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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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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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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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Com. v. Brooks, R.
Combined Opinion