J-S23014-17
                               2017 PA Super 156
COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

FRANKLYN PALMER HUTCHISON IV

                          Appellant                No. 2772 EDA 2016


              Appeal from the Judgment of Sentence July 27, 2016
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0004035-2015

BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

OPINION BY OLSON, J.:                                FILED MAY 22, 2017

      Appellant, Franklyn Palmer Hutchison IV, appeals from the judgment

of sentence entered on July 27, 2016.     We hold that the evidence in this

case was sufficient to convict Appellant of abuse of a corpse.     As we also

conclude that Appellant is not entitled to relief on his remaining claims of

error, we affirm.

      The factual background and procedural history of this case are as

follows. Appellant and Brianne Miles (“Miles”) rented an apartment together.

On July 7 or 8, 2015, Miles died of a drug overdose in the apartment.

Appellant discovered Miles’ body on July 8, 2015. Two days later, Appellant

finally called police and notified them that there was a dead body in the

apartment.     When police arrived, Appellant originally told them that he

discovered Miles’ body that morning. Police found drug paraphernalia in the

apartment.
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        On February 11, 2016, the Commonwealth charged Appellant via

criminal information with abuse of a corpse,1 filing a false police report,2 and

possession of drug paraphernalia.3       On May 24, 2016, Appellant filed a

motion in limine seeking to exclude photographs of the corpse from being

introduced into evidence. On May 31, 2016, jury selection commenced. On

June 1, 2016, the trial court denied Appellant’s motion in limine. On June 2,

2016, the jury found Appellant guilty of all three offenses. On July 27, 2016,

the trial court sentenced Appellant to two to four years’ imprisonment. This

timely appeal followed.4

        Appellant presents four issues for our review:

     1. Did the trial court commit reversible error by refusing to dismiss
        the charge of abuse of corpse where the evidence established
        that [] Appellant failed to promptly report [Miles’] death to
        authorities but otherwise did not cause her demise or manipulate
        her remains?

     2. Did the trial court commit reversible error by permitting the
        Commonwealth to appeal to the sympathy of the jury by means
        of the prosecutor’s argument to the jury that it should “imagine”
        what it felt like to be [Miles’] family members upon discovering
        the death of [Miles] and the decomposed state of her remains?

1
    18 Pa.C.S.A. § 5510.
2
    18 Pa.C.S.A. § 4906(b)(1).
3
    35 P.S. § 780-113(a)(32).
4
  On August 30, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On September 12, 2016, Appellant filed his concise
statement. On October 27, 2016, the trial court issued its Rule 1925(a)
opinion. All issues raised on appeal were included in Appellant’s concise
statement.


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   3. Did the trial court commit reversible error by permitting the
      Commonwealth to introduce graphic, color photographs of
      [Miles’] decomposed remains to the jury that were so
      disproportionally inflammatory in comparison to their evidentiary
      value so as to prejudice the Appellant and deprive him of a fair
      trial?

   4. Did the trial court commit reversible error by failing to set forth
      sufficient reasons upon the record for imposing consecutive,
      statutory maximum sentences upon [Appellant?]

Appellant’s Brief at 7 (certain capitalization omitted).

      In his first issue, Appellant argues that the evidence was insufficient to

convict him of abuse of a corpse.       “Whether sufficient evidence exists to

support the verdict is a question of law; our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Giron, 155 A.3d

635, 638 (Pa. Super. 2017) (citation omitted).         In assessing Appellant’s

sufficiency challenge, we must determine “whether viewing all the evidence

admitted at trial in the light most favorable to the [Commonwealth], there is

sufficient evidence to enable the fact–finder to find every element of the

crime beyond a reasonable doubt.” Commonwealth v. Williams, 153 A.3d

372, 375 (Pa. Super. 2016) (citation omitted).         “The evidence need not

preclude every possibility of innocence and the fact-finder is free to believe

all, part, or none of the evidence presented.”             Commonwealth v.

Kennedy, 151 A.3d 1117, 1121 (Pa. Super. 2016) (citation omitted).

      The Crimes Code makes it an offense to “treat[] a corpse in a way that

[one] knows would outrage ordinary family sensibilities[.]”       18 Pa.C.S.A.



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§ 5510 (defining the crime of abuse of a corpse). Appellant contends that

his inaction, i.e., failing to notify the authorities when he discovered Miles’

body, is not criminalized by the statute.    He argues that, in order for his

inaction to be criminal under the statute, he needed to have a fiduciary

relationship with Miles.

      We conclude that, under this Court’s decision in Commonwealth v.

Smith, 567 A.2d 1070 (Pa. Super. 1989), appeal denied, 585 A.2d 468 (Pa.

1990), the evidence was sufficient to convict Appellant of abuse of a corpse.

In Smith, the defendant starved her three-year-old child to death. After the

defendant discovered the child’s body, she moved out of the apartment and

did not report the child’s death to authorities.        Three months later,

maintenance workers entered the apartment to shut off the utilities and

discovered the child’s decomposing and mummified remains. The defendant

was convicted of abuse of a corpse. On appeal, she argued that her inaction

in failing to notify authorities of the child’s death was not covered by the

abuse of a corpse statute.

      This Court framed the issue as “whether a person who knowingly

leaves a corpse to rot, without making arrangements for a proper burial has

treated a corpse in a way that she knows would outrage ordinary family

sensibilities.”   Id. at 1073 (internal quotation marks and alterations

omitted). Relying upon the commentaries to the Model Penal Code, which

section 5510 is based on, this Court held that “the purpose of drafting the



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abuse of corpse statute in very broad and general language was to ensure

that offenses such as concealing a corpse came under the purview of the

statute.” Smith, 567 A.2d at 1073. That is what occurred in the case at

bar. Appellant concealed Miles’ corpse from authorities so that she could not

receive a proper burial. Under Smith, this inaction violates section 5510.

      Appellant attempts to distinguish Smith in two ways. First, he argues

that the special mother-child relationship in Smith provided the mother with

a fiduciary duty that he, as a roommate, did not possess. Furthermore, he

argues that because the mother in Smith tied a rope around the door

handle of the child’s bedroom, where the child was found dead, she took

some affirmative action in concealing the child’s body while he took no

affirmative action to conceal Miles’ body.

      Appellant argues that Smith was based upon the fiduciary relationship

the defendant had to care for her child.     Although this Court did focus on

that relationship, it was in the context of discussing the sufficiency of the

evidence for the third-degree murder conviction.      See id. at 1072.     This

Court did not reference the parent-child relationship when discussing the

defendant’s abuse of a corpse conviction. Instead, this Court only focused

on the fact that the defendant failed to notify authorities of the child’s death

and chose instead to let her corpse rot. The same thing occurred in the case

at bar.   Appellant failed to notify authorities of Miles’ death and let her

corpse rot.



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      In support of his second argument he cites the following portion of

Smith:

      [The defendant] concealed her daughter’s corpse from the
      proper authorities, and did not make arrangements for burial
      because she said she was afraid and confused. In so concealing
      the corpse, she allowed it to be eaten by rodents and become
      mummified. The statute was intended to cover [the defendant’s]
      conduct. Moreover, as the trial court concluded, such conduct
      does indeed constitute an outrage to ordinary family
      sensibilities; therefore, we must affirm appellant’s conviction for
      abuse of corpse.

Smith, 567 A.2d at 1073.

      Appellant contends that the word “concealing” in this passage is critical

in light of the facts of Smith. He argues that because the room in which the

child’s body was found was locked from the outside by a rope or strap, this

active concealment of the child’s corpse is what made the defendant’s

actions criminal. The facts in Smith, however, showed that the child was

locked in the room prior to her death. Id. at 1072. Therefore, it was not

the locking of the child’s corpse in her bedroom that provided sufficient

evidence for Smith to be convicted of abuse of a corpse.       Instead, it was

what occurred after the child died, i.e., the defendant’s failure to notify

authorities of the child’s death, that provided sufficient evidence to convict

her of abuse of a corpse. The reason this Court discussed the child being

locked in her room related solely to the determination that the evidence was

sufficient to convict the defendant of third-degree murder. See id. Thus,

the fact that the child was locked in her room was not a factor in this Court’s



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determination that the defendant was guilty of abuse of a corpse. Instead, it

was the fact that the defendant failed to notify authorities of the child’s

death and left her corpse to rot.5   Accordingly, we hold that the evidence

was sufficient to convict Appellant of abuse of a corpse.

      In his second issue, Appellant argues that the trial court erred in

failing to sustain his objection to the Commonwealth’s opening statement.

We review a trial court’s ruling on an objection to an opening statement for

an abuse of discretion. See Commonwealth v. Parker, 919 A.2d 943, 949

(Pa. 2007) (citation omitted).

      As our Supreme Court has explained:

      Remarks in a prosecutor’s opening statement must be fair
      deductions from the evidence which [s]he in good faith plans to
      introduce and not mere assertions designed to inflame the
      passions of the jury. The prosecution is not, however, required
      to prove conclusively all statements made during the opening
      [statement]. As long as there is a good faith and reasonable
      basis to believe that a certain fact will be established, reference
      may properly be made to it during the opening [statement].
      Even if an opening [statement] is improper, relief will be granted
      only where the unavoidable effect is to so prejudice the finders
      of fact as to render them incapable of objective judgment.

Commonwealth v. Jones, 610 A.2d 931, 938–939 (Pa. 1992) (internal

citations omitted).




5
  Moreover, even if concealment were required, there was sufficient evidence
that Appellant concealed Miles’ body. On multiple occasions after Miles’
death, he told his landlord that Miles was sleeping or resting. N.T., 6/2/16,
at 32-33. He also used Miles’ cell phone to respond to a text message from
her grandfather. See Commonwealth’s Exhibit 29.


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      During her opening statement in the case sub judice, the prosecutor

stated:

      Ladies and gentlemen of the jury, imagine the notification; Mr.
      and Mrs. Hargraves, your granddaughter has died. We suspect a
      drug overdose. Imagine the grief. But wait, there’s more, Mr.
      and Mrs. Hargraves. Her body is completely decomposed and
      was left for at least 48 hours before it was discovered.

N.T., 5/31/16, at 52.6    Appellant objected after the prosecutor’s opening

statement and asked for a curative instruction.7     The trial court overruled

the objection and denied the request.

      Appellant contends that this statement by the prosecutor invited the

jury to place themselves in the Hargraves’ shoes.         We disagree.     The

prosecutor did not invite the jurors to imagine that they (the jurors) received

the phone call from police informing them of their granddaughter’s death.

Instead, she invited the jurors to imagine the grief that the Hargraves felt

when they received that phone call.




6
  Appellant also makes a passing reference to other comments made by the
prosecutor during this case. See Appellant’s Brief at 17. Appellant fails to
cite any of these statements and, therefore, any argument related to these
statements is waived. See Pa.R.A.P. 2101, 2117(c)(4).
7
  A party may (and should) wait to the end of an opening statement or
closing argument to object to statements or arguments made therein as long
as there is no factual dispute regarding the content of the statement or
argument and the objection is made immediately after the opening
statement or closing argument with sufficient specificity to permit the trial
court to give a limiting or curative instruction. See Commonwealth v.
Rose, 960 A.2d 149, 154 (Pa. Super. 2008), appeal denied, 980 A.2d 110
(Pa. 2009) (citation omitted).


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       This distinction is critical because “[c]hallenged prosecutor comments

must    be   considered   in   the   context   in   which   they   were   made.”

Commonwealth v. Robinson, 864 A.2d 460, 517 (Pa. 2004) (citation

omitted).    Read in context, the statement made by the prosecutor was

meant to convey that the Commonwealth would prove that Appellant’s

treatment of Miles’ corpse “would outrage ordinary family sensibilities[.]” 18

Pa.C.S.A. § 5510.    This is the critical element of the abuse of a corpse

statute and the prosecutor was permitted, during her opening statement, to

explain how and why the Commonwealth would prove this element of the

offense.

       Appellant cites Commonwealth v. Cherry, 378 A.2d 800 (Pa. 1977),

in support of his argument that the prosecutor’s opening statement was

improper.    Cherry, however, involved a prosecutor asking the jury to

imagine themselves as victims to a crime. During the challenged portion of

the prosecutor’s closing argument in Cherry, he used the word “you” or

“your” 15 times.    Id. at 802-803.     This included inviting the jury to “put

yourself in the place of any other victim, which could be you some day[.]”

Id. at 803. As noted above, in the case sub judice the prosecutor did not

invite the jury to imagine being in a victim’s or witness’ shoes. Accordingly,

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

Appellant’s objection.




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      In his third issue, Appellant argues that the trial court erred in denying

his motion in limine to exclude color photographs of the victim’s corpse.

“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.”

Commonwealth v. Ivy, 146 A.3d 241, 250 (Pa. Super. 2016) (citation

omitted); see Commonwealth v. Solano, 906 A.2d 1180, 1191 (Pa. 2006)

(admission of photographs by trial court is reviewed for an abuse of

discretion).

      Our Supreme Court has explained that when considering the admission

of photographs of a victim’s body, a trial court must employ a two-step

process.

      First, the trial court must examine whether the particular
      photograph is inflammatory.        If the photograph is not
      inflammatory, it may be admitted if it is relevant and can serve
      to assist the jury in understanding the facts of the case. If the
      photograph is inflammatory, the trial court must determine
      whether the photograph is of such essential evidentiary value
      that its need clearly outweighs the likelihood of inflaming the
      minds and passions of the jurors.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (internal

citations omitted).

      In this case, there were four photographs at issue – Commonwealth

Exhibits 8, 9, 27, and 28. We have carefully reviewed those four exhibits.

Commonwealth Exhibits 8 and 9 picture Miles’ room, along with her body on

the bed.     In both pictures, Miles’ body is covered by a black sheet.        Only

Miles’ head and arm is visible in those photographs. Commonwealth Exhibit


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28 is a photograph of the left side of Miles’ body. Finally, Commonwealth

Exhibit 27 is a photograph of the full front of Miles’ body, including her face,

lying on the bed.

      Our Supreme Court has recognized that photographs of dead bodies,

“by their very nature can be unpleasant, disturbing, and even brutal[.]”

Commonwealth         v.   Johnson,   42   A.3d    1017,   1033    (Pa.   2012).

Nonetheless, “[t]here is no need to so overextend an attempt to sanitize the

evidence of the condition of the body as to deprive the Commonwealth of

opportunities of proof in support of the onerous burden of proof beyond a

reasonable doubt.”    Commonwealth v. Walter, 119 A.3d 255, 286 (Pa.

2015) (citation omitted).

      Appellant cites Commonwealth v. Legares, 709 A.2d 922 (Pa.

Super. 1998), in support of his argument that the trial court improperly

admitted the four exhibits. We conclude Legares is distinguishable from the

case sub judice.    In Legares, the photograph in question “detail[ed] the

destruction wreaked upon the victim’s skull by the 20–gauge shotgun blast.

The left side of the victim’s head [was] shown, the 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.”             Id. at 925.      This

photograph, therefore, was far more graphic than the photographs of Miles’

decomposing body.




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       Instead,   we   find   instructive   our   Supreme   Court’s   decision   in

Commonwealth v. Spell, 28 A.3d 1274 (Pa. 2011).                   In Spell, the

defendant    argued    that   the   “photographs     [admitted   at   trial]   were

inflammatory because they were in color and the victim’s blood-covered

body and face can be seen in one photograph.” Id. at 1279. Our Supreme

Court rejected that argument and concluded that although the color

photographs were sanguinary, they were not inflammatory.              See id.    It

reasoned that the photographs did not focus on the deceased’s wounds but

instead were wide-angle photographs. See id. Moreover, it concluded that

the photographs were relevant to the abuse of a corpse charge. Id.

       Similar circumstances are present in this case.           Commonwealth

Exhibits 8, 9, and 27 are wide-angled camera shots of Miles’ body lying on a

bed.   Commonwealth Exhibit 28 is a closer view of the body but it only

includes the left portion of Miles’ body and is not overly grotesque. As such,

we conclude that these four color photographs were not inflammatory.

       Appellant argues that even if the photographs were not inflammatory,

they were not admissible as they were merely cumulative of other evidence.

He cites witness testimony regarding the state of Miles’ body and argues

that the photographs were not necessary to prove the elements of abuse of

a corpse.    This argument is without merit.        As our Supreme Court has

explained, “a witness[’] ability to testify as to the condition of a body does

not render photographs of the body inadmissible.” Spell, 28 A.3d at 1280



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(citations omitted); Commonwealth v. Pruitt, 951 A.2d 307, 320 (Pa.

2008); Commonwealth v. Rush, 646 A.2d 557, 560 (Pa. 1994);

Commonwealth v. McCutchen, 454 A.2d 547, 550 (Pa. 1982).

     In this case, the photographs were critical to showing the state of

Miles’ decomposing body so that the jury could determine whether

Appellant’s failure to notify authorities “would outrage ordinary family

sensibilities[.]” 18 Pa.C.S.A. § 5510. Unlike the case of a gunshot or stab

wound, it is difficult to verbalize the toll that time takes on a corpse.    As

such, we conclude that the photographs were not merely cumulative and

were instead admissible to prove the abuse of a corpse charge.

     Finally, Appellant argues that there were other alternatives to the color

photographs. Specifically, he contends that the Commonwealth could have

offered   black   and   white   photographs.   As   noted   above,   the   color

photographs were admissible.        Although the Commonwealth could have

admitted black and white photographs, the Commonwealth is free to present

its case as it deems appropriate.     Accordingly, we conclude that the trial

court did not abuse its discretion by denying Appellant’s motion in limine to

exclude the photographs.

     In his final issue, Appellant argues that the trial court erred by not

explaining why it imposed consecutive sentences. This argument challenges

the discretionary aspects of his sentence.          See Commonwealth v.

Flowers, 149 A.3d 867, 871 (Pa. Super. 2016) (citation omitted). Pursuant



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to statute, Appellant does not have an automatic right to appeal the

discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead,

Appellant must petition this Court for permission to appeal the discretionary

aspects of his sentence. Id.

      As this Court has explained, in order to reach the merits of a

discretionary aspects claim,

      [w]e conduct a four part analysis to determine: (1) whether
      [the] appellant has filed a timely notice of appeal; (2) whether
      the issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence; (3) whether [the] appellant’s
      brief has a fatal defect; and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code.

Commonwealth v. Popielarcheck, 151 A.3d 1088, 1093 (Pa. Super.

2016) (citation omitted).

      In this case, Appellant did not file a post-sentence motion nor did he

challenge the discretionary aspects of his sentence at the sentencing

hearing. Instead, he only sought clarification from the trial court regarding

the rationale for its sentence.   Seeking clarification is not the same as

objecting. See Purdy v. Florida, 2017 WL 384094, *4 (Fla. Dist. Ct. App.

Jan. 27, 2017) (Berger, J. concurring in part and dissenting in part) (asking

for clarification at a sentencing hearing is not the same as objecting to the




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sentence).    Accordingly, Appellant failed to preserve his discretionary

aspects claim for appellate review.8

      In sum, we hold that the evidence was sufficient to convict Appellant

of abuse of a corpse.     We conclude that the trial court did not abuse its

discretion by overruling Appellant’s objection to the Commonwealth’s

opening statement. We also conclude that the trial court did not abuse its

discretion by admitting photographs of Miles’ corpse into evidence. Finally,

we conclude that Appellant waived his discretionary aspects of sentencing

claim. Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/22/2017




8
  Moreover, even if Appellant preserved his discretionary aspects claim, we
would conclude he is not entitled to relief. The trial court adequately set
forth its rationale for its sentence in this case and we discern no abuse of
discretion in its decision to sentence Appellant to two to four years’
imprisonment.


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