J-S66017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERIN NICOLE EVERETT
Appellant No. 2046 WDA 2014
Appeal from the Judgment of Sentence Entered November 14, 2014
In the Court of Common Pleas of Somerset County
Criminal Division at No: CP-56-CR-0000249-2011
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 21, 2016
Appellant Erin Nicole Everett appeals from the November 14, 2014
judgment of sentence entered in the Court of Common Pleas of Somerset
County (“trial court”) following Appellant’s bench conviction for, inter alia,
first-degree murder under Section 2502(a) of the Crimes Code, 18 Pa.C.S.A.
§ 2502(a). Upon review, we affirm.
The facts and procedural history underlying this case are undisputed,
and recounted in detail on pages 1 through 17 of the trial court’s March 7,
2016 Pa.R.A.P. 1925(a) opinion. Briefly, Appellant was charged with, inter
alia, first-degree murder for the shooting death of her girlfriend, Tory
Elizabeth Minnick (“victim”). Prior to trial, the Commonwealth filed a motion
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*
Retired Senior Judge assigned to the Superior Court.
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in limine, seeking to exclude the testimony of Antoinette Petrazzi Woods,
Ph.D, LPC, whom Appellant sought to present as an expert on Battered
Woman Syndrome (“BWS”) and Post-Traumatic Stress Disorder (“PTSD”).
The Commonwealth argued that Petrazzi Woods did not have specialized
knowledge to qualify as an expert witness on these issues. The
Commonwealth argued that even if Petrazzi Woods did qualify as an expert,
her evaluation of Appellant indicated that Appellant did not meet the full
criteria for either PTSD or BWS. Moreover, the Commonwealth argued that
BWS was relevant only in cases where a defendant alleges self-defense. The
Commonwealth pointed out that Appellant could not make out a theory for
self-defense because the victim was asleep when Appellant murdered her.
Over Appellant’s objection, the trial court granted the Commonwealth’s
motion.
The case eventually proceeded to a bench trial, at which various
witnesses, including Appellant and William Nair, testified. Mr. Nair testified
that he exchanged text messages with Appellant, who is the cousin of his
then-fiancée, prior to the killing and advised Appellant on how to use her
father’s gun, and where to purchase ammunition for the gun. Mr. Nair also
testified that he did not think Appellant was serious about killing the victim.
On cross-examination, when asked about whether he texted a picture of his
penis to Appellant, Mr. Nair indicated that he did not. Mr. Nair testified that
the picture was sent by his roommate, whom he tried to set up with
Appellant. Also, when asked whether he had told anyone prior to trial that
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someone else had used his phone, Mr. Nair indicated that he had. He
specifically stated that he had told the Commonwealth about it during his
last conversation with the district attorney. Upon hearing this, Appellant
moved for a mistrial, arguing that the Commonwealth committed a Brady1
violation by failing to disclose to Appellant the identity of the other individual
prior to trial. The court disagreed, denying Appellant’s motion for a mistrial.
In so doing, the trial court concluded that Appellant failed to establish that
the picture of the penis would have led to exculpatory or impeaching
evidence or that Appellant was prejudiced by its nondisclosure.2 Sometime
thereafter, Appellant took the stand and admitted to murdering the victim
while the victim slept. The trial court ultimately convicted Appellant of, inter
alia, first-degree murder and sentenced her to life imprisonment without the
possibility of parole. At the trial court’s direction, Appellant filed a Pa.R.A.P.
1925(b) statement of errors complained of on appeal, raising the following
assertions of error:
[1.] Whether the trial court erred in granting the
[Commonwealth’s] Motion in Limine precluding the testimony of
[Appellant’s] Expert, Dr. Antoinette Petrazzi-Woods as to
Battered Woman Syndrome, Spousal Abuse Syndrome, Post-
Traumatic Stress Disorder, and other disorders, thereby
prejudicing [Appellant] to an extent that it constitutes reversible
error?
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1
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
2
The Commonwealth opined that Mr. Nair pinned the penis picture on the
other individual because “he was covering his ass with his fiancée.” N.T.
Trial, 11/12/14, at 1.127.
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[2.] Whether the trial court erred by prohibiting [Appellant] from
presenting any evidence or experts regarding [Appellant’s]
mental health, state of mind or mental conditions and disorders,
by erroneously relying upon improper evidence including the
affidavit of probable cause and police reports severely
prejudicing [Appellant]?
[3.] Whether the District Attorney committed prosecutorial
misconduct by having ex parte communications with the court
during the bench trial proceedings by informing the judge in
Chambers immediately prior to [Appellant’s] mother’s testimony,
that she had attempted to smuggle handcuff keys into jail in
[Appellant’s] court clothing thereby prejudicing the [c]ourt as to
the witness?
[4.] Whether the trial court erred in failing to grant a mistrial
when during testimony it was discovered that there was an
alleged third witness who may have provided exculpatory
evidence and whose name and identity were known by the
District Attorney who never disclosed the information to the
Defense, yet admitted to having knowledge of the witness during
the bench trial?
[5.] Whether the trial court erred in failing to mitigate
[Appellant’s] level of guilt by failing to take into consideration
the level and magnitude of aid provided by William Nair, who
encouraged, advised, counseled, and otherwise enticed
[Appellant] to carry out the crime in her distraught state of mind
instead of calling for assistance or help?
[6.] Whether the verdict was against the weight of the evidence?
Appellant’s Pa.R.A.P 1925(b) Statement. In response, the trial court
prepared a detailed 1925(a) opinion, addressing Appellant’s assertions of
error seriatim. Addressing Appellant’s first issue, the trial court concluded
that the Commonwealth’s motion in limine excluding Petrazzi Woods’
testimony was timely and that it did not abuse its discretion in granting the
motion. In support of its grant of the Commonwealth’s motion in limine,
trial court reasoned that, because Appellant could not establish a claim for
self-defense as the victim was asleep when Appellant killed her, Petrazzi
Woods’ testimony on BWS and PTSD was irrelevant. Additionally, the trial
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court noted that Petrazzi Woods was not qualified to be an expert on BWS or
PTSD because “there is no indication whatsoever that she possesses any
knowledge, skill, experience, training or education to afford her ‘specialized
knowledge’ in the field of BWS and/or PTSD.” Trial Court Opinion, 3/7/16, at
24. Alternatively, the trial court concluded that even if Petrazzi Woods were
qualified, her testimony would not have helped the trier of fact on these
issues, because Petrazzi Woods “ultimately found that [Appellant] suffers
from neither BWS nor PTSD.” Id. at 25. The trial court next addressed
Appellant’s second assertion of error, namely that the court had erred in
relying on the affidavit of probable cause and police reports in concluding
that Appellant could not establish a claim for self-defense. The trial court
reasoned that under Pa.R.E. 104, it was not bound by the rigors of the
evidentiary rules to determine preliminary questions on the admissibility of
evidence or the qualifications of an expert.3 With respect to Appellant’s third
assertion of error, relating to prosecutorial misconduct, the trial court
concluded that Appellant waived the issue by failing to make a timely
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3
Even if the trial court had improperly relied on the affidavit of probable
cause or the police reports to conclude that Appellant could not establish
self-defense because the victim was asleep at the time of the killing, the
error was harmless. As noted earlier, Appellant admitted at trial to the fact
that the victim was asleep. In Commonwealth v. Grove, 526 A.2d 369
(Pa. Super. 1987), we noted that “[a]s a matter of law, any imminence to
[the] appellant’s perceived risk of death or serious bodily injury ended, as
did the conflict on the ‘present occasion,’ when the victim went to bed and
fell asleep.” Grove, 526 A.2d at 375.
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objection. Additionally, the trial court found that “no ex parte
communications occurred between the District Attorney and the court.” Trial
Court Opinion, 3/7/16, at 27. The trial court next addressed Appellant’s
fourth issue relating to a Brady violation.4 The trial court rejected
Appellant’s argument that a Brady violation occurred because the
Commonwealth failed to disclose to Appellant Mr. Nair’s roommate’s use of
Mr. Nair’s cellphone and the roommate’s texting of sexually explicit images
to Appellant. The trial court concluded that “Appellant had failed to
demonstrate that the undisclosed evidence was favorable to her and that
she had been prejudiced by its nondisclosure.” Id. at 29. With respect to
Appellant’s fifth assertion of error, the trial court noted that it fully
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4
Under Brady, “a prosecutor has an obligation to disclose all exculpatory
information material to the guilt or punishment of an accused, including
evidence of an impeachment nature.” Commonwealth v. Spotz, 18 A.3d
244, 275–276 (Pa. 2011) (citation omitted). To prove a Brady violation, the
defendant bears the burden of demonstrating that: “(1) the prosecutor has
suppressed evidence; (2) the evidence, whether exculpatory or impeaching,
is helpful to the defendant, and (3) the suppression prejudiced the
defendant.” Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa. 2012)
(citation omitted). To establish prejudice, the defendant must prove that
“there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.”
Commonwealth v. Appel, 689 A.2d 891, 905 (Pa. 1997) (citation
omitted), abrogated on other grounds, Commonwealth v. Fears, 86
A.3d 795 (Pa. 2014); see also Commonwealth v. Bomar, 104 A.3d 1179,
1189 (Pa. 2014) (“Stated differently, the undisclosed evidence must be
‘material to guilt or punishment.’”) (citation omitted). “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Commonwealth v. Chmiel, 30 A.3d 1111, 1130 (Pa. 2011)
(citation omitted).
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considered Mr. Nair’s involvement and concluded, based on the evidence
presented, that it did not rise to the level of conspiracy. The trial court
found that Mr. Nair did not plant in Appellant’s mind the idea to kill the
victim. Id. at 32. On the contrary, the idea to kill was Appellant’s, and it
was Appellant who, after much deliberation, killed the victim as the victim
slept. Finally, addressing Appellant’s sixth assertion of error, the trial court
concluded that it did not abuse its discretion in denying Appellant’s weight of
the evidence challenge.
On appeal, Appellant repeats the same assertions of error.5,6 After
careful review of the parties’ briefs, the record on appeal, and the relevant
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5
Appellant withdraws the issue of prosecutorial misconduct, acknowledging
that she “did not formally place [an] objection on the record in open court,”
and therefore rendering the issue “moot and waived.” Appellant’s Brief at
28.
6
We note that Appellant’s weight of the evidence challenge is waived,
because she failed to properly preserve this issue for our review. A
challenge to the weight of the evidence must be raised with the trial judge or
it will be waived. Pennsylvania Rule of Criminal Procedure 607 requires that
a “claim that the verdict is against the weight of the evidence shall be raised
with the trial judge in a motion for a new trial: (1) orally, on the record, at
any time before sentencing; (2) by written motion at any time before
sentencing; or (3) in a post-sentence motion.” Pa.R.Crim.P. 607. This claim
must be presented to the trial court while it exercises jurisdiction over a
matter since “appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict is against
the weight of the evidence.” Commonwealth v. Burkett, 830 A.2d 1034,
1037 (2003) (citation omitted), appeal denied, 927 A.2d 648 (Pa. 2007).
Instantly, Appellant failed to raise the weight of the evidence claim orally or
in writing prior to or after sentencing. In fact, Appellant raised it for the first
time in her Rule 1925(b) statement. Even if Appellant had preserved this
(Footnote Continued Next Page)
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case law, we conclude that the trial court’s Rule 1925(a) opinion, authored
by President Judge D. Gregory Geary, cogently disposes of Appellant’s issues
on appeal. See Trial Court Opinion, 3/7/16, at 17-37. We, therefore, affirm
the trial court’s November 14, 2014 judgment of sentence. We direct that a
copy of the trial court’s March 7, 2016 Rule 1925(a) opinion be attached to
any future filings in this case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2016
_______________________
(Footnote Continued)
issue, we still would have concluded that she is not due any relief based on
the reasons outlined in the trial court Rule 1925(a) opinion.
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