Com. v. Simminger, S.

J-S32015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN E. SIMMINGER :
:
Appellant : No. 1688 EDA 2018

Appeal from the Judgment of Sentence Entered January 22, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003208-2016

BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 21, 2019

Appellant, Steven E. Simminger, appeals from the January 22, 2018

judgment of sentence following his conviction by a jury of first-degree murder

and possessing an instrument of crime (“PIC”).1 We affirm.

The trial court summarized the facts of the case as follows:

In the early morning hours of March 13, 2016, Sean Boyd,
Colin McGovern, Casey Walsh and Gabby DiFrancesco were
walking around Rittenhouse Square in center city Philadelphia,
looking for a place to crash for the night. (N.T. 11-14-2017, pp.
75-77). [Appellant] was roaming the same streets. When
[Appellant] and the four’s paths crossed, Boyd made a snide
remark about the Jersey Devils’ hat [Appellant] was wearing.
(N.T. 11-14-2017, pp. 77-79; 11-16-2017, pp. 5-8). An
argument ensued. An unarmed Boyd and McGovern approached
[Appellant]. [Appellant] took a knife out of his right coat pocket.
As McGovern got closer, [Appellant] lunged, stabbing McGovern
in the stomach. [Appellant] then lunged and slashed at Boyd but
missed. McGovern then grabbed [Appellant] and both landed on
____________________________________________

1 18 Pa.C.S. §§ 2502 and 907, respectively
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the ground, wrestling, with McGovern ending up on top. Again,
[Appellant] stabbed the unarmed McGovern, this time in the
heart. Boyd pulled McGovern away and the two got several steps
away before McGovern collapsed from his wounds and soon died.
[Appellant] fled, returning to get his hat and another object before
again fleeing. (N.T. 11-14-2017, pp. 80-85; 11-15-2017, pp. 26-
32; 11-16-2017, pp. 9-10). [Appellant] went home to New
Jersey, returning to Philadelphia the next morning to the Veteran’s
Administration Hospital for treatment of a cut to his hand. (N.T.
11-14-2017, pp. 144-148). The police were eventually called,
[Appellant] arrested, and found among his possessions were two
knives. His clothes were soaked with Colin McGovern’s blood, as
was one of the two knives. (N.T. 11-14-2017, pp. 139-142).
l[Appellant’s] cell phone displayed texts in which [Appellant]
revealed that “he likes stabbing,” stating that stabbing “Is a rush,”
“Is satisfying” and “Is what mother-fuckers deserve when they
bother me.” (N.T. 11-15-2017, pp. 44-47).

Trial Court Opinion, 8/8/18, at 3–4.

The trial court summarized the procedural history as follows:

On March 13, 2016, [Appellant] was arrested and charged
with murder and possessing an instrument of crime. [Appellant]
was bound over for trial on all charges following a March 30, 2016
preliminary hearing. A motion to quash was heard and denied on
June 2, 2016. A Suppression Hearing was held and denied on
August 31, 2017, with trial commencing November 22, 2017. A
jury convicted [Appellant] of first degree murder and possessing
the instrument of a crime[.] . . . [Appellant] was subsequently
sentenced to life without the possibility of parole plus two and a
half to five years’ incarceration.[2] [Appellant] timely filed a notice
of appeal.

Trial Court Opinion, 8/8/18, at 1–2. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

____________________________________________

2 Appellant filed a post-sentence motion on January 26, 2018, which was
denied by operation of law on May 29, 2018.

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I. Did the trial court incorrectly conclude that the fact-finder’s
determination that Appellant had the specific intent to
commit the crime of first-degree murder was not against the
clear weight of the evidence?

II. Was the evidence presented at trial sufficient to support
Appellant’s convictions for first-degree murder and
possessing an instrument of crime where the evidence
established that appellant lacked the requisite specific intent
to kill necessary to sustain his convictions?

III. Did the trial court err in denying Appel[l]ant’s motion to
suppress all evidence recovered from his cell phone where
the search warrant for the phone failed to describe with
particularity the items to be seized and therefore was
unconstitutionally overbroad?

IV. Did the trial court abuse its discretion in admitting evidence
of Appellant’s prior arrest for an unrelated shooting where
the probative value of the evidence was outweighed by the
potential for unfair prejudice?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

We first address Appellant’s second issue because a successful

sufficiency-of-the-evidence claim requires discharge.3 Commonwealth v.

Mikitiuk, ___ A.3d ___, ___, 2019 PA Super 195, *7 (Pa. Super. filed June

20, 2019). In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as verdict

____________________________________________

3 In setting forth this allegation in his post-sentence motion, Appellant
erroneously sought “a new trial based on” the sufficiency of the evidence.
Rather, as noted above, a successful sufficiency-of-the-evidence claim
requires discharge. Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super.
2013) (“Because a successful sufficiency of the evidence claim warrants
discharge on the pertinent crime, we must address this issue first.”).

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winner, were sufficient to prove every element of the offense beyond a

reasonable doubt. Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013).

“[T]he facts and circumstances established by the Commonwealth need not

preclude every possibility of innocence.” Commonwealth v. Colon-Plaza,

136 A.3d 521, 525–526 (Pa. Super. 2016) (quoting Commonwealth v.

Robertson-Dewar, 829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the

province of the fact-finder to determine the weight to be accorded to each

witness’s testimony and to believe all, part, or none of the evidence.

Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa. Super. 2015). The

Commonwealth may sustain its burden of proving every element of the crime

by means of wholly circumstantial evidence. Commonwealth v. Mucci, 143

A.3d 399, 409 (Pa. Super. 2016). Moreover, as an appellate court, we may

not re-weigh the evidence and substitute our judgment for that of the fact-

finder. Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

As a preliminary matter, we must consider whether Appellant has

preserved this issue for appellate review. In his post-sentence motion,

Appellant generically alleged, “The evidence presented at trial was insufficient

to sustain a conviction on all counts.” Post-Sentence Motion, 1/26/18, at ¶

3(a). Under Pennsylvania Rule of Criminal Procedure 720, Appellant was

required to set forth any claims he sought to raise with “specificity and

particularity.” Pa.R.Crim.P. 720(B)(1)(a).

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In his Statement of Matters Complained of on Appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b), Appellant stated, “Was the

evidence presented at trial insufficient to sustain a conviction on all

counts . . . ?” Statement of Matters Complained of on Appeal, 6/23/18, at ¶2.

An appellant’s Pa.R.A.P. 1925(b) statement must state with specificity the

element or elements upon which he alleges that the evidence was insufficient.

Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super. 2016); see also

Pa.R.A.P. 1925(b)(4)(ii) (“[T]he Statement shall concisely identify each ruling

or error that the appellant intends to challenge with sufficient detail to identify

all pertinent issues for the judge.”). The failure to identify the specific

elements the Commonwealth did not prove at trial in a Rule 1925(b)

statement renders an appellant’s sufficiency-of-the-evidence claim waived for

appellate review. See Commonwealth v. Tyack, 128 A.3d 254, 261 (Pa.

Super. 2015) (finding the appellant’s issues waived where “1925(b) statement

simply declared, in boilerplate fashion, that the evidence was insufficient to

support his conviction”).

Appellant’s nonspecific claim challenging the sufficiency of the evidence,

which fails to state any elements of any crimes allegedly not proven by the

Commonwealth, is waived. Tyack, 128 A.3d at 261. We note that in his

“Statement of the Questions Involved,” Appellant, for the first time, contends

that the evidence at trial was insufficient to support his convictions for first-

degree murder and PIC where the evidence established that appellant lacked

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the requisite specific intent to kill. Appellant’s Brief at 5. Appellant asserts

that the evidence, at most, established that he committed manslaughter

pursuant to 18 Pa.C.S. § 2503 because he “believed he was justified in

defending himself against what he perceived as an imminent violent attack.”

Appellant’s Brief at 18. Such a contention, as described by the

Commonwealth, “is a non-sequitur,” as Section 2503(b) applies to certain

killings because they were committed without malice, not because “the

perpetrator lacked the specific intent to kill.” Commonwealth’s Brief at 9.

An individual commits first-degree murder when he intentionally kills

another human being; an intentional killing is defined as a “willful, deliberate

and premeditated killing.” 18 Pa.C.S. §§ 2501, 2502(a), (d). To sustain a

conviction for first-degree murder, the Commonwealth must prove that: (1) a

human being was unlawfully killed; (2) the accused was responsible for the

killing; and (3) the accused acted with malice and a specific intent to kill.

Commonwealth v. Ballard, 80 A.3d 380, 390 (Pa. 2013). A jury may infer

the intent to kill “based on the accused’s use of a deadly weapon on a vital

part of the victim’s body.” Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa.

2011).

We conclude that even if not waived, we would rely upon the trial court’s

analysis in its Pa.R.A.P. 1925(a) opinion and find the issue lacking in merit.

After setting forth the relevant standard of review, the trial court stated:

The jury found that [Appellant] intentionally and with
premeditation stabbed Colin McGovern with a knife that he had

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been carrying with him. When an argument broke out concerning
[Appellant’s] Jersey Devils’ hat, [Appellant] pulled out his knife.
When McGovern approached [Appellant], [Appellant] stabbed
McGovern in the stomach. Neither [McGovern] nor Boyd were
armed. [Appellant] then attempted to stab Boyd, but Boyd was
not within the reach of the knife. [Appellant] then returned his
attention to McGovern and as the two struggled they landed on
the ground with McGovern on top. At that point, although
McGovern did not possess a weapon, [Appellant] again stabs
McGovern in the chest, this time in the heart. When combined
with the text messages about how [Appellant] liked stabbing
people and that it gave him a rush, the jury had more than enough
evidence to find that [Appellant] possessed the requisite intent to
kill when he stabbed McGovern, causing his death. First degree
murder is a murder in which the perpetrator has the specific intent
to kill. 18 Pa.C.S §2502. This killing was willful, deliberate and
premeditated. The specific intent to kill needed for first degree
murder can be discerned from the conduct and attending
circumstances, showing the perpetrator’s state of mind.
Commonwealth v. Stewart, 461 Pa. 274, 336 A.2d 282 (1976);
Commonwealth v. Gonzalez, 858 A.2d 1219 (Pa.Super.2004);
Commonwealth v. Kaster, 300 Pa. Super. 174, 446 A.2d 287
(1982). [Appellant] used a deadly weapon on a vital part of the
unarmed victim’s body, clearly circumstantial evidence of
[Appellant’s] intent to kill. See Commonwealth v. Drum, 58 Pa. 9
(1868); Commonwealth v. Robinson, 468 Pa. 574, 364 A.2d 665
(Pa. 1976); Commonwealth v. 0’Searo, 466 Pa. 224, 352 A.2d 30
(Pa. 1976).

Likewise, [Appellant] clearly of possessed an instrument of
crime “with intent to employ it criminally” as defined under 18
Pa.C.S. § 907(a). He possessed a knife that he used for criminal
purposes under circumstances not manifestly appropriate for the
lawful uses it may have had. Accordingly, [Appellant’s] claim of
insufficiency of the evidence must fail.

Trial Court Opinion, 8/8/18, at 5–6. Thus, even if not waived, the evidence

presented and the inference drawn from Appellant’s use of a deadly weapon

on vital parts of the victim’s body support the first-degree murder conviction.

Therefore, we would conclude that Appellant’s sufficiency claim lacks merit.

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Appellant also challenges the weight of the evidence, again in generic

fashion. We have held that a motion for a new trial on the grounds that the

verdict is contrary to the weight of the evidence “concedes that there is

sufficient evidence to sustain the verdict.” Commonwealth v. Rayner, 153

A.3d 1049, 1054 (Pa. Super. 2016) (quoting Commonwealth v. Widmer,

744 A.2d 745, 751 (Pa. 2000)). Our Supreme Court has described the

standard applied to a weight-of-the-evidence claim as follows:

The decision to grant or deny a motion for a new trial based
upon a claim that the verdict is against the weight of the evidence
is within the sound discretion of the trial court. Thus, “the function
of an appellate court on appeal is to review the trial court’s
exercise of discretion based upon a review of the record, rather
than to consider de novo the underlying question of the weight of
the evidence.” An appellate court may not overturn the trial
court’s decision unless the trial court “palpably abused its
discretion in ruling on the weight claim.” Further, in reviewing a
challenge to the weight of the evidence, a verdict will be
overturned only if it is “so contrary to the evidence as to shock
one’s sense of justice.”

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations

omitted). A trial court’s determination that a verdict was not against the

interest of justice is “[o]ne of the least assailable reasons” for denying a new

trial. Commonwealth v. Colon–Plaza, 136 A.3d 521, 529 (Pa. Super. 2016)

(quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). A verdict

is against the weight of the evidence where “certain facts are so clearly of

greater weight that to ignore them or to give them equal weight with all the

facts is to deny justice.” Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa.

Super. 2003) (quoting Widmer, 744 A.2d at 751–752). “[W]e do not reach

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the underlying question of whether the verdict was, in fact, against the weight

of the evidence.... Instead, this Court determines whether the trial court

abused its discretion in reaching whatever decision it made on the motion[.]”

Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation

omitted).

A challenge to the weight of the evidence must first be raised at the trial

level “(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.”

Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017). In his post-

sentence motion, Appellant contended, “The verdicts were against the clear

weight of the evidence.” Post-Sentence Motion, 1/26/18, at ¶ 2(b). Appellant

raised the issue in his Pa.R.A.P. 1925(b) statement, as well.

Instantly, the trial court, who viewed the witnesses’ demeanors at trial,

determined that the verdict did not shock his sense of justice. In addressing

the weight of the evidence, the trial court stated:

The evidence in this case was both compelling and
substantial. The entire incident was caught on surveillance video.
[Appellant] was wandering the streets of Philadelphia in the early
morning hours, knives in his pocket. He texted his sister that he
liked stabbing people, that it gave him a rush, especially those
people who annoyed him. When two young men were walking
down the street with two girls, and one of the men made a caustic
remark about the hat [Appellant] was wearing, they were
annoying him. An argument ensued. The two men were
unarmed, but [Appellant] pulled out his knife. When McGovern
approached, [Appellant] lunged at him with the knife, stabbing his
victim in the stomach. [Appellant] then lunged at the other male
trying to stab him. [Appellant] returned to his original victim and
when they landed on the ground, [Appellant] again stabbed the

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unarmed man, this time in the heart. The verdict in this case was
not so contrary to the evidence as to shock one’s sense of justice
and therefore, the judgment must stand.

Trial Court Opinion, 8/8/18, at 6–7. We ascertain no abuse of discretion in

this determination and add the following.

Appellant maintains that he had been diagnosed in the past with various

disorders by the Veterans Administration and prescribed an anti-psychotic

medication. Appellant’s Brief at 15 (citing N.T., 11/17/17, at 57–58, 66–67,

70). The Commonwealth’s expert witness, Dr. John O’Brien, a psychiatrist for

over twenty years who has been qualified as an expert approximately seven

hundred times, n.t. 11/20/17, at 13-14, reviewed Appellant’s medical records

dating back to the 1990s and interviewed Appellant in prison. N.T., 11/20/17,

at 15–17. Dr. O’Brien determined that Appellant was manipulative and

exaggerated his mental health symptom to obtain benefits, a conclusion that

was underscored by a personality test that Appellant’s own psychiatric expert,

Dr. Frank M. Dattilio, had recently administered. Id. at 19–23. Appellant

suggests that Dr. O’Brien’s testimony “was so incredible that the fact-finder

should have rejected it outright.” Appellant’s Brief at 13. Appellant’s

argument is nothing more than a veiled attempt to have this Court re-weigh

the evidence and substitute our judgment for that of the jury, which is wholly

improper. Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011). As

we stated in Commonwealth v. Jenkins, 578 A.2d 960 (Pa. Super. 1990),

“[t]he jury was free to accept all, some or none of the testimony presented.

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The fact that [it] chose to believe Dr. O’Brien does not shock this Court’s sense

of justice.” Id. at 963 (internal citations omitted). Having reviewed the

record in its entirety, we discern no abuse of discretion with respect to the

trial court’s rejection of Appellant’s weight-of-the-evidence claim.

Appellant next argues that the trial court erred in denying his motion to

suppress the evidence recovered from Appellant’s cell phone. Appellant’s Brief

at 23. Appellant filed a motion to suppress on January 21, 2017. The trial

court held a hearing on August 31, 2017, and denied the motion at the

conclusion of the hearing. N.T. (Suppression), 8/31/17, at 59. In his

appellate brief, Appellant contends that “because the search warrant4 did not

limit the search of his cell phone to the relevant time period surrounding the

crime . . . the warrant was unconstitutionally overbroad.” Appellant’s Brief at

24.

The standard of review an appellate court applies when considering an

order denying a suppression motion is well settled:

[O]ur standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct.
____________________________________________

4 Neither the search warrant nor the affidavit in support of the warrant is in
the record certified to us on appeal. We note that “[t]he Rules of Appellate
Procedure place the burden on the appellant to ensure that the record contains
what is necessary to effectuate appellate review . . . .” Commonwealth v.
Powell, 956 A.2d 406, 423 (Pa. 2008)); see also Pa.R.A.P. 1921 note
(“Ultimate responsibility for a complete record rests with the party raising an
issue that requires appellate court access to record materials.”).

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We may consider only the evidence of the prosecution and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.

Moreover, it is within the trial court’s province to pass on the
credibility of witnesses and determine the weight to be given to
their testimony.

Commonwealth v. Soto, 202 A.3d 80, 90 (Pa. Super. 2018), appeal denied,

207 A.3d 291 (Pa. 2019) (quoting Commonwealth v. McCoy, 154 A.3d 813,

815–816 (Pa. Super. 2017) (citations and brackets in original omitted)).

Further, we view the record in the light most favorable to the Commonwealth

as the prevailing party. Commonwealth v. Price, 203 A.3d 264, 269 (Pa.

Super. 2019) (citing Commonwealth v. Mathis, 173 A.3d 699, 706 (Pa.

2017)). We may consider only the evidence presented at the suppression

hearing. In re L.J., 79 A.3d 1073, 1085–1087 (Pa. 2013).

Appellant concedes that Detective Francis Graf “admittedly had probable

cause to believe that [A]ppellant’s phone”—which he was carrying at the time

of the murder—“might be useful to the investigation into Mr. McGovern’s

death.” Appellant’s Brief at 25. Appellant admits that at the time the warrant

issued, police were “aware that [Appellant] intended to assert an

insanity/diminished capacity defense.” Id. Thus, the contents of the cell

phone would contain “useful information about [A]ppellant’s mental state at

or near the time of the killing” and “who [A]ppellant was speaking to in the

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minutes preceding the stabbing or to see if [A]ppellant had communicated

with anyone in the days leading up to the incident who might shed light on his

mental condition at the time of the stabbing.” Id. at 25–26. Despite this

contention, Appellant argues the warrant was overly broad because it was not

limited to data generated close in time to the murder. Id. at 26.

In the motion to suppress, however, Appellant asserted that the warrant

“lack[ed] probable cause to support its issuance.” Motion to Suppress,

1/21/17, at ¶ 5. Moreover, while Appellant’s argument on appeal focuses on

an alleged denial of Appellant’s rights under the Pennsylvania Constitution,

Appellant’s Brief at 26–29, that claim was not presented to the trial court.

Id.; N.T. (Suppression), 8/31/17, at 19–57. Therefore, that basis for his

suppression argument is waived. Commonwealth v. Bell, ___ A.3d ___, 11

MAP 2018 at * (Pa. filed July 17, 2019) (Although the defendant’s pretrial

motion mentioned the Pennsylvania Constitution, his failure “to develop an

argument that the Pennsylvania Constitution provided any independent

grounds for relief” in the trial court resulted in waiver). See also

Commonwealth v. Dixon, 997 A.2d 368, 376 (Pa. Super.2010) (en banc)

(citing Pa.R.Crim.P. 581(D) (pretrial motion to suppress must “state

specifically and with particularity the evidence to be suppressed and the facts

and events in support); Commonwealth v. Jones, 193 A.3d 957, 964 (Pa.

Super. 2018) (defendant was required to raise particular ground for

suppression in pretrial motion); Commonwealth v. Rosa, 734 A.2d 412, 420

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(Pa. Super. 1999) (because defendant failed to raise allegation that search

was unconstitutional under the Pennsylvania Constitution to the trial court,

Superior Court “would be justified in deeming the claim waived.”).

The absence of the application for the search warrant and the affidavit

of probable cause from the record further impedes our analysis of the

suppression issue that was raised in the motion to suppress and touched upon

in the appellate brief. For this reason, we rely on the trial court’s explanation

and reasoning presented in its Pa.R.A.P. 1925(a) opinion, as follows:

Detective Francis Graf of the Homicide Division of the
Philadelphia Police Department submitted an application for a
search warrant to the Magisterial Judge with a supporting affidavit
of probable cause. The detective extensively described what had
been discovered at the murder scene, including the video evidence
depicting the slaying as well as the [Appellant’s] actions prior to
the stabbing and the observation that [Appellant] was talking on
his cellular phone immediately before the confrontation. Based
on that affidavit of probable cause the prosecution sought a
warrant to search and seize the [Appellant’s] white Galaxy S5
Verizon cellular telephone IMEI 990004810987069 limited to
“contact lists, call logs, messaging, photos, photo galleries and/or
albums, downloads, videos, video logs and any other items of
evidentiary value in furtherance of the investigation of the
stabbing death of Colin McGovern on 3-13-16.” The Magisterial
Judge issued the requested warrant. It is clear that the
Commonwealth established, by a preponderance of the evidence,
that the search warrant for [Appellant’s] cell phone was properly
supported by probable cause and described the items to be seized
with the requisite specificity. The affidavit included a detailed
explanatory narrative which not only provided the requisite
probable cause, but identified, as clearly as possible, the item to
be searched.

Investigation completed

[Appellant] also complained that the investigation had been
over in that [Appellant] had been arrested on March 14, 2016, and

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as this application was not filed until November 16th it had to be a
fishing expedition. Although a warrant cannot be issued upon
stale information, the phone had been seized by the police at the
time of the arrest and since the video of the killing showed
[Appellant] on that phone immediately prior to the killing,
probable cause existed to believe that the phone may have
contained information connected to the criminal activity. See
Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980);
Commonwealth v. Montavo, 439 Pa.Super. 216, 653 A.2d 700
(1995). A review of the affidavit of probable cause reveals that
the search warrant sufficiently identified and limited the items to
be searched and seized from [Appellant’s] white Galaxy S5
Verizon cellular telephone IMEI 990004810987069 in furtherance
of the investigation and stabbing death of Colin McGovern on 3-
13-2016. See Commonwealth v. Dougalewicz, 113 A.3d 817, 827
(Pa.Super.2015).

[Appellant] further contends that between the time of
[Appellant’s] arrest on March 13, 2016, and the application for the
search warrant on November 7, 2016, the cell phone had, at least
been plugged in to power on the item and, although there was no
successful log in, as the phone was password protected, such
actions by the police amount to an attempt, albeit unsuccessful,
to search the phone and that the resulting evidence, obtained with
a warrant should be suppressed. Even if the powering on of the
phone was an attempted illegal search, there was nothing
obtained from these attempts and as such nothing to suppress.
The law is clear that where evidence has been obtained, pursuant
to an unlawful search or seizure, the proper remedy is the
suppression and exclusion of the evidence obtained.
Commonwealth v. Dobbins, 594 Pa. 71, 89, 934 A.2d1170,
1181(2007) (citing Commonwealth v. Gibson, 536 Pa. 123, 638
A.2d 203, 205 (1994)). As nothing was obtained, there is nothing
to suppress.

Trial Court Opinion, 8/8/18, at 8–10.

In his final issue, Appellant asserts the following:

During [A]ppellant’s trial, the Commonwealth sought to
introduce evidence that [A]ppellant had previously been arrested
nearly twenty years previously for shooting an individual in 1999.
The Commonwealth argued that evidence about this previous
arrest was relevant and admissible because [A]ppellant’s expert,

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Dr. [Frank] Dattilio, considered [A]ppellant’s criminal history in
evaluating his insanity and diminished capacity claims. Over
[A]ppellant’s objection, the trial court ruled that the
Commonwealth could cross-examine Dr. Dattilio about all the
facts and data he reviewed, including [A]ppellant’s prior arrest
and conviction. Appellant respectfully submits that the trial court
erred in admitting this prior bad act into evidence where the
evidence was not critical to the doctor’s conclusions and the
Commonwealth essentially used this evidence as propensity
evidence to argue that [A]ppellant was acting in conformance with
his violent character when he fatally stabbed the victim.

Appellant’s Brief at 30. Appellant importantly fails to include citation to the

record and the relevant notes of testimony where the above controversy

occurred at trial. “It is not this Court’s responsibility to comb through the

record seeking the factual underpinnings of an appellant’s claim.”

Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014). For

this reason, we could find the issue waived. Commonwealth v. Perez, 93

A.3d 829, 838 (Pa. 2014) (claims failing to advance developed argument or

citation to supporting authorities and record are waived). However, the

Commonwealth has directed us to the relevant place in the record; thus, we

consider the issue.

In response, the Commonwealth asserts:

[Appellant] litigated a motion to preclude the prosecution
from questioning the expert witnesses about a matter discussed
in their mental health reports. It concerned a prior incident in
which he had allegedly acted in self-defense and been convicted
of simple assault. At a hearing outside the presence of the jury,
the prosecution called [its expert witness,] Dr. O’Brien[,] to the
stand. He testified that the incident was relevant to the
assessment of whether or not [Appellant] suffered from a
psychiatric condition that affected his perception of danger (N.T.
11/17/17, 11-22). After carefully considering the issue, Judge

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O’Keefe denied the defense motion, but noted that he would
provide the jury with a cautionary instruction (id., 36).

Commonwealth’s Brief at 13–14.

The trial court underscores that Appellant presented an insanity defense

at trial. Prior to presentation of the testimony of defense expert, Dr. Dattilio,

the trial court charged the jury as follows:

I told you before there are certain witnesses who are expert
witnesses and there are some who are going to be coming forward
that may or may not be experts. But an expert witness is a person
who has special knowledge or skill in some science, art,
profession, occupation or subject that the witness acquired by
training, education and experience. Because an expert has special
skill, that is out of the ordinary knowledge or skill, he or she may
be able to supply you jurors with specialized information,
explanations and opinions that will help you decide the case.

Regular witnesses are bound by two limitations that do not
apply to an expert. First, regular witnesses can generally testify
only to things that they personally perceive. Things that they saw
and heard themselves. Second, regular witness are not allowed
to express opinions about matters that require special knowledge
or skill.

By contrast, an expert is allowed to express an opinion
about a matter that is within the area of his or her expertise.
Furthermore, while an expert may base an opinion on things
personally perceived, he or she may also base an opinion on
factual information learned from other sources. Remember, you
jurors are the sole judges of the credibility and weight of
all testimony. The fact that the lawyers or I may refer to certain
witnesses as experts and that the witnesses may have special
knowledge or skill does not mean that their testimony and
opinions are right.

When you are determining the credibility and weight of an
expert’s testimony and opinions, consider all the factors that I
have described earlier that are relevant to evaluating the
testimony of any witness. You should also consider all other
things bearing on credibility and weight including the training,

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education, experience and ability of each expert. The factual
information upon which he or she based the opinion. The source
and reliability of that information. And the reasonableness of any
explanation he or she gave to support the opinion.

Now, some of these experts or witnesses are going to give
you an opinion. They are going to refer to certain facts that have
not been presented from the witness stand except by the expert.
Because these facts have not been presented in evidence
except through the expert’s testimony, you should consider
them for the limited purpose only of deciding whether to
accept that expert’s opinion. You should not consider
those facts in any other way to your deliberations in this
case because they have no bearing on the question of
whether the defendant is guilty or not guilty except for the
purpose I have just described to you.

N.T., 11/17/17, at 37–40 (emphases added).

When Dr. O’Brien referred to the prior incident during his rebuttal

testimony, the trial court again reinforced its prior warning:

Ladies and gentlemen, the doctor has given you an opinion.
He’s referring to certain facts that have not been presented from
the witness stand except by the experts. They are describing in
part a basis of their opinion. Because these facts have not been
presented into evidence except for the expert’s testimony, you
should consider them only for the limited purpose of
deciding whether or not to accept the expert’s opinion. You
should not consider those facts in any other way in your
deliberations in this case because they have no bearing on
the question of whether defendant is guilty or not guilty of
the crime except for the purpose I have just described.

N.T., 11/20/17, at 42–43 (emphasis added).

Appellant maintains that the trial court erred when balancing “the

probative value of such evidence against its prejudicial impact.” Appellant’s

Brief at 31. We disagree. As noted by the trial court, “Pennsylvania Rule of

Evidence 705 provides: ‘If an expert states an opinion the expert must state

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the facts or data on which the opinion is based.’ Precedent clearly requires

disclosure of the facts used by an expert in forming an opinion. See Kozak v.

Struth, 515 Pa. 554, 560, 531 A.2d 420, 423 (1987).” Trial Court Opinion,

8/8/18, at 12. Furthermore, the trial court minimized any prejudice 5 by

means of its instructions, which jurors are presumed to have followed. See

Commonwealth v. Powell, 171 A.3d 294, 304 (Pa. Super. 2017), appeal

denied, 183 A.3d 975 (Pa. 2018) (citing Commonwealth v. Tyson, 119 A.3d

353, 362 (Pa. Super. 2015) (noting “to alleviate the potential for unfair

prejudice, the court can issue a cautionary instruction to the jury,” and “jurors

are presumed to follow the trial court's instructions.”).

We “will not disturb a ruling on the admission of evidence ‘unless that

ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-

will, or such lack of support to be clearly erroneous.’” Price, 203 A.3d at 271

____________________________________________

5 Appellant also criticizes a portion of the Commonwealth’s closing argument
wherein the prosecutor indirectly referenced Appellant’s 1999 shooting, and
he asserts resulting prejudice. Appellant’s Brief at 34, 35. First, this is a
veiled attempt to raise an issue that has not been properly raised and
preserved. See Samuel, 102 A.3d at 1006 (Pa.R.A.P. 1006(a) provides that
no question will be considered unless it is stated in the statement of questions
or fairly suggested therein); Pa.R.A.P. 1925(b)(4)(ii) (“[T]he Statement shall
concisely identify each ruling or error that the appellant intends to challenge
with sufficient detail to identify all pertinent issues for the judge.”). Second,
Appellant failed to object to these remarks at the time of trial. N.T., 11/21/17,
at 99–100; see also Pa.R.A.P 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”);
Commonwealth v. Storey, 167 A.3d 750, 757 (Pa. Super. 2017) (failure to
request cautionary instruction after objection was sustained waives claim of
trial court error in failing to issue cautionary instruction).

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(quoting Commonwealth v. Akrie, 159 A.3d 982, 986-987 (Pa. Super.

2017)). Moreover, “an erroneous ruling by a trial court on an evidentiary

issue does not require us to grant relief where the error was harmless.”

Commonwealth v. Yockey, 158 A.3d 1246 (Pa. Super. 2017) (citing

Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005)).

We will not disturb this evidentiary ruling. As the trial court determined,

“As both experts had relied upon [Appellant’s] recitation of the history of his

life, including previous contacts with the law, those instances were properly

admitted into evidence.” Trial Court Opinion, 8/8/18, at 12. The cautionary

instructions provided before the experts testified “were more than adequate”

to dispel any prejudice. Id. Accordingly, we reject this claim, as well.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2019

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