J-A01028-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE R. SMITH, :
:
Appellant : No. 3266 EDA 2018
Appeal from the Judgment of Sentence Entered May 7, 2018
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0001819-2016
BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 04, 2020
Andre R. Smith (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of first-degree murder and possessing an
instrument of crime.1 Upon review, we affirm.
The trial court recounted the evidence presented at trial as follows:
The operative facts of the matter involve [Appellant]
stabbing his former friend Grayling Chambliss in the chest and
abdomen five (5) times with a butcher knife, procured from his
girlfriend’s kitchen before he answered the front door, shortly
after midnight on May 11, 2016, such that the knife penetrated
the victim’s lung, heart, and aorta, reaching at one point to the
victim’s vertebrae, and also tore out the victim’s small intestine,
which caused the victim’s small intestine to protrude from his
abdominal cavity. (Trial Transcript, 2/26/18, 55-56, 72-78, 94,
110, 132, 208-09; Trial Transcript, 2/27/18, N.T. 253, 259-60,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(a) and 907(a).
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276-77, 289, 307, 309, 311, 329-30; Trial Transcript, 2/28/18,
N.T. 638, 646, 649, 655-56; Trial Transcript, 3/1/18, N.T, 837;
2/26/18, Ex. C-5A; 2/27 /18, Ex. C-1 OR; 2/28/18, Ex. C-69).
The victim died within minutes. (Trial Transcript, 2/28/18, N.T.
651).
The murder occurred while [Appellant] was experiencing the
psychotropic effects of his voluntary ingestion of “wet”, i.e., PCP-
laced marijuana, most likely earlier in the evening while he was at
a bar drinking with his cousin. (Trial Transcript, 2/26/18, N.T. 64-
66, 135-37; Trial Transcript, 2/27/18, N.T. 256-57, 266-71, 281,
284-85, 303, 421, 429-30, 435-36, 438-51; Trial Transcript,
2/28/18, N.T. 480; Trial Transcript, 3/1/18, N.T. 831).
Immediately after stabbing Mr. Chambliss, [Appellant] ran into
the bathroom of his girlfriend’s home, removed all of his own
bloody clothes, ripped the toilet/toilet tank from the wall/floor,
and jumped naked out of a second story window onto the
pavement below, fracturing his own heel and ankle and sustaining
various abrasions to his body in the process. (Trial Transcript,
2/26/18, N.T. 57, 65-66, 95-96, 122, 159; Trial Transcript,
2/27/18, N.T. 261-62, 380, 385-86, 389; Trial Transcript,
2/28/18, N.T. 494-500, 615-16, 620, 622-24; Trial Transcript,
3/1/18, N.T. 840-42; 2/27/18, Ex. C-10Q). In a police interview
conducted a couple hours later at the hospital, which was played
for the jury, [Appellant] told one Detective Raech, “So I know the
only rea- and the only way for me to kill this man and like to stop
him from fightin’ me I gotta stab him in his heart.” (2/28/18, Exs.
C-43, C-43A at 26, C-43B at 17).
[Appellant], who testified on his own behalf at trial,
advanced the theory that due to his mental illness and voluntary
intoxication on the night of the murder, he was unable to form the
specific intent to kill and he claimed he acted in self-defense, on
the basis that he was allegedly afraid of Mr. Chambliss, who,
according to the defense, had a twenty-year old conviction for
Simple Assault, two (2) arrests for Rape, and was known to
[Appellant] to carry a gun. (Trial Transcript, 2/26/18, N.T. 50-
51; Trial Transcript, 3/1/18, N.T. 828, 833-37, 871; Trial
Transcript, 3/2/18, N.T. 917-919, 921, 947). The defense alleged
that Mr. Chambliss had been calling [Appellant] repeatedly on his
cell phone that evening and trying to contact him in person by
knocking on [Appellant’s] girlfriend’s door, interrupting the
[Appellant’s] family and prayer time, and was trying to forcibly
enter [Appellant’s] girlfriend’s home, where [Appellant] was
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staying, after being warned to go away. (Trial Transcript, 3/1/18,
N. T. 833-37). Mr. Chambliss’s persistence in contacting
[Appellant] may have been occasioned by a drug debt that Mr.
Chambliss wished to reimburse to [Appellant], who had previously
supplied Mr. Chambliss with controlled substances. (Trial
Transcript, 3/1 /1 8, N.T. 827, 836-37).
Despite his attorneys’ attempt to persuade the jury that
[Appellant] could not have formed the specific intent to kill Mr.
Chambliss due to his mental illness and voluntary drug
intoxication, [Appellant] testified, notwithstanding the toxicology
report, that he had not smoked PCP on the day of the murder and
that he was not high on the drug at the time he committed the
offense. (Trial Transcript, 3/1/18, N.T. 844, 849).
Trial Court Opinion, 3/27/19, at 2-3.
After a six-day trial, the jury rendered guilty verdicts on March 2, 2018.
On May 7, 2018, the trial court sentenced Appellant to life imprisonment.
Appellant filed a timely post-sentence motion on May 16, 2018, which the trial
court denied on October 9, 2018. Appellant filed this timely appeal. Both the
trial court and Appellant have complied with Pennsylvania Rule of Appellate
Procedure 1925.
Appellant presents four issues for our review:
I. Was the finding of guilt on the charge of Murder of the First
Degree pursuant to 18 Pa.C.S.A. §2502 (a) against the weight of
the evidence?
II. Did the trial court err in its November 3, 2017 order directing
the defense, in the event defense expert, Dr. Gerald Cooke,
testified, to disclose the raw data relied upon in making his expert
report as well as Appellant’s responses to these tests?
III. Did the trial court err in failing to sanction the Commonwealth,
as requested by the defense, for disclosing an EMT report after
the parties had picked a jury?
IV. Did the trial court err in allowing video footage obtained from
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police officer body cameras which depicted the decedent’s body?
Appellant’s Brief at 5.
In his first issue, Appellant assails the weight of the evidence, arguing
that he was incapable of forming the specific intent to kill because the evidence
from the Commonwealth’s expert, Dr. Richard Cohn, established that
Appellant’s cognitive faculties were “significantly and measurably impaired”
by his consumption of PCP and marijuana. See Appellant’s Brief at 19-31.2
Our Supreme Court recently summarized:
To convict a defendant of first-degree murder, the
Commonwealth must prove beyond a reasonable doubt that the
defendant unlawfully killed another human being, the defendant
acted with the specific intent to kill, and the killing was willful,
deliberate, and premeditated. The specific intent to kill may be
inferred from the defendant’s use of a weapon on a vital part of
the victim’s body. . . Furthermore, the Commonwealth may
sustain its burden by wholly circumstantial evidence and the jury
is free to believe all, part, or none of the evidence.
Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019) (citations omitted).
Here, Appellant recites a litany of the evidence to support his contention
that the trial court improperly denied his motion for a new trial. See
Appellant’s Brief at 21-30. Upon review, we disagree.
We recognize:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. Widmer, 744 A.2d at 751–52; [Commonwealth v.
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2 While the Commonwealth argues that Appellant’s claim as it pertains to his
intent is one of sufficiency and not weight—and is thus waived—we address
the weight claim given Appellant’s focus on the testimony and weight afforded
the testimony by the jury. See Appellant’s Brief at 21-30.
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Brown, 648 A.2d 1177, 1189 (Pa.1994)]. A new trial should not
be granted because of a mere conflict in the testimony or because
the judge on the same facts would have arrived at a different
conclusion. Widmer, 744 A.2d at 752. Rather, “the role of the
trial judge is to determine that ‘notwithstanding all the facts,
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.’”
Id. at 320, 744 A.2d at 752 (citation omitted). It has often been
stated that “a new trial should be awarded when the jury’s verdict
is so contrary to the evidence as to shock one’s sense of justice
and the award of a new trial is imperative so that right may be
given another opportunity to prevail.” Brown, 648 A.2d at 1189.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
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. Brown, 648 A.2d at 1189. Because the
trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give
the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the
weight of the evidence. Commonwealth v.
Farquharson, 354 A.2d 545 (Pa. 1976). One of the
least assailable reasons for granting or denying a new
trial is the lower court’s conviction that the verdict was
or was not against the weight of the evidence and that
a new trial should be granted in the interest of justice.
Widmer, 744 A.2d at 753 (emphasis added).
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations
modified).
In reviewing the trial court’s exercise of discretion in this case, we
discern no merit to Appellant’s argument. Citing both legal authority and the
record, the trial court provided a comprehensive explanation of why it denied
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relief. Most pertinently:
There was, indisputably, plenty of evidence that [Appellant]
ingested PCP-laced marijuana. Toxicologically significant amounts
were found in his blood and Dr. Cohn did indeed opine that
[Appellant], at the time of the murder, was laboring under the
psychotropic effects of PCP and marijuana. However, the mere
fact of intoxication is not a defense to First Degree Murder; rather,
[Appellant] must prove that his cognitive abilities of deliberation
and premeditation were so compromised by voluntary intoxication
that he was unable to formulate the specific intent to kill.
Commonwealth v. Bardo, 105 A.3d 678 (Pa. 2014) []. The
mere evidence of the consumption of alcohol or drugs and an
appearance of intoxication is not sufficient to support a conclusion
that a defendant was overwhelmed or overpowered to the point
of being incapable of forming the specific intent to kill. Obviously
from [case law], it is apparent that one can still possess a specific
intent to kill even if he or she is under the influence of an
intoxicating substance; voluntary intoxication is not a per se
defense, or mitigating factor, as the case may be, to First Degree
Murder.
In Commonwealth v. Cessna, the defendant shot his
sleeping stepfather in the head while under the influence of LSD.
Commonwealth v. Cessna, 537 A.2d 834 (Pa. Super. 1988).
Despite the defendant’s recent use of LSD, the Superior Court
determined that he still possessed the necessary faculties to be
able to premeditate the deliberate death of his stepfather. Id. The
Court noted that to negate the intent necessary for a conviction
of Murder in the First Degree, a defendant must have been
overwhelmed by a drug to the point of losing his faculties so as to
be incapable of forming a specific intent to kill. [] The appellate
Court stated that whether a defendant is so overpowered by the
voluntary ingestion of an intoxicating substance is a question for
the fact finder, who is free to believe any, all, or none of the
testimony offered at trial. . . .
In the matter sub judice, there is abundant evidence of
record to support the jury’s conclusion that [Appellant] harbored
a specific intent to kill Grayling Chambliss, notwithstanding his
voluntary intoxication. First of all, in response to Mr. Chambliss’s
persistent knocking on the front door of [Appellant’s] girlfriend’s
home, [Appellant], who was in his night clothes and getting ready
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for bed, came down the stairs and went to the kitchen to retrieve
a butcher knife before answering the door. This clearly
demonstrates that [Appellant] was contemplating the use of
deadly force and the likely result that Mr. Chambliss’s death might
ensue therefrom. Premeditation does not require a significant
passage of time. Secondly, [Appellant] stabbed Mr. Chambliss
five (5) times, twice in Mr. Chambliss’s lung, once in his heart,
once in the aorta, and once in the abdomen, ripping out Mr.
Chambliss’s small intestine. [l]t is axiomatic that specific intent
to kill may be inferred from the use of a deadly weapon on a vital
part of the victim's body. More specifically, the use of a deadly
weapon directed at a vital organ of another human being justifies
a factual presumption that the actor intended death unless the
testimony contains additional evidence that would demonstrate a
contrary intent. The jury was lawfully able to infer, presume even,
that by utilizing a butcher knife on vital parts of the victim’s body,
[Appellant] did indeed harbor the specific intent to kill Mr.
Chambliss. Further, when [Appellant] was interviewed by police
at the hospital a few hours after this incident occurred, he told the
officer, “So I know the only rea- and the only way for me to kill
this man and like to stop him from fightin’ me I gotta stab him in
his heart.” These words indicate that [Appellant] deliberately
stabbed Mr. Chambliss in the chest to kill him.
Certainly there is evidence that [Appellant] had been acting
in an unusual manner prior to the murder. . . . However,
immediately prior to the stabbing of Mr. Chambliss, [Appellant]
was not in fact acting unusually. . . . [Appellant] went to a bar
with his cousin, had a beer and played pool. Then he came home
and ate dinner with his family. Subsequently, he decided that he
wanted to pray [and t]here was testimony that he wept while he
prayed that night. Subsequently, he appeared agitated because
his prayers were repeatedly interrupted by Mr. Chambliss and he
did at one point grab his girlfriend’s mother’s lamp and unplug it
and then put it back down. However, [Appellant] did not threaten
or take his agitation out on any person at that time but instead
accompanied his girlfriend to their bedroom and got ready for bed,
even to the point of lying down on the bed and watching the
television show “Game of Thrones”. This is not bizarre behavior.
It was only after committing murder, after stabbing Grayling
Chambliss in numerous vital parts of his body with a deadly
weapon, after he had developed and executed his plan to kill Mr.
Chambliss, that [Appellant] began to exhibit truly bizarre
behavior. . . . All of this occurred after [Appellant] killed Mr.
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Chambliss, not before. Prior to killing Mr. Chambliss, [Appellant]
enjoyed a nice evening with his family and even took time to pray
because he was, in his own words, feeling “blessed”. Indeed, in
his own testimony at trial, [Appellant] denied that he was high on
PCP and marijuana at the time he committed this crime. Thus, a
jury could reasonably have inferred that [Appellant’s] ingestion of
PCP and marijuana did not so overwhelm his faculties, particularly
as the evidence also described [Appellant] as a regular and
longtime user of these substances, that he could not formulate
the specific intent to kill.
. . . [T]he weight of the evidence favors the jury’s conclusion that
[Appellant] possessed the requisite mental faculties and
sensibilities to formulate the specific intent to kill Mr. Chambliss
and did indeed formulate and possess, as well as act upon, that
intent.
Trial Court Opinion, 3/27/19, at 11-16 (citations to notes of testimony and
some case law omitted). Consistent with the foregoing, we find no merit in
Appellant’s first issue.
In his next three issues, Appellant assails the trial court’s actions in (1)
directing the defense to disclose “raw data” relied upon by their mental health
expert, Dr. Cooke; (2) failing to sanction the Commonwealth “for disclosing
an EMT report after the parties had picked a jury”; and (3) allowing police
body camera footage depicting the decedent’s body. See Appellant’s Brief at
5.
In response, the Commonwealth, inter alia, (1) cites Pennsylvania Rule
of Criminal Procedure 569 and Rule of Evidence 705 to support the disclosure
of the expert’s raw data; (2) states that it was unaware of and only received
the EMT report “during jury selection, but the jury had not been sworn,” after
which the trial court granted a curative continuance providing Appellant with
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three additional months to prepare for trial; and (3) argues that admission of
the video of the decedent’s body was not inflammatory where it “only showed
the victim’s wounds for a few seconds” with the purpose of showing the jury
where the murder occurred. See Commonwealth Brief at 8, 30-31, 45-48,
52-53.
We review Appellant’s claims cognizant that “[a] trial court has broad
discretion to determine whether evidence is admissible,” and the court’s ruling
regarding the admission of evidence “will not be disturbed on appeal unless
that ruling reflects manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support to be clearly erroneous.” Commonwealth
v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013).
With respect to Appellant’s second issue, the record confirms that
Appellant had “plenty of time” to prepare for trial and “was not prejudiced” by
the court’s requirement that his expert, Dr. Cooke, disclose the data; further,
we agree with the trial court that “by placing his mental health in issue . . .
[Appellant] waived the psychotherapist-patient privilege.” Trial Court
Opinion, 3/27/19, at 18, citing Commonwealth v. Santiago, 855 A.2d 682
(Pa. 2004) (defendant waived privilege by pursuing insanity defense). We
also agree with the Commonwealth that Appellant “fails to cite or offer any
support from the record that any of this information was actually used or how
it affected/prejudiced [Appellant].” Commonwealth Brief at 26.
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In his third issue concerning the EMT report, Appellant emphasizes that
the trial court should have sanctioned the Commonwealth for providing the
report after jury selection. See Appellant’s Brief at 48. It is well-settled that
“[d]ecisions involving discovery matters are within the sound discretion of the
trial court and will not be overturned absent an abuse of that discretion.”
Commonwealth v. Smith, 955 A.2d 391, 394 (Pa. Super. 2008) (en banc).
Further, the trial court’s authority to sanction a party for a discovery violation
is derived from Pa.R.Crim.P. 573(E), which states:
If at any time during the course of the proceedings it is brought
to the attention of the court that a party has failed to comply with
this rule[, which governs discovery matters,] the court may order
such party to permit discovery or inspection, may grant a
continuance, or may prohibit such party from introducing evidence
not disclosed, other than testimony of the defendant, or it may
enter such other order as it deems just under the circumstances.
Commonwealth v. Jordan, 125 A.3d 55, 65 (Pa. Super. 2015).
Here, the Commonwealth states, “it is undisputed that the
Commonwealth was unaware of the existence of [Appellant’s] inculpatory
statements . . . until November.” Commonwealth Brief at 52. Appellant
concedes that “the prosecutor indicated that she did not possess or know of
the contents of this report before she received it at the end of the day on
November 9, 2017,” but argues that the trial court, in finding that “the
Commonwealth was not in control of the origin of the report,” caused prejudice
to Appellant by failing to “ban the information.” Id. Appellant maintains that
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the report “was clearly prejudicial to the defense strategy” that Appellant had
“sustained head injuries . . . when he encountered decedent.” Id. at 51.
To the contrary, the trial court opined that in granting the parties’ joint
motion for a continuance, it “tailored the remedy to the scope of the injury.”
Trial Court Opinion, 3/27/19, at 26. The court concluded:
To eliminate the Commonwealth’s ability to introduce evidence
that calls into question the veracity of [Appellant’s] assertions at
trial . . . would unfairly skew the evidence presented to the jury
and hinder the ability of the fact finder to evaluate the truth of
both parties’ theories. It would effectuate a grave injustice to the
Commonwealth in great disproportion to the scope of its offense.
Id.
We do not discern an abuse of discretion by the trial court. The record
before us is voluminous, and the EMT report (Exhibit 37) consists of two and
a half pages among more than 1,000 pages of exhibits—and more than 1,000
pages of transcripts. Even if the trial court had erred in admitting the report,
such error would be harmless where any prejudice is de minimis. It bears
repeating that “the harmless error doctrine, as adopted in Pennsylvania,
reflects the reality that the accused is entitled to a fair trial, not a perfect trial.”
Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014). Further:
Harmless error exists if the record demonstrates either: (1) the
error did not prejudice the defendant or the prejudice was de
minimis; or (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
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Hairston, 84 A.3d at 671–72.
Finally, in his fourth issue, Appellant asserts that the trial court
erroneously admitted the police body camera footage depicting the decedent’s
body.
When the Commonwealth seeks to introduce photographs
of a homicide victim into evidence, the trial court must engage in
a two-part analysis. 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) (citations
omitted). Here, the trial court rejected Appellant’s contention that the video
was inflammatory. The court expressly determined that the video footage
was not inflammatory where the decedent’s wounds “were not readily visible
in the footage,” but nonetheless gave the jury the cautionary instruction that
they were not to “allow the unpleasant nature of the footage stir their
emotions to the prejudice of the Defendant.” See, e.g., Trial Court Opinion,
3/27/19, at 32. We again find no abuse of discretion by the trial court, and
note that the record contains other evidence—including still photographs—
cumulative of the evidence in the body camera video.
For the above reasons, Appellant’s claims do not merit relief. We
therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judge Colins joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/20
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