J-S63010-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
JOSEPH McANDREW, JR.,                     :
                                          :
                   Appellant              :   No. 3548 EDA 2014

          Appeal from the Judgment of Sentence November 20, 2014,
                 Court of Common Pleas, Montgomery County,
              Criminal Division at No. CP-46-CR-0006823-2011

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED NOVEMBER 05, 2015

        Joseph McAndrew, Jr. (“McAndrew”) appeals from the judgment of

sentence entered following his convictions of three counts of first-degree

murder and one count of possessing instruments of crime.1         Following our

review, we affirm.

        The trial court succinctly summarized the relevant facts and procedural

histories as follows:

             On March 5, 2011, [McAndrew] slaughtered his
             mother, father and twin brother in the family's home
             in King of Prussia, Montgomery County. He was
             charged with three counts of murder of the first
             degree, three counts of murder of the third degree
             and one count of possession of an instrument of
             crime.   [McAndrew] filed notice of an insanity
             defense.




1
    18 Pa.C.S.A. §§ 2502(a), 907.
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           The matter proceeded to a bench trial, and the
           Commonwealth withdrew its intent to seek the death
           penalty. The undersigned found [McAndrew] guilty
           but mentally ill of three counts of murder of the first
           degree and one count of possession of an instrument
           of crime and, later, sentenced him to three
           consecutive terms of life in prison without parole.

           [McAndrew] did not file a post-sentence motion. He
           filed a direct appeal and subsequently complied with
           [the trial] court's directive to produce a concise
           statement of errors in accordance with Pennsylvania
           Rule of Appellate Procedure 1925(b).

Trial Court Opinion, 2/12/15, at 1-2 (footnote omitted).

     McAndrew raises four issues for our review:

           1. Is Mr. McAndrew entitled to a new trial because
              he was unfairly prejudiced when the trial court
              denied his [m]otion [i]n [l]imine to [e]xclude the
              [t]estimonies of Steven Kidd and Kenneth
              Defreitas and to [e]xclude [t]heir [s]tatements
              from [a]ll [e]xpert [r]eports at trial, the contents
              of which included self-incriminating admissions
              made by him at a time when he was incompetent
              and lacked the testimonial capacity to make such
              self-incriminating admissions?

           2. Is Mr. McAndrew entitled to a new trial because
              he was unfairly prejudiced when the trial court
              refused to suppress the in-court testimony of
              Steven Kidd at trial, the content of which included
              statements made by Mr. McAndrew at a time
              when he was incompetent and lacked the
              testimonial   capacity    to   make    such    self-
              incriminating admissions?

           3. Did the trial court err in not allowing Mr.
              McAndrew’s counsel to present his closing
              argument last, when Mr. McAndrew had entered
              the affirmative defense of [i]nsanity and thus had




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              the burden   of   proof        shifted   from    the
              Commonwealth on to him?

           4. Does the clear weight of the evidence
              demonstrate that the trial court did not abuse its
              discretion in finding, by clear and convincing
              evidence, that Mr. McAndrew was [g]uilty but
              [m]entally [i]ll of three counts of [m]urder in the
              [f]irst [d]egree and one count of [p]ossession of
              an [i]nstrument of a [c]rime … and that Mr.
              McAndrew failed to demonstrate his legal insanity
              by a preponderance of the evidence?

McAndrew’s Brief at 5-7.

     McAndrew’s first two issues, which he addresses together, challenge

evidentiary rulings regarding statements he made to other inmates in the

medical unit of Montgomery County Correctional Facility in early April 2011.

We review these claims mindful that

           [o]ur standard of review regarding the admissibility
           of evidence is an abuse of discretion. “The
           admissibility of evidence is a matter addressed to the
           sound discretion of the trial court and ... an appellate
           court may only reverse upon a showing that the trial
           court abused its discretion.” Commonwealth v.
           Weiss, 776 A.2d 958, 967 ([Pa.] 2001) (citations
           omitted). “An abuse of discretion is not a mere error
           in judgment but, rather, involves bias, ill will,
           partiality, prejudice, manifest unreasonableness, or
           misapplication of law.” Commonwealth v. Hoover,
           16 A.3d 1148, 1150 (Pa. Super. 2011).

Commonwealth v. Cox, 115 A.3d 333, 336 (Pa. Super. 2015).

     As noted above, both McAndrew and Kidd were incarcerated in the

medical unit in early April 2011.   McAndrew recognized Kidd, as they had

attended elementary school together, and they spoke briefly. The following



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day, they had two conversations.     N.T., 8/7/11, at 109.   In the second

conversation, McAndrew told Kidd that “he was seeing blood written on the

wall and he was … telling me how he was hearing the screams of the people

he murdered.” Id. at 110. After McAndrew made this statement, Kidd and

his cellmate, Kenneth Defreitas, questioned McAndrew about the “how, why

[and] when of the events” and wrote down his answers.        Id. at 110-11.

McAndrew told them that he used a dirk to commit the murders, which he

described as three-edged blade used on ships. Id. at 111-12. McAndrew

also told them the order in which he killed his family members, and that he

killed his brother by accident. Id. at 113. According to Kidd, McAndrew said

that “he wanted to made their deaths ugly because they made him ugly his

whole life.” Id. at 114.

      Presently, McAndrew argues that the trial court erred when it denied

his efforts to exclude the testimony of Steven Kidd both from trial and from

all expert reports.   McAndrew’s Brief at 24-25. In support of his claim,

McAndrew relies on the 1971 Pennsylvania Supreme Court decision in

Commonwealth v. Mozillo, 278 A.2d 874 (Pa. 1971) and the 1974

Pennsylvania Supreme Court decision in Commonwealth v. Ware, 329

A.2d 258 (Pa. 1974). McAndrew’s argument is misplaced. In Mozillo, the

Supreme Court held that the defendant’s statements, made at a time when

he was deemed to be incompetent to stand trial, could not be offered

against him at trial as admissions. Mozillo, 278 A.2d at 877. The Supreme



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Court’s analysis focuses exclusively on the issue of whether an adjudication

of incompetency nullifies a defendant’s testimonial capacity, such that the

defendant’s statements may not be offered against him as admissions.

Similarly, Ware addresses the issue of whether statements made by the

defendant while an inmate at Fairview State Hospital could be offered

against the defendant as admissions. Ware, 329 A.2d at 266-67, 272. In

the present case, however, the trial court admitted Kidd’s testimony not as

substantive evidence, but only as evidence of McAndrew’s mental condition.

Trial Court Opinion, 2/12/15, at 4.     The trial court stated that it was

expressly not admitting the testimony for the truth of the matter asserted

therein. Id.

     The trial court cites Commonwealth v. Bracey, 461 A.2d 775

(1983), in support of its decision to admit the testimony as evidence of

McAndrew’s mental condition.    Id.    The holding on which the trial court

relies in Bracey was ancillary to the primary issue, which was whether a

spontaneous statement to police can truly be considered voluntary if the

defendant was laboring under a mental illness that compelled her to confess.

Bracey, 461 A.2d at 781. After disposing of the primary issue, the Supreme

Court continued:

           Defense counsel's objections to the admission of
           appellee's   statements   arguably  included    the
           alternate ground that they were inadmissible for
           testimonial incompetency. See [] Mozzillo, [sic] []
           278 A.2d 874 []. The trial court opinion does not



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              clearly place any reliance on this alternate ground
              and appellee does not argue the competency issue
              here. However, as the dissent correctly concludes,
              the Commonwealth offered appellee's statements not
              to establish the truth of their content but as
              circumstantial evidence of her mental condition.
              Consequently, testimonial trustworthiness was not in
              issue and her statements were properly admitted for
              the purpose for which they were offered. See
              Commonwealth v. England, [] 375 A.2d 1292,
              1298–99 ([Pa.] 1977); Commonwealth v. Wright,
              [] 317 A.2d 271, 274 ([Pa.] 1974). See also 6 J.
              Wigmore, Evidence § 1790 (Chadbourn rev. 1976).

Id. at 782.

      McAndrew attempts to distinguish Bracey from his case, but fails to

appreciate that the trial court is relying on this secondary holding as the

basis for its ruling.   That is to say, McAndrew addresses only the primary

issue in Bracey and completely ignores the actual language on which the

trial court relies. His challenge fails.

      Next, McAndrew argues that the trial court erred by refusing to allow

him to present his closing argument last.            McAndrew’s Brief at 45.

Pennsylvania Rule of Criminal Procedure 604(B) provides,

              When the evidence is concluded, each party shall be
              entitled to present one closing argument to the jury.
              Regardless of the number of defendants, and
              whether or not a defendant has presented a defense,
              the attorney for the Commonwealth shall be entitled
              to make one argument which shall be made last.

Pa.R.E. 604(B) (emphasis added).           McAndrew acknowledges Rule 604(B),

but asks this Court to “adopt a rule that defendants entering the affirmative




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defense of insanity in a criminal bench trial be allowed to present their

closing arguments last.” McAndrew’s Brief at 46. We cannot. The power to

promulgate rules of procedure resides exclusively in the Pennsylvania

Supreme Court. See 42 Pa.C.S.A. § 1722. To the extent that McAndrew is

asking this Court to create an exception to Rule 604(B), we decline to do so.

Rule 604(B) “is intended to make the order of closing arguments uniform

throughout the Commonwealth; before its enactment the order of closing

arguments was left to the discretion of the lower court.” Commonwealth

v. McCarty, 421 A.2d 425, 426 n.3 (Pa. Super. 1980). By enacting a rule to

standardize the order of closing arguments, the Supreme Court expressly

removed this aspect of trial from the discretion of trial courts.   McAndrew

has cited no authority that would allow this Court to carve out an exception

to a rule of criminal procedure, and we know of none.

     Finally, McAndrew argues that his convictions are against the weight of

the evidence. McAndrew’s Brief at 47.

           A weight of the evidence claim must be preserved
           either in a post-sentence motion, by a written
           motion before sentencing, or orally prior to
           sentencing. Pa.R.Crim.P. 607; Commonwealth v.
           Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011).
           Failure to properly preserve the claim will result in
           waiver, even if the trial court addresses the issue in
           its opinion. Commonwealth v. Sherwood [] 982
           A.2d 483, 494 (Pa. 2009).

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014).




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      The record reveals that McAndrew did not file a post-sentence motion

or raise a weight of the evidence claim by oral or written motion prior to his

sentencing. Accordingly, he has waived this issue for purposes of appeal.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/5/2015




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