J-S51023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ANTONIO M. JOHNSON

                            Appellant               No. 2271 MDA 2013


          Appeal from the Judgment of Sentence November 18, 2013
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007270-2011


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                          FILED FEBRUARY 18, 2015

       Antonio M. Johnson appeals from the judgment of sentence imposed

on November 18, 2013, in the Court of Common Pleas of York County. On

September 12, 2013, a jury found Johnson guilty of first-degree murder,

criminal conspiracy to commit first-degree murder, two counts of criminal

attempt to commit homicide, and two counts of aggravated assault.1         The

court sentenced Johnson to an aggregate term of life imprisonment without

the possibility of parole, plus 20 to 40 years’ incarceration.    On appeal,

Johnson raises one issue, asserting the trial court erred in granting the

Commonwealth’s motion in limine, with respect to his expert witness,


____________________________________________


1
    18 Pa.C.S. §§ 2502(a), 903(c), 901(a), and 2702(a)(1), respectively.
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Johnathan L. Arden, M.D. After a thorough review of the submissions by the

parties, the certified record, and relevant law, we affirm.

       The facts and procedural history are as follows.       On September 18,

2011, at approximately 4:30 a.m., Rudolph Mendoza, Darvin Allen, and

Johnson were in a car, driving back from a party in York, Pennsylvania.

Mendoza saw an individual, Angel Rengifo, with whom he apparently has an

acrimonious relationship, standing outside a residence located at 155 South

Queen Street. The three men agreed to “get”2 Rengifo, so they decided to

park the car one block away on Poplar Street and then walk down an

alleyway to a breezeway that cuts between the buildings located on South

Queen Street.      Mendoza was observed carrying a .9-millimeter gun while

Johnson handled a .40 caliber firearm. As soon as Mendoza and Johnson got

out of the breezeway, they started firing the guns at two men standing

outside the residence, Rengifo and Brandon DeJesus.3            After being hit,

Rengifo and DeJesus ran into the home, and subsequently went to the

hospital. Rengifo was struck in the pelvis area and DeJesus was shot in the

abdomen. Both men survived and were released after receiving treatment.

       During the shooting, Mendoza passed in front of Johnson and was

struck by a bullet fired by his co-conspirator. The bullet went in his shoulder
____________________________________________


2
    N.T., 9/9/2013-9/12/2013, at 319.
3
   Rengifo testified he did not have a weapon and he did not observe
DeJesus with a weapon. Id. at 146-147.



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and then through his neck.         Mendoza and Johnson fled back through the

breezeway. Mendoza made his way to an empty lot, where he bled out as a

result of being struck by the bullet. Johnson went to Poplar Street, where

Allen was waiting, and handed him the .9-millimeter gun that Mendoza was

carrying.    Officers from the York City Police Department responded to the

scene.      They observed a blood trail and eventually found Mendoza, un-

responsive, in the lot.    Johnson was subsequently arrested, and charged

with multiple offenses related to the shooting.

      Prior to trial, Johnson’s counsel indicated that he would be calling

forensic pathologist, Dr. Arden, to testify on Johnson’s behalf.         On August

29, 2013, the Commonwealth filed a motion in limine to preclude certain

testimony from Dr. Arden with respect to the position of the shooter relative

to Mendoza and as to the movements of Mendoza immediately prior to him

being shot. The Commonwealth argued the subject matter was beyond the

scope of the pathologist’s area of expertise for him “to determine the

position of a shooter relative to the victim” and “as to how an individual

would or should respond to gunfire.” Motion in Limine, 8/29/2013, at ¶¶ 6-

7.

      The     matter   proceeded    to   trial   on   September   9,   2013.   The

Commonwealth introduced its expert forensic pathologist, Marianne Hamel,

M.D. Dr. Hamel testified she did an autopsy of Mendoza and determined he

died of a gunshot wound to the left shoulder.               See N.T., 9/9/2013-


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9/12/2013, at 293. She indicated the bullet entered the back of Mendoza’s

shoulder and then exited the front of his neck.               Id. at 310 (“[T]he bullet

traveled    back    to   front,   left   to    right,   and   upward.”).     After   the

Commonwealth’s case-in-chief, a proceeding was held on September 11,

2013, with regard to Johnson’s motion in limine. The trial court granted the

Commonwealth’s motion, finding the topic of how Mendoza received the

gunshot wound was beyond Dr. Arden’s area of expertise, and was a

question for the jury sitting as the fact-finder.             Id. at 411-417.   At the

conclusion of the case, the jury returned a verdict on September 12, 2013,

finding Johnson guilty of first-degree murder (as to Mendoza based on

transferred intent),4 criminal conspiracy to commit first-degree murder

(Mendoza), two counts of criminal attempt to commit homicide (as to

Rengifo and DeJesus), and two counts of aggravated assault (as to Rengifo

and DeJesus).

       On November 18, 2013, the court sentenced Johnson to a mandatory

term of life imprisonment without the possibility of parole for the murder

conviction, two terms of 20 to 40 years’ incarceration for the attempted

criminal homicide convictions, and two terms of five to 10 years’


____________________________________________


4
   See Commonwealth v. Jones, 912 A.2d 268, 279 (Pa. 2006) (citing the
doctrine of transferred intent, 18 Pa.C.S. § 303(b)(1), pursuant to which
“the intent to murder may be transferred where the person actually killed is
not the intended victim”).



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imprisonment for the aggravated assault offenses.5         All sentences were

consecutive to the first-degree murder but concurrent to each other. This

timely appeal followed.6

       In his sole issue, Johnson claims the trial court erred in granting the

Commonwealth’s motion in limine with respect to limiting trial counsel’s

questioning of his expert witness, Dr. Arden, as to his opinion that the bullet

trajectory and characteristics of Mendoza’s wound could have come from

“return fire” and not Johnson’s gun. Johnson’s Brief at 4. Specifically, he

states:

       The trial court limited the scope of counsel’s inquiry of Dr. Arden
       to opinions criticizing the Commonwealth’s expert’s autopsy
       report. The trial court’s rationale was that opinions expressed in
       Dr. Arden’s report about an alternate theory of “return fire,” if
       presented to the jury, invaded the province of the jury as a fact-
       finder and went beyond the scope of Dr. Arden’s expertise as a
       forensic pathologist. However, Dr. Arden’s opinions were based
       on facts in the record and his analysis of the bullet trajectory in
       Mendoza’s body. Such testimony falls squarely into his area of
       expertise as a forensic pathologist.        The limitations, thus,
       imposed by the trial court precluded [Johnson] from presenting a
       legitimate alternate theory, resulting in an unfair trial.

____________________________________________


5
   The court determined the conspiracy merged with the murder conviction
for sentencing purposes.
6
    During this time, trial counsel filed a motion to withdraw, which was
granted. The trial court then appointed new counsel. On January 4, 2014,
the trial court ordered Johnson to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). After receiving an
extension, Johnson filed a concise statement on February 10, 2014. The
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on March 7,
2014.



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Id. at 12.   Moreover, he argues it is improper for a court “to so severely

limit the testimony of a defense expert that a defendant has no alternate

theory to pose to the jury.” Id. at 13. He states that while both Dr. Hamel

and Dr. Arden agreed Mendoza was killed by a bullet that entered his

shoulder, traveled left-to-right across his body and exited his neck, “[t]hey

differed in the theory of where the bullet came from.”              Id.   Johnson

contends he merely “wanted to pose hypotheticals to introduce” the

alternative theory of return fire. Id. at 14. He asserts, “Significant to Dr.

Arden’s analysis was the actual wound channel in Mendoza’s body being left-

to-right as opposed to       front-to-back.      This directly   contradicts the

Commonwealth’s theory that Mendoza stepped in front of Johnson as

Johnson was firing.” Id. Johnson concludes, “Dr. Arden opining as to how

facts in the area of crime scene investigation impact his opinion as a forensic

pathologist is perfectly acceptable.” Id. at 15.

      We begin with our well-settled standard of review:

            When ruling on a trial court’s decision to grant or deny a
      motion in limine, we apply an evidentiary abuse of discretion
      standard of review. The admission of evidence is committed to
      the sound discretion of the trial court, and a trial court’s ruling
      regarding the admission of evidence will not be disturbed on
      appeal “unless that ruling reflects ‘manifest unreasonableness,
      or partiality, prejudice, bias, or ill-will, or such lack of support to
      be clearly erroneous.’”

Commonwealth v. Minich, 4 A.3d 1063 (Pa. Super. 2010) (citations

omitted). Moreover,




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     [t]he basic requisite for the admissibility of any evidence in a
     case is that it be competent and relevant. Though ‘relevance’
     has not been precisely or universally defined, the courts of this
     Commonwealth have repeatedly stated that evidence is
     admissible if, and only if, the evidence logically or reasonably
     tends to prove or disprove a material fact in issue, tends to
     make such a fact more or less probable, or affords the basis for
     or supports a reasonable inference or presumption regarding the
     existence of a material fact.

Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003) (citation

omitted). Likewise,

     Pennsylvania courts permit expert testimony as an aid to the
     jury when the subject matter is distinctly related to a science,
     skill, or occupation beyond the knowledge or experience of the
     average layman. Conversely, expert testimony is not permitted
     on matters of common knowledge. Expert testimony may not be
     used to bolster the credibility of witnesses because witness
     credibility is solely within the province of the jury.

Commonwealth v. Johnson, 690 A.2d 274, 276 (Pa. Super. 1997)

(citations and quotation marks omitted). See also Pa.R.E. 702.

     Here, the trial court found the following:

     In this case, Commonwealth witness Marianne Hamel, a Forensic
     Pathologist Medical Examiner, testified that a Forensic
     Pathologist specializes in the effects of trauma and diseases on
     the human body, and performs autopsies and attempts to
     determine the cause and manner of death.

            Dr. Jonathan Arden is also a forensic pathologist, and
     testified as an expert in that area. However, a portion of his
     report goes outside his area of expertise. Specifically, in the last
     paragraph of page four (4) and continuing onto page five (5) of
     his report, Dr. Arden discusses “the implications of the evidence
     from the shooting scene for the shooting scenario, namely how
     Mr. Mendoza was shot.” In this discussion, he makes a factual
     determination as to who was carrying what gun based on a
     statement by “Mr. Allen,” speculates as to where Mr. Mendoza
     was standing while he was shooting and what position he was in,

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      and speculates where he would have gone after firing his
      weapon. Dr. Arden then uses these factual determinations and
      speculations to determine the origin of the bullet that killed
      Rudolph Mendoza. Because these determinations are either
      factual determinations to be made by the jury and/or are outside
      the expertise of a forensic pathologist, the Trial Court properly
      granted the Commonwealth’s Motion in Limine regarding Dr.
      Arden’s report.

Trial Court Opinion, 3/7/2014, at 3-4 (record citations omitted).

      The court’s rationale for limiting Dr. Arden’s testimony demonstrates

its decision was not an abuse of discretion.      Dr. Arden testified forensic

pathology involves the investigation and certification of deaths, particularly

examining the effects of disease and/or injuries “in the form or the function

of the human body or its components.” N.T., 9/9/2013-9/12/2013, at 477.

In his expert report, Dr. Arden opined, in relevant part:

      The final area to discuss is the implications of the evidence from
      the shooting scene for the shooting scenario, namely how Mr.
      Mendoza was shot. According to Mr. Allen, Mr. Johnson was
      carrying the .40 caliber gun and Mr. Mendoza the 9 mm gun. An
      analysis photograph provided to me indicated that the 9 mm
      ejected casings were mostly located in the sidewalk and street
      (close to the curb) in front of the windows of 149 S. Queen St.,
      and the .40 caliber casings were mostly in the street in front of
      147 S. Queen St. and the breezeway between 147 and 145 S.
      Queen St. This indicates that the shooter using the .40 caliber
      was closer to the breezeway that they eventually left through,
      and the shooter using the 9 mm was on the sidewalk closer to
      what they were shooting at (155 S. Queen St.). Note also that
      the green plastic recycling container was on the sidewalk at the
      curb of 149 S. Queen St., and that the blood trail starts on the
      sidewalk in front of 149 S. Queen St., between the building and
      the recycling container. The trajectory of the gunshot wound to
      Mr. Mendoza was predominantly from his left to his right. If the
      9mm shooter (purportedly Mr. Mendoza) were standing on the
      sidewalk closer to the “target” area, his back would likely be
      turned to the .40 caliber shooter, which does not place him in

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       the proper relative positioning to be shot in his left shoulder and
       have the bullet travel from his left to his right. Furthermore, if
       he were standing on the sidewalk in front of the front windows of
       149 S. Queen St. facing and firing toward 155 S. Queen St., the
       front stairs and the stoop of 149 S. Queen [St.] would be behind
       him, blocking his egress to the breezeway. If after firing he had
       reason to exit or retreat, he would most likely turn to his right to
       proceed along the sidewalk in front of 149 and 147 S. Queen St.
       to get to the breezeway (because if he turned to his left he
       would be facing into the building and would be positioned to
       walk along the building and be blocked by the steps). If indeed
       he did turn to his right to leave, he would then be presenting to
       his left side to 155 S. Queen St. in such a way that gunfire
       originating from 155 S. Queen [St.] (or that direction) would be
       traveling in a direction to strike him in his left shoulder and
       follow a course through his body predominantly to his right, as
       was demonstrated by the autopsy and autopsy photographs.

       He would also be positioned in the same area as the beginning of
       the blood trail on the sidewalk, near the recycling container.
       Therefore, the evidence is consistent with Mr. Mendoza having
       been shot from returning fire from the direction of 155 S. Queen
       St. while he was on the sidewalk in front of 149 S. Queen St.,
       turning to his right to leave through the breezeway between 147
       and 145 S. Queen St.

Report of Consultation, Re: PA v. Antonio M. Johnson (CCP, York Co., No.

CR-7270-2011), 3/29/2013, at 4-5.

       Indeed, this “alternate theory” portion of Dr. Arden’s opinion is largely

based on speculation regarding Mendoza’s position during the shooting and

falls outside of the area of his expertise as a forensic pathologist. 7,       8




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7
  As noted by the Commonwealth, this “expected testimony would likely be
akin to the testimony of a crime scene reconstructionist, which Dr. Arden is
not.” Commonwealth’s Brief at 6.




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Moreover,    as   indicated       by   the       trial   court,   these   factual/credibility

determinations are to be made by the jury sitting as the fact-finder.                   See

Johnson, supra. Accordingly, the trial court did not abuse its discretion in

limiting Dr. Arden’s testimony. Therefore, we conclude Johnson’s claim that

the trial court erred in granting the Commonwealth’s motion in limine fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2015




                       _______________________
(Footnote Continued)
8
  We note that Johnson’s reliance on Commonwealth v. Jones, 327 A.2d
10 (Pa. 1974), to demonstrate an expert may pose an alternate theory is
misplaced. In Jones, the Pennsylvania Supreme Court held that psychiatric
expert testimony as to the defendant’s below normal mental capacity was
admissible in determining the voluntariness of his confession. Id. at 13.
Here, Dr. Arden’s testimony regarding Mendoza’s location and movements
during the shooting was outside the scope of his forensic pathologist
expertise.



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