COMMONWEALTH of Pennsylvania v. Keith Lamont BERRY, Appellant
No. 193 MDA 2017
Superior Court of Pennsylvania.
August 31, 2017
Anthony M. Matulewicz, II, District Attorney, Sunbury, for Commonwealth, appellee.
OPINION BY DUBOW, J.:
Appellant, Keith Lamont Berry, appeаls from the Judgment of Sentence entered by the Northumberland County Court of Common Pleas following his convictions after a jury trial of Robbery, Theft by Unlawful Taking, Receiving Stolen Property, and two counts of Simple Assault.1 After careful review, we affirm.
The underlying facts, as gleaned from the certified record, are as follows. On May 5, 2015, the victim, Mary McGinley, reported an assault to police. Mt. Carmel Borough Police Officer Matthew Dillman responded to the reported assault at the home of the victim‘s aunt at 131 West Third Strеet in Mount Carmel, Pennsylvania. Upon arriving at that location, Officer Dillman encountered the victim, who stated that Appellant had punched her in the face inside Appellant‘s residence at 24 East Second Street, also in Mount Carmеl. The victim also reported that Appellant had taken her cell phone when she tried to call police for help. Officer Dillman observed fresh and dried blood on the victim‘s shirt and chest area, an open wound across thе bridge of the victim‘s nose, a swollen bump on the side of the victim‘s forehead, and the victim‘s twisted nose. Officer Dillman called for an ambulance.
Approximately 30 minutes after responding to the home of the victim‘s aunt, Officer Dillman traveled to Appellant‘s residence. When he knocked on the door, there was no answer. Later that evening, Officer Dillman returned to Appellant‘s home with Corporal David Donkochik and several other officers. Appellant‘s wife, Anna Mаrie Soto, answered the door. When the officers explained that they were looking for Appellant, Soto claimed that she did not know Appellant‘s location. During their conversation with Soto, Corporal Donkochik and Officеr Dillman observed droplets, which appeared to be blood, on the tile floor next to a mop and bucket eight feet inside the front door in the same location where the victim stated that Appellant had punched her in the face. The officers photographed the blood droplets and left Appellant‘s home.
Shortly thereafter, the officers learned of Appellant‘s whereabouts and responded to 50 North Maple Street in Mount Carmel. The officers entered the apartment and discovered Appellant hiding in the bathroom with Soto. Appellant was crouching in the shower with the shower curtain closed. Police arrested Appellant and charged him with the above offеnses.
On October 26, 2016, the day before trial, Appellant filed and litigated a Motion in Limine seeking to preclude “[a]ny reference, at any stage of the trial, to the substance being found on the floor of [Appellant‘s] apartment, as ‘blood.‘” Appellant‘s Motion in Limine, filed 10/26/16, at 1. The trial court denied Appellant‘s Motion in Limine. Appellant proceeded to a jury trial on October 27, 2016, at which the victim, Corporal Donkochik, Officer Dillman, and Emergency Medical Techniсian Michael Amarose testified. The trial court permitted Corporal Donkochik and Officer Dillman to testify about observing droplets of blood near a mop and bucket in Appellant‘s home during their conversation with Soto on the dаte of the incident. The jury convicted Appellant of each of the above charges.
* Retired Senior Judge assigned to the Superior Court.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial court2 complied with
Appellant presents one issue for our review:
Whether the lower court abused its discretion in denial of Appellant‘s Motion in Limine?
Appellant‘s Brief at 5.
In his sole claim, Appellant avers that the trial court erred in admitting testimony from Corporal Donkochik and Officer Dillman stаting that the substance they observed “was indeed blood, despite the absence of tests conducted on the substance.” Appellant‘s Brief at 12. Although Appellant acknowledges that “a lay witness is competent to testify that a stain оr stains appeared to him to be blood[,] Appellant avers that the testimony “was not stated as an opinion or on the belief the substance may be blood, but rather a definitive statement that the substance was in fact blood.” Id. (acknowledging Commonwealth v. Williams, 270 Pa.Super. 27, 410 A.2d 880, 885 (1979), which rеjected a similar claim and held that lay witnesses may testify that a stain appeared to be blood).
The “[a]dmission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court cleаrly abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super. 2015) (citation and quotation omitted). “Accordingly, a ruling admitting 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 tо be clearly erroneous.” Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (citations and internal quotations omitted).
Relevance is the threshold for admissibility of evidence. Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 612 (2008). Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.
Pennsylvania Rule of Evidence 701 addresses the admission of opinion testimony by lay witnesses and provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness‘s perception;
(b) helpful to clearly understanding the witness‘s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scoрe of Rule 702.
Generally, lay witnesses may express personal opinions related to their
“A lay witness may testify that a certain substance appeared to be blood without hаving to subject the substance to chemical analysis.” Commonwealth v. Glover, 265 Pa.Super. 19, 401 A.2d 779, 782 (1979) (citation omitted). This Court has addressed the admission of testimony from a lay witness that a given substance appeared to be blood on several occasions. Pennsylvania cоurts have consistently permitted such testimony. See also Commonwealth v. Williams, 270 Pa.Super. 27, 410 A.2d 880, 887 (1979) (holding that “[a] lay witness is competent to testify that a stain or stains appeared to him to be blood[,]” and citing McLain v. Commonwealth, 99 Pa. 86 (1881)); Commonwealth v. Schroth, 479 Pa. 485, 388 A.2d 1034, 1038 (1978) (reiterating the same general rule and concluding it was not error to show jury a crime scene diagram that indicated a “blood stain” given the accompanying testimony by the person who created the diagram and the curative instructions).
As an initial matter, Appellant mischaracterizes the recоrd in his argument. Appellant baldly asserts that the testimony “was not stated as an opinion or on the belief the substance may be blood, but rather a definitive statement that the substance was in fact blood.” Id. at 12. Although Appellant refers to spеcific pages of the trial transcript in his brief argument, Appellant does not include any direct quotations of the objectionable testimony about which he complains on appeal. See Appellant‘s Brief at 10-12. Appеllant‘s argument, which is based on the contents of the statements as well as the implications and inferences from the statements, has telling omissions, which is ultimately fatal to Appellant‘s argument on appeal.
Upon closer inspeсtion, the certified record and the contents of the trial transcript do not support Appellant‘s various averments. Our review of the certified record and the trial transcript demonstrates that Corporal Donkochik and Officеr Dillman consistently referred to the droplets in the context of their observations about how the droplets appeared to be blood. See, e.g., N.T. Trial, 10/27/16, at 75 (“some of the droplets that I had spoke[n] to you about, which we madе the determination appeared to be blood.“).
Substantively, we agree with the trial court that the testimony from Corporal Donkochik and Officer Dillman was not outside the scope of
Additionally, Corpоral Donkochik testified about his 24 years of experience as a police officer and his relevant crime scene training. N.T. Trial, 10/27/16, at 75. Notably, Officer Dillman testified that he directly observed the victim covered in blood, including blood оn the victim‘s cloth-
The jury was well aware of Appellant‘s theory and its obligation to determine whether the droplets were blood, the victim‘s blood, or some other substance as part of its fact-finding duty. The Commonwealth produced Officer Dillman‘s photographs of the blood droplets for the jury to independently review. See Commonwealth‘s Exhibit C-8. Appellant emphasized and referred to the substance as “alleged blood droplets” throughout trial. N.T. Trial, 10/27/16, at 77, 94. Appellant extensively cross-examined Corporal Donkochik and Officer Dillman on this issue, and both Corporal Donkochik and Officer Dillman testified that they did not test the substance because they knew the identities of both the victim and Appellant and they did not need to connect Appellant to thе crime scene given these particular circumstances.
Moreover, the trial court provided several relevant jury instructions at trial regarding the Commonwealth‘s burden, the jury‘s duty to determine the weight and credibility of the evidence presented, as well as the jury‘s responsibility to judge the “truthfulness and accuracy of each witness’ testimony and decide whether to believe all or part or none of that testimony.” Id. at 111, 118, 120-21. The trial court emphasized that the jury is the sole judge of thе credibility of the witnesses using their common sense and “everyday practical knowledge of life” and should give the evidence and testimony “whatever credibility and weight you think it deserves.” Id. at 121-22.
Our conclusion today is consistent with more than a century оf Pennsylvania case law addressing objections to lay opinion testimony regarding untested substances that appear to the observer to be blood, as well as the considerable discretion afforded to trial courts. Whether or not the droplets were the victim‘s blood, or blood at all, were matters relating to the weight and credibility of that evidence properly reserved for the jury as fact-finder.
We discern no abuse of discretion or error of law in the trial court‘s determination that Corporal Donkochik and Officer Dillman testified as to matters within their personal knowledge and experience with respect to the blood droplets. Thus, Appellant is entitled to no relief.
Judgment of Sentence affirmed.
COMMONWEALTH of Pennsylvania, Appellant v. Giante HILLIARD
No. 887 WDA 2016
Superior Court of Pennsylvania.
Submitted July 10, 2017
Filed August 31, 2017