J-S78019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BEAU W. CHERMER

                            Appellant                  No. 128 WDA 2016


            Appeal from the Judgment of Sentence October 19, 2015
                In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0001125-2012
                            CP-04-CR-0001130-2012


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                FILED MARCH 14, 2017

        Beau W. Chermer appeals from the judgment of sentence imposed on

October 19, 2015, in the Court of Common Pleas of Beaver County.          At

Docket No. 1125-2012, the trial judge1 found Chermer guilty of murder of

the second degree.2 At Docket No. 1130-2012, Chermer pled guilty to 16

counts arising from the same incident, including aggravated assault,



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   Although Chermer and his co-defendant, Joseph Arlott, were tried
together, after the mistrial was granted and the new trial rescheduled,
Chermer opted for a bench trial.
2
    18 Pa.C.S. § 2502(b).
J-S78019-16



burglary, robbery, criminal conspiracy, and related offenses.3 Chermer was

sentenced to life in prison without the possibility of parole and a consecutive

aggregate term 19 to 50 years’ imprisonment on three conspiracy

convictions, namely, conspiracy to commit robbery, conspiracy to commit

aggravated assault, and conspiracy to commit burglary.4            Chermer claims

(1) the trial court erred in imposing sentence on more than one of the

conspiracy charges,5 (2) the trial court erred in denying Chermer’s motion

and amended motion to bar retrial on double jeopardy grounds and other

constitutional grounds, (3) the evidence was insufficient to sustain the

verdict for murder in the second degree, (4) the evidence was against the

weight of the evidence to support the conviction for murder in the second

degree, and (5) the trial court erred in failing to strike the Commonwealth’s

rebuttal testimony of James Smith, M.D.              Based upon the following, we

affirm the judgment of sentence at Docket No. 1125-2012, and vacate the

judgment     of   sentence     at   Docket     No.   1130-2012   and     remand    for

resentencing.
____________________________________________


3
   18 Pa.C.S.        §§   2701(a)(1),      3502(a)(1),   3701(a)(1)(i)    and     903,
respectively.
4
  The trial court opted not to sentence Chermer on any of the other counts
to which he pled guilty. See Sentence Order, 10/19/2015.
5
   The trial court has agreed that it erred in sentencing Chermer
consecutively on the three counts of conspiracy and has asked this Court to
vacate that sentence and remand for resentencing. For purposes of our
discussion, we will address this issue last.



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      The trial court has summarized the facts and procedural history of this

case, as follows:

      On August 26, 2015, the Court returned a verdict finding
      [Chermer] guilty of Murder of the Second Degree (Felony
      Murder) at Case No. 1125 of 2012. Prior to trial, [Chermer] had
      waived his right to a trial by jury and agreed to be tried at Case
      No. 1125 of 2012 in a Bench Trial. Also before trial, [Chermer]
      plead[ed] guilty to all sixteen (16) counts at Case No. 1130 of
      2012, arising out of the same incident. The counts at Case No.
      1130 of 2012, which [Chermer] plead[ed] guilty to, include: (1)
      Aggravated Assault, (2) Criminal Conspiracy to Commit
      Aggravated Assault, (3) Aggravated Assault, (4) Criminal
      Conspiracy to Commit Aggravated Assault, (5) Burglary, (6)
      Criminal Conspiracy to Commit Burglary, (7) Robbery, (8)
      Criminal Conspiracy to Commit Robbery, (9) Unlawful Restraint,
      (10) Criminal Conspiracy to Commit Unlawful Restraint, (11)
      Theft by Unlawful Taking, (12) Criminal Conspiracy to Commit
      Theft by Unlawful Taking, (13) Simple Assault, (14) Criminal
      Conspiracy to Commit Simple Assault, (15) False Imprisonment,
      and (16) Criminal Conspiracy to Commit False Imprisonment. On
      the first case, [Chermer] was sentenced on October 19, 2015 to
      life in prison without the possibility of parole. On the second
      case, [Chermer] received three (3) separate sentences for
      Criminal Conspiracy to Commit Robbery, Criminal Conspiracy to
      Commit Aggravated Assault and Criminal Conspiracy to Commit
      Burglary, each to be served consecutively. The aggregate
      sentence for the three (3) convictions required [Chermer] to
      undergo imprisonment for not less than nineteen (19) years, nor
      more than fifty (50) years, each to be served consecutively to
      the life imprisonment sentence at Case No. 1125 of 2012.1
      [Chermer] received no additional sentences for the other
      thirteen (13) counts he plead[ed] guilty to at Case No. 1130 of
      2012.
           _____________________________________
         1
          Specifically, for the conviction of Criminal Conspiracy to
         Commit Robbery, [Chermer] was sentenced to undergo
         imprisonment in a State Penal or Correctional Institution
         or Facility for not less than 102 months nor more than
         240 months; for the conviction of Criminal Conspiracy to
         Commit Aggravated Assault, [Chermer] was sentenced to


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J-S78019-16


        undergo imprisonment for not less than 84 months nor
        more than 240 months; and for the conviction of Criminal
        Conspiracy to Commit Burglary, [Chermer] was
        sentenced to undergo imprisonment for not less than 42
        months nor more than 120 months; each sentence was
        required to be served consecutively to each other.
        _______________________________________

     Following the sentencing, [Chermer] filed an Omnibus Post-
     Sentence Motion on October 26, 2015, requesting judgment of
     acquittal to be entered on the Second Degree Murder charge and
     requesting the sentences for the Conspiracy charges to be
     vacated, and only one (1) sentence for conspiracy be imposed.
     Chermer then filed a Supplemental Omnibus Post-Sentence
     Motion o[n] December 23, 2015, requesting judgment of
     acquittal for the Murder conviction, a new trial for the Murder
     conviction, and a motion for modification of sentence for the
     Conspiracy convictions.     This Court denied that motion on
     January 4, 2016. [Chermer] then filed this direct appeal to the
     Superior Court of Pennsylvania.

                                  ****

     At trial, the Court heard testimony from multiple medical
     professionals regarding the cause of the victim’s (Daniel J.
     Santia) death. After being tortured and beaten by [Chermer] and
     the Co-Defendant2 during a home invasion, the eighty-one (81)
     year old victim suffered a traumatic brain injury. The victim was
     found the day after the attack and was rushed to the hospital.
     Testimony provided that the victim suffered from a pre-existing
     heart condition, requiring him to take Coumadin, a blood
     thinner, to prevent blood clots. Due to the severe brain injury,
     the treating physicians suspended the victim’s normal
     medication and briefly took him off of the Coumadin to help treat
     the brain trauma. Testimony provided by Doctor Christina Toevs,
     the Medical Director of the Trauma Intensive Care Unit of
     Allegheny General Hospital, explained that it was customary to
     stop prescribing Coumadin for thirty (30) days following severe
     brain injuries in patients. The victim ultimately died twenty-one
     (21) days after the brutal attack.
        ______________________________




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        2
          The Co-Defendant in this case is Joseph Michael Arlott,
        who was convicted by a jury of all counts at Case No. 1126
        of 2012 and at Case No. 1127 of 2012.
        __________________________________

     The Commonwealth’s Forensic Pathologist, Doctor James Smith,
     determined the cause of death to be from acute myocardial
     infarction, as a direct result of the trauma that had occurred to
     the victim’s brain twenty-one (21) days previously. While all
     parties agreed that the victim’s pre-existing heart condition
     played a role in his death, experts disagreed that the brain
     trauma was the underlying cause of the victim’s death.
     Commonwealth witnesses and experts all provided that the brain
     injury is what placed the victim in the hospital and what
     eventually caused his death. Doctor Smith explicitly stated that
     the brain trauma was the direct cause of the victim’s death. (Tr.
     Transcr. Vol. V, 127-208 (Aug. 21, 2015). There was no doubt
     that [Chermer] and Co-Defendant [Arlott] caused the victim’s
     extensive brain trauma. [Chermer’s] Forensic [Expert], Doctor
     Cyril Wecht, on the other hand, testified that it was his opinion
     that the victim’s death was not the result of the brain trauma,
     and that he believed the evidence showed that the brain injury
     had mostly healed and played no role in the victim's death.

     This Court returned a verdict of guilty for the Second Degree
     Murder charge.

Trial Court Opinion, 2/23/2016, at 1-2, 3-5.

     Chermer first claims the trial court erred in denying his motion to

dismiss the charges against him on double jeopardy grounds.      Our scope

and standard of review for this question is as follows: “An appeal grounded

in double jeopardy raises a question of constitutional law. This [C]ourt's

scope of review in making a determination on a question of law is, as

always, plenary. As with all questions of law, the appellate standard of

review is de novo.” Commonwealth v. Taylor, 120 A.3d 1017, 1020 (Pa.

Super. 2015) (citation omitted). Further,

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       the double jeopardy clause of the Pennsylvania Constitution
       prohibits retrial of a defendant not only when prosecutorial
       misconduct is intended to provoke the defendant into moving for
       a mistrial, but also when the conduct of the prosecutor is
       intentionally undertaken to prejudice the defendant to the point
       of the denial of a fair trial.

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992).6

       Here, Detective Robert Chamberlain, of the District Attorney’s Office,

testified he had taken a series of photographs of the victim when he visited

him in the hospital some weeks after the assault.            These photographs

showed the victim, still alive, to be severely bruised and battered. In the

midst of Detective Chamberlain’s testimony, lead detective Greg Durkos, of

the Hopewell Police Department, informed one of the prosecuting attorneys

he believed he had taken the photographs shortly after the victim’s

admission into the hospital.           Indeed, prior to Detective Chamberlain’s

testimony, ADA Frank Martocci expressed a concern regarding when the

photographs had been taken, believing they depicted fresher injuries. N.T.

Trial, 1/29/2014 at 191. Accordingly, in attempting to authenticate the

photographs, Detective Chamberlain, while believing he had taken the

pictures, could not accurately date the pictures and stated he would have to

check the time signature on his computer at his office.
____________________________________________


6
  In Smith, our Supreme Court broadened the double jeopardy protection
provided by the federal courts and United States Constitution, which requires
the prosecution to have intentionally caused a mistrial through misconduct.
See Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416
(1982).



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       After the close of testimony for the day, Detective Durkos conclusively

demonstrated he had taken the pictures by examining the relevant

information contained on his computer. The next day, the Commonwealth

alerted both the defense and trial court to the problem. The Commonwealth

also offered to present testimony to the jury detailing the mistake and

thereby correcting any misimpression Detective Chamberlain’s testimony

caused.     However, the defense requested a mistrial and the trial court

granted it.

       Subsequently, Chermer and Arlott sought to bar retrial on the ground

of double jeopardy.7 An extensive hearing on the issue was held on March

24, 2014 at which both Detectives Durkos and Chamberlain testified.        In

denying the motion to bar a retrial, the trial court stated in its March 31,

2014,8 opinion:

       Based upon all the evidence presented and the argument of
       counsel, this Court finds no reason to change the Court’s Opinion
       and Order of February 18, 2014 on the issue of intentional
       misconduct by the prosecution in permitting Detective
       Chamberlain to attempt to authenticate the twenty (20)
       photographs which he clearly did not take. As pointed out in the
       February 18, 2014 Opinion, the prosecution’s preparation for
____________________________________________


7
   Chermer initially filed an interlocutory appeal regarding the double
jeopardy issue. However, the interlocutory appeal was quashed by per
curiam order, dated September 22, 2014. Our Supreme Court subsequently
denied allowance of appeal, see 112 A.3d 649 (Pa. 2015) (Table).
8
  The trial court authored two opinions regarding the double jeopardy issue,
having granted reconsideration after initially denying the motion to bar a
retrial. The March 31, 2014 opinion is the second of the opinions.



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      trial is suspect and did bring about the trial error, however, that
      conduct has not been proven to rise to the level of having been
      committed purposefully or in bad faith with the intent to prevent
      the Defendants from receiving a fair trial, it did not constitute an
      intentional attempt to deny or subvert the Defendants’
      constitutional rights, and it certainly was not a trial strategy
      undertaken to provoke he Defendants into seeking a mistrial.
      This Court cannot ignore the fact that the inaccurate testimony
      was called to everyone’s attention by the Commonwealth itself.
      As to the first ground raised, the defendants have not
      established grounds to require the barring of re-trial on Double
      Jeopardy grounds.

Trial Court Opinion, 3/31/2014 at 3.

      We have reviewed the certified record, including the relevant notes of

testimony from the initial trial and the hearing on the motion to bar a retrial.

We find no error in the trial court’s conclusion. Chermer has presented no

evidence or argument to overcome the fact that the Commonwealth came

forward itself to disclose the problem, a problem that might never have been

evident without that disclosure. In order to prevail on this claim, Chermer

must demonstrate that the Commonwealth acted intentionally in trying to

provoke a mistrial or in attempting to deny him a fair trial. The trial court

determined that such improper intent was inconsistent with self-disclosure

and denied Chermer relief. We affirm that decision.

      Next, Chermer argues there was insufficient evidence to support his

conviction   of   second-degree   murder.       Specifically,   he   claims   the




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Commonwealth failed to prove a sufficient nexus between the assault of the

victim and his demise.9

       The standard of review for claims of insufficient evidence is well-
       settled. With respect to such claims, we consider the evidence in
       the light most favorable to the Commonwealth as verdict winner.
       In that light, we decide if the evidence and all reasonable
       inferences from that evidence are sufficient to establish the
       elements of the offense beyond a reasonable doubt.

Commonwealth v. Thur, 906 A.2d 555, 568-69 (Pa. Super. 2006) (citation

omitted).

       The Crimes Code defines murder of the second degree as follows:

       (b) Murder of the second degree.--A criminal homicide
       constitutes murder of the second degree when it is committed
       while defendant was engaged as a principal or an accomplice in
       the perpetration of a felony.

18 Pa.C.S. § 2502(b).

       Chermer’s claim of insufficiency is a challenge to causation.

       To establish criminal causation, the Commonwealth must prove
       that the defendant's conduct was so directly and substantially
       linked to the actual result as to give rise to the imposition of
       criminal liability. Commonwealth v. Long, 425 Pa. Super. 170,
       624 A.2d 200, 203-204 (1993), appeal denied, 535 Pa. 170, 633
       A.2d 150 (1993) (citing Commonwealth v. Rementer, 410 Pa.
       Super. 9, 598 A.2d 1300, 1304 (1991), appeal denied, 533 Pa.
       599, 617 A.2d 1273 (1992)).

       In Rementer, we set forth a two-part test for determining
       criminal causation. First, the defendant's conduct must be an
       antecedent, but for which the result in question would not have
____________________________________________


9
  Because Chermer pled guilty to all the underlying crimes, including
burglary, aggravated assault, and robbery, the only real issue at trial was
whether the assault caused the victim’s death.



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      occurred. Rementer, 598 A.2d 1305; 18 Pa.C.S.A. § 303(a)(1).
      A victim's death cannot be entirely attributable to other factors;
      rather, there must exist a “causal connection between the
      conduct and the result of conduct; and causal connection
      requires something more than mere coincidence as to time and
      place.” Rementer, 598 A.2d at 1305, n. 3 (quoting LaFave and
      Scott, Substantive Criminal Law, Vol. 1, Ch. 3., at 391–392
      (1986)). Second, the results of the defendant's actions cannot
      be so extraordinarily remote or attenuated that it would be
      unfair to hold the defendant criminally responsible. Rementer,
      598 A.2d at 1305.

      As to the first part of the test, the defendant's conduct need not
      be the only cause of the victim's death in order to establish a
      causal connection. Rementer, 598 A.2d at 1305. “Criminal
      responsibility may be properly assessed against an individual
      whose conduct was a direct and substantial factor in producing
      the death even though other factors combined with that conduct
      to achieve the result.” Long, 624 A.2d at 203 (citing
      Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d 889 (1974),
      appeal dismissed, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304
      (1974)). The second part of the test is satisfied when the
      victim's death is the natural or foreseeable consequence of the
      defendant's actions. Id. (citing Rementer and Commonwealth
      v. Pacquette, 451 Pa. 250, 301 A.2d 837 (1973)). “Where the
      fatal result was an unnatural or obscure consequence of the
      defendant's actions, justice would prevent us from allowing the
      result to have an impact upon a finding of the defendant's guilt.”
      Id. at 204, 624 A.2d 200 (citing Rementer, 598 A.2d at 1306-
      1307).

Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa. Super. 2008).

      There is no dispute the victim suffered from medical problems prior to

the assault, including arthrosclerosis, here, the near total occlusion of three

coronary arteries. While the victim’s medical problems were predominantly

chronic, the autopsy discovered a fresh blood clot that had completely




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occluded one of the arteries, causing a myocardial infarction,10 which proved

to be the mechanism of death.

       It is also beyond dispute that the victim suffered a severe beating in

the course of the home invasion by Chermer and co-defendant Arlott.                   Of

primary    import    to   this   appeal,       the   victim   suffered   a   subarachnoid

hemorrhage – bleeding on the brain. In order to treat this potentially fatal

injury, the doctors had to stop the Coumadin regimen the victim had been

on to treat his severe heart condition.              Coumadin is a blood thinner that

helps prevent the formation of blood clots. Essentially, the doctors had to

stop the bleeding on the brain and could only do so by allowing the blood to

clot naturally at the site of the brain injury. However, this course of action

increased the risk of the formation of other blood clots.                As noted above,

another blood clot did form, occluded an artery, and killed the victim. The

central question of the trial was whether the formation of the fatal blood clot

was linked to the beating or was the formation of the blood clot 21 days

between the assault and the victim’s demise too attenuated. The resolution

of this question rested upon the testimonial evidence of Dr. James Smith,

the forensic pathologist who conducted the victim’s autopsy, and Dr. Cyril
____________________________________________


10
    Myocardial infarction is the technical name for a heart attack. The
Cleveland Clinic, Center for Continuing Education, states: “Myocardial
infarction occurs when myocardial ischemia, a diminished blood supply to
the heart, exceeds a critical threshold and overwhelms myocardial cellular
repair mechanisms designed to maintain normal operating function and
homeostasis.” See www.clevelandclinicmeded.com



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Wecht, the forensic pathologist who reviewed the matter on behalf of the

defendants. Dr. Smith testified the assault and death were linked, while Dr.

Wecht opined the victim had essentially recovered from the beating,

rendering the assault and myocardial infarction unrelated.

      Specifically, Chermer argues:

      The Trial Court recites that its verdict was based on the opinion
      of the Commonwealth’s expert, [Dr.] Smith, that the brain
      trauma [the victim] suffered was the direct cause of his death.
      However, [Dr.] Smith never rendered that opinion.

      [Dr.] Smith’s actual testimony was that [the victim] had
      recovered from the injuries caused by the beating and that the
      injuries were not the cause of, nor a contributing factor in, [the
      victim’s] death.

Chermer’s Brief, at 40.

      The certified record leads to the conclusion that this argument is

meritless.   Dr. Smith’s direct testimony spans 53 pages of the notes of

testimony. See N.T. Trial, 8/21/2015, at 127-180. Dr. Smith summed up

his opinion in the following manner:

      A: Okay. That [the victim] “died as the result of an acute
      myocardial infarct, secondary to a recent thrombosis of the
      coronary artery vein graft. The infarct was imposed in a heart
      already severely damaged from coronary artery disease and in a
      state of chronic congestive failure. The circumstances relating to
      his death were directly related to a severe beating he received
      some 20 days prior to his death.”

      The manner of death is homicide.

      Q: Now you’ve talked about both of those things that we’ve been
      talking about throughout your testimony –

      A: Um-hum.

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J-S78019-16



     Q: - the heart condition and the severe beating that he took.
     You said they are directly connected. Why do you say there in
     your opinion that they are directly connected?

     A: The, well, they’re, a lot of the features we’ve already, we
     have already talked about and discussed there are the business,
     most obvious being the business about the coagulation and the
     use of the anticoagulant there.      The anticoagulant therapy
     having to be discontinued and this leading to the thrombosis in
     the vein graft followed by an acute myocardial infarct and his
     death, okay.

     There, of course, as we’ve mentioned or as we’ve touched upon
     in the other testimony there’s the fact that his stasis, I mean his
     being unable to move about and so forth also contributed to this.

     His congestive heart failure also contributed to this.

     Again I don’t like to prolong it, but there was, the incident where
     he had to be intubated was at least in part related to a condition
     from his being placed in a, the position that he was for over 12
     hours where he was bound with his hands tied behind his back.
     His legs were bound. He was, he was in one position and
     couldn’t get out of it for many, many hours.

     This leads to, especially with heart failure, leads to stasis, that
     means fluids going to the lower part of the body. It causes, and
     this is a direct cause of, a direct result of this is muscle necrosis,
     and one of the, one of, the primary protein in muscles, protein
     called myoglobulin, it’s very damaging to the kidneys. That was
     secreted. His kidneys were damaged.

     The kidney, because the kidneys were damaged, why he retains
     fluid, and because he retains fluid, why he goes into severe
     congestive heart failure and has to be intubated.

     Probably that episode also helped to get, give him the
     pneumonia that he got on May 7th and all of those things sort of
     tie together.

     He was a man who had been living with this, these coronary
     artery bypasses for 34 years. He had been doing well, and now
     with the intervention of the trauma that he suffered why this is,

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      this has, I feel, is part of, all a part and parcel of a cause, a
      cause of his death.

      Q: And do you see any break in that chain from the time that he
      had the, was the victim of the assault up until the time of his
      death?

      A: No, I don’t.

      Q: And also from the time that you review those reports on April
      30th until the time of his death do you see any indication in those
      records or in your exams that he ever totally recovered or fully
      recovered –

      A: Fully recovered?

      Q: - from those injuries?

      A: No, definitely not. I don’t feel he had ever fully recovered,
      no.

N.T. Trial, 8/21/2015, at 176-180.

      In summary, the testimony of Dr. Smith drew an unbroken chain of

events from the beating to death, and the judge was free to believe his

testimony as to causation.         As such, Chermer’s argument regarding

insufficiency of the evidence fails and he is not entitled to relief on this issue.

      Next, Chermer argues the verdict was against the weight of the

evidence.    Specifically, he argues Dr. Smith failed to quantify how much

more likely it was for a blood clot to form absent the Coumadin therapy and

did not address Dr. Wecht’s theory of changed hematological state until

rebuttal. Also, he argues the trial court failed to properly weigh the effect of

the “do not resuscitate” (DNR) order placed by the decedent’s family.




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     Our Supreme Court has set forth detailed instructions regarding the

review of a challenge to the weight of the testimony.

     A motion for a new trial based on a claim that the verdict is
     against the weight of the evidence is addressed to the discretion
     of the trial court. Commonwealth v. Widmer, 560 Pa. 308,
     319, 744 A.2d 745, 751-52 (2000); Commonwealth v. Brown,
     538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial
     should not be granted because of a mere conflict in the
     testimony or because the judge on the same facts would have
     arrived at a different conclusion. Widmer, 560 Pa. at 319-20,
     744 A.2d at 752. Rather, “the role of the trial judge is to
     determine that ‘notwithstanding all the facts, certain facts are so
     clearly of greater weight that to ignore them or to give them
     equal weight with all the facts is to deny justice.’ ” Id. at 320,
     744 A.2d at 752 (citation omitted). It has often been stated that
     “a new trial should be awarded when the jury's verdict is so
     contrary to the evidence as to shock one's sense of justice and
     the award of a new trial is imperative so that right may be given
     another opportunity to prevail.” Brown, 538 Pa. at 435, 648
     A.2d at 1189.

     An appellate court's standard of review when presented with a
     weight of the evidence claim is distinct from the standard of
     review applied by the trial court:

        Appellate review of a weight claim is a review of the
        exercise of discretion, not of the underlying question of
        whether the verdict is against the weight of the evidence.
        Brown, 648 A.2d at 1189. Because the trial judge has had
        the opportunity to hear and see the evidence presented,
        an appellate court will give the gravest consideration to the
        findings and reasons advanced by the trial judge when
        reviewing a trial court's determination that the verdict is
        against the weight of the evidence. Commonwealth v.
        Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One
        of the least assailable reasons for granting or denying a
        new trial is the lower court's conviction that the verdict
        was or was not against the weight of the evidence and that
        a new trial should be granted in the interest of justice.
     Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).

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       Essentially, Chermer’s argument regarding his challenge to the weight

of the evidence is to highlight the fact that Dr. Wecht disagreed with Dr.

Smith as to certain medical issues.            As Clay instructs, this is an improper

basis to overturn a verdict.        Here, the trial court determined Dr. Smith’s

opinion was supported by the testimony of the treating physicians.

Additionally, the trial court opined:

              This Court returned a verdict of guilty for the Second
       Degree Murder charge. This Court had the opportunity during
       trial to weigh the credibility of all the witnesses and evidence
       presented at trial and determined which evidence it found most
       compelling.     This Court found, and the jury in the Co-
       Defendant’s case agreed, that the Commonwealth presented
       sufficient evidence to support a conviction for Second Degree
       Murder. Likewise, the verdict is also not against the weight of
       the evidence. The verdict shows that the Court found the
       Commonwealth’s witnesses more compelling, and that
       testimony, on its own, supports the conviction finding
       [Chermer’s] actions caused the victim’s death.

                                      ****
       Similarly, this conviction does not “shock one’s sense of justice”
       and is not against the weight of the evidence presented.

Trial Court Opinion, 2/23/2016, at 5.

       Based upon the foregoing, the trial court did not abuse its discretion in

denying Chermer’s claim the verdict was against the weight of the

evidence.11


____________________________________________


11
  As noted above, as part of his weight of the evidence claim, Chermer also
asserts the trial court failed to adequately account for the DNR order placed
by the victim’s family. Our review of the certified record shows there was no
(Footnote Continued Next Page)


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      Penultimately, Chermer claims the trial court erred in failing to strike

the rebuttal testimony of Dr. James Smith.

      Our standard of review in cases involving the admission of
      expert testimony is broad: “Generally speaking, the admission of
      expert testimony is a matter left largely to the discretion of the
      trial court, and its rulings thereon will not be reversed absent an
      abuse of discretion.”

Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008) (citation

omitted).

      On rebuttal, Dr. Smith disagreed with Dr. Wecht’s conclusion that the

fatal myocardial infarction took place too long after the beating and

cessation of Coumadin to be related. In explaining why he disagreed, he

enlarged his prior testimony, explaining the clotting process and how

removal from Coumadin effects said process. Although he did not reiterate

his opinions were made to a reasonable degree of medical certainty, the trial

court examined the testimony as a whole and determined Dr. Smith’s

rebuttal testimony was not rendered incompetent by that fact.

      While this issue purports to challenge Dr. Smith’s rebuttal testimony,

the first half of Chermer’s argument is a repeat of his prior argument that

Dr. Smith’s direct testimony was insufficient. Repeating this argument has

not compelled us to reconsider its merits.


                       _______________________
(Footnote Continued)

medical evidence to support a claim that the DNR order had any effect upon
the medical outcome of this matter.



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      Chermer is correct that Dr. Smith did not repeat the fact that his

rebuttal testimony was provided within a reasonable degree of medical

certainty. However, Dr. Smith’s testimony from the Commonwealth’s case

in chief was given to that standard. The trial court also noted that rather

than focusing on “magic words,”

      “the substance of the testimony presented by the expert must
      be reviewed to determine whether the opinion rendered was
      based on the requisite degree of certainty and not on mere
      speculation.” [Commonwealth v. Miller, 987 A.2d 638, 656
      (Pa. 2009)].

Trial Court Opinion, 2/23/16, at 8 (additional citations omitted).

      The trial court recognized that Dr. Smith’s initial testimony had been

explicitly rendered to a reasonable degree of medical certainty and reviewed

the detail of his rebuttal testimony to determine the rebuttal testimony was

proffered to the same standard and was not based on mere speculation. Our

review of the certified record leads us to conclude the trial court did not

abuse its discretion therein. Accordingly, Chermer is not entitled to relief on

this claim.

      In his last issue, Chermer argues he was sentenced illegally in regards

to the conspiracy charges.    The trial court has agreed with Chermer; we

agree as well.

      Specifically, Chermer received an aggregate sentence of 19 to 50

years’ incarceration for conspiracy to commit robbery (8½ to 20 years),




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conspiracy to commit aggravated assault (7 to 20 years), and conspiracy to

commit burglary (3½ to 10 years). However, 18 Pa.C.S. § 903 (c) states:

     If a person conspired to commit a number of crimes, he is guilty
     of one conspiracy so long as such multiple crimes are the object
     of the same agreement or continuous conspiratorial relationship.

18 Pa.C.S. § 903 (c).

     The trial court reasoned:

     To determine if one or multiple conspiracies have been
     established, the Court should apply a totality of the
     circumstances test and consider the following factors:

         The number of overt acts in common; the overlap of
         personnel; the time period during which the alleged acts
         took place; the similarity in methods of operation; the
         locations in which the alleged acts took place; the extent
         to which the purported conspiracies share a common
         objective; and, the degree to which interdependence is
         needed for the overall operation to succeed.

     Com[monwealth]. v. Davis, 704 A.2d 650, 654 (Pa. Super.
     1997). This test has been consistently followed by the Superior
     Court and adopted as the proper test by the Supreme Court of
     Pennsylvania. See e.g. Com[monwealth] v. Andrews, 768
     A.2d 309, 334 (Pa. 2001); see also Com[monwealth] v.
     Barnes, 871 A.2d 812, 820 (Pa. Super. 2005).

     Noting the applicable test to apply, this Court finds it would be
     proper to re-sentence [Chermer] at Case No. 1130 of 2012, and
     sentence [Chermer] for a single Conspiracy. Applying the test to
     the facts at hand, this Court agrees the evidence established one
     Conspiracy, as the crimes committed were all the object of a
     single “continuous conspiratorial relationship.” [Chermer’s] re-
     sentence should reflect as much.

Trial Court Opinion, 2/23/2016, at 11.

     Our review of the certified record confirms the trial court’s analysis.

Accordingly, Chermer is properly subject to a single sentence for these three

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conspiracy charges. Therefore, we vacate the sentence at Docket No. 1130-

2012 and remand this matter for resentencing.

     Judgment of sentence at Docket No. 1125-2015, for second-degree

murder, is affirmed.   Judgment of sentence at Docket No. 1130-2012 is

vacated as to Chermer’s aggregate sentence on the charges of conspiracy to

commit robbery, conspiracy to commit aggravated assault and conspiracy to

commit burglary, and remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2017




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