Com. v. Rivera, R.

J-S22011-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

RAYMOND J. RIVERA

Appellant No. 948 WDA 2014

Appeal from the Judgment of Sentence November 14, 2013
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004795-2011

BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J. FILED JUNE 18, 2015

Appellant, Raymond J. Rivera, appeals from the judgment of sentence

entered November 14, 2013, following his conviction of murder of the first

degree and related charges in the Court of Common Pleas of Westmoreland

County. We affirm.

The factual history of this matter is well known to the parties, so we

rely upon the trial court’s recitation of facts as set forth on pages 1-2 of the

Rule 1925(a) opinion dated September 26, 2014. Briefly, several

eyewitnesses implicated Rivera in a shooting that resulted in the death of

one victim and the injury of another. Prior to trial, Rivera filed a notice

pursuant to Pa.R.Crim.P. 568(A) of his intent to present expert psychiatric

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
J-S22011-15

testimony regarding his state of mind at the time he committed the

offenses. See Rule 568(A) Notice, 6/25/13. In support thereof, Rivera

intended to introduce the psychiatric report of Dr. Robert Wettstein, M.D.

The Commonwealth subsequently filed a motion in limine seeking to

preclude the defense from presenting Dr. Wettstein’s report, on the basis

that the report contained insufficient information necessary to support a

theory of imperfect self-defense. See Commonwealth’s Motion in Limine,

6/26/13. Following a hearing, the trial court granted the Commonwealth’s

motion and precluded the admission of Dr. Wettstein’s report. On August

16, 2013, a jury convicted Rivera of, inter alia, murder of the first degree.

The trial court sentenced Rivera to life imprisonment on November 14, 2013.

In this timely appeal, Rivera argues that the trial court erred when it

granted the Commonwealth’s motion in limine to exclude the psychiatric

report. Having determined that the Honorable Rita Donovan Hathaway’s

September 26, 2014 opinion ably and comprehensively disposes of Rivera’s

issue on appeal, with appropriate reference to the record and without legal

error, we will affirm based on that opinion.

Judgment of sentence affirmed.

Judge Lazarus joins the memorandum.

Judge Strassburger files a dissenting memorandum.

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J-S22011-15

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/18/2015

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IN THE COURT OF COMMON PLltAS OF WESTl\1'.0RELANlJ COUNTY,
PENNSYLVANIA,... CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA )
)
vs. ) No. 4795 C 2011
)
RAYMOND J. RIVERA, )
. )
Defendant. )

OPINION OF Tim COl.TRTJSSUED PURSUANT TO ).>A.R.A,P, RULE 192S
The Defendant, Raymond .Rivera, was charged With Criminal Homicide and related

offenses. He proceeded to a trial by jury, and was convicted 011 August 17, 2013 of all charges,

including firs.t degree murder. He was sentenced on November 14, 2013 to the mandatory

sentence of life imprisonment, His post-sentence motions were denied by Opinion 'and Order of

Court dated May 9, 2014.

FACTUAL HISTOR,Y
The evidence presented at trial established the following:

011 the evening of October 20, 2011, John (a/k/a "New York Mike") Evans, Willie

Young; and Laquan ("Zay'') Cargill were at the Central City Plaza shopping center in the City of ' I

New Kensington. Evans intended to visit the Family Dollar· store, which was one of the

businesses in this "strip mall" type of plaza, to meet up with another friend called "Tree." When

Evans entered the Family Dollar, Young and Cargill continued to the Shop-n-Save store to buy

cigarettes, When Young and Cargill returned to the Family Dollar store, Young briefly entered

the store and told Evans that they had returned, and then waited with Cargill outside the store. As

Evans and't'Tree" came out of the front doors of the Family Dollar Store, Young heard a woman,

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later identified as April Cevarlo, begin screaming at Evans. Young noted that Evans did not

react to the screaming woman. He saw the Defendant> Raymond Rivera, pull up in his car in the

parking lot near the Family Dollar store. Young testified that Evans told Rivera, "Come get your

girl," and Rivera lifted up his shirt, pulled out his gun, and shot Evans two or three times. Evans
I

fell immediately to the ground, Rivera then stepped over Evans, pointed the. gun at Young, and

stated, '~0111re next," Rivera then fired the gun at Yeung, who turned and ran into the Family
Dollar store. Young suffered gunshot wounds to his leg and his arm. (TT 160~ 173). 1 Evans

died at the scene. Rivera then fled the scene and threw away the gun, but turned himself into

police the following day.

John Evans had sustained two gunshot wounds: one to his left thigh and one to his neck.

Dr. Cyril Wecht testified that the gunshot wound in the neck had perforated the jugular vein,

which resulted in "a significant amount of external damage." (TI 334). In his opinion, the cause

of Evans.' death was "primarily the gunshot wound of the neck, producing the injuries that I have

described, and resulting in a large amount of bleeding) referred to hear [sic] as exsangulnatlon,

which simply means bleeding out" (TT 337),

The events of the evening of October 20, 2011 in the Central City Plaza were witnessed

by multiple persons and also caught on video tape by surveillance cameras that had been

installed by various businesses in that shopping center, Rivera did not deny that he fired the shots

that killed Joh11 Evans and wounded Willie Young, He claimed, however, that he believed that

John Evans was about to shoot him and that his actions that night were in self-defense and,

alternatively, in defense of his girlfriend, April Cevarlo,

I
Ntmi~rals in parenthesis preceded by the letters "TT" refer to specific pages of the transcript of the trial in this
matter, held on August 12-17, 2013 before this court, and made n part of the record in this case.

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ISSDE PRESENTED:

nm ·THE TlHAL COORT ERR IN DISALLOWING THE PSYCIDATIUC
TESTIMONY OF DR. ROBERT M. WE'ITSTEIN, M,D, THAT WAS PROPOSED BY
TIIE DEFENSE?

Rivera's sole issue on appeal claims that the trial court erred by precluding the defense

from calling Robert M. Wettstein, M.D. as an expert witness.

It is firmly established that questions concerning the admissibility of
evidence lie within the sound discretion of the trial court, and a reviewing
court will not reverse the court's decision on such a question absent a clear
abuse of discretion. See Commonwealth v. Hunzer, 868 A.2d 498, 510
(Pa.Super.2005). Abuse of discretion is not merely .an error of judgment>
but judgment that is manifestly unreasonable, such as where the law is not
applied or when it is the result of partiality, prejudice, bias or ill will.

Commonwealth. v. Thompson, 93 A.3d 478t 491 (Pa.Supen, 2014).

Counsel for the defense filed a pre-trial Rule 568(A)2 Notice on June 25~ 2013,, notifying

the Commonwealth that the defendant intended to present expert testimony "regarding his state

of mind at the time of the alleged offenses of which he is accused." The Notice specifically

stated, "Defendant intends to present evidence at trial that he was suffering from the mental

condition 01· infirmity of paranoid delusional disorder, as more fully described in the psychiatric

report of Robert Wettstein, M.D." Dr. Wettsteiu's report was provided to the Commonwealth

the da.y before the Notice was filed.

This Commonwealth thereafter filed a Motion in Limine seeking to preclude the defense

from presenting Dr. Wettstein's testimony. Counsel · for the defense had advised the
2
Pa.R.Crim.P. Rule 568.

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Commonwealth that Rivera had elected to pursue an imperfect self-defense theory in an effort to

reduce the charge from murder to voluntary manslaughter.' The Commonwealth opposed the

testimony, not by suggesting that e:xpert psychiatric testimony was in itself inadmissible for this

purpose, but rather because Dr. Wettstein's report contained insufficient information necessary

to support that theory. The matter was argued before Judge Debra A. Pezze at a status

conference held on June 28, 2013.. Judge Pezze stated that she tended to agree with the

Commonwealth; however, she afforded the defendant an opportunity to file a memorandum in

support of the admission of Dr. Wettstein's testimony, Both counsel for Rivera and the

Commonwealth filed written memoranda in support of their respective positions.

this matter was assigned to this court for trial in early July 2013, and argument 011 the

Commonwealth's Motion in Limine was again heardbefore.this court on July 10, 20.13, the day

before jury selection was to commence. After hearing argument and after considering the

r~levant case law and the written memoranda submitted by the parties, this court granted the

Commonwealth's Motion in Limine on July 11, 2013.

Rivera contends that the trial court erred in granting the Commonwealth's Motion in

Llmlne.

Generally speaking, the admission of expert testimony is a matter left
largely to the discretion of the trial court, and its rulings thereon will not

:i 18 Pa.C.S.A. § .2503 provides, in pertinent part:

(b) Unreasonable belief killing justifiable,--A person who intentionally or knowingly
kills an individual commits voluntary manslaughter if at . the lime of the killing he
believes the circumstances lo be such that, if they existed, would justify the killing under
Chapter 5 of Uli~ title (relating to general principles of justification), but his belief is
unreasonable.

J/J Pa.C.S. §2503(b).

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be reversed absent an abuse of discretion. An expert's testimony is
admissible when it is based on facts of record and will not cause confusion
01· prejudice.

Commonwealth. v. Huggins, 68 A.3d 962> 966 (Pa.Super, 2013), citing Commonwealth v.

Watson, 945 A.2d l 74; 176 (Pa.Super. 2008) (Internal citations and quotations omitted). With

regard to the expert testimony at issue herein,

Psychiatric testimony has long been h~ld admissible to prove a
defendant's subjective belief that he or she is in danger of imminent death
or serious bodily injury. Commonwealth •'· McCloudt 309 Pa.Super. 316,
455 A.2d 177, 179 (1983). See also Commonwealth v. Stonehouse, si1
Pa. 41, 555 A.2d 77'2 (1989) (plurality) (holding that trial counsel was
Ineffective for failing to present expert testimony on the battered woman
syndrome as a defense to homicide charges); Commonwealtl: v. Llgl,t,
458 Pa. 328, 326 A.2d 288 (1974) (finding that psychiatric testimony was
admissible to show whether defendant acted outof an honest, bona fide
belief that he was i11 imminent danger at time he killed victim for purposes
of establishing defense of self-defense ); Oommonwealtl; v. Slteppi:mf, 436
Pa.Super, 584~ 648 A.2d 563 (1994) (providing that testimony of paranoid
personality disorder was admissible to show if defendant had a bona fide
belief he was in danger in a homicide case, although denial of introduction
of such testimony by trial court was not fatal, as paranoid personality
disorder· did not permit claim of imperfect self-defense to be used to
reduce offense from murder to voluntary manslaughter); Commonwealth
v. Millar) 430 Pa.Super. 297, 634 A.2d 614·(1993) (en bane) (holding that
evidence of battered woman syndrome was admissible in homicide trial as
probative evidence of defendant's state of mind as it relates to a theory of
self-defense),

Commonwealth y. Pitts) 740 A.2d 7'26, 734 (Pa.Super, 1999). However, it is not the nature of

the testimony that was challenged by the Commonwealth, but rather the quality of the "expert

opinions" that were contained in Dr. Wettstein's report that formed the basis of the

Commonwealth's Motion in Limine. The Commonwealth freely acknowledged that expert

mental health testimony could be admissible to prove the mens rea of the defendant at the time

of the killing. This court had an opportunity to review the contents of Dr. Wettstein's report in

connection with the Commonwealth's Motion in Limine. The Commonwealth correctly noted

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that Dr. Wettstein's report did not contain the information that the defense counsel said that they

intended to elicit from Dr. Wettstein and present to thejury,

While it is not clear from the report when exactly Dr. Wettstein began his evaluation of

Rivera, it is evident that he did not personally interview Rivera until May 31 2013 and again on

June 17, 2013. Dr. Wettstein was able to review certain records that were provided 'to him,

including the Criminal Complaint and the Affidavi; of Probable Cause, the police reports and

witness interviews conducted by New Kensington Police Department, the preliminary hearing

transcript, reports from the Pennsylvania Board of Probation and Parole, Federal Court records,

Social Security disability information, reports from Rivera's prior mental health evaluation and

treatment, and his school records. Dr. Wettstein also conducted collateral interviews with

Rivera's mother and his girlfriend. It does not appear that Dr. Wettstein conducted any

psychiatric testing of Rivera during this evaluation process.'

The report authored by Dr. Wettstein, dated June 23, 2013, indicates that Rivera had been

diagnosed with delusional disorder, persecutory type by Marc F. Markiewicz, E persecutory type, possible

alcohol abuse disorder and antisocial personality disorder. (Wettstein Report at pages 7-8).

Interestingly, records from the Federal Bureau of Prisons in 2007 and 2008 indicate that Rivera

was not in need of any psychological services. TJ1e report then provided the following diagnosis:

According to the Diagnostic and Statistical Manual (DSMwN),
published by the American Psychiatric Association, the defendant can be
diagnosed at the time of the alleged offense as follows:

Axis I Delusional disorder chronic, persecutory type.

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"No formal, written, cognitive testing was conducted, but [Rivera) was alert and oriented to person place age, date
of birth, and situation." (Wettstein Report at page 12). '

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Axis II Paranoid Personality disorder'

Axis III Nomedical problems

Axis IV Stressors included state parole; underemployment;
financial; family.

(Wettstein Report at page 13).

While this diagnosis is fairly straightforward, Dr. Wettstein's conclusions are less then

definitive. While Dr, Wettstein determined that at the time of the shooting, Rivera suffered from

paranoid delusional disorder and paranoid personality type, he fails to indicate if or how these

disorders affected Rivera's perceptions on that date. After considering little more than Rivera's

self-serving statements obtained during two interviews, Dr. Wettstein provided the following

"conclusions:"
It is difficult to determine from the available data to what extent the
defendant's fears regarding the homicide victim were reality based; the
product of his general distrustfulness from his paranoid personality, or
constituted a specific delusion that the victim was or had been harassing
and menacing him either individually or throughthe victim's friends. At
least in the defendant's mind, according to his report, the victim was
someone that ho. feared over a period of time and not Just at the time of the
alleged offense.
The defendant had an unstable relationship with Cevario; perhaps
partly related to their respective infidelities, and his pervasive disrruat and
suspiciousness. There was some reported dishonesty in their relationship
with each other.
He reported that his ex-wife and her famHy participated in cult
activities including ritualistic animal sacrifice. Of course, I have no
independent knowledge of whether that actually occurred or whether that,
too is a product of exaggeration, distortion, or actual delusion by the
defendant.
In the psychiatric Interviews, the defendant stated that ho saw a
handgun in the hands of the homicide victim, Evans, but did not see a

s Dr. Wettstein noted: "[l)n the psychiatric. interviews, the defendant presented as pervasively guarded, suspictous
and distrustful. These traits are consistent with a diagnosis of a paranoid personality disorder rather than a specific
delusional disorder persecutory type, While ii is difficult to precisely delineate the diagnostic boundaries between
his paranoid delusional disorder and his paranoid personality disorder, both ate present JlOW and were present at !he
time of the alleged offense." (Wettstein Report at pages 13· l 4).

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handgun in the hands of Young though the later reached into his coat as if
to grab one. I would not expect that the defendant's vision of the handgun
would constitute a visual hallucination given the absence of a history of
visual hallucinations or drug. and alcohol use at the time of the offense. It
is certainly conceivable, however; that the defendant misperceived or
misinterpreted victim Young's movements to reach inside of his coat, or
that victim Evans bad grabbed some other object rather than a handgun as
it was dark outside. · As a psychiatrist, of course,] run not in the position
of rendering independent judgments as to the reliability or accuracy of
reported facts or observatlons by parties or witnesses to . the matter.
Beyond the question. of whether the defendant, in fact, saw firearms In the
hands of the victims, he reported that he was in fear of hislife at the time
of the alleged offense, and had been afraid of the victims in the past. He
quoted others in the neighborhood as having cautioned. him about bis
dealings with victim Evans.

(Wettstein Report at page 14). These "conclusions," as authored by Dr. Wettstein, do not offer

any opinions, whether to a reasonable degree of psychiatric certainty or otherwise, other than to

offer a diagnosis, Dr. Wettstein does not opine that Rivera's disorder had a specific effect on his

state of mind at the time of the shooting, nor does. he conclude that any mental disorder caused a

bona .fide belief that he was in danger, reasonable or otherwise."

Psychiatric expert testimony is '"gei1erally admissible to support a theory of self-defense

to show 'the subjective element of the defendant's state of mind at the time of the occurrence.:"

Commonwealtli v. Ventura, 975 A.1d 1128, 1140 (Pa.Super. 2009), appeal denied; 604 A.2d Pa.

106, 987 A.2d 161 (2009). Here, like in Ventura, Or. Wettstein's report did not offer an opinion

-regarding Rivera's state of mind -at the time that Evans was killed, or how that state of mind was

affected by any mental disorder that Rivera might have had. At best, he noted that, "It is

certainly conceivable, however, that the defendant misperceived or misinterpreted Young's

movements to reach inside of his coat, or that the victim Evans had grabbed' some other object

rather than a handgun as it was dark outside." (Wettstein Report at page 14). Had the report

6
Rivera's paranoid personality disorder' was not relevant, being a personality disorder rather than a mental disorder.
Commonwealth v. Ventura, 915 A.2d 112"8 (Pa.Super. 2009), appeal denied, 604 Pa. 706, 987 A.2d 161 (2009),

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contained an indication that, in Dr. Wettstein's opinion, Rivera's "delusional disorder chronic,

persecutory type" mental disorder so affected his state of mind at the time · of the shooting such

that it created a bona fide belief that he was in danger, the testimony would have been permitted.

At best, the report contains the supposition that it was possible that Rivera might have

misperceived the events, but that supposition fails to definitively link the possible misperception

to a diagnosed mental disorder. For these reasons, the court properly excluded the proposed

testimony from Dr. Wettstein.

CONCl.UION!

For the foregoing reasons of fact and of law the trial court did not en· in making the

evidentiary ruling to exclude Dr. Wettstein 's proposed testimony at trial.

r-·····v -;~/7 t'~·"L0c.Yl.. c::~'?/~-, c) O)t..j
Voate

ATTEST:

Clerk of Courts

c.c. File
Lawrence W. Koenig) Esq., Assistant District Attorney
VJames B. Del'asquale, Counsel fer the Defendant

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