Opinion
J-S72041-17 No. 2706 EDA 2016 No. 2708 EDA 2016
11-27-2017
COMMONWEALTH OF PENNSYLVANIA v. EDWARD J. O'BRIEN, III Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 17, 2016
In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003361-2015 Appeal from the Judgment of Sentence August 17, 2016
In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001743-2015 BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant Edward J. O'Brien, III, appeals from the Judgment of Sentence entered in the Court of Common Pleas of Chester County on August 17, 2016, following his convictions of Third-Degree Murder and Aggravated Assault in the death of his father Edward J. O'Brien, Jr. Following a careful review, we affirm.
The trial court detailed the relevant facts and procedural history herein in its Opinion filed pursuant to Pa.R.A.P. 1925(a) as follows:
PROCEDURAL HISTORY
This case has a complex procedural history. On or about April 24, 2015, Appellant was charged with the following offenses:
1. Involuntary Manslaughter (18 Pa.C.S.A. §2504(a)),
2. Recklessly Endangering [A]nother Person (18 Pa.C.S.A. §2705),
3. Murder of the Third Degree (18 Pa.C.S.A. §2502(c)),
4. Theft by Unlawful Taking -Movable Property (18 Pa.C.S.A. §3921(a)), and
5. Receiving Stolen Property (18 Pa.C.S.A §3925(a))
The offenses of Murder of the Third Degree, Theft by Unlawful Taking-Movable Property, and Receiving Stolen Property were dismissed by a Magisterial District Justice after a preliminary hearing on May 11, 2015. The offenses of Involuntary Manslaughter and Recklessly Endangering another Person were held for trial and docketed at CP-15-CR-0001743-2015 in the Court of Common Pleas.
On August 3, 2015, the Commonwealth re-filed the offense of Murder of the Third Degree pursuant to Pa.R.Crim.P. 544(B) and added the offense of Aggravated Assault (18 Pa.C.S.A. §2702(a)(1)). The Commonwealth did not re-file the property offenses. The Murder and Aggravated Assault charges were held for trial after another preliminary hearing at a different Magisterial District Court on September 22, 2015. These charges were docketed in the Court of Common Pleas at CP-15-CR-0003361-2015. Appellant waived arraignment in both cases, the matters were consolidated, and scheduled for trial before this court. Prior to trial, Appellant and the Commonwealth filed multiple pretrial motions, some of which are the subject of Appellant's Concise Statement.
The first jury trial started February 16, 2016 and concluded with a mistrial due to a hung jury on February 24, 2016. Pursuant to Pa.R.Crim.P. 600, a second jury trial was scheduled to begin within 120 days, in June 2016. The jury for the second trial was
selected on June 20, 2016 and a verdict was reached on June 30, 2016. Appellant was found guilty of all charges: Murder of the Third Degree, Aggravated Assault, Involuntary Manslaughter, and Recklessly Endangering another Person.
A Pre-Sentence Investigation was completed and a sentence of 5-10 years was imposed August 17, 2016 on the Murder charge. No sentence was imposed on the other offense[]. On August 23, 2016, Appellant filed a timely Notice of Appeal and we issued a Pa.R.A.P. 1925(b) Order. On November 2, 20163, Appellant filed a Concise Statement.
***
FACTS
The evidence presented at trial established the following facts: On September 8, 2013, officers responded to a 911 call at Appellant's home. Appellant had called reporting that his father had stopped breathing. Upon arriving at the home, Appellant called the officers upstairs. Officers testified that the odor of feces grew stronger the closer they came to the decedent's bedroom. In the decedent's bedroom it was over-powering. Officers found Appellant and Appellant's partner, Mr. [Samir] Rashid, in the bedroom with the body of the decedent. The decedent was clothed only in a tee shirt and appeared malnourished. There were feces on the body and very large, deep, black sores evident on several areas of the decedent's body. Dried feces were observed dripping down the side of the bed box spring, on the seat and arms of the only small chair in the room, on the nightstand next to the bed, and on the carpet. The patrol officers were concerned about the circumstances they found and called a detective to the scene for further investigation.
Through an interview with Appellant on the same day, September 8, 2013, it was determined that the decedent had been living with Appellant since May 2011. The decedent had been brought to Appellant's home by Appellant, from the Cooper River West Skilled Nursing Facility ("Cooper River") in New Jersey. Prior to Cooper River, the decedent had been hospitalized after being injured when he fell in his Collingswood, NJ home.
Through further investigation, detectives discovered that prior to being moved to Appellant's home; the decedent lived on
his own in Collingswood and had seen his physician very regularly since the 1970's. He had been prescribed various medications to treat his congestive heart failure and other conditions. While not perfectly compliant with his medication regimen, the decedent had been taking prescribed medications and seeing his doctor very regularly for many, many years. Appellant told the detective that the decedent had seen a physician only once after being moved to Appellant's home and that was in October 2011 when the decedent had complained for over an hour of chest pain and Appellant decided to do as his father was requesting, and took him to the hospital.
Appellant testified to the fact that other than the one trip to the hospital in October 2011, the decedent had left the second floor bedroom on only one other occasion during the two and a half years he lived there. The decedent had managed to get downstairs and out of the house while he was home alone in the spring of 2012. He was found by Appellant's neighbor on her porch. He was asking her to call a cab so that he could return to his own home in Collingswood, NJ.
Appellant testified that at the time he took his father from Cooper River to his home, in May 2011, Appellant had received instructions from his father's treatment providers at Cooper River that his father needed around the clock care and could not be left alone. Appellant was also given documentation and prescriptions for his father to continue his treatment for his medical conditions. In October 2011, when the decedent was taken to the Chester County Hospital's emergency room for his complaints of chest pain, the nursing records indicated that the decedent's appearance was dirty and unkempt. His groin was excoriated and there were dried feces on his buttocks; there was food in his hair. Appellant admitted to the doctor treating his father that he was having difficulty providing the care his father needed, by himself. The doctor prescribed a home health care agency to assist Appellant. The decedent was again discharged with medications and was instructed to follow up with his primary care physician. During his interview on September 8, 2013, when asked by the detective if Chester County Hospital had wanted the decedent on any medications, Appellant answered, "No."
The home health care agency recommended by the hospital doctor visited Appellant's home on one occasion for an assessment; and a treatment plan was prepared. Through testimony, it became clear that the nurses were never able to treat the decedent after that initial visit, though attempts were
made on at least five occasions to visit the decedent. Appellant did not arrange a time for them to help care for his father.Trial Court Opinion, filed 1/20/17, at 3, 6-9.
Appellant indicated that his father started deteriorating six months prior to his death; and that at about four weeks before his death, the decedent started to develop bedsores. At that point, the decedent was rarely out of the twin bed where he was propped up with pillows. There was no hospital bed, no air mattress, no comfortable chair in the decedent's bedroom. Appellant tried to treat the bedsores with soap and water, hydrogen peroxide, bandages, and Neosporin, but the incontinence his father had been experiencing continued and the sores worsened over the four weeks before his father's death.
When asked by the detective why Appellant hadn't secured medical care for his father, particularly when he saw him deteriorating the six months before his death, Appellant said, "Frankly, I figured he was 92 years old." (Comm. Exh. 30A, p. 20, ll. 29-32). When asked why he didn't take him to the doctor, Appellant said, "I don't think he really wanted to go." Id. at p.15, l. 28. When asked if that was a decision the decedent and Appellant discussed, he responded, "I - there wasn't really any discussion." Id. at p. 47, l. 42 - p. 48, l. 1. When speaking of the worsening bedsores, Appellant stated, ". . . they were of a point where, hmmm, I knew that I had to do something about it and sooner rather than later. ... I figured I really have to take him to the doctor but I hadn't decided to do that just yet because it would really be - I just hadn't decided to do that yet." Id. at p. 21 ll. 33-34, p. 21, l. 45 - p. 22, l. 1. On the day of his father's death, during the one hour and 10 minute interview with the detective in his dining room, when asked on several occasions about the lack of physician care and the lack of prescribed medications for his father, Appellant never indicated that his father refused medical care or medications.
3 We granted Appellant's request for leave to amend his initial Concise Statement to allow him sufficient time to review the lengthy transcripts.
In Criminal Information No. CR-3361-2015 filed on October 14, 2015, Appellant was charged with only two crimes: Murder of the Third Degree and Aggravated Assault. He was found guilty of both charges.
The trial court, upon noting it had sat through Appellant's trial twice and following its review of the presentence investigation (PSI) report, a psychological report, and the Commonwealth's sentencing memorandum, decided a mitigated sentence was appropriate. N.T Sentencing, 8/17/16, at 6. Pursuant to the Commonwealth's recommendation, the trial court imposed a sentence of five (5) years to ten (10) years in prison on the Third-Degree Murder count alone. Although the Commonwealth suggested it do so, the trial court did not impose a fine. Id. at 2,7.
Appellant timely filed a notice of appeal on August 23, 2016. On August 24, 2016, the trial court entered its Order pursuant to Pa.R.A.P. 1925 directing Appellant to file a concise statement of the matters complained of on appeal within twenty-one (21) days. On September 13, 2016, Appellant filed his concise statement, and on November 1, 2016, he filed what he titled "Consolidated Concise Statement of Matters Complained of on Appeal" wherein he raised 11 issues. On January 20, 2017, the trial court issued its sixty-six (66) page Opinion pursuant to Pa.R.A.P. 1925(a) wherein it addressed each issue Appellant had raised in his Consolidated Concise Statement.
In his brief, Appellant presents the following Statement of the Questions Involved:
1. Was the evidence insufficient to prove, beyond a reasonable doubt, that [Appellant] had a duty to render medical care to his elderly father in derogation of the father's expressed opposition to further treatment?
2. Was the evidence insufficient to prove, beyond a reasonable doubt, that any act or culpable failure to act constituting malice or disregard and indifference of an intent to cause serious bodily injury was the legal case of death or harm to the decedent?
3. Did the trial court err, and violate [Appellant's] constitutional rights, by instructing the jury that [Appellant] bore the burden of disproving a crime?Brief for Appellant at 3 (unnecessary capitalization omitted). As Appellant's first two issues concern the sufficiency of the evidence to sustain his convictions, we will address them together.
4. Did the trial court err in excluding evidence of various statements offered to show the decedent's opposition to nursing home and other medical care, and to show that [Appellant] did not seclude the decedent and prevent him from receiving care[?]
5. Did the court err in excluding a prospective juror for cause when the juror said he thought police officers had an interest in the outcome of the charges that they filed, but that he would treat all witnesses [in] the same light of their respective interests?
6. Did the court err in denying [Appellant's] motion for special order prohibiting extrajudicial prosecutorial statements without a hearing, and in entering an order precluding [Appellant] and his counsel from making extrajudicial statements, and without considering the harm occasioned by the prosecutor's comments and [Appellant's] first and sixth amendment rights to make curative public comment?
We note Appellant submitted an eighty (80) page principal brief and a fifteen (15) page reply brief herein. Pursuant to Pa.R.A.P. 2135(a)(1), unless this Court or another appellate court orders otherwise, "[a] principal brief shall not exceed 14,000 words and a reply brief shall not exceed 7,000 words." Pa.R.A.P. 2135(a)(1). If a principal brief exceeds thirty (30) pages and/or a reply brief exceeds fifteen (15) pages, the appellant must certify with the appellate court that the brief complies with the word limitation. Id. Appellant properly filed an "Application for Leave to Exceed Page Limitations" with this Court, and in a Per Curiam Order entered on August 1, 2017, we granted the same and accepted Appellant's brief filed on July 5, 2017, as compliant.
"A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 560 Pa. 308, 319, 744 A.2d 745, 751 (2000). In considering such challenges, we are guided by a well-settled standard of review:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Further, in viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, the court must give the prosecution the benefit of all reasonable inferences to be drawn from the evidence.Commonwealth v. Golphin , 161 A.3d 1009, 1018 (Pa.Super. 2017) (citation omitted), appeal denied, 2017 WL 4125611 (Pa. Sept. 15, 2017).
Appellant initially argues he "could not be convicted of any offense unless the evidence established, beyond a reasonable doubt, that he engaged in an affirmative act that caused death, or failed to act when he had a duty to act." Brief for Appellant at 38. Appellant posits the Commonwealth presented no evidence of an affirmative act on his part that caused his father serious bodily injury or death and that he had no duty to treat his father's terminal medical conditions under 18 Pa.C.S.A. § 301. Id. Appellant further maintains that even if he had a duty of care under Section 301(b)(2), the evidence to support a conclusion that Appellant secluded his father and prevented him from receiving unwanted medical care is lacking. As a result, Appellant concludes each of his convictions was unsupported by competent evidence. Brief for Appellant at 39-53.
18 Pa.C.S.A.§ 301 entitled "Requirement of Voluntary Act" reads as follows:
(a) General rule.—A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
(b) Omission as basis of liability.—Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(1) the omission is expressly made sufficient by the law defining the offense; or
(2) a duty to perform the omitted act is otherwise imposed by law.
Appellant also asserts that the evidence had been insufficient to sustain his convictions of Third Degree Murder and Aggravated Assault because "the Commonwealth failed to establish culpable malice, intent and causation beyond a reasonable doubt." Brief for Appellant at 53. Appellant states "[e]ach charge required proof of (1) an affirmative act or breach of duty which (2) was the legal cause of death or injury accompanied by (3) the required mental state." Id. Appellant reasons that both the record and the trial court's Rule 1925(a) Opinion make clear that "the real and the only legal cause of death was the absence of medical care in the waning days of the father's life" and that "[n]o affirmative act of [Appellant] was the 'direct and substantial' cause of the death of his father." Id. at 54. Appellant further surmises that his "failure to treat is insufficient to constitute malice because there was no wickedness, or hardness of heart regardless of social duty." Id. at 55. He both asserts the evidence failed to establish he intended to cause the victim's bedsores and that any evidence the bedsores were the result of neglect was "plainly insufficient to prove the required mental state for Aggravated Assault." Id. at 58-59.
Third-degree murder is defined [as] all other kinds of murder other than first degree murder or second degree murder. The elements of third-degree murder, as developed by case law, are a killing done with legal malice. Malice exists where there is a particular ill-will, and also where there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Commonwealth v. Marquez , 980 A.2d 145, 148 (Pa.Super. 2009) (en banc) (quotations and quotation marks omitted). "Malice is established where an actor consciously disregard[s] an unjustified and extremely high risk that his actions might cause death or serious bodily harm." Commonwealth v. Devine , 26 A.3d 1139, 1146 (Pa.Super. 2011) (quotation and quotation marks omitted). "Malice may be inferred by considering the totality of the circumstances." Commonwealth v. Dunphy , 20 A.3d 1215, 1219 (Pa.Super. 2011) (citation omitted).Golphin , supra at 1018. In addition, "[a] person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]" 18 Pa.C.S.A. § 2702(a)(1).
Appellant devotes a significant portion of his appellate to brief to his argument in support of the position that he had no duty to treat his father's terminal medical condition under 18 Pa.C.S.A. § 301. See Brief for Appellant at 39-53. The trial court also engaged in a detailed and cogent discussion supported with citations to the certified record and notes of testimony regarding Appellant's legal duty to care for his father and his efforts to seclude him from others who could have aided him which we incorporate herein by reference. The trial court further cited to record evidence that supports the jury's conclusion that Appellant's actions or failure to act was the legal cause of death and/or other harm to Appellant which we also incorporate herein by reference. See Trial Court Opinion, filed 1/20/17, at 17-23, 29-57. The trial court determined that an affirmative act is not required by the Criminal Code when, as was the case herein, there is an omission or failure to act relative to a legal duty. Id., at 17. See also Commonwealth v. Pestinikas , 617 A.2d 1339, 1345 (Pa.Super. 1992) (stating the appellant's culpable behavior consisted of an affirmative course of conduct calculated to deprive the decedent of the food and medical care which was otherwise available to him and which was essential to continued life as well as efforts to place the decedent beyond the ability of others to provide such needs).
Even assuming, arguendo, that Appellant did not have a legal duty to render medical care to his elderly father under 18 Pa.C.S.A. § 301 and accepting his argument that it was not his conscious purpose to bring about the death of his father, the record evidence shows Appellant failed to perceive that his actions might create a substantial and unjustifiable risk of death or serious bodily injury to his father regardless of any duty he might have owed to him.
Appellant was charged with Third Degree Murder and Aggravated Assault, and as is readily apparent from the aforesaid definitions of those crimes, neither requires proof of a duty of care. Moreover, the Commonwealth was not required to prove Appellant deliberately intended to harm his father as part of its proof that he acted with legal malice. Commonwealth v. Dunphy , 20 A.3d 1215, 1219 (Pa.Super. 2011). Third-Degree Murder is a killing done with legal malice, and malice does not exist only where one's omission or failure to perform a legal duty was willful and likely to result in the death of a victim. Malice may be found where the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause serious bodily injury. Id. See also , Commonwealth v. Miller , 627 A.2d 741 744 (Pa.Super. 2003).
Dr. Ian Hood, a forensic pathologist who performed autopsies for nearly fifteen years for the Chester County Coroner as the Deputy and Chief Medical Examiner in Philadelphia, remarked that the decedent's body was "in a pretty dirty condition," besmirched with a "[l]ot of feces and urine head to toe." N.T. Trial, 6/24/16, at 911. He estimated the decedent was "no more than a hundred thirty pounds," though he was five foot eleven inches tall. Id. at 927. Dr. Hood also noticed "several large decubiti covered with black eschar" which he opined the decedent had begun to develop "three to four weeks before" and which became "worse over time." Id. Most of these painful sores were stage three, meaning they had penetrated the dermis into the subcutaneous tissue. Id. at 924-25, 929. If the decedent had received "a modicum of reasonably good quality care, regular care, washing, changing bed clothes, his own clothing, proper toileting should have done real well. Should not have developed decubiti" which had caused him to become septic. Id. at 912. The decedent's lungs were filled with fluid, a condition called "pulmonary edema," which is typical in those suffering from heart failure. Id. at 918-19. Dr. Hood found the cause of death to be congestive heart failure contributed to by infected decubiti. Id. at 922.
Appellant's own testimony established he had been named his father's medical representative on May 19, 1998. The Commonwealth presented the Advanced Directive which set forth the procedure to be followed to safeguard the decedent's well-being prior to a determination as to whether heroic measures would be taken to save his life. N.T. Trial, 6/28/16, at 1195-96. Appellant also admitted he served as his father's power of attorney and primary caregiver. Id. at 1240, 1252. Appellant knew his father had been without medical treatment or prescribed medication for an extended period of time while in his care, although he also was aware that when his father came to live with him in May of 2011, he had been taking Lasix or Furosemide to treat his congestive heart failure. Id. at 1229, 1235. Nevertheless, Appellant did not get the Lasix prescription refilled as his father had requested in November of 2011. Id. at 1238, 1243.
Appellant acknowledged that in the weeks prior to his father's death he noticed the latter suffered from bedsores and chronic diarrhea. N.T. 6/28/16, at 1172, 1175. Appellant also admitted that in the roughly two years his father resided with him, his father left the home only twice, once to go to Chester County Hospital and the other when he tried to get away. Id. at 1281. During that period of time, the decedent communicated with only Appellant and Mr. Rashid. Id. at 1283.
Following a careful review of the complete record, the parties' arguments and the applicable law, we agree with the trial court's reasoning and find no abuse of discretion in its finding that the Commonwealth presented ample and sufficient evidence for the jury to convict him of Third-Degree Murder and Aggravated Assault beyond a reasonable doubt. Such record evidence when viewed in a light most favorable to the Commonwealth as verdict winner, together with all inferences, established that Appellant either knew or recklessly disregarded the fact that his father was in need of medical attention for over two years, and especially in the weeks immediately preceding his death. Despite his awareness of these facts, Appellant failed to take steps to procure appropriate care for his father and in doing so consciously disregarded the extremely high risk his continued failure to ensure his father received appropriate medical attention might cause him death or serious bodily injury and that Appellant's malicious course of conduct caused Appellant's death. See Commonwealth v. Kellam , 719 A.2d 792, 797 (Pa.Super. 1998).
In his third claim, Appellant argues the trial court erred and violated his constitutional rights in instructing the jury, sua sponte, that he bore the burden of disproving a crime and of proving that he had no duty to act based on the victim's decision to forego treatment. Specifically, Appellant refers to the following instruction:
Pa.R.E. 103 addresses rulings on evidence and requires a contemporaneous objection in order to preserve a claim of error in the admission of evidence. Appellant placed timely and specific objections to the instruction on the record. N.T. Trial, 6/24/16, at 996-97; 6/29/16, at 1550.
As I have just instructed you throughout the trial, the Commonwealth bears the burden of proving every element of each charge beyond a reasonable doubt. The defendant does not bear any burden to disprove any element of the crimes charged.
In this case the defendant has asserted what is called an affirmative defense claiming his conduct was a result of the decedent's wishes to forego medical care. The defendant bears the burden of proving, proving to you by a preponderance of the evidence, that his conduct was due to decedent's wishes to forego medical care.
Let me explain the difference between the burdens of proof. While the Commonwealth's burden in relation to each element of each charge is beyond a reasonable doubt, the defendant's burden relating to his affirmative defense is a lesser burden. That burden is a preponderance of the evidence, which means that the fact asserted is more likely true than not.
It is the law in the Commonwealth of Pennsylvania that a rational, competent person has a right to refuse medical treatment and they have a right to refuse it for any reason whatsoever. If you find based on the evidence presented that it is more likely
than not that Edward J. O'Brien, Jr. made a rational and competent refusal of medical care, you must find the defendant not guilty.Brief of Appellant at 61 (citing N.T. Trial, 6/29/16, at 1529-1530).
This Court recently reiterated our standard of review of a trial court's jury instruction as follows:
"When evaluating the propriety of jury instructions, this Court will look to the instructions as a whole, and not simply isolated portions, to determine if the instructions were improper." Commonwealth v. Antidormi , 84 A.3d 736, 754 (Pa. Super. 2014) (citations and quotation omitted). A trial court has "broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration." Id. (citations and quotation omitted). "Only where there is an abuse of discretion or an inaccurate statement of the law is there reversible error." Id. (citations and quotation omitted).Commonwealth v . Miller , 2017 WL 4639576 at *8 (Pa.Super. Oct. 17, 2017).
"The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the Appellant was prejudiced by that refusal." Commonwealth v. Sandusky , 77 A.3d 663, 667 (Pa. Super. 2013).
In addressing this issue in its Rule 1925(a) Opinion, the trial court reasoned as follows:
A. Affirmative Defense Instruction Appropriate
We first examine Appellant's claim that it was error to assign the burden of proof for an affirmative defense to Appellant at all because it relieved the Commonwealth of its burden to prove all the elements of the crimes charged beyond a reasonable doubt. We disagree. The jury was repeatedly instructed, in the general instructions and as the instruction for each crime was given, that the Commonwealth bore the burden of proving every element of
each crime beyond a reasonable doubt. They were also repeatedly instructed that the Appellant bore no burden with respect to the crimes charged. (N.T., 06/29/16, Vol. VIII, p. 1528, ll. 4-12, p. 1529, ll. 10-13, 17-21). It was made clear that if they found the Commonwealth failed to meet its burden of proof on any element of any of the charges that they should find Appellant not guilty. (N.T., 06/29/16, Vol. VIII, p. 1528, ll. 13-14, p. 1539, II. 10-13).
The appellate courts have consistently held that the burden of proving an affirmative defense that relieves the accused of criminal responsibility, but does not negate an element of the offense charged, may be placed on the defendant. See Pa.S.S.J.I.(Crim.), §2.10, (2016) Defenses -Assigning the Burden of Proof, Advisory Committee Note, citing Commonwealth v. Collins, 810 A.2d 698, 701, (Pa.Super. 2002); Commonwealth v. Shenkin, 487 A.2d 380 (Pa.Super. 1985). The general rule is that when the asserted defense may only be proven by "information that is peculiarly within the defendant's own knowledge and control, the ... defendant has the burden of proving the defense by a preponderance of the evidence. See Commonwealth v. Rishel, 658 A.2d 352, 355 (Pa.Super. 1995), reversed on other grounds 681 A.2d 162 (Pa.1996). Appellant testified at length about the decedent's communication of his wishes to Appellant. According to the testimony presented by Appellant and other defense witnesses, the decedent wished to remain in Appellant's home, did not want to be in a skilled nursing facility, and did not wish to receive medical care from visiting nurses whom he considered strangers. These conversations occurred between Appellant and the decedent. Some occurred in the presence of Appellant's partner, Mr. Rashid who also testified. (N.T., 06/27/16, Vol. VI, p. 1104, l. 23 - p. 1105, l. 16; p. 1108, ll. 23-25; N.T. 06/28/16, Vol. VII, p. 1252, l. 9-16; N.T., 06/29/16, Vol. VIII, p. 1365, l. 12 - p. 1366, l. 19).
Appellant's defense included the proposition that Appellant failed to get medical care for the decedent because the decedent refused any care. Obviously, the Commonwealth had no access to any evidence relating to the decedent's wishes other than statements made by Appellant and the decedent's past medical history demonstrating the care he sought for himself. We found, and continue to find, that it was appropriate to give the jury an affirmative defense instruction.
Our instructions clearly and repeatedly stated that the Commonwealth maintained its burden to prove all of the elements of each crime beyond a reasonable doubt. In determining whether they believed the decedent refused medical care, thereby relieving
Appellant of his legal duty to care for the decedent, the jurors made a credibility determination after hearing the recording of Appellant's interview with Detective Lund, and after hearing Appellant and other witnesses testify in court. The jury had only to find that it was more likely than not that there was a competent refusal of care by the decedent in order to return a verdict of not guilty on all counts. But, it was also made clear to the jurors that the Commonwealth maintained the burden of proof, beyond a reasonable doubt, in reference to all the elements of the crimes. Consequently, we find no error was made.
B. Affirmative Defense Instruction Given in this Case
We next examine whether the specific instruction relating to the affirmative defense given in this case was appropriate. Our jury instructions did not place a burden on Appellant to show that he had "no duty." First and foremost, we instructed the jury that it was initially the Commonwealth's burden to prove beyond a reasonable doubt that Appellant had a legal duty to provide medical care to the decedent. We stated:
COURT: You cannot find the [Appellant] guilty ... based solely on failure to act unless you are satisfied beyond a reasonable doubt that the defendant had a legal duty to care for the decedent....
(N.T., 06/29/16, Vol. VIII, p. 1542, ll. 8-13) (emphasis added). The burden of proving, beyond a reasonable doubt, that Appellant had a legal duty to care for his father was assigned to the Commonwealth. This same instruction was given on every criminal charge: Murder in the Third Degree, Id., Involuntary Manslaughter, see N.T., 06/29/16, Vol. VIII, p. 1542, l. 22 - p. 1543, l. 13), Aggravated Assault, see N.T., 06/29/16, Vol. VIII, p. 1545, l. 24 - p. 1546, l. 17), and Recklessly Endangering Another Person, see N.T., 06/29/16, Vol. VIII, p. 1548, ll. 1-5, 11-16).
We also gave an additional instruction related specifically to the lesser burden being placed upon Appellant regarding his affirmative defense which required them to make a finding of fact, by a preponderance of the evidence, relating to the decedent's wishes to forgo medical care. We found that the facts in this case and the facts contemplated by the statute relating to Neglect of Care -Dependent Person, 18 Pa.C.S.A. § 2713 are very similar. Accordingly, we used the suggested standard instruction governing Neglect of Care -Dependent Person, Id., as a template for our instruction. Specifically, we used the portion of the Neglect of Care -Dependent Person that sets forth the affirmative defense.
Pa.S.S.J.I. (Crim), §15.2713 (2016)(Neglect of Care -Dependent Person). The §15.2713 affirmative defense instruction states:
The defendant has asserted that the conduct otherwise charged in this case resulted directly from:
a. ... compliance with a care -dependent person's living will for health care ...; or
b. ... compliance with the care -dependent person's written, signed, and witnessed instructions, executed when the care -dependent person was competent as to the treatment he or she wished to receive; or
c. compliance with the direction of the care - dependent person's ... power of attorney ... within the scope of that power; or
d. compliance with a [DNR] order ... by ... attending physician; ...
The defendant bears the burden of proving to you by a preponderance of the evidence that the conduct resulted from one of these circumstances. If you find that the defendant has shown you that it is more likely than not that such circumstances did exist and did result in the conduct charged, you should find the defendant not guilty. Otherwise, if all of the elements as I have explained them have been proven beyond a reasonable doubt, you should find the defendant guilty.
We gave the following instructions:
COURT: In this case the defendant has asserted what is called an affirmative defense claiming his conduct was a result of the decedent's wishes to forgo medical care. The defendant bears the burden of proving, proving to you by a preponderance of the evidence, that his conduct was due to decedent's wishes to forego medical care.
Let me explain the difference between the burdens of proof. While the Commonwealth's burden in relation to each element of each charge is beyond a reasonable doubt, the defendant's burden relating to his affirmative defense is a lesser burden. That burden is a preponderance of the evidence, which means that the fact asserted is more likely true than not.
(N.T., 06/26/16, Vol. VIII, p. 1529, l. 22 - p. [1530, l. 9).
At Appellant's request, the jury was further instructed: It is the law in the Commonwealth of Pennsylvania that a rational, competent person has a right to refuse medical treatment and they have a right to refuse it for any reason whatsoever. If you find based on the evidence presented that it is more likely than not that
the decedent made a rational and competent refusal of medical care, you must find the defendant not guilty.
(N.T., 06/26/16, Vol. VIII, p. 1530, ll. 10-16).
COURT: [I]f you find by a preponderance of the evidence that it is more likely than not that the decedent made a competent, rational refusal of medical care, you may not find the defendant had a duty to care for the decedent.
See N.T., 06/29/16, Vol. VIII, p. 1541, ll. 4-7 (Third Degree Murder), p. 1543, ll. 2-6 (Involuntary Manslaughter), p. 1546, I. 5-9 (Aggravated Assault), and p. 1548, ll. 6-10 (Recklessly Endangering Another Person). We concluded that the instructions provided to the jury were necessary for them to understand the legal principles to be applied in the case given the evidence presented.Trial Court Opinion, filed 1/20/17, 58-64. (emphasis in original).
In order to aid the jury in their understanding of the law they were to consider, the instructions were displayed on a large screen so that they were able to read along as they listened to the court read the instructions. Additionally, each juror was provided with a copy of the instructions for each of the offenses and the affirmative defense instruction to use for reference during their deliberations. After review of the entire jury instruction as reflected in the Notes of Testimony we continue to find our instructions were appropriate and find there was no error in giving the affirmative defense instruction in the manner in which it was given.16
16 It should be noted that of the few questions asked by the jury during their approximately 10 hours of deliberations, none indicated there was any confusion relating to the differences between the burdens of proof they were to apply when making the finding of fact relating to the decedent's wishes, versus the finding of fact they were required to make relating to Appellant's legal duty to care for his father.
Our review of the record supports the trial court's assessment. Contrary to Appellant's characterization of the aforementioned instruction as informing the jury that he bore the burden of "disproving a crime," the trial court repeatedly stressed that the Commonwealth had to prove each and every element of all charged crimes beyond a reasonable doubt, and it specifically stated "[Appellant] does not bear any burden to disprove any element of the crimes charged." N.T. Trial, 6/29/16, at 1529; see also , N.T. Trial, 6/21/16, at 176-77. The trial court simply clarified that Appellant may establish his defense that his inaction was the result of his father's wishes by a preponderance of the evidence, in which case the jury must find him not guilty. In doing so, the trial court did not impose upon Appellant a burden to disprove duty, but rather stated that if the jury believed Appellant's inaction arose out of the decedent's specific wishes it could not find Appellant had a duty to care for him or convict him of any crime. Thus, we discern no abuse of the trial court's discretion.
Appellant next avers the trial court erred in excluding the testimonial evidence of Mr. Samir Rashid. Specifically, Appellant maintains "[t]he statements made by [Appellant] to Samir Rashid regarding the father's medical care, and the statements made by [Appellant] to the father in Rashid's presence, encouraging the father to seek medical care, were improperly excluded. See NT 1360-1361, 1362a-1363a." Brief for Appellant at 65. Appellant posits Mr. Rashid's proposed testimony constituted non-hearsay evidence in the form of "verbal acts" pertaining to Appellant's plan or state of mind and would have shown the decedent was opposed to residing in a nursing home and to receiving other medical care as well as that Appellant did not seclude him or prevent him from receiving such care. Brief for Appellant at 64-65. In addition, Appellant claims statements he made to his neighbor Marie Henry were excluded improperly as hearsay because they were offered as both non-hearsay evidence of his plan and state of mind and as verbal acts of non-seclusion. Brief for Appellant at 66. Appellant posits such statements were "manifestly relevant" herein, especially in light of the fact that this was Appellant's second trial following a hung jury, and in the first trial the jury was unable to reach a verdict on the same charges of which he was convicted herein.
Our standard of review in this regard is well-settled.
Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.Commonwealth v. Tyson , 119 A.3d 353, 357-58 (Pa.Super. 2015) (en banc), appeal denied, 128 A.3d 220 (Pa. 2015) (quotation marks and citations omitted).
In his Consolidated Concise Statement of Matters Complained of on Appeal, Appellant set forth the following errors:
* * *
8. The court erred in excluding evidence of various statements of the decedent, and statements made by [Appellant] to the decedent, offered to show decedent's desires regarding medical treatment.
9. The [c]ourt erred in excluding statements made by [Appellant] to his neighbor Marie Henry regarding the decedent's
condition and treatment offered, inter alia, on the issue of whether [Appellant] secluded his father and prevented him from securing treatment, and as prior consonant statements after Appellant was cross-examined on the efforts to secure and provide treatment.See Defendant's Consolidated Concise Statement of Matters Complained of on Appeal, filed 11/1/16, at ¶¶ 8-9.
* * *
Appellant's allegation set forth in paragraph eight of his Consolidated Concise Statement is vague, and he clearly did not present a specific challenge to the trial court's ruling pertaining to Mr. Rashid's proposed testimony either therein or in paragraph nine. This vagary is reflected in the trial court's confusion "as to which of the decedent's statements Appellant argues were erroneously excluded from evidence." See Trial Court Opinion, filed 1/20/17, at 23 (citing Defendant's Concise Statement of Matters Complained of on Appeal, filed 11/1/16, at ¶¶ 2, 8). It is well-settled that "when the trial court directs an appellant to file a [Rule 1925(b)] statement, any issues that are not raised in [that] statement will be waived for appellate review." Commonwealth v. Smith , 955 A.2d 391, 393 (Pa.Super. 2008). Further, "when issues are too vague for the trial court to identify and address, that is the functional equivalent of no concise statement at all." Id. In addition, "[a] theory of error different from that presented to the trial jurist is waived on appeal, even if both theories support the same basic allegation of error which gives rise to the claim for relief." Commonwealth v. Ryan , 909 A.2d 839, 845 (Pa.Super. 2006) (citation omitted). Because only claims properly presented before the trial court are preserved for appeal, Appellant's contentions in his appellate brief concerning the trial court's rulings regarding Mr. Rashid's testimony are waived.
Notwithstanding, the trial court reasoned that even if it abused its discretion in making evidentiary determinations in this regard, its decision would constitute harmless error because Appellant was able to establish the points he wished to make to the jury through his own testimony about conversations he had had with decedent and the "exhausting number of medical records" admitted into evidence that showed the decedent's lapses in taking his medication. Trial Court Opinion, filed 1/20/17, at 24.
Appellant devotes approximately one page of argument in his appellate brief to his contention that certain statements he had made to Ms. Henry were improperly excluded as hearsay. However, upon our review of the record, we find it lacks merit. Ms. Henry testified she knew Appellant through her involvement in the Hollyview Lane's homeowner's association board. During the time the decedent lived with Appellant, Ms. Henry had occasion to speak with Appellant routinely about his father's medical condition. N.T. Trial, 6/29/16, at 1338, 1342. The Commonwealth objected when Ms. Henry attempted to reveal the contents of those conversations on the basis that such information constituted inadmissible hearsay offered for the truth of the matter asserted. Id. at 1339-41. During a sidebar discussion, the trial court stated Appellant could elicit testimony regarding the fact Ms. Henry knew the decedent lived with Appellant and that Appellant spoke about the decedent "for purposes of getting to the issue regarding seclusion," but it found the specific content of any conversation was being offered for the truth of the matter asserted and, therefore, constituted inadmissible hearsay. Id. at 1341.
On cross-examination, Ms. Henry clarified that during the two years Appellant's father lived in Appellant's home, she never actually saw him, visited the home, or spoke to any medical personnel about the decedent's medical condition. Any information she had in this regard originated from Appellant. Id. at 1343. Therefore, even were the trial court to have permitted Ms. Henry to testify concerning Appellant's "plan and efforts to encourage the decedent to secure medical care," such testimony would not have been "manifestly relevant," as Appellant argues but rather merely would have reiterated what Appellant told her. Thus, we find no error in the trial court's holding that responses to Appellant's further questioning concerning the substance of Ms. Henry's conversations with him would constitute inadmissible hearsay. As the trial court stated, Appellant presented his own testimony concerning conversations he had had with his father about the latter's medical treatment, and Ms. Henry's testimony as it stood was relevant to rebut the Commonwealth's allegations of Appellant's seclusion of the decedent in that it established Ms. Henry was aware the decedent lived with Appellant and that he had medical problems which Appellant readily discussed with her.
Appellant's fifth issue alleges trial court error in excluding a prospective juror for cause at the Commonwealth's request and over Appellant's objection. Initially, we note that
[a] criminal defendant's right to an impartial jury is explicitly guaranteed by Article I, section 9 of the Pennsylvania Constitution. The jury selection process is crucial to the preservation of that right.... It must be remembered the purpose of the voir dire examination is to provide an opportunity to counsel to assess the qualifications of prospective jurors to serve. It is therefore appropriate to use such an examination to disclose fixed opinions or to expose other reasons for disqualification. Thus the inquiry must be directed at ascertaining whether the venire person is competent and capable of rendering a fair, impartial, and unbiased verdict. The law also recognizes that prospective jurors were not cultivated in hermetically sealed environments free of all beliefs, conceptions and views. The question relevant to a determination of qualification is whether any biases or prejudices can be put aside upon the proper instruction of the court.Commonwealth v. Penn , 132 A.3d 498, 502 (Pa.Super. 2016) (footnote, citations, quotation marks, and quotations omitted). In Penn , a prospective juror initially expressed that she would be more likely to believe a police officer than other testifying witnesses do to her personal employment history in law enforcement but later stated she could decide the case based upon the evidence presented during trial. Id . at 500-01. Nevertheless, the trial court denied the appellant's challenge to excuse the prospective juror for cause, and this Court ultimately vacated the appellant's judgment of sentence and remanded for a new trial after finding the juror had expressed an actual bias.
A challenge for cause to service by a prospective juror should be sustained and that juror excused where that juror demonstrates through his conduct and answers a likelihood of prejudice. The decision whether to disqualify a venireman is within the discretion of the trial court and will not be disturbed on appeal absent a palpable abuse of that discretion. Stated another way, the test of disqualification is the juror's ability and willingness to eliminate the influence of his scruples and render a verdict according to the evidence. This determination is to be made by the trial judge based on the juror's answers and demeanor and will not be reversed absent a palpable abuse of discretion.
In the matter sub judice, when questioned by the prosecutor during voir dire, Prospective Juror Number 80 (hereinafter "Juror No. 80") indicated he would be more likely to disbelieve a police officer because as one in a position of power, an officer "automatically [has] a conflict of interest." N.T. Trial, 6/20/16, at 158. In an effort to discern Juror No. 80's reasoning, the prosecutor questioned him further as follows:
PROSECUTOR: Just so I understand this, I do understand that one has a view that police officers should be held to a higher standard.
JUROR NO. 80: Yes.
PROSECUTOR: But it doesn't necessarily follow that they would be more likely not to be truthful or does it to you?
JUROR NO. 80: Well, to me depends on the situation. So if it was a situation where there didn't seem to be any conflict of interest, for instance, like where they had any potential wrongdoing in a way they went through procedures, things like that, then they would be -- I would have no reason to second guess their testimony.
PROSECUTOR: If I'm misstating this I'm sure I will be corrected. But I do believe that standard is that a police officer is to be viewed from the standpoint of whether or not you or another juror believes or disbelieves the officer based on the same standards as any other witness.
JUROR NO. 80: I understand that. But not every witness has that role as a police officer.
PROSECUTOR: I understand that. So the question--
JUROR NO. 80: It's a role based assessment.N.T. Trial, 6/20/16, at 159-160.
PROSECUTOR: So I understand what your view is. The question I have is whether or not notwithstanding your personal views on this that you will be able to put them aside, say I'm going to treat a police officer just like anyone else in terms of deciding whether or not I believe or disbelieve him or her?
JUROR NO. 80: Right, yes, so any other citizen besides a police officer could have a similar conflict of interest that I would have to assess in the same way.
PROSECUTOR: I guess the question is whether you can assure us if you were a juror would you would treat a police officer just like anyone else in terms of deciding whether or not he or she is credible or not?
JUROR NO. 80: Their role as a police officer is a consideration, yes.
PROSECUTOR: I'm not sure I understand your qualification.
JUROR NO. 80: Well, basically you have certain interests as a police officer that you wouldn't have if you were not a police officer. That's the distinction.
PROSECUTOR: Okay. Thank you.
THE COURT: All right. Thank you so much.
Following the aforementioned exchange, the prosecutor moved to excuse Juror No. 80. In doing so, the prosecutor indicated that, to him, it seemed rather clear that the prospective juror held "police to higher standards in terms of credibility assessment." Id. at 162. He also stated it appeared Juror No. 80 was predisposed to believe "that police have a conflict of interest, that he will treat them or assess their credibility with a standard that is higher than what it should be." Id. The prosecutor explained he formed his opinion because no matter how he phrased the questions, he always received "the same answer." Id. Appellant opposed the motion to strike for cause and argued that Juror No. 80 did not say that he would "automatically disbelieve a police officer," but did state he would "assess the interest of all witnesses." Id. Notwithstanding, the trial court stated it "agree[d] with [the prosecutor's] assessment and [the] fact he is not going to change his position police officers somehow have something more at stake than other witnesses. So I will dismiss him for cause." Id.
In its Rule 1925(a) Opinion, the trial court explained its decision to grant the Commonwealth's motion to strike the juror as follows:
Juror No. 80 did not give a complete answer. The trial court determined that Juror 80 would most likely not be able to put aside his belief that a police officer would lie if the officer believed lying would help secure a conviction. We found his manner and speech pattern to be hesitant and conflicted. It was clear to this jurist that Juror No. 80 could not give a clear assurance that he would be able to put aside his prejudice and bias against a police officer's self-interests until he heard the facts of the case, and at that point, it would be too late to impanel a fair jury. We do not find it was an abuse of discretion to strike Juror No. 80 over Appellant's objection.Trial Court Opinion, filed 1/20/17, at 17.
This Court recently reiterated "it is well-settled that a party must make a timely and specific objection at trial, and the failure to do so results in waiver of that issue on appeal. Pa.R.A.P. 302(a); see also Commonwealth v. Montalvo , 1641 A.2d 1176, 1184 (Pa.Super. 1994) (citation omitted) (to preserve an issue for review, a party must make a timely and specific objection at trial, for this Court will not consider claim on appeal not called to trial court's attention at a time purported error could have been corrected)." Commonwealth v. McGriff , 160 A.3d 863, 866 (Pa.Super. 2017), reargument denied, June 20, 2017. Appellant did not object on any basis following the trial court's decision to dismiss Juror No. 80 for cause. As a result, he failed to properly preserve this challenge on appeal.
Even had Appellant properly preserved this claim, he presents no argument as to how the trial court's striking Juror No. 80 for cause resulted in the assemblage of an impartial jury or otherwise prejudiced him. To the contrary, the prosecutor moved to strike the prospective juror, and the trial court granted the motion, so that he would not give additional credence to the testimony of a police offer. This action certainly benefitted Appellant, for the Commonwealth presented the testimony of Detectives Michael J. Buchmann and Jeffrey McCloskey, of the West Whiteland Township Police Department. N.T. Trial, 6/21/16, at 235-63; N.T. Trial, 6/24/16, at 846-81. Kristin Lund, who worked with the Chester County Detectives, a branch of the District Attorney's Office, also testified for the Commonwealth. N.T. Trial, 6/24/16, at 882-95; N.T. Trial 6/27/16, at 1003-77. In light of the foregoing, we find the trial court, who heard the juror's answers and observed his demeanor, did not palpably abuse its discretion in granting the Commonwealth's motion to strike Prospective Juror Number 80 for cause.
Lastly, Appellant challenges the trial court's Order entered on May 1, 2015, pertaining to his "Motion for Special Order Prohibiting Extrajudicial Prosecutorial Statements" which stated the following:
AND NOW, this 1st day of May, 2015, upon consideration of [Appellant's] Motion for Special Order Prohibiting Extrajudicial Statements pursuant to Pa.R.Crim.P. 110, the Commonwealth's Response to Motion for Special Order, and finding that a hearing is not necessary, it is hereby ORDERED:
1. Counsel for [Appellant] and counsel for the Commonwealth are precluded from public comment about this case except in accordance with Rule 3.6 of the Rules of Professional Conduct adopted by the Supreme Court of Pennsylvania. A copy of Rule 3.6 is attached hereto as Exhibit "A."
2. All persons assisting or associated with counsel for the Commonwealth are precluded from making extrajudicial statements that counsel for the Commonwealth would be prohibit[ed] from making under Rule 3.6 of the Rules of Professional Conduct.
Trial Court Order, filed 5/1/15, at ¶¶ 1-5.3. Law enforcement and court personnel shall not make extrajudicial statements relating to his case or issues therein.
4. Counsel for the Commonwealth and counsel for [Appellant] shall caution parties and witnesses with respect to the possible consequences of extrajudicial statements made during the course of trial and jury selection.
5. Counsel for the Commonwealth and counsel for [Appellant] shall promptly make all appropriate persons assisting of associated with the prosecution or defense of this case aware of this Order.
Pa.R.Crim.P. 110 entitled "Special Orders Governing Widely-Publicized or Sensational Cases" provides:
In a widely-publicized or sensational case, the court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties and witnesses likely to interfere with the rights of the accused to a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matters that the court may deem appropriate for inclusion in such an order. In such cases, it may be appropriate for the court to consult with representatives of the news media concerning the issuance of such a special order.Pa.R.Crim.P. 110.
Appellant claims that in issuing the Order without first holding a hearing, the trial court deprived him of his right to respond to statements the Chester County District Attorney Thomas Hogan had made in both a press release and a news conference on April 29, 2015. He further contends the fact that the Order affected the Commonwealth and him alike is "wholly inappropriate," for "defense counsel should be free to tell the truth about these charges to new media interested in listening" without any concern that he would be sanctioned under Rule 3.6. Brief for Appellant at 74. Appellant asserts Mr. Hogan "has elevated increasing public condemnation and opprobrium to a calculated art-form" and proceeds to highlight statements Mr. Hogan allegedly made in other high profile cases. Id. at 76-79.
The trial court stated its reasons for entering the Special Order herein as follows:
There is little guidance as to the standard of review when addressing a court's order limiting extrajudicial statements by counsel. It has been previously determined that court imposed "limitations on the speech of attorneys involved in pending litigation, even when such limitations are prior restraints on the attorney's First Amendment rights, will be constitutional if the prohibited speech is limited to that which contains a substantial likelihood of material prejudice to an adjudicatory proceeding." Commonwealth v. Lambert, 723 A.2d 684, 686 (Pa.Super. 1998). It is also appropriate to limit speech when the limitation "does not constrain the access to or the publication of a trial's events, testimony, or evidence." Id. When these guidelines are met, the limitation on speech has been found to be constitutionally acceptable.
Appellant filed a Motion for Special Order Prohibiting Extrajudicial Prosecutorial Statements on April 30, 2015. In his Motion, Appellant averred that:
Thomas P. Hogan, Esquire, acting as District Attorney of Chester County, undertook a calculated campaign of extrajudicial statements designed and intended to unfairly prejudice [Appellant]... . [He] caused his assistant ... to issue a Press Release to local outlets[] [t]hat ... included numerous false and misleading statements, calculated to impair the [Appellant's] right to a fair and impartial trial, which had ... a substantial likelihood of increasing public opprobrium of the accused. For example, the statement includes ...
'This was no way for any person to die. If somebody treated an animal so shamefully, everybody would be horrified. The fact that it happened to an elderly man, and was caused by the man's own son, is inexcusable.'
(See Appellant's Motion for Special Order, 04/30/15). The Chester County District Attorney, Thomas P. Hogan, also made the following references:
This was a death without dignity....
[The decedent] was put in a back bedroom to rot....
[W]hat we often see in these cases is the parent is just not dying fast enough, so somebody starts taking money, and not caring for their parents. Id.
One of the headlines stated "Son Left Dad to Rot." (NBC News 10, Alison Burdo, 04/2015). Appellant's counsel responded to the above statements in the press and his client's position was also reported by the media, including his opinion that Mr. Hogan was effectuating "trial by press release." (Chadds Ford Live, Kathleen Brady Shea, 04/29/15). Appellant requested that the court issue an order limiting extrajudicial statements by the Commonwealth as authorized by Pa.R.Crim.P. 110, and we did. We found there was no need for a hearing as the facts averred by Appellant's counsel were readily available for the court to review in the local paper and news outlets. We found that Mr. Hogan's statements had a substantial likelihood of heightening public condemnation for Appellant.4 (Pa.R.P.C. 3.8, Special Responsibilities of a Prosecutor).
Appellant's objection to the Order is that it applied to the defense as well as the prosecution. Appellant now argues that he and his counsel were deprived of their First Amendment right to free speech by the court's May 1, 2015 Order. The Order stated in part:
Counsel for [Appellant] and counsel for the Commonwealth are precluded from public comment about this case except in accordance with Rule 3.6 of the Rules of Professional Conduct.
Rule 3.6 of the Pennsylvania Rules of Professional Conduct ("Rule 3.6") sets forth the limits of extrajudicial comments related to trial publicity. All counsel are bound by the ethical mandates of Rule 3.6. We found it necessary to remind counsel of their ethical obligations. We did not preclude Appellant nor his counsel from exercising their right to free speech. Defense counsel was free to respond to any comments he felt necessary to protect his client from undue prejudice, so long as those comments did not violate Rule 3.6.
Additionally, paragraph 4 of the Order stated that counsel should advise the parties and witnesses about the possible consequences of making extrajudicial statements during the course of trial and jury selection. This paragraph reminded counsel and the parties that extrajudicial statements have real consequences, i.e. the delay of trial proceedings and extended jury selection due to media coverage of extrajudicial statements prejudicing the general jury pool, influencing the opinions and recollections of witnesses, etc. A determination to see if there was improper intrusion into Appellant's and his counsel's free speech rights must be made using the entire record. Commonwealth v.
Lambert, 723 A.2d 684 (Pa.Super. 1998), citing Gentile v. State Bar of Nevada, 501 U.S. 1030, 1038 (1991).
At the time the Order was issued, the court was fully aware that the relationship between Appellant's defense counsel and the Chester County District Attorney's Office, specifically District Attorney Thomas Hogan, was markedly hostile. Therefore, we structured our Order in a manner that would not restrain freedom of speech but would motivate both counsel to follow the Professional Rules of Conduct, and heighten the parties' awareness of how an extrajudicial comment can adversely affect their own trial interests in a negative manner. The Order was issued to enforce the court's intent to have a speedy, impartial, and fair trial for all the parties involved. We considered the balancing which must be done between an individual's constitutional rights to free speech and a fair trial. These two rights must be balanced in the realm of a criminal trial.
It was our duty to protect this criminal trial from improper outside influences and it was not error to do so by executing our May 1, 2015 Order. See Sheppard v. Maxwell, 384 U.S. 333, 362-63 (1966); Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979) (noting that "a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial publicity.")
Appellant's issue with this court's Order was again addressed by Appellant when he filed a Motion to Vacate Prior Order, and for Special Order Prohibiting Extrajudicial Prosecutorial Statements on February 25, 2016 after the conclusion of the first jury trial. The Commonwealth filed a response and a hearing was held on March 24, 2016. We took the matter under advisement and denied the Appellant's Motion to Vacate our May 1, 2015 Order. We found nothing new that would assuage our earlier conclusion that extrajudicial statements posed a substantial risk of prejudicing the parties and the potential jurors prior to the commencement of the re -trial of this case in June 2016. If anything, our concern increased as a result of the bickering in which both counsel engaged during the February 2016 proceedings. The court did not wish that type of "tit for tat" to take place in a public forum possibly influencing prospective jurors and witnesses. We continue to find that our action in issuing the Order requiring compliance with Rule 3.6 by both parties helped
secure a fair and impartial jury to hear Appellant's case in June 2016.Trial Court Opinion, filed 1/20/17, at 9-13.
4 There was no objection made by the Commonwealth to our entering the May 1, 2015 Order.
A transcript of this hearing, if one was prepared, has not been provided for this Court's review as part of the certified record. --------
Upon our review of the record, we find no error. Significantly, although Appellant generally avers he was caused harm and that his constitutional rights were violated by the trial court's May 1, 2015, Order, in fact, the trial court's Order sought to prevent either side from thwarting Appellant's constitutional right to assemble a fair and impartial jury. Indeed, had the trial court given defense counsel an unfettered ability to comment about Appellant's case in the press, the opposite would have been the case. Moreover, any such statements would have been inapposite to Appellant's trial, for the trial court instructed the jurors to consider only the evidence presented at trial during its deliberations and explained that statements of counsel do not constitute evidence. N.T. Trial, 6/29/16, at 1535, 1540. As the trial court stressed, its Order did not prevent Appellant from exercising his right to free speech but rather permitted each party to do so as long as any comments did not violate the Pennsylvania Rules of Professional Conduct.
Also, Appellant urges us to consider statements Attorney Hogan allegedly made in other matters. It is axiomatic in Pennsylvania that "[a]n appellate court may consider only the facts which have been duly certified in the record on appeal." Commonwealth v. Young , 456 Pa. 102, 115, 317 A.2d 258, 264, (1974); Pa.R.A.P. 1921 (providing that the certified record on appeal consists of the "original papers and exhibits filed in the lower court, paper copied of legal papers filed with the prothonotary by means of electronic filing, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court.. . . "). As such, these references are irrelevant to our consideration of the matters raised in the instant appeal, and to the extent they were discussed at the March 24, 2016, hearing, we cannot consider them, for we have not received a transcript of that proceeding.
For all of the foregoing reasons, Appellant's claims fail, and we affirm the judgment of sentence.
Judgment of sentence affirmed. We direct the parties to attach a copy of the trial court opinion in the event of further proceedings.
Judge Musmanno joins the majority.
PJE Bender Concurs in the Result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/27/2017
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