J-S32019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARNELL LAMONT MCLEAN                      :
                                               :
                       Appellant               :   No. 1744 MDA 2017

             Appeal from the Judgment of Sentence August 30, 2017
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-CR-0001342-2016


BEFORE: PANELLA, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 17, 2018

        Appellant Darnell Lamont McLean appeals from the judgment of

sentence entered following his conviction for aggravated assault. 1 Appellant

asserts that the trial court abused its discretion in admitting crime scene

photographs into evidence and allowing a witness to testify about the

characteristics of individuals going through shock without qualifying the

witness as an expert. We affirm.

        In the late hours of July 21, 2016, into the early hours of July 22, 2016,

Appellant was at a bar. At approximately 1:10 a.m., Marvin Trotter (Victim)

left the bar, trailing behind a group comprised of his brother, Charles Trotter,

and two friends. N.T., 6/5/17, at 84-85, 149. Appellant exited the bar after

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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 2702(a)(1).
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Victim and confronted him approximately half a block from the bar. Id. at 86.

An altercation ensued, during which Appellant slashed Victim multiple times

with a box cutter, inflicting head wounds and cutting seven tendons in Victim’s

left hand. Id. at 93-94. Victim also had a small knife, with which he cut

Appellant’s wrist slightly. N.T., 6/6/17, at 81. Appellant left Victim lying in

the street. Victim was bleeding profusely and was going in and out of

consciousness. N.T., 6/5/17, at 26, 29.

        The police were contacted and they investigated the crime scene and

surrounding areas.       Officers took photographs of Victim at the scene and

recovered Appellant’s box cutter from a neighbor’s yard, where Appellant had

thrown it after the altercation. N.T., 6/5/17, at 58-60; N.T., 6/6/17, at 61.

Appellant turned himself in to police later in the day on July 22, 2016, and

thereafter was charged with attempted murder2 and aggravated assault.

        Prior to trial, Appellant filed a motion in limine seeking to exclude four

color photographs of Victim taken following the altercation.       One depicted

Victim unconscious on the ground following the fight. A second showed a pool

of blood around Victim.        The third and fourth revealed blood flowing from

Victim’s wounds and running down his body.3              The trial court denied

Appellant’s motion in limine.

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2   18 Pa.C.S. §§ 901, 2501(a).

3   Appellant describes the photographs as follows:




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        A jury trial was held from June 5, 2017, through June 7, 2017. During

opening statements, Appellant asserted that Victim instigated the physical

altercation between Victim and Appellant and that Appellant responded in self-

defense.

        The court admitted the photographs of the Victim after the stabbing as

Commonwealth’s exhibits 1 through 4. After the trial court issued a cautionary

instruction, N.T., 6/5/17, at 27, the Commonwealth published them to the

jury.

        The Commonwealth also called Victim, who testified that earlier in the

night he was inside the bar.           According to Victim, Appellant’s girlfriend,

Anastasia Kulp, was staring at him. Id. at 79. Victim approached Kulp and

complimented her dress.          Id.   After Victim complimented Kulp, Appellant

approached Victim and complimented Victim regarding his sneakers. Id. at

81.



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        Exhibit 1 shows [Victim] unconscious on the ground with his
        brother standing over him. Exhibit 2 shows “the pool of blood
        that’s coming from the victim running down the street.” Additional
        exhibits show cuts and blood both on the victim and on the ground
        surrounding the victim. In describing Exhibit 3, Officer Betz of the
        Chambersburg Police Department told the jury that it depicted a
        “stream of blood coming from the hand [of Victim] as well as from
        the head or neck area . . .” Exhibit 4 shows “additional blood
        running down toward the feet of [Victim].”

Appellant’s Brief at 12-13 (citations omitted).




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       Victim testified that later, he was outside when Appellant came almost

nose to nose with him. Victim attempted to push Appellant away, backed up,

and then fell down.      Victim testified that “the next thing [he knew he] woke

up and [his] brother [was] over top of [him trying to help him].” Id.

       Additionally, during the direct examination of one of the responding

officers, Officer John Sgrignoli, the Commonwealth began to elicit testimony

regarding the causes and effects of shock. Appellant objected, and during a

sidebar conference, the Commonwealth asserted that it was putting forth the

evidence to rebut Appellant’s opening argument that Victim was “combative.”4

N.T., 6/5/17, at 49.        The trial court overruled the objection, and Officer

Sgrignoli testified that blood loss could result in shock and that a person

suffering shock could lose consciousness or his awareness of people, place, or

time, or events that happened.             Id. at 47-50.   We quote the relevant

testimony in further detail below.

       Appellant testified at trial that there were several interactions with

Victim inside the bar.       Appellant indicated that he observed Victim sitting

beside Kulp with his arm around her chair, referring to her as “snow bunny.”

N.T., 6/6/17, at 47. Appellant testified that Victim apologized for speaking to

Kulp in the manner that he did, but after apologizing, Victim stared at him

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4 The term “combative” was not actually used by Appellant’s counsel to
describe Victim. Rather, in his opening statement, defense counsel referred
to Victim as instigating the altercation and asserted that Appellant acted in
self-defense in wounding Victim with the box-cutter.


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instead of walking away. Id. at 47-48. Appellant further indicated that Victim

attempted to buy a single cigarette from Appellant, but Appellant refused. Id.

at 48. Appellant also testified that as Victim was leaving the bar, Victim told

him to “come outside pussy.” Id. at 49.

       Appellant testified that he exited the bar after Victim left. According to

Appellant, his friend, Gershawn Samuels, arrived at the bar but was too late

to be allowed to enter. Id. at 54-55. After Appellant went outside to talk to

Samuels, Appellant decided he “wanted to view the situation.”         Id. at 55.

Appellant explained that he believed Victim and his group of friends “were

planning to jump [him] when the bar let out.” Id. Appellant indicated that

he approached Victim to “diffuse the situation.” Id. at 56. Appellant stated

that Victim swung at him with a knife, and that Appellant stabbed at Victim

approximately five to six times in self-defense.      Id. at 57-59.    Appellant

testified that he walked away from Victim once he fell to the ground and that

Appellant did not realize the extent of the injuries he had inflicted on Victim.

Id. at 60-61.

        At the conclusion of the trial, the jury found Appellant not guilty of

attempted homicide and guilty of aggravated assault. On August 30, 2017,

the trial court sentenced Appellant to ten to twenty years of incarceration for

aggravated assault.5

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5 At sentencing at this case, the trial court also found that Appellant had
violated his probation in a prior matter at docket number CP-28-CR-0001659-



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       Appellant timely filed a post-sentence motion on September 11, 2017.6

On October 5, 2017, the trial court denied Appellant’s post-sentence motion.

Appellant timely filed a notice of appeal on November 3, 2017. Thereafter,

Appellant timely filed a court-ordered statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). The trial court complied with Pa.R.A.P.

1925(a).

       Appellant raises the following questions for our review:

       1. Whether the trial court abused its discretion in denying
          [Appellant’s m]otion in [l]imine to exclude inflammatory
          evidence in the form of a number of crime scene photographs
          of [V]ictim, his blood, and his bloody clothing?

       2. Whether the trial court abused its discretion in admitting expert
          testimony regarding the characteristics of individuals going
          through shock without first qualifying the witness as an expert?

Appellant’s Brief at 7.

       In his first issue, Appellant asserts that the trial court abused its

discretion when it denied his motion in limine to exclude the photographs of

Victim marked as exhibits 1 through 4. Appellant asserts that “[a]lthough the

nature and extent of a victim’s injuries is potentially probative of an actor’s

intent, introduction of graphic photographs was not an evidentiary need in
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2009, involving simple assault and theft convictions. The trial court sentenced
Appellant to a consecutive sentence of one to two years of incarceration for
simple assault and a concurrent sentence of six to twelve months of
incarceration for theft. Appellant did not appeal from the sentence imposed
at docket number 1659-2009.

6 The tenth day following sentencing fell on Saturday, September 9, 2017.
Therefore, Appellant’s post-sentence motion filed on the following Monday was
timely. See 1 Pa.C.S. § 1908; Pa.R.Crim.P. 720(A)(1).

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establishing the [Victim’s] injuries.” Id. at 14. Appellant notes that there was

testimony from the officers who responded to the scene and were able to

describe Victim’s wounds and “significant blood loss.” Id. at 15. Appellant

further argues that “the fact that no testimony from a medical professional

was presented in the present case is indicative that the Commonwealth

intended to rely on the inflammatory nature of the photographs to secure a

conviction.” Id. at 14-15 (citing Commonwealth v. Watkins, 108 A.3d 692,

724 (Pa. 2014) (per curiam)).

       The admissibility of photographs of a victim is a matter that is within

the sound discretion of the trial court.         Watkins, 108 A.3d at 724.7   To

determine whether to admit potentially inflammatory photographs, a trial

court must engage in the following analysis:

       First[,] a [trial] court must determine whether the photograph is
       inflammatory. If not, it may be admitted if it has relevance and
       can assist the jury’s understanding of the facts. If the photograph
       is inflammatory, the trial court must decide whether or not the
       photographs are of such essential evidentiary value that their
       need clearly outweighs the likelihood of inflaming the minds and
       passions of the jurors.

Id. (citation omitted); see generally Pa.R.E. 401, 402. Mere unpleasantness

is not enough to prevent photographs from being admitted into evidence. See



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7Although Watkins and the cases cited therein address the admissibility of
photographs of a homicide victim, the standard remains the same for
photographs of a non-homicide victim. See, e.g., Commonwealth v. Stein,
548 A.2d 1230, 1233 (Pa. Super. 1988).


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Watkins, 108 A.3d at 724. The trial court may caution the jury to not allow

the photographs to prejudice them against the defendant. See id. at 725.

       We note that inflammatory photographs have been held to be admissible

in attempted homicide prosecutions as relevant to the issue of the defendant’s

intent to kill.   See Commonwealth v. Stein, 548 A.2d 1230, 1233 (Pa.

Super. 1988).8 In ruling that the trial court’s admission of black and white

and color photographs depicting the victim’s head and throat wounds was not

an abuse of discretion, the Stein Court noted that the defendant “will not be

permitted to brutalize his victim and then keep the jury from learning exactly

how brutal the assault was.” Id. at 1234.

       As the Pennsylvania Supreme Court noted in Watkins, “[t]he condition

of the victim’s body provides evidence of the assailant’s intent, and, even

where the body’s condition can be described through testimony . . . such

testimony does not obviate the admissibility of photographs.” Watkins, 108

A.3d at 724 (citation omitted). Thus, Watkins stands for the proposition that

in a homicide case, even where there is testimony relaying the nature of a

victim’s wounds, photographs of such wounds nevertheless may be

admissible. Id.; accord Commonwealth v. Hutchison, 164 A.3d 494, 501

(Pa. Super. 2017) (indicating that in a non-homicide prosecution, a witness’


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8 Although Stein predated the enactment of the Pennsylvania Rules of
Evidence, we may rely on such cases to the extent they do not contradict the
rules. Commonwealth v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super.
2010).

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ability to testify as to an individual’s condition does not render photographs of

the individual inadmissible).

        Instantly, the trial court determined that the exhibits were admissible,

noting:

        “[T]he availability of alternate evidence . . . does not obviate the
        admissibility of the photographs.            [Commonwealth v.
        McCutchen, 454 A.2d 547, 549 (Pa. 1982).] The technical detail
        of a physician’s testimony and medical records simply does not
        convey and depict the nature of the victim’s injuries in the same
        way as a photograph. In this stabbing case[,] the photographs
        show the extensive blood loss suffered by the victim. The pictures
        may be somewhat difficult to look at, but the images convey the
        severity of the injury in a way unlike a medical professional or
        medical record. The Commonwealth [had] the opportunity to
        make use of this evidence . . . to prove the case against
        [Appellant], beyond a reasonable doubt.

Trial Ct. Op., 5/19/17, at 6.

        We agree with the trial court that the photographs were not unduly

prejudicial.   Appellant was on trial for attempted murder and aggravated

assault, which required the jury to consider whether Appellant specifically

intended to kill or cause serious bodily injury to Victim. See 18 Pa.C.S. §§

2501(a), 2702(a)(1). Moreover, we agree with the trial court that none of the

challenged photographs were “particularly gruesome.” Watkins, 108 A.3d at

725 (citation omitted). That the photographs may have been unpleasant is

insufficient to bar admission. See id. at 724. Lastly, the trial court provided

an instruction to the jury that they were not to allow the unpleasant nature of

the photographs to stir their emotions.9 See id. at 725. Thus, we find no
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9   Indeed, the jury found Appellant not guilty of attempted murder.

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abuse of discretion on the part of the trial court in admitting the photographs

into evidence. See id. at 724.

      In his second issue, Appellant asserts that the Commonwealth

“improperly elicited testimony in the form of an expert opinion without first

qualifying the witness as an expert.” Appellant’s Brief at 15. In particular,

Appellant refers to the following portion of the Commonwealth’s examination

of Officer John Sgrignoli:

      [Commonwealth]: Okay. As an [emergency medical technician
      (EMT)] and as a police officer as well, have you dealt with persons
      who have lost significant amounts of blood?

      [Officer Sgrignoli]: Yes.

      [Commonwealth]: Other than just on this occasion?

      [Officer Sgrignoli]: Yes.

      [Commonwealth]: In the past had you dealt with persons who
      have lost blood similar amounts to what [Victim] had lost?

      [Officer Sgrignoli]: Yes.

      [Commonwealth]: And based upon your medical background,
      what kinds of things could cause a person to go into shock?

      [Appellant’s Counsel]: Objection. Speculation.

      [Commonwealth]: I’ll lay a further foundation, Your Honor.

      [The Court]: All right.

      [Commonwealth]: Officer Sgrignoli, as an EMT you were a full-
      time firefighter EMT?

      [Officer Sgrignoli]: Yes.

      [Commonwealth]: And so in the course of securing that job did
      you go through training?

      [Officer Sgrignoli]: Yes.


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     [Commonwealth]: What type of training did you go through?

     [Officer Sgrignoli]: Through EMT school at the fire academy.

     [Commonwealth]: EMT school, specifically, I want to talk about
     that rather than the firefighting unless they intersect. The EMT
     school, what kind of training do you go through? How long does it
     take? What kind of classes?

     [Officer Sgrignoli]: I don’t remember how many hours it was, but
     it’s about three months long. At the end you have to take a test
     for national accreditation so you are accredited as an EMT
     nationally.

     [Commonwealth]: And you took that test?

     [Officer Sgrignoli]: Yes.

     [Commonwealth]: And you passed it?

     [Officer Sgrignoli]: Yes.

     [Commonwealth]: Did you have to pass that national accreditation
     in order to get your job as an EMT?

     [Officer Sgrignoli]: Yes.

     [Commonwealth]: All right. So in the course of your training as
     an EMT were you taught factors that would cause a person to go
     into shock?

     [Officer Sgrignoli]: Yes.

     [Commonwealth]: In your job as an EMT and as a police officer
     have you ever dealt with persons who have gone into shock?

     [Officer Sgrignoli]: Yes.

     [Commonwealth]: So based upon that training and experience
     that you discussed, what kind of things can cause a person to go
     into shock?

     [Officer Sgrignoli]: A significant amount of blood loss.

     [Commonwealth]: Would the amount of blood loss that [Victim]
     endured that you saw, could that cause him to go into shock?

     [Appellant’s Counsel]: Objection. May I have a sidebar[?]

     [The Court]: Yes.

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     (Discussion had at sidebar.)

     [Appellant’s Counsel]: It seems like Mr. Augustine is trying to lay
     a foundation for him to give an opinion, expert opinion, based
     upon your training as an EMT. What do you think?

     [Commonwealth]: I am not trying to solicit an opinion nor am I
     trying to qualify him as an expert. However, Mr. Arnoult has made
     statements that part of his defense is that [Victim] was combative.
     What I’m going to ask Officer Sgrignoli is were his actions,
     [Victim’s] actions, after the blood loss, consistent with a person
     who may be in shock and do those symptoms include a lack of
     cooperation, if you will.

     [The Court]: All right. The objection is overruled.

     (Discussion at sidebar concluded.)

     [Commonwealth]: All right. Officer Sgrignoli, let me pick up where
     I left off. So with regard to the amount of blood loss that [Victim]
     suffered that you witnessed, could that amount of blood loss
     induce a person into shock?

     [Officer Sgrignoli]: Yes, I believe so.

     [Commonwealth]: So what kinds of things does a person in shock
     – when I say things, what actions or demeanors might a person
     exhibit who is in shock?

     [Officer Sgrignoli]: They are differently [sic] going to have an
     altered mental status.

     [Commonwealth]: What does that mean?

     [Officer Sgrignoli]: They are not going to be conscious and alert
     to a person, place, time and the event that happened.

     [Commonwealth]: And is that how [Victim’s] demeanor was at the
     time?

     [Officer Sgrignoli]: Yes.

N.T., 6/5/17, at 47-50.

     Appellant   argues   that   “[t]he   Commonwealth     asked   question[s]

regarding the officer’s background, specialized knowledge, and experience he



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gained in his previous employment as an [EMT]” in order to obtain his opinion

on the behavior of individuals who go into shock. Appellant’s Brief at 15. The

Commonwealth allegedly did so to “rebut Appellant’s argument that [Victim]

was combative.10 Appellant’s defense at trial was one of self-defense; thus,

an expert opinion offering an explanation as to why [Victim] was combative

likely swayed the jury into disbelieving Appellant’s assertion [of] self-

defense.” Id. at 20.

       Pennsylvania Rule of Evidence 701 provides that if a witness is testifying

as a lay witness, opinion testimony is limited to that which is:

       (a) rationally based on the witness’s perception;

       (b) helpful to clearly understanding the witness’s testimony or to
       determining a fact in issue; and

       (c) not based on scientific, technical, or other specialized
       knowledge within the scope of Rule 702.

Pa.R.E. 701.

       Conversely, where a witness is qualified as an expert, he or she may

form an opinion based upon:

       (a) the expert’s scientific, technical, or other specialized
       knowledge is beyond that possessed by the average layperson;

       (b) the expert’s scientific, technical, or other specialized
       knowledge will help the trier of fact to understand the evidence or
       to determine a fact in issue; and

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10See supra note 4. As noted above, Appellant’s trial counsel did not use the
term “combative” to describe Victim. Rather, the Commonwealth argued for
the admissibility of the testimony regarding shock on the basis that defense
counsel “ha[d] made statements that part of his defense is that [Victim] is
combative.” N.T., 6/5/17, at 49.

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      (c) the expert’s methodology is generally accepted in the relevant
      field.

Pa.R.E. 702.

      For example, in Commonwealth v. Rose, 172 A.3d 1121, 1131 (Pa.

Super. 2017), a police officer was permitted to testify as a lay witness as to

the meaning of “street lingo” in conversations of which he did not have

personal knowledge, nor had he observed or participated in them. Id. (noting

that “lay testimony is intended to describe something that jurors otherwise

had not been able to experience for themselves, by drawing upon the sensory

and experiential observations that the witness made firsthand”). This Court

determined that it was error for the trial court to permit this type of opinion

testimony without qualifying the officer as an expert. Id.

      In the event of an erroneous admission of evidence, a verdict can
      still be sustained if the error was harmless. . . . Harmless error
      exists if . . . the properly admitted and uncontradicted evidence
      of guilt was so overwhelming and the prejudicial effect of the error
      so insignificant by comparison that the error could not have
      contributed to the verdict.

Id. (citations and quotation marks omitted).

      Here, the facts of Rose are similar to the instant matter, where an

officer was permitted to offer an opinion as to a medical condition, something

outside the knowledge or observations of a layperson, without being qualified

as an expert.   See Pa.R.E. 701.    Officer Sgrignoli was not qualified as an

expert witness, yet he gave an opinion regarding whether it was possible that

Victim suffered from shock based upon the amount of blood he lost. This

testimony was not within the knowledge or experience of a layperson. See


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Rose, 172 A.3d at 1131. Accordingly, we find that the trial court erred in

permitting Officer Sgrignoli to testify to his opinion regarding Victim potentially

being in shock. See id.

       Next, we turn to whether the error in permitting Officer Sgrignoli’s

testimony was harmless. See id. Here, in the context of all of the evidence

adduced at trial, the testimony regarding shock was de minimis. There was

no evidence that Victim was uncooperative or combative after the altercation

with Appellant. Indeed, the only evidence of Victim’s behavior after the fight

was that he was unconscious when officers first arrived and unresponsive to

attempts to talk to him. N.T., 6/5/17, at 29, 43. Furthermore, the severity

of Victim’s injuries were not in dispute at trial.      Thus, Officer Sgrignoli’s

testimony that Victim’s “demeanor” was consistent with a person in shock due

to the loss of blood did not unduly prejudice the jury’s ability to consider

Appellant’s claim of self-defense and could not have contributed to the verdict

as a whole.      Accordingly, we conclude that the error in admitting Officer

Sgrignoli’s opinion testimony regarding shock without qualifying him as an

expert was harmless error.11 Id.



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11In its Rule 1925(a) opinion, the trial court indicated that allowing Officer
Sgrignoli to testify regarding the effects of an individual going into shock was
not an error and in any event harmless because the officer could have been
qualified as an expert. Trial Ct. Op., 1/9/18, at 10-11. We note that we are
“not bound by the rationale of the trial court, and we may affirm the trial court
on any basis.” Commonwealth v. Williams, 73 A.3d 609, 617 n.4 (Pa.
Super. 2013) (citation omitted).


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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/17/2018




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