COMMONWEALTH OF PENNSYLVANIA v. OUDEOM VILAYPHANH
No. 2751 EDA 2023, No. 2752 EDA 2023, No. 2753 EDA 2023
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED MARCH 11, 2025
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37; J-S47036-24
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008798-2021, CP-51-CR-0008799-2021, CP-51-CR-0008800-2021
BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.
Oudeom Vilayphanh (“Vilayphanh”),1 appeals2 from the judgments of sentence entered by the Philadelphia County Court of Common Pleas (“trial court”) following his convictions of third-degree murder, possession of an instrument of a crime, and two counts of aggravated assault.3 Vilayphanh claims he was denied a fair trial because the trial court limited his cross-examination of an expert witness. Because we conclude that Vilayphanh waived consideration of his claimed constitutional violation, we affirm.
We glean the following relevant facts and procedural history from the certified record. On July 6, 2021, Vilayphanh was living at his parents’ house in Philadelphia, Pennsylvania, where he had moved approximately one month before, following his separation from his wife. N.T., 5/22/2023, at 123, 139. After 11:00 p.m. that night, Vilayphanh‘s brother, Khamphou, arrived at the house to stay the night because his electricity had been shut off and the weather was hot. Id. at 123, 168-69. Vilayphanh‘s mother, Boupha, was awake when Khamphou arrived, but then went back to bed. Id. at 169.
At approximately 2:00 a.m., Khamhoung awoke to sounds of Vilayphanh and Khamphou arguing downstairs. Id. at 126. He got out of bed, saw them drinking alcohol in the kitchen, told them to go to the basement, returned to his bedroom, locked his bedroom door, and went back to sleep. Id. at 126-29, 139.
At approximately 5:50 a.m. on the morning of July 7, 2021, Khamhoung awoke to the sounds of Khamphou loudly hitting his father‘s bedroom door and calling out for him. Id. at 129-30. Khamhoung did not answer. Id. at 130. Two to three minutes later, Khamhoung and Boupha heard gunshots. Id. at 130, 169-70, 174. They stayed in their bedrooms and separately called police, who arrived within ten minutes. Id. at 130, 170, 172-73.
City of Philadelphia Police Officer Timothy Straus, accompanied by three other officers, knocked on the front door. N.T., 5/23/2023, at 58-59. When Khamhoung opened his bedroom door to answer the front door for police, he saw his son Khamphou laying on the floor outside his bedroom; he did not see Vilayphanh. N.T., 5/22/2023, at 131-32. Khamhoung answered the front door and although there was a language barrier, he communicated to police that Vilayphanh had a gun and Khamphou had been shot inside the house. N.T., 5/23/2023, at 59-60; N.T., 5/22/2023, at 132-33, 98. Police followed
Inside, Khamhoung asked Vilayphanh why he shot him, and Vilayphanh responded that he was sorry. Id. at 135. Khamhoung tried to leave the house, but he could not open the front door because his hands were on his neck; Vilayphanh opened the door for him and Khamhoung ran outside.5 Id. at 135-36. With a gun in his hand, Vilayphanh ran out of the house after his father, then went back inside the house, and then outside once again. Id. at 99. Eventually, Vilayphanh dropped the firearm, and police took him into custody. Id. While in custody at the scene, Vilayphanh told police that robbers were inside the home. Id. at 119. After a SWAT team cleared the house, Officer Straus and Boupha exited her bedroom, where they had
Thereafter, the Commonwealth charged Vilayphanh with murder, possession of an instrument of a crime, two counts of attempted murder, and two counts of aggravated assault.6 After Vilayphanh waived his right to a jury trial, the matter proceeded to a four-day bench trial in May 2023. At trial, Vilayphanh claimed imperfect self-defense, arguing that he acted while in a dissociative state where had a belief that he was under threat from intruders inside his house and had to protect his family from harm. See N.T., 5/25/2023, at 18; N.T., 5/23/2023, at 175; N.T., 5/22/2023, at 31, 35. The Commonwealth responded by claiming Vilayphanh was in an alcohol and prescription drug induced blackout on the morning of the incident. See N.T., 5/25/2023, at 5.
In relevant part, Vilayphanh presented the testimony of Victoria Reynolds, Ph.D., who the trial court qualified as an expert in clinical psychology with a specialty in traumatic life experiences. N.T., 5/23/2023, at 110. She evaluated Vilayphanh and diagnosed him with untreated and severe post-traumatic stress disorder (“PTSD”) (dissociative subtype) and substance
On May 25, 2023, after specifically stating that it found Dr. Joy more credible than Dr. Reynolds, the trial court found Vilayphanh guilty as stated above and not guilty of the attempted murder charges. The trial court ordered a presentence investigation report and mental health examination. On October 11, 2023, the trial court sentenced Vilayphanh to an aggregate term
On appeal, Vilayphanh presents one issue for our consideration:
Where the defense puts forth a theory of voluntary manslaughter based on imperfect self-defense, and the only issue before the court was Appellant‘s mental state, is not a new trial warranted when the trial court denied Appellant the right to present his defense and thereby denied him a fair trial when it precluded the defense from cross-examining the Commonwealth‘s expert with valid impeachment evidence calling into question her impartiality and credibility regarding his mental state?
Vilayphanh‘s Brief at 3.
Vilayphanh argues that the trial court denied his federal and state constitutional rights to present a defense when it precluded him from cross-examining Dr. Joy using admissible impeachment evidence, i.e., Attorney Schrading‘s notes. Id. at 2, 22, 24, 26. Because his defense rested solely on his mental state, he contends that when Dr. Joy‘s cross-examination testimony minimized Vilayphanh‘s traumatic experiences, the trial court should have allowed him to use Attorney Schrading‘s notes to show her bias toward the Commonwealth or that she was “careless in the performance of her evaluation.” Id. at 24. Vilayphanh argues it was “irrelevant that the questions were based on co-counsel‘s notes” because Dr. Joy “can be questioned on the accuracy of her recollection and can be impeached by the defense attorney‘s testimony and supported by his contemporaneous notes.” Id. at 24. According to Vilayphanh, Attorney Schrading attended Dr. Joy‘s
In its opinion, the trial court found Vilayphanh waived this issue because he failed to raise it in the trial court, explaining that defense counsel failed to challenge the trial court‘s ruling to disallow cross-examination of Dr. Joy using Attorney Schrading‘s notes, request Attorney Schrading‘s disqualification as Vilayphanh‘s counsel to permit him to testify as a rebuttal witness,8 or seek to introduce his notes. Trial Court Opinion, 3/19/2024, at 5-6.
“The issue of waiver presents a question of law, and, as such, our standard of review is de novo, and our scope of review is plenary.”
During cross-examination, Attorney Konow, asked Dr. Joy several questions about Vilayphanh‘s account of the home invasion he said he experienced at age twelve. The record reflects the following exchange:
Q I said his memory was that he heard noises. Mr. Schrading put a note to that in his notes.
A He heard noises when?
Q When that break-in or attempted break-in was occurring?
A I do not recollect that. In fact, he told me that he was asleep. So I don‘t know how he would have heard noises when he was asleep, and I don‘t have the other attorney‘s notes, that was not in my notes and the rest of, let‘s say, if that is one detail of it, I don‘t understand how that would be consistent with the rest of what he was telling me in that interview which is that he was asleep and that the next day, they found the bars on the ground and that his mother may or may not have come in but, again, he told me he was asleep during the event, so I don‘t understand how he could have heard noises during it.
THE COURT: Counsel, are you cross-examining her with the notes that your co-counsel took? That is inappropriate. I allowed co-counsel to sit in, because you
requested it, to make sure that the parameters of the evaluation were such that he didn‘t admit to any other criminal conduct, his rights were protected but certainly not for Mr. Schrading to take notes as a witness and then you, as his co-counsel, to then cross-examine as if you are using this witness statement against her. That, we are not going to do. MS. KONOW: I am not attempting to use his statement.
THE COURT: He is a witness. You are making him a witness right now and you can‘t. I would ask that you not refer to any notes that Mr. Schrading took.
MS. KONOW: Very good.
THE COURT: I specifically indicated that day that he was permitted down there but not to take notes, so that you could try and contradict the doctor later on. Just continue.
N.T., 5/24/2023, at 105-06.9 Shortly thereafter, Attorney Konow questioned Dr. Joy about Vilayphanh‘s recount of a near-drowning experience. Id. at 113-15. The record reflects the following exchange:
Q Okay. He was terrified of losing his footing. He told you he was terrified; right?
A He didn‘t use that word, no. We might use the word scared, about all kinds of things. It doesn‘t mean, the same term is not terrifying and it doesn‘t mean that he was afraid he was going to die. He could be afraid of – it could be like me falling over.
Q He told you that he could feel it as you were talking about it, didn‘t he?
A (No. response.)
Q That‘s not in your report. He told you that, however?
A No, it‘s not in my report, but he told me that?
Q Yeah.
THE COURT: Because that means Mr. Schrading wrote it in his notes which I asked him not to do.
MS. KONOW: I‘m not using his –
THE COURT: Objection sustained. Go ahead.
Id. at 115-16.
The record confirms that when the trial court precluded Attorney Konow from using Attorney Schrading‘s notes, she did not make any argument in opposition, including any claimed constitutional violation; ask the trial court to disqualify Attorney Schrading as Vilayphanh‘s counsel so he could testify as a rebuttal witness; or seek to introduce his notes as evidence. See id. at 105-06, 115-16. We therefore agree with the trial court‘s conclusion that Vilayphanh failed to preserve this issue in the trial court. See
Judgments of sentence affirmed.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 3/11/2025
Notes
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.