Com. v. Brooks, R.

J-S16027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

RANDALL D. BROOKS,

Appellant No. 953 MDA 2014

Appeal from the Judgments of Sentence of
July 3, 2012 and August 31, 2012
In the Court of Common Pleas of Centre County
Criminal Division at Nos: CP-14-CR-0000141-2012, CP-14-CR-0000568-
2011, CP-14-CR-0001515-2011, CP-14-CR-0001927-2010
and CP-14-CR-0002130-2010

BEFORE: PANELLA, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.: FILED JUNE 02, 2015

Appellant, Randall D. Brooks, appeals from the judgments of sentence

entered on July 3, 2012 and August 31, 2012, as made final by the denial of

his post-sentence motion on August 31, 2012. We affirm in part, vacate in

part, and remand for resentencing.

The factual background of this case is as follows. In November 2009,

Appellant and Jessica Rooney (“Rooney”) ended their romantic relationship.

Shortly thereafter, Rooney began dating Matthew Ross (“Ross”). Ross

worked next to the car repair business where Appellant worked.

On December 11, 2009, Rooney and Ross went on a date. During that

date, Appellant sent numerous text messages to Rooney. In response, Ross
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used Rooney’s telephone to inform Appellant that Rooney was at Ross’ house

drinking. Upon receiving this message, Appellant drove to Ross’ house.

Appellant drove through a neighbor’s yard and parked in Ross’ backyard.

When Ross and Rooney arrived back at Ross’ residence, Ross exited his

vehicle and a verbal confrontation between Appellant and Ross ensued.

Appellant demanded to talk to Rooney and advanced towards her, while she

remained seated in Ross’ vehicle. Ross attempted to restrain Appellant and

a physical altercation followed. Eventually, Appellant left Ross’ residence.

On December 14, 2009, Ross picked Rooney up at her mother’s

residence. Once Rooney entered Ross’ vehicle, Appellant pulled behind Ross’

vehicle and blocked their exit. Ross therefore drove through the front yard

of the home in order to leave the area without confronting Appellant. On

December 18, 2009, Appellant told Rooney that Ross was lucky that

Appellant didn’t shoot him.

On December 29, 2009, as Ross was driving to work, Appellant pulled

up beside Ross’ vehicle and fired three shots. The third shot struck Ross in

the shoulder. As a result of his wounds, Ross continues to experience

medical problems, inter alia, limited use of his left arm. On January 27,

2010, Appellant was seen continually driving near Ross’ residence when he,

his family, Rooney, and Rooney’s daughter returned from shopping.

Appellant eventually confessed to Rooney that he was the individual

who shot Ross. He also continued to harass her by approaching her in

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public, leaving her notes, and writing letters from prison. While awaiting

trial, Appellant requested that his father pay one of the jurors to find him

not guilty of the charged offenses. He also requested his father change the

appearance of the taillights of the vehicle he was driving during the

shooting.

When Appellant returned to jail from jury selection on June 7, 2011,

he spoke to fellow inmate Joshua Dunlap (“Dunlap”). Appellant had

recognized one of the jurors as Brent Kephart (“Kephart”). Appellant was

aware that Dunlap knew Kephart. He therefore asked Dunlap to contact

Kephart once Dunlap was released on bail in order to discuss Appellant’s

case. On the morning Dunlap was released from jail, Appellant told Dunlap

that both he and Kephart would receive financial compensation if they

complied with his wishes.

The relevant procedural history of this case is as follows. Appellant

was charged via five criminal informations with five counts of witness

intimidation,1 two counts of aggravated assault,2 two counts of stalking,3

two counts of harassment,4 two counts of solicitation to commit evidence

1
18 Pa.C.S.A. § 4952.
2
18 Pa.C.S.A. § 2702.
3
18 Pa.C.S.A. § 2709.1.
4
18 Pa.C.S.A. § 2709.

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tampering,5 one count of solicitation to commit perjury,6 one count of

attempted murder,7 one count of possessing an instrument of crime, 8 one

count of recklessly endangering another person,9 one count of aggravated

jury tampering,10 and one count of conspiracy to commit aggravated jury

tampering.11 Appellant averred that he was unable to afford an attorney

and, therefore, Attorney Brian Manchester was appointed to represent

Appellant.

On June 28, 2011, Appellant moved in limine to bar the expert

testimony of Trooper Todd Neumyer regarding ballistic evidence. Soon

thereafter, Attorney Manchester withdrew as counsel. Attorney Karen Muir

was appointed to represent Appellant. The trial court then held a hearing on

Appellant’s motion in limine. On November 3, 2011, the trial court denied

the motion in limine.

On January 31, 2012, Appellant requested that the trial court

terminate Attorney Muir and appoint new counsel. After holding an

5
18 Pa.C.S.A. § 902, 4910.
6
18 Pa.C.S.A. § 902, 4902
7
18 Pa.C.S.A. §§ 901, 2501.
8
18 Pa.C.S.A. § 907.
9
18 Pa.C.S.A. § 2705.
10
42 Pa.C.S.A. § 4583.1.
11
18 Pa.C.S.A. § 903; 42 Pa.C.S.A. § 4583.1.

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evidentiary hearing on Appellant’s pro se request, the trial court denied the

request for appointment of new counsel. Thereafter, Appellant filed a pro se

motion pursuant to Pennsylvania Rule of Criminal Procedure 600(E). In that

motion, Appellant stated that he wished to represent himself.

On April 5, 2012, Appellant requested information regarding any

benefit the Commonwealth would bestow on Dunlap for his testimony. On

April 12, 2012, the Commonwealth informed Appellant that it was not

offering Dunlap any benefit for his testimony. The next day, Appellant filed

a motion to dismiss alleging that the Commonwealth lied when it averred

that Dunlap would receive no benefit for his testimony. The trial court held

an evidentiary hearing on the motion and, on April 16, 2012, Appellant’s

motion to dismiss was denied.

Trial commenced on April 17, 2012. Each day, prior to the jury

entering the courtroom, the trial court conducted a waiver of counsel

colloquy with Appellant. Each time, he reaffirmed that he wished to proceed

pro se. On April 19, 2012, Appellant was found guilty of all 19 charges.

On June 13, 2012, Appellant filed a pro se motion seeking

reappointment of counsel. Thereafter, Attorney Muir was reappointed to

represent Appellant. On July 3, 2012, a sentencing hearing was held. On

July 12, 2012, Appellant filed a pro se post-sentence motion. Also on that

date, the Commonwealth filed a post-sentence motion. On August 14, 2012,

the trial court modified a portion of Appellant’s sentence. On August 31,

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2012, the trial court granted the Commonwealth’s post-sentence motion,

vacated certain aspects of Appellant’s July 3, 2012 sentence, and

resentenced Appellant on certain counts. After those modifications,

Appellant’s aggregate sentence was 36¼ to 73 years’ imprisonment,

including 20 to 40 years’ imprisonment on the attempted murder charge.

Also on August 31, 2012, the trial court denied Appellant’s post-sentence

motion.

On September 28, 2012, Appellant filed a timely notice of appeal. This

Court dismissed the appeal for failure to file a brief. Commonwealth v.

Brooks, 1713 MDA 2012 (Pa. Super. Nov. 26, 2013) (per curiam). On

February 24, 2014, Appellant filed a pro se petition pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. Thereafter,

Appellant retained private counsel who filed an amended PCRA petition. On

May 8, 2014, the PCRA court granted the petition and reinstated Appellant’s

direct appeal rights nunc pro tunc. This appeal followed.12

Appellant presents five issues for our review:

1. Did the trial court abuse its discretion in denying [Appellant’s] motion
for the appointment of new counsel where he demonstrated that he
had irreconcilable differences with appointed counsel that precluded
counsel from representing him?

12
On June 5, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925 (b). On June 26, 2014, Appellant filed his concise statement.
On August 8, 2014, the trial court issued its Rule 1925(a) opinion. All issues
raised on appeal were included in Appellant’s concise statement.

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2. Was [Appellant] denied his federal and state constitutional right to
confrontation when the Commonwealth failed to disclose to the
defense through the discovery process, any deal, promise,
inducement, or benefit which the Commonwealth made or was going
to make to [Dunlap], who testified against [Appellant] as to the
[a]ggravated [j]ury [t]ampering charge?

3. Did the trial court err in denying the motions in limine seeking to
exclude and/or limit the testimony of Trooper Todd Neumyer regarding
his findings upon conducting ballistics testing and comparison of
shotgun shell wadding, pellets, plastic shot cups, and a shotgun?

4. Did the trial court err in imposing an illegal sentence of 20 to 40
years[’] imprisonment for attempted murder pursuant to 18
Pa.C.S.[A.] § 1102(c), which requires a specific finding that serious
bodily injury must have resulted from the attempted murder precedent
to issuing the maximum term of imprisonment of not more than 40
years?

5. Did the sentencing court abuse its discretion in violating general
sentencing principles in imposing a manifestly excessive sentence of
consecutive terms of imprisonment at [eight] counts, without
providing sufficient reasons to justify a de facto life sentence of 36
years, 3 months to 73 years’ imprisonment?

Appellant’s Brief at 33.

In his first issue, Appellant contends that the trial court erred by

denying Appellant’s motion for appointment of new counsel. “Both the right

to counsel and the right to self-representation are guaranteed by the Sixth

Amendment to the United States Constitution and by Article I, Section Nine

of the Pennsylvania Constitution.” Commonwealth v. Phillips, 93 A.3d

847, 851 (Pa. Super. 2014) (citation omitted). “A motion for change of

counsel by a defendant for whom counsel has been appointed shall not be

granted except for substantial reasons.” Pa.R.Crim.P. 122(C). “To satisfy

this standard, a defendant must demonstrate that he has an irreconcilable

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difference with counsel that precludes counsel from representing him.”

Commonwealth v. Keaton, 45 A.3d 1050, 1070 (Pa. 2012) (internal

quotation marks and citation omitted). As this Court explained, “the right to

appointed counsel does not include the right to counsel of the defendant’s

choice. Rather, the decision to appoint different counsel to a requesting

defendant lies within the discretion of the trial court.” Commonwealth v.

Smith, 69 A.3d 259, 266 (Pa. Super. 2013), appeal denied, 83 A.3d 168

(Pa. 2013) (internal quotation marks and citations omitted).13

Appellant first contends that the evidentiary hearing on Appellant’s

motion was inadequate. We disagree. At the evidentiary hearing, the trial

court first ascertained whether Appellant was entitled to appointed counsel.

Upon determining that Appellant qualified for appointment of counsel, the

trial court then explained to Appellant the law relating to appointment of

replacement counsel. It explained to Appellant the burden for appointment

of replacement counsel. The trial court then asked the assistant district

attorney to leave the courtroom so that Attorney Muir’s representation could

be discussed ex parte. The trial court and Appellant then engaged in a

13
We note that a portion of Appellant’s brief on this issue appears to
contend that Attorney Muir rendered ineffective assistance prior to the
motion for appointment of new counsel. See Appellant’s Brief at 62 (arguing
that counsel’s decisions were not based upon reasonable trial strategy). It is
well-settled that, except in very limited circumstances not implicated in this
case, ineffectiveness claims are not reviewable on direct appeal.
Commonwealth v. Mitchell, 105 A.3d 1257, 1266 (Pa. 2014). Thus, to
the extent that Appellant argues that Attorney Muir provided ineffective
assistance, that issue is not reviewable on direct appeal.

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colloquy regarding the alleged irreconcilable differences between Appellant

and Attorney Muir. Attorney Muir then gave her own statement regarding

the alleged irreconcilable differences. The assistant district attorney then

reentered the courtroom and examined Attorney Muir.

Appellant cites Commonwealth v. Floyd, 937 A.2d 494 (Pa. Super.

2007), in arguing that the inquiry by the trial court in this case was not

sufficiently “extensive.” Appellant’s Brief at 58. In Floyd, however, this

Court concluded that an inquiry which totaled 35 pages of transcript was

extensive. See id. at 496. In this case, the total inquiry, excluding the

portion of the transcript relating to Appellant’s financial condition, totaled 39

pages of transcript. See generally N.T., 2/17/12. Although the number of

pages required for an inquiry is obviously not dispositive, it is at least

indicative of the extent of the inquiry.

More importantly, our review of the certified record indicates that the

trial court stopped its colloquy with Appellant when he started discussing

issues not germane to whether new counsel should be appointed. For

example, immediately prior to termination of the trial court’s colloquy with

Appellant, Appellant began complaining that it was unfair that Gerald

Sandusky14 received lower bail than he did. See N.T., 2/17/12, at 41-42. It

was at this point that the trial court appropriately ended the colloquy. Thus,

14
See Commonwealth v. Sandusky, 77 A.3d 663 (Pa. Super. 2013), for
the factual details of that case.

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J-S16027-15

we conclude that the trial court’s inquiry into Appellant’s motion was

procedurally sound.

Turning to the merits of the trial court’s denial, at the evidentiary

hearing Appellant argued that there were irreconcilable differences between

himself and Attorney Muir for the following reasons: (1) Attorney Muir was

not keeping him apprised of court dates or other important matters; (2)

Attorney Muir was not investigating the forensic evidence; (3) Attorney Muir

was not filing motions as Appellant requested; (4) Attorney Muir left in the

middle of a discussion they were having at the jail; (5) their meeting ended

in arguments; and (6) Attorney Muir failed to return Appellant’s phone calls.

Attorney Muir’s testimony contradicted Appellant’s testimony with respect to

these perceived irreconcilable differences.

Attorney Muir testified that Appellant told his psychiatrist that “she

sends me up to two to three letters a week. Sometimes she does not do

everything I would like her to do but she does most everything.” N.T.,

2/7/12, at 29 (paragraph break omitted; complete capitalization removed).

Attorney Muir also testified that, although she did not file every motion that

Appellant requested, she carefully reviewed each of his suggestions to

determine whether they involved meritorious issues that should be raised.

See id. at 31. Furthermore, Attorney Muir testified that she accepted

Appellant’s phone calls whenever she was in the office. See id. at 30.

Attorney Muir acknowledged that she and Appellant differed with respect to

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some strategic decisions. Id. at 35. She explained, however, that she

declined to file meritless motions because she did not want potential venire

members to read about the case in the newspaper. See id. Attorney Muir

also noted that she investigated the forensic evidence, as Appellant

requested, and she consulted an expert regarding that evidence. Id. at 35-

36. Finally, she stated that she did not believe that there were irreconcilable

differences between herself and Appellant. See id. at 46.

It was the trial court’s duty to determine whether Appellant’s or

Attorney Muir’s testimony was more credible. It is evident from the record

that the trial court concluded that Attorney Muir’s testimony was credible

while Appellant’s testimony was not credible. It is well-settled that we

cannot overturn a fact-finder’s credibility determinations. Stephan v.

Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 667 (Pa. Super.

2014) (citation omitted). Therefore, we conclude, based upon the trial

court’s credibility determinations, that no irreconcilable differences existed

between Appellant and Attorney Muir.

Furthermore, even if we were to credit Appellant’s testimony regarding

his differences with Attorney Muir, we would conclude that the trial court

correctly determined that no irreconcilable differences existed. This Court

has affirmed trial courts’ denial of motions for new counsel in circumstances

in which the attorney-client relationship deteriorated far beyond the

deterioration in the case at bar. For example, in Commonwealth v. Neal,

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563 A.2d 1236 (Pa. Super. 1989), the defendant sought removal of trial

counsel because she failed to file pretrial motions that the defendant

requested and because she failed to meet with the defendant for the length

of time he preferred. Id. at 1239–1240. The trial court denied the motion

for appointment of new counsel and this Court affirmed that determination.

See id. at 1242-1243.

In Commonwealth v. Chew, 487 A.2d 1379 (Pa. Super. 1985), the

defendant “became dissatisfied with his counsel . . . because of a difference

of opinion regarding strategy and because of what [the defendant]

perceived as inadequate preparation for trial. This dissatisfaction continued

at the time of trial. Shortly before trial started, [the defendant] spit in the

face of his lawyer.” Id. at 1383. This Court affirmed the denial of

appointment of new counsel, holding that “differences of opinion concerning

strategy or the brevity of pre-trial communications does not compel the

appointment of new counsel.” Id. Combined, Neal and Chew indicate that

the complaints Appellant raised at the evidentiary hearing on his request for

appointment of new counsel do not rise to the level of irreconcilable

differences.

Appellant relies heavily upon Commonwealth v. Tyler, 360 A.2d 617

(Pa. 1976), in support of his argument that there were irreconcilable

differences. In Tyler, our Supreme Court determined that the trial court

abused its discretion in denying the defendant’s request for new counsel. In

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J-S16027-15

Floyd, this Court explained that the key to Tyler was that trial counsel

admitted that there were differences between himself and the defendant;

however, trial counsel refused to elaborate further because of the attorney-

client privilege. Floyd, 937 A.2d at 500. Since trial counsel did not admit

that there were irreconcilable differences between herself and Appellant,

Tyler is distinguishable and does not support Appellant’s claim for relief.

Based upon the record before us, we conclude that the trial court did not

abuse its discretion in denying Appellant’s request for appointment of new

counsel.

In his second issue, Appellant contends that his right to confrontation

was violated when the Commonwealth failed to disclose any incentive it

offered to Dunlap for his testimony. Although phrased as a Sixth and

Fourteenth Amendment confrontation clause issue, Appellant essentially

argues that the Commonwealth violated his Fourteenth Amendment right to

due process of law, as set forth in Brady v. Maryland, 373 U.S. 83 (1963).

Our Supreme Court explained:

To prove a Brady violation, Appellant must demonstrate that:
(1) the prosecution concealed evidence; (2) which evidence was
either exculpatory or impeachment evidence favorable to him
and; (3) he was prejudiced by the concealment. In order to
prove prejudice, Appellant must show a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different. Stated differently,
the undisclosed evidence must be material to guilt or
punishment. Further, impeachment evidence which goes to the
credibility of a primary witness against the accused is critical
evidence and it is material to the case whether that evidence is
merely a promise or an understanding between the prosecution

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and the witness. Mere conjecture as to an agreement between
the prosecution and witness is insufficient to establish a Brady
violation, however.

Commonwealth v. Bomar, 104 A.3d 1179, 1189–1190 (Pa. 2014)

(internal alterations, quotation marks, and citations omitted).

As noted above, Appellant made a pre-trial request for information

regarding inducements the Commonwealth offered Dunlap for his testimony.

The Commonwealth responded that no inducement was offered. Appellant

thereafter filed a motion to dismiss for the Commonwealth’s alleged Brady

violation. The trial court held an evidentiary hearing on the motion to

dismiss and concluded that the Commonwealth complied with Brady;

therefore, it denied Appellant’s motion to dismiss.

Appellant claims that the docket sheets relating to Dunlap’s pending

criminal charges indicates that the Commonwealth had in fact offered

Dunlap consideration in exchange for his testimony at trial. Specifically,

Appellant notes that Dunlap’s counsel requested a continuance and listed

“client needed to testify/Commonwealth seeking cooperation” as the reason

for the continuance. Furthermore, Appellant contends that the fact Dunlap

pled guilty nine days after Appellant was sentenced in this matter evidences

that an agreement between the Commonwealth and Dunlap existed.

We conclude that the Commonwealth fully complied with its obligations

under Brady. Specifically, the Commonwealth provided Appellant with a

copy of Dunlap’s criminal history which could be used to obtain court dockets

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in possession of the trial court prothonotary. The Commonwealth also

accurately stated that it had not made any deals with Dunlap in exchange

for his testimony in this matter. At the hearing on Appellant’s motion to

dismiss, the assistant district attorney told Appellant and the trial court that

Dunlap was currently incarcerated. The trial court stated Dunlap “may have

some kind of expectation that down the road [he] might receive some kind

of benefit.” N.T., 4/16/12, at 10 (complete capitalization removed). The

assistant district attorney responded “Correct.” Id. (complete capitalization

removed). The trial court then gave Appellant advice on how to use this

information to impeach Dunlap. See id. at 11.

There is no evidence, presented by Appellant, from the record in this

case or in Dunlap’s case, that “a promise or an understanding between the

prosecution and” Dunlap existed. Bomar, 104 A.3d at 1189-1190. To the

contrary, at trial Dunlop was asked if he were “currently incarcerated at the

Centre County Correctional Facility.” N.T., 4/20/12, at 8 (complete

capitalization removed). He confirmed that he was currently incarcerated at

that facility. Id. at 9. Dunlap was then asked if the “Commonwealth

promised you any deals for your testimony at all?” Id. (complete

capitalization removed). He responded, “not at all.” Id. (complete

capitalization removed). Appellant only presents “[m]ere conjecture as to

an agreement between the prosecution and” Dunlap. Id. at 1190. Such

conjecture is insufficient to prove a Brady violation. Bomar, 104 A.3d at

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1189-1990; Commonwealth v. Kinard, 95 A.3d 279, 290 (Pa. Super.

2014) (en banc) (citations omitted); Commonwealth v. Tielsch, 934 A.2d

81, 88 (Pa. Super. 2007), appeal denied, 952 A.2d 677 (Pa. 2008);

Commonwealth v. Champney, 832 A.2d 403, 412 (Pa. 2003) (citation

omitted); Commonwealth v. Morales, 701 A.2d 516, 522–523 (Pa. 1997).

Accordingly, we conclude that the Commonwealth satisfied its Brady

obligations.

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

permitting Trooper Neumyer to testify as an expert witness regarding

ballistic evidence. “[Q]ualification of a witness as an expert rests within the

sound discretion of the trial court, and the court’s determination in this

regard will not be disturbed absent an abuse of discretion.”

Commonwealth v. Malseed, 847 A.2d 112, 114 (Pa. Super. 2004), appeal

denied, 862 A.2d 1254 (Pa. 2004) (citation omitted). “The standard for

qualifying an expert witness is a liberal one: the witness need only have a

reasonable pretension to specialized knowledge on a subject for which

expert testimony is admissible.” Kinard, 95 A.3d at 288 (citation omitted).

As this Court has explained:

[E]xpert testimony is incompetent if it lacks an adequate basis in
fact. While an expert’s opinion need not be based on absolute
certainty, an opinion based on mere possibilities is not
competent evidence. This means that expert testimony cannot
be based solely upon conjecture or surmise. Rather, an expert’s
assumptions must be based upon such facts as the jury would be
warranted in finding from the evidence.

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While an expert need not use magic words, the foundation of
[his] opinion must still be sturdy. As our Supreme Court has
emphasized, the expert must base the substance of [his] opinion
on a reasonable degree of certainty instead of mere speculation.

Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa. Super. 2015)

(citations omitted). We evaluate an expert’s testimony in its entirety when

determining if the opinions were given with reasonably certainty. Betz v.

Erie Ins. Exch., 957 A.2d 1244, 1259 (Pa. Super. 2008), appeal denied,

995 A.2d 350 (Pa. 2010).

Trooper Neumyer testified that at least two shots were fired from the

vehicle driven by Appellant. N.T., 4/17/12, at 342. He also testified that

the shots were fired from a semi-automatic or automatic shotgun. Id. at

336. He testified that one imperfection found on the shotgun shell

components was caused by a piece of metal below the bore. Id. at 335.

Trooper Neumyer testified that the shotgun shell components recovered

from Ross’ vehicle were consistent with the shotgun shell components

recovered after test firing a firearm recovered from Appellant’s father’s

residence. Id. at 338. He conceded, however, that he could not say

definitively that the recovered firearm fired the shots at issue in this case.

See id. at 338-341. Instead, he testified that he was at least 90% certain

that the recovered firearm fired the shots at issue in this case. Id. at 341.

Appellant contends that Trooper Neumyer’s “use of several equivocal

terms in his testimony rendered [his testimony inadmissible].” Appellant’s

Brief at 79. In support of this argument, he cites McMahon v. Young, 276

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A.2d 534 (Pa. 1971), and Commonwealth v. Radford, 236 A.2d 802 (Pa.

1968) (per curiam). Those cases, however, are distinguishable from the

case at bar. In McMahon, our Supreme Court held that equivocal testimony

in a medical malpractice testimony was not admissible. McMahon, 276

A.2d at 535. Our Supreme Court relied upon a special rule for medical

malpractice actions, i.e., an expert must testify as to causation. See id.

(citation omitted). Thus, when that expert’s testimony is equivocal, it is not

admissible. See id. The case at bar is not a medical malpractice action and

does not deal with medical causation. In Radford, the Commonwealth’s

only evidence as to legal causation was an expert witness. Radford, 236

A.2d at 803. Our Supreme Court stated that, after its review of the expert’s

testimony, it was insufficient to prove legal causation beyond a reasonable

doubt. Id. Our Supreme Court did not hold that the expert’s testimony was

inadmissible. See id. Thus, Radford is properly understood as addressing

a sufficiency challenge and not whether an expert’s testimony was

admissible.

Instead we find instructive Commonwealth v. Hetzel, 822 A.2d 747

(Pa. Super. 2003), appeal denied, 839 A.2d 350 & 839 A.2d 351 (Pa. 2003).

In that case, the trial court permitted testimony that an expert witness’ test

showed that blood was possibly present. The defendant challenged the

admission of that evidence, arguing that it was not given to a reasonable

degree of scientific certainty. This Court held:

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[The expert] explained in detail the nature of the test she
conducted as well as its limitations. Her opinion was not that the
water surely contained blood, but rather that it had an indication
of blood, a fact confirmed by the presumptive test she
conducted. [The expert]’s opinion included her caveat that a
vegetable substance, such as red beets, also may have caused
the positive presumptive test. On cross-examination,
[defendant’s] counsel focused on the fact that the phenol test
was not definitive for blood. . . . [This] is a case where the
expert testified to performing a test and related the results of
that test, as well as its limitations. In light of the restricted
nature of [the expert’s] testimony and the fact that the test’s
limitations were exposed, we find no basis for concluding that
the expert testimony was improper.

Id. at 762. The same is true in the case at bar. The test conducted by

Trooper Neumyer indicated that the shots were likely fired from the tested

shotgun. He noted the limits of the test and that it was indeed possible that

the shots were fired from a different shotgun.

Furthermore, Trooper Neumyer testified that he was at least 90%

certain that the fired rounds came from the examined shotgun. In other

words, he testified that the p-value was .10. He then testified that his

opinion was given to a reasonable degree of scientific certainty, implying

that a p-value of .10 was sufficient for a reasonable degree of scientific

certainty. We agree that such a p-value is sufficient to show that he

testified to a reasonable degree of scientific certainty. See Riccio v. S&T

Contractors, 56 Pa. D. & C.4th 86 n.20 (C.C.P. Chester 2001) (internal

quotation marks and citation omitted) (“a reasonable degree of medical

certainty is equivalent to a statistical probability of [80%] or more.”); see

also Kroeschell, Inc. v. Ill. Workers' Comp. Com'n, 2014 WL 6908261,

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*5 (Ill. App. Dec. 5, 2014) (“Kornblatt stated that a proposition had to be

80% or 90% true before he would say that he held it to a reasonable degree

of medical certainty.”); Morris v. Sec'y of Health & Human Servs., 1992

WL 21874, *7 (Cl. Ct. Jan. 21, 1992) (holding that an expert’s testimony

that he was 90% certain equates to rendering an opinion to a reasonable

degree of scientific certainty). Accordingly, we conclude that Trooper

Neumyer’s testimony, taken as a whole, was given to a reasonable degree of

scientific certainty.

Finally, Appellant argues, in a single conclusory sentence, that the

admission of Trooper Neumyer’s testimony violated his constitutional right to

a fair trial. This argument is waived for failure to develop it in any

meaningful manner. See Pa.R.A.P. 2119(a); Commonwealth v. Zewe,

663 A.2d 195, 199 (Pa. Super. 1995), appeal denied, 675 A.2d 1248 (Pa.

1996). Accordingly, we conclude that the trial court did not abuse its

discretion in admitting Trooper Neumyer’s testimony.

In his fourth issue, Appellant argues that his sentence is illegal. As

part of the aggregate sentence, Appellant was sentenced to 20 to 40 years’

imprisonment for attempted murder. Appellant argues that this exceeded

the statutory maximum penalty of 20 years’ imprisonment. Whether a

sentence is illegal is a question of law; therefore, our standard of review is

de novo and our scope of review is plenary. Commonwealth v. Veon, 109

A.3d 754, 772 (Pa. Super. 2015) (citation omitted).

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The Crimes Code provides:

[A] person who has been convicted of attempt, solicitation or
conspiracy to commit murder, murder of an unborn child[,] or
murder of a law enforcement officer where serious bodily injury
results may be sentenced to a term of imprisonment which shall
be fixed by the court at not more than 40 years. Where serious
bodily injury does not result, the person may be sentenced to a
term of imprisonment which shall be fixed by the court at not
more than 20 years.

18 Pa.C.S.A. § 1102(c). “Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Commonwealth v. Conaway, 105 A.3d 755, 761 (Pa. Super.

2014), quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). A

defendant must be put on notice when the Commonwealth is seeking a 40-

year maximum sentence for attempted murder. Commonwealth v. Reid,

867 A.2d 1280, 1283-1284 (Pa. Super. 2005), appeal denied, 890 A.2d

1058 (Pa. 2005).

Appellant first contends that he was not put on notice that the

Commonwealth was pursuing attempted murder causing serious bodily

injury. This argument is without merit. The information in this case alleged:

[O]n or about December 29, 2009, at SR 64, near Penny Lane,
Walker Township, Centre County, Pennsylvania, with intent to
commit the specific crime of [c]riminal [h]omicide, any act which
constitutes a substantial step toward the commission of that
crime, in that he did intentionally, knowingly, recklessly or
negligently attempt to cause the death of another human being,
in that he did fire a 12 gauge shotgun at Matthew Ross, causing
serious bodily injury.

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Information, 11/10/10, at 1 (emphasis added). Thus, Appellant was on

notice of the Commonwealth’s intent to pursue attempted murder causing

serious bodily injury.

Appellant next contends that the jury did not find that the attempted

murder caused serious bodily injury. In its instructions, the trial court did

not inform the jury that in order to find Appellant guilty of attempted murder

(so as to subject him to the 40-year maximum under 18 Pa.C.S.A.

§ 1102(c)) it must find that the attempted murder caused serious bodily

injury. See N.T., 4/20/12, at 394-397. Furthermore, the jury did not

answer a special interrogatory in which it found that the attempted murder

caused serious bodily injury to Ross. See Verdict Slip, 4/20/14, at 1. The

Commonwealth argues, however, that the jury’s finding with respect to

count two (aggravated assault) was sufficient to satisfy Apprendi. On the

verdict form, the jury found that Appellant was guilty of aggravated assault

because he caused serious bodily injury to Ross. Id.

This Court addressed this issue in Commonwealth v. Johnson, 910

A.2d 60 (Pa. Super. 2006) (per curiam), appeal denied, 923 A.2d 1173 (Pa.

2007). In Johnson, this Court considered15 the same argument that the

Commonwealth is making in the case at bar, i.e., whether the jury’s finding

15
In Johnson, this Court raised the Apprendi issue sua sponte. Therefore,
there were no briefs filed on the issue.

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with respect to an aggravated assault charge was sufficient to prove that the

attempted murder charge involved serious bodily injury. This Court held:

The fact that the jury may have considered the question of
serious bodily injury when they were evaluating the
Commonwealth’s evidence supporting the charge of aggravated
assault is not relevant to a sufficiency analysis on the separate
charge of attempted murder where serious bodily injury results.
The [c]ourts of Pennsylvania have consistently respected the
authority of a jury to find, or to decline to find, the existence of
each element of each criminal offense. Nor is there authority for
a trial court to reason to a verdict of guilt by tacking the finding
of culpability of one element of a companion offense on to a
separate criminal offense upon which the jury had also rendered
a verdict.

Id. at 68 n.10.16

Thus, under Johnson it is evident that Appellant’s sentence is illegal.17

That, however, is not the end of our inquiry. In Commonwealth v.

Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc), this Court addressed a

16
Johnson held, and we emphasize today, that it is immaterial whether
there was sufficient evidence to conclude that the attempted murder caused
serious bodily injury. Instead, the question is whether the jury made this
factual finding in accordance with Apprendi and the interpretive case law of
this Commonwealth.
17
In its Rule 1925(a) opinion, the trial court concluded that the instant case
is distinguishable from Johnson because “the jury specifically determined
that seriously bodily injury was caused in connection with the aggravated
assault verdict which the jury may not have considered in Johnson.” Trial
Court Opinion, 8/8/14, at 9 (internal alteration and quotation marks
omitted); see also Commonwealth’s Brief at 47 (advancing the same
argument). In Johnson, however, like in the case at bar, the aggravated
assault for which the defendant was found guilty was a companion offense to
attempted murder. Johnson, 910 A.2d at 67, 68 n.10. That fact did not
sway this Court. Instead, this Court concluded that the jury must find that
the attempted murder caused serious bodily injury. Thus, Johnson is not
distinguishable from the case at bar.

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similar issue and came to a different conclusion. We conclude, however,

that Watley is distinguishable from the case at bar and that this case is

controlled by Johnson.

In Watley, the defendant was found guilty of possession with the

intent to deliver ecstasy and two counts of carrying a firearm without a

license. Watley, 81 A.3d at 112. The trial court sentenced him in

accordance with 42 Pa.C.S.A. § 9712.1, which provides for a five-year

mandatory minimum sentence for a person convicted of possession with

intent to deliver while they are in physical control of a firearm. Watley, 81

A.3d at 112. While Watley was on direct appeal, the Supreme Court of the

United States decided Alleyne v. United States, 133 S.Ct. 2151 (2013), in

which it extended Apprendi to require that a jury find any fact (other than

that of a prior conviction) which triggers application of a mandatory

minimum sentence. This Court held that Watley’s sentence did not violate

Alleyne because the jury found that the defendant had control of a firearm

while possessing ecstasy with the intent to deliver. This finding came when

the jury adjudicated him guilty of the possession of a firearm without a

license charges. Watley, 81 A.3d at 116-121. In other words, this Court

found that the trial court could “tack[] the finding of culpability of one

element of a companion offense on to a separate criminal offense upon

which the jury had also rendered a verdict.” Johnson, 910 A.2d at 68 n.10.

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In Watley, this Court carefully examined Johnson and chose to

distinguish the two cases instead of overruling Johnson. Specifically, this

Court stated:

[W]hile we allow inconsistent verdicts, that doctrine is used to
prevent overturning convictions that are inconsistent with an
acquittal on another charge, not to disregard a jury’s factual
findings on valid convictions. The fact that we accept a jury’s
ability to potentially exercise leniency does not require us to
disregard, for purposes of sentencing, its uncontroverted
determination of facts that subject a defendant to an increased
punishment, which under then-existing law did not have to
be alleged in the criminal information. Indeed, an acquittal
is not considered a specific factual finding. More importantly,
[Johnson did not involve] retroactivity concerns since Apprendi
was decided well before the defendant[’s] trial[] in th[at] case[].
Phrased differently, the Commonwealth in Johnson [] could
have simply followed Apprendi, whereas here, the prosecution
was proceeding under prevailing law.

Watley, 81 A.3d at 119-120 (internal citation omitted; emphasis added).

Thus, this Court did not overturn Johnson. Instead, this Court held

that tacking is permissible when there is a change in the law, after a criminal

information has been filed, requiring that certain facts be found by a jury

which could previously be found by a judge. In this case, Apprendi was

decided well before the criminal information was filed. Thus, Watley is

distinguishable from the case at bar and Johnson governs the disposition of

this case. As noted above, under Johnson, Appellant’s sentence for

attempted murder is illegal because the record fails to establish that the jury

made the requisite serious bodily injury finding. Accordingly, we are

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constrained to vacate Appellant’s judgment of sentence for attempted

murder causing serious bodily injury.18

As vacating Appellant’s sentence for attempted murder “may upset the

overall sentencing scheme vis-a-vis Appellant’s other convictions, we vacate

the entire judgment of sentence” and remand for resentencing. Conaway,

105 A.3d at 765 (citation omitted); Trial Court Opinion, 8/8/14, at 10

(requesting that if we vacate the attempted murder sentence that we

remand for resentencing on all counts). Furthermore, as we have

determined that we must remand this matter for resentencing, we do not

reach Appellant’s discretionary aspects claim.

18
For clarity, in order for the 40-year maximum penalty for attempted
murder to be applicable: (1) the Commonwealth must put a defendant on
notice that it is seeking the increased penalty (preferably by noting in the
criminal information that the attempted murder caused serious bodily
injury); (2) the trial Court must instruct the jury that if it finds the defendant
guilty of attempted murder it must then determine if that attempted murder
caused serious bodily injury; and (3) the jury must indicate on the verdict
form that it finds the attempted murder caused serious bodily injury. Since
18 Pa.C.S.A. § 1102(c) does not require the trial court to make a finding
with regard to serious bodily injury at a sentencing hearing, but instead
includes this enhanced offense within the definition of attempted murder,
our decisions in Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.
2014), and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en
banc), are not implicated.

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Judgment of sentence affirmed in part and vacated in part. Case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/2/2015

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