The defendant, David Croll was charged with first degree murder in the October 29,1986 shooting death of Candle Moyer. He was found guilty of first degree murder on March 4, 1988 by a jury and a sentencing of life imprisonment was imposed by the jury immediately thereafter.
On October 29,1986 at about 7:00 RM. the defendant shot and killed the victim, Candie Moyer, while she was sitting in her car at her place of employment at the Emmaus Auto Parts store in Emmaus, Pa. The victim was shot six times at a close range, two shots in the head, two shots in the chest, one shot in the leg and one shot in the left shoulder. The victim was the estranged fiancee of the defendant, the victim having broken oif the engagement the preceding September.
Shortly after the defendant shot the victim, the defendant made a call home and talked to his father and said “I thought I had shot Candie.” The father thereupon called the local police and at that time the defendant’s whereabouts were unknown. At or about 7:30 that evening, the defendant called his home and told his father he was located in Easton, Pa. Again, his exact whereabouts were unknown. At or about 8:30 P.M., he again called home and told his father that he was at the Campus Motel in Kutztown, Pa. This information was relayed to the local police and the local police then made efforts to apprehend the defendant. While the defendant was in Kutztown, Pa., he stopped into a local variety store and purchased a small amount of paint and altered his license plate. The defendant was then later apprehended by the local police at the Campus Motel. He attempted to elude the police at that time but was cut off by the police and apprehended. The gun in question was located in the defendant’s motor vehicle.
The defendant was thereafter arrested for criminal homicide (18 Pa.C.S. §2501) and an information to
This court will only consider those issues briefed and/or argued by the defendant. All other issues raised in his post-trial motions will be deemed to have been waived. Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978).
The defendant’s first contention is that the court erred in not allowing defendant’s experts, Dr. Gerald Cooke and Dr. Robert Sadoff, to testify relying upon a hypnotic session with the defendant as to his state of mind on the date of the shooting.
The defendant asserts that he was temporarily insane when he shot the victim. Further, he alleges that he now suffers from some form of amnesia as to the events of that day and as to the shooting itself. The defendant sought to introduce the testimony of these two experts, Dr. Sadoff and Dr. Cooke, to testify to the defendant’s state of mind on the day of the shooting. Namely, the experts were to render an opinion on whether the defendant suffered some form of diminished capacity or if he was legally insane under the M’Naughten Rule.
Specifically, Dr. Cooke is a forensic psychologist who was hired by the defense to perform a psychological evaluation of the defendant to determine what state of mind the defendant was in on the day of the shooting.
Dr. Sadoff is a psychiatrist who was present during the defendant’s hypnotic session. Dr. Sadoff testified in camera that if he were not able to rely on the videotape during his testimony then he would be unable to render an opinion on the defendant’s state of mind during the shooting. Since the court did not permit the use of the videotape and hypnotic session in any capacity, Dr. Sadoff did not testify.
The Pennsylvania Supreme Court has stated that testimony adduced by hypnotism is inadmissible as evidence. Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984). It has been held that two important characteristics of a subject in a hypnotic trance are: hypersuggestibility and hypercompliance. Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981). A subject’s awareness of the purpose of the hypnotic session, coupled with the hypersuggestibility which the subject experiences, amounts to a situation fraught with unreliability. Id.
The majority of Pennsylvania cases dealing with hypnosis are in the area of witness testimony. These cases have held that a witness who was hypnotized may only testify to that information which was stated prior to the hypnosis. The witness cannot testify as to any facts or information adduced from the hypnosis itself. See
The defense relies on the United States Supreme Court case of Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) in asserting that the court erred in refusing to allow the defense experts to testify relying on the videotape of the hypnotic session. However, upon a careful review of Rock, we find that it is readily distinguishable from the case at bar.
In Rock, the defendant was charged with the shooting of her husband. In order to refresh her memory as to the shooting, she underwent two hypnotic sessions with a trained nueropsychologist. After hypnosis, she remembered more specific details about the shooting which the Arkansas trial court would not allow in holding that hypnotically refreshed testimony was per se unreliable. The United States Supreme Court granted certiorari to determine if a “criminal defendant’s right to testify may be restricted by a state rule that excludes her post-hypnosis testimony”. The court held that “hypnotically enhanced testimony is [not] always so un
Rock dealt with the right of a defendant to testify regarding posthypnotic memory while the case at bar deals with the right of defense experts to render an opinion on the defendant’s state of mind in reliance on the defendant’s videotaped hypnotic session. The situations in the two cases are distinguishable. Rock has no bearing on the case at bar since the defendant does not claim his right to testify regarding posthypnotic memory was violated. The defendant did not testify as to what he remembered about the shooting which was revealed during the hypnotic session. Further, he did not try to testify regarding those events nor was an objection made by the Commonwealth regarding its admission at trial. What we have before the court are two defense experts who stated they could not render an opinion on the defendant’s state of mind unless they were allowed to rely on the videotape.
The situation present in the pending case is apposite to that found in Commonwealth v. Reed, 400 Pa. Super. 207, 583 A.2d 459 (1990), alloc. denied, 528 Pa. 629, 598 A.2d 282 (1991). In Reed, the defense sought to introduce a videotape of his hypnotic interview and to have his expert testify with the help of the videotape. The trial court ruled that the tape could not be shown to the jury and the expert could not rely on it during his testimony on the basis that the hypnotic session was scientifically unreliable.
*119 “Declarations made under hypnosis have been treated judicially in a manner similar to drug-induced statements. The hypnotized person is ultrasuggestible, and this manifestly endangers the reliability of his statements. The courts have recognized to some extent the usefulness of hypnosis, as an investigative technique and in diagnosis and therapy. However, they have rejected confessions induced thereby, statements made under hypnosis when offered by the subject in his own behalf, and opinion as to mental state based on hypnotic examination.” (emphasis added) Id. at 227, 583 A.2d at 468; citing, Commonwealth v. Greenfield, 214 Va. 710, 240 S.E.2d 414, 92 A.L.R.3d 432 (1974).
This is the situation in the case at bar. It also must be noted that the trial court viewed the videotape in camera and noted many inconsistencies between what the defendant was asserting and to undisputed facts. The trial court was convinced as to its unreliability and the prejudice such videotape would introduce.
The defendant was precluded from showing the videotape to the jury and from having his defense experts rely on it in rendering their opinion. Based on these exclusions, the defense experts were unable to testify at trial. However, the court ruled that the videotape
The defendant’s second contention is that the court erred in permitting various police officers to give an opinion as to the defendant’s mental capacity and mental condition. Specifically, the defense objected to Officer Keiser (retired) and Trooper Kohuth’s
It has been held that the Commonwealth can prove an accused’s sanity not only by psychiatric testimony but also by lay testimony which shows that he or she knew the nature and the quality of the act committed and knew that what had been done was wrong. Commonwealth v. Frisoli, 277 Pa. Super. 396, 419 A.2d 1204 (1980). “[Ejvidence on a defendant’s mental condition can just as credibly come from the testimony of lay witnesses ‘concerning the defendant’s actions, conversations, and statements at the time of the killing from which the jury could find that he knew what he was doing when he killed and knew it was wrong.’ ” Commonwealth v. Ruth, 309 Pa. Super. 458, 462, 455 A.2d 700, 702 (1983).
The defendant was able to cross-examine the officers as to their observations. Further, the defense was permitted to cross-examine the officers as to any experiences they may have had in dealing with mentally impaired people. However, the defense was not permitted to cross-examine the officers as to what knowledge they may have had as to mental illness and disease. The attempted questioning was objected to by the Commonwealth and was sustained by the court who noted that the officers were not offering an expert opinion but only a lay opinion. (N.T vol. I p. 197.)
The officers, Keiser and Kohuth, gave permissible lay opinion testimony regarding their observations of the defendant shortly after his arrest and the court did not err in permitting such testimony.
The defendant’s third contention is that the court erred in refusing to suppress certain statements made
One of the partially suppressed statements deals with a conversation between the defendant and Officer Frank Taylor of the Borough of Emmaus Police Department. The conversation states in pertinent part:
“Defendant — What was she like?
“Taylor — What do you mean?
“Defendant — What did she look like?
“Taylor — You mean, Candie, I’m not trying to avoid your question. I don’t know what you mean. Do you mean where did you shoot her?
“Defendant — Yes.
“Taylor — I saw one shot in her head but I can’t tell at this time where the others are.”
The court suppressed all statements made by the defendant after he asked Officer Taylor, “What did she look like?”
However, Article 1, §9 of the Pennsylvania Constitution was amended in 1984 to provide:, “the use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.” Commonwealth v. Daniels, 531 Pa. 210, 226, 612 A.2d 395, 403 (1992). The purpose of such a rule is to preclude an accused from lying with impunity when he takes the stand at trial, merely because a voluntary statement he made before trial was suppressed. Id.
The defendant took the stand at trial and testified in his own behalf. During his testimony, he related
It was permissible for the prosecution to introduce the suppressed statements after the defendant opened the door by testifying to it during his direct examination. Therefore, the court did not err in permitting the use of the statement during trial.
The defendant also alleges that certain other statements should have been suppressed and were improperly admitted at trial. However, in reliance on this court’s opinion dated September 14, 1987, we find that the statements were properly admitted at trial.
The defendant’s fourth contention is that the court erred in refusing to suppress the gun found by police in his vehicle. Again, this issue was addressed at the suppression hearing and in the court’s opinion dated September 14, 1987. In reliance on the stated opinion, we find that the use of the gun was proper at trial.
The defendant’s fifth contention is that the court erred in denying defendant’s motion for a change of venire. This issue was addressed in an omnibus pretrial motion for a change of venire. The court signed an order and opinion denying the motion on December 9, 1987. For reasons set forth in the opinion denying the motion, we find that the court did not err in denying the motion for a change of venire.
It has been held that during the course of a trial, “some statements [may] not [be] made as a result of good judgment, but not every unwise statement warrants [a] reversal. ... The effect of such remarks depends upon the atmosphere of the trial and the proper action to be taken is within the discretion of the trial court.” Commonwealth v. Council, 355Pa. Super. 442, 446-447, 513 A.2d 1003, 1005 (1986), alloc. denied, 519 Pa. 664, 548 A.2d 353 (1988), citing Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); See Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975).
During defendant’s cross-examination, the Commonwealth asked him:
“Just so we can establish you are not quite a choirboy; you would agree with me, wouldn’t you?”
The question was objected to by defense counsel and sustained by the court. (N.T vol. Y p. 1013.)
The second comment the Commonwealth allegedly made was “dam right” in response to defendant’s comment that Candie’s death would affect him for the rest of his life. This comment was allegedly overheard by defense counsel but was riot brought to the attention of the court until after the lunch recess. (N.T. vol. V p. 999.) The defense counsel was sitting approximately three feet away from the Commonwealth’s table when the remark was supposedly overheard. The judge who was sitting approximately fifteen feet away from the Commonwealth’s table did not overhear any such re
The defendant was not unduly prejudiced by the choirboy comment as his objection to the remark was sustained by the court. Further, it is not even known if the jury overheard the Commonwealth’s remark of “dam right”. Therefore, no undue prejudice can be said to have stemmed from such a remark.
The defendant’s next contention is that the court erred in allowing a mug shot taken on October 29, 1986 to be shown to the jury and in allowing the Commonwealth to question defendant concerning previous crimes not involving crimen falsi.
“Evidence of prior crimes, though generally inadmissible, may be admitted if relevant to prove something other than a defendant’s propensity for committing crimes. ... One exception to the general prohibition is that the Commonwealth may introduce evidence tending to show prior offenses if the purpose is to rebut statements which create inferences favorable to the [defense],” Commonwealth v. Saxton, 516 Pa. 196, 207, 532 A.2d 352, 357 (1987). Evidence of a prior bad act is admissible in rebuttal to dispel false inferences raised by the defendant or the defendant’s witness. Commonwealth v. Powers, 395 Pa. Super. 231, 577 A.2d 194 (1990).
The defendant, in the case at bar, introduced evidence of his good character and reputation. He had defense witnesses testify to it. Namely, his mother testified that he did not use drugs (N.T. vol. Ill p. 621), and the defendant, in his opening and on direct examination, indicated that he did not have a criminal record and was never arrested for any felonies or misdemeanors.
The Commonwealth, during defendant’s cross-examination asked him if he had ever been arrested for anything other than a felony or misdemeanor. The defendant indicated that he had been. The Commonwealth then started to question the defendant as to what illegal acts he had committed. Defense counsel started to object to this line of questioning but withdrew the objection. (N.T. vol. V pp. 1010-11.) The Commonwealth proceeded to bring out on cross-examination the defendant’s past criminal conduct and bad acts. In particular, it was revealed that the defendant was convicted of a summary offense, that he had smoked marijuana, had engaged in underage drinking and reckless driving.
The defendant’s prior bad acts and criminal activity were not raised to show that he had a propensity to commit the act with which he was charged but rather they were brought out to rebut the inference that he was never arrested and had never used drugs. The use by the Commonwealth was permissible to rebut the favorable inferences raised by the defendant. Therefore, the court did not err in allowing evidence of the defendant’s prior bad acts and offenses to be used by the Commonwealth.
The defendant also alleges that the court erred in allowing the Commonwealth to use a mug shot of the defendant taken in conjunction with this case. In Pennsylvania, the law is clear that if a testimonial reference to a photograph indicates to the jury the accused has been involved in prior criminal activity, reversible error is committed. Commonwealth v. Turner, 454 Pa. 439, 311 A.2d 899 (1973).
The defendant’s seventh contention is that the court erred in permitting the use of a photograph of the victim, Candie Moyer, with her dog which had no probative value. Generally in Pennsylvania, the testimony regarding a victim’s family status is inadmissible since such evidence has no probative value, is irrelevant and prejudicial. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). However this is not always the case.
In Commonwealth v. Hernandez, 404 Pa. Super. 151, 590 A.2d 325 (1991), alloc. denied, 529 Pa. 617, 600 A.2d 534 (1991), the appellant was charged with the murder of his father, stepmother and two younger brothers. At trial, the court admitted into evidence photographs of his stepmother and brothers which were taken while they were still alive. The Pennsylvania Superior Court held that:
“The record [indicates] that [the] admission of these photographs was not accompanied by the highly irrelevant and emotional testimony about the life the victims led, their character, reputation or the loss that surviving relatives suffered, which are the bases upon which our [Pennsylvania] supreme court overruled the admission of similar photographs in Commonwealth v. Story, [supra]. ... Also, the photographs were not sent out with the jury, and the jurors were instructed that the*128 verdict must be based on the evidence, not passion or prejudice. Accordingly, the admission at worst was harmless [error].” Id. at 161, 590 A.2d at 330.
The use of the photographs in Hernandez, supra, is similar to that in the case at bar. In the present case, a picture of Candie was identified by her mother. No testimony regarding Candie’s reputation, her family life or her character were elicited from her mother during her testimony. (N.T. vol. HI pp. 601-610.) The picture was admitted into evidence and allowed to be shown to the jury one time; however, the picture was not sent out with the jury during their deliberations. Therefore, no error resulted in the court’s admission of the photograph.
The defendant’s eighth contention is that the court erred in permitting the jurors to be asked during voir dire if they think someone is crazy just because he killed his girlfriend.
The single goal in permitting questioning of prospective jurors is to provide the accused with a competent, fair, impartial and unprejudiced jury. Commonwealth v. Hathaway, 347 Pa. Super. 134, 500 A.2d 443 (1985). The scope of voir dire rests in the sound discretion of the trial judge and his or her discretion will not be reversed unless palpable error is established. Id. It is in the trial court’s discretion to preclude questions probative of prospective juror’s attitudes toward the insanity defense. Id. Further, it is now well settled law in Pennsylvania that a trial court’s refusal to permit the accused to question prospective jurors on voir dire about the juror’s views of the insanity defense or their potential prejudice against the defense will not constitute palpable error warranting a new trial. Commonwealth v. Trill, 374 Pa. Super. 549, 543 A.2d 1106 (1988), alloc. denied, 522 Pa. 603, 562 A.2d 826 (1989).
The defendant’s ninth contention is that the court erred in allowing the Commonwealth’s expert, Dr. Timothy Micals, to express an opinion without requiring that the report be submitted to the defense pursuant to the court’s order.
Dr. Timothy Micals was permitted to testify and render an opinion regarding the defendant’s state of mind on the day of the shooting. See N.T. vol. VI pp. 1224-26. It is important to note that Dr. Micals did not prepare a report which was the reason the Commonwealth did not offer one to the defendant.
In Commonwealth v. Kelly, 365 Pa. Super. 28, 528 A.2d 1346 (1987), alloc. denied, 517 Pa. 598, 535 A.2d 1057 (1987), an expert testified to the appellant’s blood alcohol content at the time of the accident. The defendant alleges that the Commonwealth violated Pa.R.Crim.P. 305(B)(1)(e) by not having the expert prepare a report and deliver it to defense counsel. While the defendant was notified that the expert would be called to testify, he objected to this testimony by stating that the Com
The court in Kelly, supra, held that:
“[Pa.R.Crim.P.] 305(B)(1) requires the Commonwealth to disclose to defense, counsel, ‘results or reports of scientific tests, expert opinion, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant, which are within the possession or control of the attorney for the Commonwealth.’ This rule only requires the Commonwealth to disclose written reports ‘in their possession.’ In the instant action, the Commonwealth could not have acted in contravention of Rule 305 as it had nothing to turn over.” Id. at 38, 528 A.2d at 1350.
In the instant matter, Dr. Micals did not prepare a report which could have been given to the defendant. However, the defendant was aware of the doctor as he partially examined him. See N.T. vol. VI pp. 1224-26; order of the court dated December 7, 1987. As Dr. Micals did not even prepare a report which could have been delivered to the defense, no violation of Rule 305(B)(1)(e) occurred. Therefore, the court did not err in permitting Dr. Micals to testify.
The defendant’s tenth contention is that the court erred in permitting inadmissible hearsay testimony which statements did not qualify as excited utterances or present sense impressions. Namely, the defendant alleges that it was error for the court to allow Officer Richard Peckelun to testify to statements made by the defendant’s father and sister and to allow Commonwealth witnesses to testify to what Candie Moyer said on the day of the shooting.
“Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. ... [It] is generally inadmissible as evidence because the competency and
In the case of Commonwealth v. Dean, 300 Pa. Super. 86, 445 A.2d 1311 (1982) whichrelies on Commonwealth v. Sanders, 260 Pa. Super. 358, 394 A.2d 591 (1978), the Pennsylvania Superior Court has held that:
“[In Sanders, [supra] a police officer testified as to whom] the victim... identified as the perpetrators.... However, we believe it was not error to permit this testimony. The declarant was present in court and could have been examined by defense counsel and the jury could have observed her demeanor as she answered questions. ... The principle reason for excluding hearsay is the danger that the declarant’s credibility cannot be assessed. That danger was not present here.” (emphasis in original) Id. at 89, 445 A.2d at 1312.
In the case at bar, Officer Peckelun testified to statements made to him by the defendant’s father and sister. The Officer was present in the defendant’s home when the defendant called his father from the motel in Kutztown, Pa. (N.T. vol. I pp. 164-71.) During the officer’s testimony, the defendant’s father was present in the courtroom. (N.T. vol. I pp. 158-64.) Additionally, the defendant’s father and sister took the stand and testified on behalf of the defendant. The jury was able to assess their credibility and demeanor at the time they testified. Therefore, the court did not err in allowing Officer Peckelun to testify to what the defendant’s father and sister told him.
The court did not err in allowing the Commonwealth witnesses to testify as to what Candie Moyer told them
In Commonwealth v. Colson, supra, the appellant, in his post-trial motions, identified witnesses who allegedly have hearsay testimony but he did not identify the statements which were allegedly inadmissible. In the case at bar, the defendant alleges that the Commonwealth witnesses testsified to what Candie Moyer said on October 29, 1986. However, the defendant fails to identify which witnesses and what specific statements. Without knowing the above factors, this court refuses to speculate as to what statements and witnesses the defendant finds objectionable. Therefore, the court did not err in admitting allegedly inadmissible hearsay testimony.
For the reasons set forth above, the defendant’s motion for a new trial and/or arrest of judgement is denied.
ORDER
Now, December 10th, 1993, upon consideration of defendant’s, David Croll, post-trial motions in the form of a motion for new trial and a motion for arrest of judgment, it is hereby ordered that the defendant’s post-trial motions are denied.
It is further ordered and directed that said defendant shall appear for sentencing on Monday, December 20, 1993 at 1:30 P.M., Courtroom No. 3A, Lehigh County Courthouse, Allentown, Pa.
. The Commonwealth was not seeking the death penalty.
. Under [the] M’Naughten Rule [test for insanity], a defendant is legally insane and absolved of criminal responsibility if, at the time of committing the act, due to a defect of reason or disease of mind, the accused either did not know the nature and quality of the act or did not know the act was wrong. Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991).
. The leading case in establishing the standard by which admissibility of scientific evidence must be judged is Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Frye, the court explained: “Just when a scientific principle or discovery crosses the line between
. We note that the defendant also objected to Trooper Levinsky’s testimony as improper lay opinion. However, Trooper Levinsky did not state an opinion as to the defendant’s mental state. His testimony was limited to the events which occurred while performing his duties as a Pennsylvania State Trooper. See N.T vol. I pp. 207-219.
