J-S26007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LORI ANN TRESSLER                          :
                                               :
                       Appellant               :   No. 873 WDA 2019

          Appeal from the Judgment of Sentence Entered May 31, 2019
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0000011-2016


BEFORE:      MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                                  FILED JULY 08, 2020

        Lori Ann Tressler (Appellant) appeals from the judgment of sentence

imposed after a jury convicted her of third-degree murder.1 Upon review, we

affirm.

        The trial court summarized the facts as follows:

              On the evening of August 21, 2015, Raymond Dice was with
        [Appellant] and Robert Engle [(Engle)]. They were drinking on
        Mr. Dice’s porch when they got bored and wanted to go out. First,
        they went to a bar called Johnny’s[,] where they had a few beers.
        Next, they went to Forty & Eight, a club in Smithfield,
        Pennsylvania.

            At Forty & Eight, Armando Friend [(Friend)] joined their
        group. [] Friend is [Appellant’s] cousin. The four of them then
        went back to Johnny’s Bar, where they stayed until closing time.
        They then went back to Mr. Dice’s house, where they continued
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. § 2502(c).
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     drinking. By then, it was early in the morning on August 22, 2015.
     There was an argument between [Appellant] and [] Engle
     concerning a radio missing its fuse. [] Engle told [Appellant] that
     her son was the one who messed with it, and [] Engle was going
     to talk to him when he got home.[FN] 1 [Appellant], [] Engle, and
     [] Friend then left Mr. Dice’s house to go to [Appellant’s] house.

              Jeffrey Tressler is the son of [Appellant], but is not
         [FN] 1

         related to [] Engle.

           Upon arrival at [Appellant’s] house, [] Engle became upset
     because [Appellant’s] son, Jeffrey Tressler, was parked in the
     wrong spot. [Appellant] and [] Friend got out of the car they were
     in. [] Engle also got out of the car but then got back into the
     driver’s seat and began using that vehicle to try and push the
     other car out of its spot.

           While this was going on, Jeffrey Tressler was having a
     bonfire at [Appellant’s] house with his friends. Jeffrey Tressler
     and several of his friends who were there that night testified at
     [Appellant’s] trial to corroborate the events.

           After [] Engle tried moving the other car out of his parking
     spot, he got out of his car and, by some witnesses’ accounts, he
     became abrasive towards Jeffrey Tressler and his friends. Jeffrey
     Tressler testified at trial that [] Engle was yelling at several people
     and that he got into a scuffle with his mother, [Appellant], at
     which time [] Engle threw [Appellant] to the ground. Jeffrey
     Tressler heard his mother say, “You’re done Mother F’er.” [N.T.,
     4/2/19,] at 230. [Appellant] then ran towards [her] house.

           At that point, [] Friend was standing on the porch of
     [Appellant’s] house. He saw [Appellant] go into her house. As
     she was going in, [] Friend heard her say, “I’m gonna stab the son
     of a bitch.” [Id.] at 107. [] Friend saw [Appellant] come back
     out of the house with a knife in her hand, and he saw her chasing
     [] Engle down the road.

           Jeffrey Tressler testified that he saw [Appellant] come out
     of the house and stand within a foot of [] Engle. “I saw her stab
     him in the chest with a knife. Hard enough that I heard her fist
     connect and make a smacking sound off of his chest.” Id. at 231.
     Jeffrey Tressler and his friends were just finishing changing a tire
     on their vehicle at that point, and then they got in their car and
     took off.

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           Jeffrey Tressler also testified that he had previously seen
     [Appellant] stab [] Engle on multiple occasions in the past. When
     asked how many times, Jeffrey Tressler replied, “There’s too many
     times to honestly count how many.” Id. at 238. Jeffrey Tressler
     then recounted the latest incident he could remember, which
     happened in 2009 [(hereinafter “the 2009 stabbing”)]:

           [M]y mom grabbed a knife and she stabbed [Engle] in
           the chest a couple different times. It might’ve all been
           in the chest, but she lunged towards him with a knife
           multiple times. The only one I remember seeing is
           the one plunged [into] his chest.

     [N.T., 4/3/19,] at 6-7.

           Prior to trial, Appellant filed a Motion in Limine seeking to
     exclude evidence of prior incidents of [Appellant] allegedly
     stabbing [] Engle with a knife. Specifically, Appellant sought to
     preclude evidence of the 2009 [stabbing]. By Order dated June
     22, 2017, th[e trial] court granted Appellant’s Motion in Limine in
     part as it pertained to precluding the Commonwealth from
     introducing evidence at trial regarding prior incidents of
     [Appellant] stabbing [] Engle.

            However, on June 30, 2017, the Commonwealth filed an
     interlocutory appeal to the Pennsylvania Superior Court, stating
     that th[e trial] court’s Order precluding evidence of the prior
     stabbings would substantially handicap the prosecution of its case.
     On May 15, 2018, the Superior Court reversed th[e trial] court’s
     decision as it pertained to the introduction of evidence related to
     prior incidents of [Appellant] stabbing [] Engle. Commonwealth
     v. Tressler, [192 A.3d 249] (Pa. Super. … 2018) (unpublished
     memorandum) [(hereinafter “Tressler I”)]. The Superior Court
     reasoned that the introduction of [Appellant’s] prior bad acts could
     be introduced because the probative value of the evidence
     outweighed the risk of unfair prejudice to [Appellant]. Id. at [**
     7-23].

          On June 7, 2018, Appellant filed a petition for allowance of
     appeal to the Pennsylvania Supreme Court. On October 17, 2018,
     the Pennsylvania Supreme Court denied the petition . . . .
     [Commonwealth v. Tressler, 196 A.3d 128 (Pa. 2018).] The
     case was then remanded to th[e trial] court, at which point th[e]

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       court proceeded in accordance with the Pennsylvania Superior
       Court’s decision.

              Also at trial, Dr. Cyril Wecht testified regarding the autopsy
       of [] Engle. Dr. Wecht was admitted as an expert witness in the
       field of forensic pathology. Dr. Wecht described the stab wound
       to [] Engle. The autopsy showed that the stab wound went
       through [] Engle’s chest wall and into his heart. This produced a
       substantial amount of blood, which caused [] Engle’s death.

               [Importantly to this appeal,] Dr. Wecht was asked by the
       Commonwealth to look at two different knives and to
       hypothetically opine on whether each one could have been used
       in the stabbing of [] Engle.[FN] 2 The Commonwealth first showed
       Dr. Wecht a knife that was found in a grassy area near where []
       Engle was stabbed[,] and [it] was admitted into evidence at trial
       . . . . That knife had a black handle and a blood-stained blade[,]
       and was similar in appearance to other knives found in the kitchen
       sink of [Appellant’s] house [(we will refer to this knife as “the
       kitchen knife”)]. The Commonwealth asked Dr. Wecht whether
       [the kitchen] knife could have been used to cause the injuries to
       [] Engle.[2] Dr. Wecht replied that it could have been used,
       although he could not identify whether it was the knife that was
       actually used.
            [FN] 2Appellant’s theory of defense at trial was not that
            [Appellant] stabbed [] Engle in self-defense or in the heat
            of passion, but rather that one of Jeffrey Tressler’s
            friends [who was at Appellant’s house on the day of the
            stabbing], Roger Angelo [(Angelo)], stabbed [] Engle.
            Two knives were therefore collected into evidence in this
            case.

             The Commonwealth next showed Dr. Wecht a second knife,
       which was a [large,] silver[] metal survival knife and was
       admittedly owned by [] Angelo [(we will refer to this knife as
       “Angelo’s survival knife”)]. [Angelo’s survival] knife was admitted
       into evidence at trial by stipulation of both parties . . . . The
       Commonwealth asked [Dr. Wecht] whether that knife could have
       been used to cause the injuries to [] Engle. Dr. Wecht replied that
       he did not believe [that Angelo’s survival] knife could have been
____________________________________________


2 Appellant’s counsel objected to this line of questioning; the trial court
overruled the objection. N.T., 4/2/19, at 62-64.

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        used to cause the injuries because that knife would have fractured
        two ribs, produced a larger stab wound, and left a pattern of
        serration on the wound. Dr. Wecht testified that his conclusions
        were within a reasonable degree of medical certainty.

               At the conclusion of the trial, the jury found [Appellant]
        guilty of third-degree murder. On May 31, 2019, [Appellant] was
        sentenced to 20-40 years of incarceration.

Trial   Court   Opinion,   10/21/19,   at   1-5   (footnotes   in   original,   some

capitalization omitted). Appellant filed a timely notice of appeal and a court-

ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.

        Appellant presents two issues for our review:

        1. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE
           COMMONWEALTH TO ELICIT TESTIMONY FROM ITS EXPERT[,]
           MR. WECHT[,] THAT EXCEEDED THE SCOPE OF THE EXPERT’S
           REPORT[?]

        2. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE
           COMMONWEALTH    TO   PRESENT  TESTIMONY    FROM
           APPELLANT’S SON REGARDING PRIOR BAD ACTS OF
           APPELLANT[?]

Appellant’s Brief at 4.

        Appellant first argues that the trial court erred in permitting the

Commonwealth to elicit testimony from Dr. Wecht that exceeded the scope of

his expert report, and prejudiced the defense. See id. at 8-11.

        Our standard of review is well settled. The admissibility of evidence is

within the sound discretion of the trial court, and we will not reverse absent

an abuse of discretion. Commonwealth v. Leap, 222 A.3d 386, 390 (Pa.

Super. 2019); see also Whitaker v. Frankford Hosp., 984 A.2d 512, 522


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(Pa. Super. 2009) (stating that a trial court’s admission of expert testimony

will not be disturbed absent a manifest abuse of discretion).

       Expert testimony is admissible when it “involves explanations and

inferences not within the range of ordinary training[,] knowledge, intelligence

and experience.” Commonwealth v. Walker, 92 A.3d 766, 788 (Pa. 2014)

(citation omitted).3 It is well established that an expert may respond to a

hypothetical with an opinion, so long as the facts assumed in the hypothetical

are supported by competent evidence. Commonwealth v. Galvin, 985 A.2d

783, 801 (Pa. 2009).

       We have further explained:

       [an] expert’s testimony on direct examination is to be limited to
       the fair scope of the expert’s pre-trial report. In applying the fair
       scope rule, we focus on the word “fair.” Departure from the
       expert’s report becomes a concern if the trial testimony would
       prevent the adversary from preparing a meaningful response, or
       which would mislead the adversary as to the nature of the
       response. Therefore, the opposing party must be prejudiced as a
       result of the testimony going beyond the fair scope of the expert’s
       report before admission of the testimony is considered reversible
       error.

Whitaker, 984 A.2d at 522 (citation omitted).

       Here, Appellant contends that Dr. Wecht’s testimony exceeded the

scope of his report, where he testified to whether the stab wound that caused

____________________________________________


3The admissibility of expert testimony is generally governed by Pennsylvania
Rule of Evidence 702. Additionally, Pa.R.E. 703 provides that an “expert may
base an opinion on facts or data in the case that the expert has been made
aware of or personally observed.”



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Engle’s death could have hypothetically been caused by the kitchen knife

and/or Angelo’s survival knife.4 See Appellant’s Brief at 10 (arguing that “Dr.

Wecht never saw the kni[ves] prior to trial, and the autopsy was devoid of any

information concerning the instrumentality that caused the wound in

question.”). According to Appellant, Dr. Wecht’s knife testimony significantly

prejudiced the defense. See id. at 10-11 (pointing out that Appellant’s theory

of defense was that Angelo stabbed Engle with Angelo’s survival knife, and

Angelo allegedly disposed of a bloodied t-shirt after the stabbing to avoid

being considered as a suspect in the murder).

        There is no merit to Appellant’s claim. Though Dr. Wecht testified, in

response to the hypothetical question, that the kitchen knife could have been

the instrument that killed Engle, he expressly stated that he could not be sure

that this was the case. N.T., 4/2/19, at 65-66. Moreover, the facts assumed

in the hypothetical are supported by competent evidence of record, including

Dr. Wecht’s expert report, where he detailed the nature, depth and size of the

stab wound. See Galvin, supra; see also N.T., 4/2/19, at 68 (Dr. Wecht

testifying that Angelo’s large survival knife would have produced a much larger

stab wound, and inflicted more damage, than the wound that Engle actually

sustained); cf. Commonwealth v. Petrovich, 648 A.2d 771, 772 (Pa. 1994)

(stating that an expert may not base an opinion on “conjecture or



____________________________________________


4   We will refer to this testimony as “Dr. Wecht’s knife testimony.”

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guesswork.”). Dr. Wecht’s knife testimony in response to the hypothetical

question was not improper, and Appellant’s claim that this testimony exceeded

the fair scope of his report is misplaced and unavailing. Accordingly, the trial

court did not abuse its discretion in admitting Dr. Wecht’s knife testimony over

Appellant’s objection.

      However, even if the trial court erred in admitting Dr. Wecht’s knife

testimony, such error was harmless. “The harmless error doctrine . . . reflects

the reality that the accused is entitled to a fair trial, not a perfect trial. . . .

Harmless error exists[, in relevant part,] if the record demonstrates [that] . .

. the error did not prejudice the defendant or the prejudice was de minimis .

. . .” Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014) (citations

and quotation marks omitted). “An error may be deemed harmless . . . where

the properly admitted and uncontradicted evidence of guilt was so

overwhelming and the prejudicial effect of the error was so insignificant by

comparison that the error could not have contributed to the verdict.”

Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007).

      Here, even if Dr. Wecht’s knife testimony prejudiced Appellant, such

prejudice was de minimis where the uncontradicted evidence of Appellant’s

guilt was overwhelming. See id. Notably, Jeffrey Tressler, testified he:

      (1) Watched Engle push Appellant to the ground; this angered
      Appellant, who said “You’re done Mother F’er[,]” N.T., 4/2/19, at
      230;

      (2) Saw Appellant retrieve a knife from her house and stab Engle
      in the chest, id. at 231; and

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       (3) Had previously seen Appellant stab Engle on multiple
       occasions. N.T., 4/3/19, at 5-10.5

       Additionally, the Commonwealth presented the testimony of Jeffrey

Tressler’s friends, who (1) were present on the night of the stabbing and

corroborated his testimony; and (2) stated that no person aside from

Appellant stabbed Engle. See N.T., 4/2/19, at 144-47; N.T., 4/3/19, at 42-

43, 66-73.

       Finally, Friend testified:

       (1) After Engle pushed Appellant to the ground, Appellant got up
       and rushed into her house, stating “I’m gonna stab the son of a
       bitch[,]” N.T., 4/2/19, at 106-07;

       (2) Appellant came back out of the house holding a knife, id. at
       107; and

       (3) Appellant ran after Engle with the knife in her hand. Id.

       It is well settled that “even the uncorroborated testimony of a single

witness may alone be sufficient to convict a defendant.” Commonwealth v.

Crosley, 180 A.3d 761, 768 (Pa. Super. 2018) (citation omitted). Further,

the jury here ostensibly credited the testimony of the Commonwealth

witnesses; we may not disturb its credibility determinations, where, as here,

they are supported by the record. See Commonwealth v. Scott, 146 A.3d



____________________________________________


5 The trial court admitted into evidence a police photograph taken of Engle’s
body after the 2009 stabbing, which depicted stab wounds to his chest and
arm. See N.T., 4/3/19, at 8-10. Jeffrey Tressler testified that he watched
Appellant inflict those wounds. Id. at 8-9.

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775, 778 (Pa. Super. 2016) (stating that an appellate court will not disturb

the factfinder’s credibility findings, which are supported by the evidence of

record). Accordingly, Appellant’s first issue entitles him to no relief.

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

permitting the Commonwealth to introduce prior bad act testimony from

Jeffrey Tressler regarding Appellant’s prior stabbings of Engle.               See

Appellant’s Brief at 11-13.

      Because this Court addressed this exact issue in Tressler I, supra,

Appellant   is   collaterally   estopped       from   raising    it   again.   See

Commonwealth v. Gant, 945 A.2d 228, 229 (Pa. Super. 2008) (stating that

collateral estoppel, or “issue preclusion,” applies where (1) the issue decided

in the prior adjudication is identical to the issue presented later; (2) the party

against whom estoppel is asserted is a party to the prior adjudication; and (3)

the party against whom estoppel is asserted had a fair and full opportunity to

litigate the issue in the prior action); see also Commonwealth v. Holder,

805 A.2d 499, 503 (Pa. 2002) (stating that for “collateral estoppel purposes,

a final judgment includes any prior adjudication of an issue in another action

that is sufficiently firm to be accorded conclusive effect.”).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2020




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