J-S23014-17
2017 PA Super 156
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANKLYN PALMER HUTCHISON IV
Appellant No. 2772 EDA 2016
Appeal from the Judgment of Sentence July 27, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0004035-2015
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
OPINION BY OLSON, J.: FILED MAY 22, 2017
Appellant, Franklyn Palmer Hutchison IV, appeals from the judgment
of sentence entered on July 27, 2016. We hold that the evidence in this
case was sufficient to convict Appellant of abuse of a corpse. As we also
conclude that Appellant is not entitled to relief on his remaining claims of
error, we affirm.
The factual background and procedural history of this case are as
follows. Appellant and Brianne Miles (“Miles”) rented an apartment together.
On July 7 or 8, 2015, Miles died of a drug overdose in the apartment.
Appellant discovered Miles’ body on July 8, 2015. Two days later, Appellant
finally called police and notified them that there was a dead body in the
apartment. When police arrived, Appellant originally told them that he
discovered Miles’ body that morning. Police found drug paraphernalia in the
apartment.
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On February 11, 2016, the Commonwealth charged Appellant via
criminal information with abuse of a corpse,1 filing a false police report,2 and
possession of drug paraphernalia.3 On May 24, 2016, Appellant filed a
motion in limine seeking to exclude photographs of the corpse from being
introduced into evidence. On May 31, 2016, jury selection commenced. On
June 1, 2016, the trial court denied Appellant’s motion in limine. On June 2,
2016, the jury found Appellant guilty of all three offenses. On July 27, 2016,
the trial court sentenced Appellant to two to four years’ imprisonment. This
timely appeal followed.4
Appellant presents four issues for our review:
1. Did the trial court commit reversible error by refusing to dismiss
the charge of abuse of corpse where the evidence established
that [] Appellant failed to promptly report [Miles’] death to
authorities but otherwise did not cause her demise or manipulate
her remains?
2. Did the trial court commit reversible error by permitting the
Commonwealth to appeal to the sympathy of the jury by means
of the prosecutor’s argument to the jury that it should “imagine”
what it felt like to be [Miles’] family members upon discovering
the death of [Miles] and the decomposed state of her remains?
1
18 Pa.C.S.A. § 5510.
2
18 Pa.C.S.A. § 4906(b)(1).
3
35 P.S. § 780-113(a)(32).
4
On August 30, 2016, 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 September 12, 2016, Appellant filed his concise
statement. On October 27, 2016, 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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3. Did the trial court commit reversible error by permitting the
Commonwealth to introduce graphic, color photographs of
[Miles’] decomposed remains to the jury that were so
disproportionally inflammatory in comparison to their evidentiary
value so as to prejudice the Appellant and deprive him of a fair
trial?
4. Did the trial court commit reversible error by failing to set forth
sufficient reasons upon the record for imposing consecutive,
statutory maximum sentences upon [Appellant?]
Appellant’s Brief at 7 (certain capitalization omitted).
In his first issue, Appellant argues that the evidence was insufficient to
convict him of abuse of a corpse. “Whether sufficient evidence exists to
support the verdict is a question of law; our standard of review is de novo
and our scope of review is plenary.” Commonwealth v. Giron, 155 A.3d
635, 638 (Pa. Super. 2017) (citation omitted). In assessing Appellant’s
sufficiency challenge, we must determine “whether viewing all the evidence
admitted at trial in the light most favorable to the [Commonwealth], there is
sufficient evidence to enable the fact–finder to find every element of the
crime beyond a reasonable doubt.” Commonwealth v. Williams, 153 A.3d
372, 375 (Pa. Super. 2016) (citation omitted). “The evidence need not
preclude every possibility of innocence and the fact-finder is free to believe
all, part, or none of the evidence presented.” Commonwealth v.
Kennedy, 151 A.3d 1117, 1121 (Pa. Super. 2016) (citation omitted).
The Crimes Code makes it an offense to “treat[] a corpse in a way that
[one] knows would outrage ordinary family sensibilities[.]” 18 Pa.C.S.A.
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§ 5510 (defining the crime of abuse of a corpse). Appellant contends that
his inaction, i.e., failing to notify the authorities when he discovered Miles’
body, is not criminalized by the statute. He argues that, in order for his
inaction to be criminal under the statute, he needed to have a fiduciary
relationship with Miles.
We conclude that, under this Court’s decision in Commonwealth v.
Smith, 567 A.2d 1070 (Pa. Super. 1989), appeal denied, 585 A.2d 468 (Pa.
1990), the evidence was sufficient to convict Appellant of abuse of a corpse.
In Smith, the defendant starved her three-year-old child to death. After the
defendant discovered the child’s body, she moved out of the apartment and
did not report the child’s death to authorities. Three months later,
maintenance workers entered the apartment to shut off the utilities and
discovered the child’s decomposing and mummified remains. The defendant
was convicted of abuse of a corpse. On appeal, she argued that her inaction
in failing to notify authorities of the child’s death was not covered by the
abuse of a corpse statute.
This Court framed the issue as “whether a person who knowingly
leaves a corpse to rot, without making arrangements for a proper burial has
treated a corpse in a way that she knows would outrage ordinary family
sensibilities.” Id. at 1073 (internal quotation marks and alterations
omitted). Relying upon the commentaries to the Model Penal Code, which
section 5510 is based on, this Court held that “the purpose of drafting the
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abuse of corpse statute in very broad and general language was to ensure
that offenses such as concealing a corpse came under the purview of the
statute.” Smith, 567 A.2d at 1073. That is what occurred in the case at
bar. Appellant concealed Miles’ corpse from authorities so that she could not
receive a proper burial. Under Smith, this inaction violates section 5510.
Appellant attempts to distinguish Smith in two ways. First, he argues
that the special mother-child relationship in Smith provided the mother with
a fiduciary duty that he, as a roommate, did not possess. Furthermore, he
argues that because the mother in Smith tied a rope around the door
handle of the child’s bedroom, where the child was found dead, she took
some affirmative action in concealing the child’s body while he took no
affirmative action to conceal Miles’ body.
Appellant argues that Smith was based upon the fiduciary relationship
the defendant had to care for her child. Although this Court did focus on
that relationship, it was in the context of discussing the sufficiency of the
evidence for the third-degree murder conviction. See id. at 1072. This
Court did not reference the parent-child relationship when discussing the
defendant’s abuse of a corpse conviction. Instead, this Court only focused
on the fact that the defendant failed to notify authorities of the child’s death
and chose instead to let her corpse rot. The same thing occurred in the case
at bar. Appellant failed to notify authorities of Miles’ death and let her
corpse rot.
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In support of his second argument he cites the following portion of
Smith:
[The defendant] concealed her daughter’s corpse from the
proper authorities, and did not make arrangements for burial
because she said she was afraid and confused. In so concealing
the corpse, she allowed it to be eaten by rodents and become
mummified. The statute was intended to cover [the defendant’s]
conduct. Moreover, as the trial court concluded, such conduct
does indeed constitute an outrage to ordinary family
sensibilities; therefore, we must affirm appellant’s conviction for
abuse of corpse.
Smith, 567 A.2d at 1073.
Appellant contends that the word “concealing” in this passage is critical
in light of the facts of Smith. He argues that because the room in which the
child’s body was found was locked from the outside by a rope or strap, this
active concealment of the child’s corpse is what made the defendant’s
actions criminal. The facts in Smith, however, showed that the child was
locked in the room prior to her death. Id. at 1072. Therefore, it was not
the locking of the child’s corpse in her bedroom that provided sufficient
evidence for Smith to be convicted of abuse of a corpse. Instead, it was
what occurred after the child died, i.e., the defendant’s failure to notify
authorities of the child’s death, that provided sufficient evidence to convict
her of abuse of a corpse. The reason this Court discussed the child being
locked in her room related solely to the determination that the evidence was
sufficient to convict the defendant of third-degree murder. See id. Thus,
the fact that the child was locked in her room was not a factor in this Court’s
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determination that the defendant was guilty of abuse of a corpse. Instead, it
was the fact that the defendant failed to notify authorities of the child’s
death and left her corpse to rot.5 Accordingly, we hold that the evidence
was sufficient to convict Appellant of abuse of a corpse.
In his second issue, Appellant argues that the trial court erred in
failing to sustain his objection to the Commonwealth’s opening statement.
We review a trial court’s ruling on an objection to an opening statement for
an abuse of discretion. See Commonwealth v. Parker, 919 A.2d 943, 949
(Pa. 2007) (citation omitted).
As our Supreme Court has explained:
Remarks in a prosecutor’s opening statement must be fair
deductions from the evidence which [s]he in good faith plans to
introduce and not mere assertions designed to inflame the
passions of the jury. The prosecution is not, however, required
to prove conclusively all statements made during the opening
[statement]. As long as there is a good faith and reasonable
basis to believe that a certain fact will be established, reference
may properly be made to it during the opening [statement].
Even if an opening [statement] is improper, relief will be granted
only where the unavoidable effect is to so prejudice the finders
of fact as to render them incapable of objective judgment.
Commonwealth v. Jones, 610 A.2d 931, 938–939 (Pa. 1992) (internal
citations omitted).
5
Moreover, even if concealment were required, there was sufficient evidence
that Appellant concealed Miles’ body. On multiple occasions after Miles’
death, he told his landlord that Miles was sleeping or resting. N.T., 6/2/16,
at 32-33. He also used Miles’ cell phone to respond to a text message from
her grandfather. See Commonwealth’s Exhibit 29.
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During her opening statement in the case sub judice, the prosecutor
stated:
Ladies and gentlemen of the jury, imagine the notification; Mr.
and Mrs. Hargraves, your granddaughter has died. We suspect a
drug overdose. Imagine the grief. But wait, there’s more, Mr.
and Mrs. Hargraves. Her body is completely decomposed and
was left for at least 48 hours before it was discovered.
N.T., 5/31/16, at 52.6 Appellant objected after the prosecutor’s opening
statement and asked for a curative instruction.7 The trial court overruled
the objection and denied the request.
Appellant contends that this statement by the prosecutor invited the
jury to place themselves in the Hargraves’ shoes. We disagree. The
prosecutor did not invite the jurors to imagine that they (the jurors) received
the phone call from police informing them of their granddaughter’s death.
Instead, she invited the jurors to imagine the grief that the Hargraves felt
when they received that phone call.
6
Appellant also makes a passing reference to other comments made by the
prosecutor during this case. See Appellant’s Brief at 17. Appellant fails to
cite any of these statements and, therefore, any argument related to these
statements is waived. See Pa.R.A.P. 2101, 2117(c)(4).
7
A party may (and should) wait to the end of an opening statement or
closing argument to object to statements or arguments made therein as long
as there is no factual dispute regarding the content of the statement or
argument and the objection is made immediately after the opening
statement or closing argument with sufficient specificity to permit the trial
court to give a limiting or curative instruction. See Commonwealth v.
Rose, 960 A.2d 149, 154 (Pa. Super. 2008), appeal denied, 980 A.2d 110
(Pa. 2009) (citation omitted).
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This distinction is critical because “[c]hallenged prosecutor comments
must be considered in the context in which they were made.”
Commonwealth v. Robinson, 864 A.2d 460, 517 (Pa. 2004) (citation
omitted). Read in context, the statement made by the prosecutor was
meant to convey that the Commonwealth would prove that Appellant’s
treatment of Miles’ corpse “would outrage ordinary family sensibilities[.]” 18
Pa.C.S.A. § 5510. This is the critical element of the abuse of a corpse
statute and the prosecutor was permitted, during her opening statement, to
explain how and why the Commonwealth would prove this element of the
offense.
Appellant cites Commonwealth v. Cherry, 378 A.2d 800 (Pa. 1977),
in support of his argument that the prosecutor’s opening statement was
improper. Cherry, however, involved a prosecutor asking the jury to
imagine themselves as victims to a crime. During the challenged portion of
the prosecutor’s closing argument in Cherry, he used the word “you” or
“your” 15 times. Id. at 802-803. This included inviting the jury to “put
yourself in the place of any other victim, which could be you some day[.]”
Id. at 803. As noted above, in the case sub judice the prosecutor did not
invite the jury to imagine being in a victim’s or witness’ shoes. Accordingly,
we conclude that the trial court did not abuse its discretion in overruling
Appellant’s objection.
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In his third issue, Appellant argues that the trial court erred in denying
his motion in limine to exclude color photographs of the victim’s corpse.
“When ruling on a trial court’s decision to grant or deny a motion in limine,
we apply an evidentiary abuse of discretion standard of review.”
Commonwealth v. Ivy, 146 A.3d 241, 250 (Pa. Super. 2016) (citation
omitted); see Commonwealth v. Solano, 906 A.2d 1180, 1191 (Pa. 2006)
(admission of photographs by trial court is reviewed for an abuse of
discretion).
Our Supreme Court has explained that when considering the admission
of photographs of a victim’s body, a trial court must employ a two-step
process.
First, the trial court must examine whether the particular
photograph is inflammatory. If the photograph is not
inflammatory, it may be admitted if it is relevant and can serve
to assist the jury in understanding the facts of the case. If the
photograph is inflammatory, the trial court must determine
whether the photograph is of such essential evidentiary value
that its need clearly outweighs the likelihood of inflaming the
minds and passions of the jurors.
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (internal
citations omitted).
In this case, there were four photographs at issue – Commonwealth
Exhibits 8, 9, 27, and 28. We have carefully reviewed those four exhibits.
Commonwealth Exhibits 8 and 9 picture Miles’ room, along with her body on
the bed. In both pictures, Miles’ body is covered by a black sheet. Only
Miles’ head and arm is visible in those photographs. Commonwealth Exhibit
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28 is a photograph of the left side of Miles’ body. Finally, Commonwealth
Exhibit 27 is a photograph of the full front of Miles’ body, including her face,
lying on the bed.
Our Supreme Court has recognized that photographs of dead bodies,
“by their very nature can be unpleasant, disturbing, and even brutal[.]”
Commonwealth v. Johnson, 42 A.3d 1017, 1033 (Pa. 2012).
Nonetheless, “[t]here is no need to so overextend an attempt to sanitize the
evidence of the condition of the body as to deprive the Commonwealth of
opportunities of proof in support of the onerous burden of proof beyond a
reasonable doubt.” Commonwealth v. Walter, 119 A.3d 255, 286 (Pa.
2015) (citation omitted).
Appellant cites Commonwealth v. Legares, 709 A.2d 922 (Pa.
Super. 1998), in support of his argument that the trial court improperly
admitted the four exhibits. We conclude Legares is distinguishable from the
case sub judice. In Legares, the photograph in question “detail[ed] the
destruction wreaked upon the victim’s skull by the 20–gauge shotgun blast.
The left side of the victim’s head [was] shown, the flesh flayed from the skull
and folded back, the fractured skull wired together to reveal the gaping
entry wound, and the victim’s brain removed.” Id. at 925. This
photograph, therefore, was far more graphic than the photographs of Miles’
decomposing body.
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Instead, we find instructive our Supreme Court’s decision in
Commonwealth v. Spell, 28 A.3d 1274 (Pa. 2011). In Spell, the
defendant argued that the “photographs [admitted at trial] were
inflammatory because they were in color and the victim’s blood-covered
body and face can be seen in one photograph.” Id. at 1279. Our Supreme
Court rejected that argument and concluded that although the color
photographs were sanguinary, they were not inflammatory. See id. It
reasoned that the photographs did not focus on the deceased’s wounds but
instead were wide-angle photographs. See id. Moreover, it concluded that
the photographs were relevant to the abuse of a corpse charge. Id.
Similar circumstances are present in this case. Commonwealth
Exhibits 8, 9, and 27 are wide-angled camera shots of Miles’ body lying on a
bed. Commonwealth Exhibit 28 is a closer view of the body but it only
includes the left portion of Miles’ body and is not overly grotesque. As such,
we conclude that these four color photographs were not inflammatory.
Appellant argues that even if the photographs were not inflammatory,
they were not admissible as they were merely cumulative of other evidence.
He cites witness testimony regarding the state of Miles’ body and argues
that the photographs were not necessary to prove the elements of abuse of
a corpse. This argument is without merit. As our Supreme Court has
explained, “a witness[’] ability to testify as to the condition of a body does
not render photographs of the body inadmissible.” Spell, 28 A.3d at 1280
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(citations omitted); Commonwealth v. Pruitt, 951 A.2d 307, 320 (Pa.
2008); Commonwealth v. Rush, 646 A.2d 557, 560 (Pa. 1994);
Commonwealth v. McCutchen, 454 A.2d 547, 550 (Pa. 1982).
In this case, the photographs were critical to showing the state of
Miles’ decomposing body so that the jury could determine whether
Appellant’s failure to notify authorities “would outrage ordinary family
sensibilities[.]” 18 Pa.C.S.A. § 5510. Unlike the case of a gunshot or stab
wound, it is difficult to verbalize the toll that time takes on a corpse. As
such, we conclude that the photographs were not merely cumulative and
were instead admissible to prove the abuse of a corpse charge.
Finally, Appellant argues that there were other alternatives to the color
photographs. Specifically, he contends that the Commonwealth could have
offered black and white photographs. As noted above, the color
photographs were admissible. Although the Commonwealth could have
admitted black and white photographs, the Commonwealth is free to present
its case as it deems appropriate. Accordingly, we conclude that the trial
court did not abuse its discretion by denying Appellant’s motion in limine to
exclude the photographs.
In his final issue, Appellant argues that the trial court erred by not
explaining why it imposed consecutive sentences. This argument challenges
the discretionary aspects of his sentence. See Commonwealth v.
Flowers, 149 A.3d 867, 871 (Pa. Super. 2016) (citation omitted). Pursuant
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to statute, Appellant does not have an automatic right to appeal the
discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead,
Appellant must petition this Court for permission to appeal the discretionary
aspects of his sentence. Id.
As this Court has explained, in order to reach the merits of a
discretionary aspects claim,
[w]e conduct a four part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal; (2) whether
the issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether [the] appellant’s
brief has a fatal defect; and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code.
Commonwealth v. Popielarcheck, 151 A.3d 1088, 1093 (Pa. Super.
2016) (citation omitted).
In this case, Appellant did not file a post-sentence motion nor did he
challenge the discretionary aspects of his sentence at the sentencing
hearing. Instead, he only sought clarification from the trial court regarding
the rationale for its sentence. Seeking clarification is not the same as
objecting. See Purdy v. Florida, 2017 WL 384094, *4 (Fla. Dist. Ct. App.
Jan. 27, 2017) (Berger, J. concurring in part and dissenting in part) (asking
for clarification at a sentencing hearing is not the same as objecting to the
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sentence). Accordingly, Appellant failed to preserve his discretionary
aspects claim for appellate review.8
In sum, we hold that the evidence was sufficient to convict Appellant
of abuse of a corpse. We conclude that the trial court did not abuse its
discretion by overruling Appellant’s objection to the Commonwealth’s
opening statement. We also conclude that the trial court did not abuse its
discretion by admitting photographs of Miles’ corpse into evidence. Finally,
we conclude that Appellant waived his discretionary aspects of sentencing
claim. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2017
8
Moreover, even if Appellant preserved his discretionary aspects claim, we
would conclude he is not entitled to relief. The trial court adequately set
forth its rationale for its sentence in this case and we discern no abuse of
discretion in its decision to sentence Appellant to two to four years’
imprisonment.
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