaron Loughran and Vincent
          Pacheco began to search for [Mitchell] and Smith in
          their respective marked police vehicles. (T.T. 370,
          387, 390, 514). After a brief chase, officers Pacheco
          and Loughran apprehended Smith, and Clinton
          identified Smith as one of the individuals he chased
          from the apartment building complex. (T.T. 374-375,
          386-387, 515-516). Smith was transported to the
          hospital for a gunshot wound to the leg. (T.T. 379,
          517). Howard identified [Mitchell] in a photo array as
          one of the two individuals who shot Whitaker and he
          was later arrested and charged as noted




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             hereinabove. (T.T. 204-205). Smith was charged as
             a co-defendant.

             Police recovered one .22 caliber bullet, four .380
             cartridge casings, and one .380 caliber bullet
             fragment from inside the apartment. The medical
             examiner’s office removed one .22 caliber bullet and
             two .380 caliber bullets from Whitaker during the
             autopsy. The crime lab was able to determine that
             the .380 caliber bullets and fragment matched each
             other and were discharged from the same firearm,
             and that Howard’s .380 pistol was excluded as a
             match. It was determined that three .380 cartridge
             casings, one .380 caliber bullet, and two .380 caliber
             bullet fragments recovered from the hallway
             matched Howard’s .380 pistol. (T.T. 637, 639, 641-
             642, 644-646).

Trial Court Opinion, 1/10/14, at 4-7 (footnotes omitted).

       A jury trial took place from December 13 through December 19, 2011.

The jury convicted Mitchell of the above-listed offenses and acquitted him of

robbery and criminal conspiracy.2    The trial court sentenced him on March

19, 2012 to an aggregate term of 20 to 40 years of imprisonment.

       Mitchell filed timely post-sentence motions on March 22, 2012,

requesting reconsideration of his sentence and challenging the weight of the

evidence to support his conviction of third-degree murder, asserting that the

jury instead should have convicted him of voluntary manslaughter.        Trial

counsel also filed a motion seeking leave to withdraw.         The trial court

granted trial counsel permission to withdraw and appointed new counsel to

represent Mitchell.    Prior to the trial court disposing of Mitchell’s post-


2
    18 Pa.C.S.A. §§ 3701(a)(1), 903(a)(1).


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sentence motions, new counsel prematurely filed a notice of appeal on April

18, 2012.   On July 27, 2012, the post-sentence motions were denied by

operation of law.    On August 8, 2012, new counsel filed a praecipe to

withdraw the original appeal filed and subsequently filed a timely notice of

appeal on August 27, 2012.3 The trial court issued an order for counsel to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).      Counsel requested, and the trial court granted,

numerous continuances because of the unavailability of several volumes of

the notes of testimony from trial.4 Counsel ultimately complied with the trial

court’s request, and the trial court filed its written opinion pursuant to

Pa.R.A.P. 1925(a).

      Mitchell raises one issue for our review:      “Whether the trial court

abused its discretion in allowing Exhibit 8 (a photograph) into evidence?”




3
  Although Mitchell filed his notice of appeal 31 days after the denial of post-
sentence motions, the thirtieth day fell on a Sunday, and thus the notice of
appeal was timely filed the following Monday.          See Pa.R.A.P. 903(a)
(appeals from the lower courts must be filed within 30 days of the entry of
the order appealed from); Pa.R.C.P. 106(b) (“Whenever the last day of any
such period shall fall on Saturday or Sunday, or on any day made a legal
holiday by the laws of this Commonwealth or of the United States, such day
shall be omitted from the computation.”).
4
   According to the trial court, on May 9, 2013, it issued a Rule to Show
Cause why the court reporter should not be held in contempt based upon the
court reporter’s failure to produce all notes of testimony from trial. Trial
Court Opinion, 1/10/14, at 3 n.5. The court held a contempt hearing, and in
June, the court reporter produced the notes of testimony. Id.


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Mitchell’s Brief at 5. We review this issue according to the following well-

settled standard:

           Traditionally, in reviewing trial court decision making
           regarding the admissibility of evidence, an appellate
           court determines whether the lower tribunal abused
           its discretion. An abuse of discretion is not merely an
           error of judgment, but if in reaching a conclusion the
           law is over ridden or misapplied, or the judgment
           exercised is manifestly unreasonable, or the result of
           partiality, prejudice, bias or ill-will, as shown by the
           evidence or the record, discretion is abused.

Commonwealth v. Walker, 92 A.3d 766, 772-73 (Pa. 2014) (internal

citations and quotations omitted).   This is also true for our review of the

admission of photographic evidence, which we will likewise affirm absent an

abuse of discretion.   Commonwealth v. Spell, 28 A.3d 1274, 1279 (Pa.

2011).

           When considering the admissibility of photographs of
           a homicide victim, which by their very nature can be
           unpleasant, disturbing, and even brutal, the trial
           court must engage in a two-step analysis:

           First a [trial] court must determine whether the
           photograph is inflammatory. If not, it may be
           admitted if it has relevance and can assist the jury’s
           understanding of the facts. If the photograph is
           inflammatory, the trial court must decide whether or
           not the photographs are of such essential evidentiary
           value that their need clearly outweighs the likelihood
           of inflaming the minds and passions of the jurors.

Id.

      Mitchell contends that Commonwealth’s Exhibit 8 – a color photograph

of the victim, lying as police found him, with blood on the floor beneath and



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next to his left arm – was inadmissible because its probative value was

outweighed by the danger of unfair prejudice, and its admission warrants the

grant of a new trial.   Mitchell’s Brief at 17-21.    The trial court found that

Mitchell waived consideration of the inflammatory nature of the photograph

because of his failure to include it in the certified record.           Trial Court

Opinion, 1/10/14, at 11.       Nonetheless, the trial court found that the

photograph    was   relevant   and   admissible,     as   it   aided   the   jury   in

understanding the crime scene and witness testimony. Id. at 11-12.

      We begin by addressing the trial court’s finding of waiver. We believe

the trial court misconstrues waiver involving the certified record. It is true

that “appellate courts are limited to considering those facts that have been

duly certified in the record on appeal.” Commonwealth v. Williams, 715

A.2d 1101, 1103 (Pa. 1998) (emphasis added).              It is also true that an

appellant’s failure to ensure the record certified for appeal contains

information needed for this Court to conduct a review results in waiver of the

issue(s) raised. Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa.

Super. 2007). These statements of the law, however, are not applicable to

trial courts, as the record is not “certified” prior to its transmission to this

Court on appeal.    Rather, pursuant to Rule 1931(c) of the Pennsylvania

Rules of Appellate Procedure, the clerk of the lower court transmits the

complete record to this Court for review, certifying at that time that it is the

entire record. See Pa.R.A.P. 1931(c). In this case, the record reflects that



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Kate   Barkman,    the   Allegheny   County    Clerk   of   Courts   certified   for

transmission to this Court the entire record on January 13, 2014.                See

Certificate and Transmittal of Record to Appellate Court, 1/13/14.

       Furthermore, once the record is transmitted to this Court, parties still

have an avenue to supplement the record that has been certified for appeal.

Pursuant to Rule 1926, a party may seek to correct or modify the record:

             (a) If any difference arises as to whether the record
             truly discloses what occurred in the trial court, the
             difference shall be submitted to and settled by that
             court after notice to the parties and opportunity for
             objection, and the record made to conform to the
             truth.

             (b) If anything material to a party is omitted from
             the record by error, breakdown in processes of the
             court, or accident or is misstated therein, the
             omission or misstatement may be corrected by the
             following means:

             (1) by the trial court or the appellate court upon
             application or on its own initiative at any time; in the
             event of correction or modification by the trial court,
             that court shall direct that a supplemental record be
             certified and transmitted if necessary; or

             (2) by the parties by stipulation filed in the trial
             court, in which case, if the trial court clerk has
             already certified the record, the parties shall file in
             the appellate court a copy of any stipulation filed
             pursuant to this rule, and the trial court clerk shall
             certify and transmit as a supplemental record the
             materials described in the stipulation.

             (c) The trial court clerk shall transmit any
             supplemental record required by this rule within 14
             days of the order or stipulation that requires it.




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            (d) All other questions as to the form and content of
            the record shall be presented to the appellate court.

Pa.R.A.P. 1926.

      In the case at bar, the record reflects that on February 7, 2014,

pursuant to Rule 1926, the parties stipulated that Exhibit 8 “was admitted

into evidence” at trial but “was not transmitted to the Superior Court” in the

certified record, and that the exhibit “should be transmitted to the Superior

Court.” Stipulation, 2/7/14, at ¶¶ 1, 3, 4. The trial court signed the order

attached to the stipulation, requiring the clerk of courts “to promptly forward

[Exhibit 8] to the Prothonotary of the Superior Court of Pennsylvania to be

made part of the official record[.]” Trial Court Order, 2/7/14. We therefore

have Exhibit 8 before us and there is no basis for us to find waiver of the

issue relative to the certified record.

      We note that Pennsylvania Rule of Criminal Procedure 113(B) requires

that the clerk of courts maintain a list of docket entries, defined as “a

chronological list, in electronic or written form, of documents and entries in

the criminal case file and of all proceedings in the case.”       Pa.R.Crim.P.

113(B). The docket entries in a criminal case must include, inter alia, “the

location of exhibits made part of the record during the proceedings[.]”

Pa.R.Crim.P. 113(C)(7).      Thus, the trial court should always be able to

ascertain the location of the exhibits entered and obtain them if necessary.

Our review of the record reveals that, in contravention to Rule 113, there




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are no notations in the docket to indicate the location of the exhibits.5 Thus,

if the trial court was hampered by the inability to locate Exhibit 8, the issue

was an administrative one more appropriately directed to the clerk of courts

or her designee and not the basis for finding waiver by the Appellant.

      Turning now to the substantive issue before us, we agree with the trial

court that it did not abuse its discretion by admitting Exhibit 8 into evidence.

The cases cited by Mitchell in support of his argument all pertain to

photographs of autopsies or of the wounds sustained by the victim.            See

Mitchell’s Brief at 19-20 (citing Commonwealth v. Eckhart, 242 A.2d 271,

274 (Pa. 1968) (granting a new trial based on the trial court’s admission of a

photograph of the murder victim’s skull, which included her “gruesome scalp

and bloody web of tangled hair,” which were irrelevant and could easily have

been excised from the picture); Commonwealth v. Powell, 241 A.2d 119,

121 (Pa. 1968) (granting a new trial based on the trial court’s admission of

color photographs of the victim’s autopsy, as “[w]hatever aid these

photographs may have been, their use was clearly outweighed by the

emotional impact it would undoubtedly have on the jury”); Commonwealth



5
   In his appellate brief, counsel for Mitchell indicates that it is local practice
in Allegheny County for admitted trial exhibits to be returned to counsel for
the party that presented them for admission. Mitchell’s Brief at 16 n.4. If
that is in fact what occurred in this case, the trial court could have contacted
the Commonwealth to obtain Exhibit 8 for its review prior to authoring its
1925(a) opinion. There is no indication that the trial court made any
overture to the Commonwealth in order to obtain Exhibit 8 prior to authoring
its 1925(a) opinion.


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v. LeGares, 709 A.2d 922, 924-25 (Pa. Super. 1998) (granting a new trial

based on the trial court’s admission of a “gruesome” and “gory” color picture

of the victim’s skull from the homicide by shotgun, including the depiction of

“flesh flayed from the skull and folded back, the fractured skull wired

together to reveal the gaping entry wound, and the victim’s brain

removed”)). In the case at bar, on the other hand, the only objectionable

feature of the photograph in question is the presence of blood. It is not an

autopsy photo, no gunshot wounds are visible in the photograph, and there

is nothing particularly gruesome or gory. See Commonwealth’s Exhibit 8.

      In Commonwealth v. Spell, our Supreme Court stated that a finding

that a color photograph is inflammatory “is not [required] by the mere

depiction of blood. Although the presence of blood on the victim depicted in

the photographs is unpleasant, it is not in and of itself inflammatory. Murder

evidence   is    not   often   agreeable,   but   sanguinity   does   not   equal

inadmissibility.” Spell, 28 A.2d at 1279. The Court in Spell found no abuse

of discretion in the admission of photographs of the victim’s bloody face

because they “aided the jury in understanding witness testimony regarding

the body’s condition and location.” Id. at 1280.

      In Commonwealth v. Woodward, 394 A.2d 508 (Pa. 1978), the trial

court permitted the Commonwealth to enter into evidence black and white

photographs of the bloodied body of the victim at the scene of the murder.

Id. at 511.     Our Supreme Court found no abuse of discretion in the trial



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court’s finding that the photographs were relevant “not only to corroborate

the testimony of the medical pathologist, but also for the additional purpose

of aiding and providing the jury with an overall view of the scene of the

crime and the position of the body in relation to it.” Id.

      Here, as in Woodward, the contested photograph was of the victim at

the scene of the murder, lying in a pool of blood, which the trial court

admitted “for the purpose of allowing [the jury] to view the scene as it [was]

being described by [Detective Boose].”        N.T., 12/13/11, at 64.   The trial

court further issued a cautionary instruction to the jury, informing it of the

purpose of the admission of the photograph and warning that the jury

“should not let it stir up any motion to the prejudice of either defendant,”

again stating that the photograph was being admitted for a “limited

purpose.” Id. The trial court reiterated this cautionary instruction during its

closing charge to the jury. N.T., 12/19/11, at 875-76.

      The trial court found the photograph in question was not inflammatory

and was relevant and assisted the jury’s understanding of the crime scene

and testimony concerning the crime scene. Trial Court Opinion, 1/10/14, at

11-12. Based upon our Supreme Court’s holdings in Spell and Woodward,

we find no abuse of discretion in this decision. See Spell, 28 A.3d at 1279;

Woodward, 394 A.2d at 511.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2014




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