J-A24029-16

                                   2016 PA Super 242



COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                       v.

EDWARD YALE

                             Appellant                   No. 3678 EDA 2015


          Appeal from the Judgment of Sentence November 19, 2015
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0001540-2013


BEFORE: BOWES, J., OTT, J., and SOLANO, J.

OPINION BY OTT, J.:                                FILED NOVEMBER 10, 2016

        Edward Yale appeals from the judgment of sentence imposed on

November 19, 2015, in the Court of Common Pleas of Monroe County,

following his conviction by jury on the charges of third-degree murder and

tampering with evidence.1         He received an aggregate sentence of 20 – 40

years’ incarceration plus restitution and costs.       In this timely appeal, Yale

raises six issues.          The first three issues address different aspects of

testimony and jury instruction regarding the Commonwealth’s rebuttal

witness, Dr. Wayne Ross. In issues four and five, Yale claims the trial court

erred in allowing the Commonwealth to cross-examine defense witness,

Robert Vandercar, beyond the scope of direct examination and in allowing

____________________________________________


1
    18 Pa.C.S. §§ 2502(c) and 4910(1), respectively.
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Commonwealth witness, Philip Barletto to testify as an expert in crime scene

reconstruction when he had not been qualified in that field.      Finally, Yale

argues the trial court erred in failing to charge the jury on the crimes of

voluntary and involuntary manslaughter.       After a thorough review of the

certified record, submissions by the parties and relevant law, we affirm.

      The facts and history of this matter are quite complex and comprise

greater than 16 pages of the trial court’ Pa.R.A.P. 1925(a) opinion. We have

confirmed those facts and history as being supported by the certified record.

We distill that information provided by the trial court herein.

      On March 22, 2001, Yale’s wife, Joan Yale, was found at the foot of the

staircase leading from the kitchen to the garage.       Mrs. Yale had suffered

massive injuries to her head and chest, resulting in her death. Initially, the

medical examiner ruled Mrs. Yale had died from blunt force trauma, but

made no determination regarding the manner of death. Yale, an ex-police

chief of Upper Mount Bethel Township and former boxer, was not charged

with a crime.

      Many years later, for reasons unexplained in the record, the state

police reexamined the evidence and asked Dr. Marianne Hamel, M.D., a

board certified forensic pathologist, to review the medical evidence.       She

concluded that the trauma suffered by Mrs. Yale was not consistent with a

fall down the steps. Rather, she believed Mrs. Yale had, essentially, been




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“stomped” to death.2        Yale was subsequently charged with the murder of

Joan Yale, his second wife.

       Consistent with the prosecution of a more than decade old murder,

both the prosecution and defense relied heavily on their respective medical

experts.    All parties agreed the cause of death was blunt force trauma; it

was the manner of death, accidental or homicide, that was at issue.         As

noted above, Dr. Hamel testified for the Commonwealth giving her opinion

that Mrs. Yale had been stomped to death. The defense called Dr. John J.

Shane, M.D., and Dr. Charles C. Catanese, M.D. Dr. Shane opined Mrs. Yale

died as a result of accident, specifically, from injuries suffered from falling

down the 11 steps to the basement/garage.           Dr. Catanese also concluded

the manner of death was accidental, but that Mrs. Yale most likely stumbled

toward or at the foot of the staircase and her injuries were then caused by

pitching forward into a pile of firewood.        On rebuttal, the Commonwealth

also presented the testimony of Dr. Wayne Ross, M.D. Dr. Ross opined Mrs.

Yale had been murdered. He testified she had been strangled and beaten.

He could not specifically state how she had been beaten, but could not rule

out having been stomped/kicked for at least some of the time.




____________________________________________


2
  Dr. Hamel described the injuries as “stomping injuries.”       See N.T. Trial
10/15/2015 at 105.




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        Mrs. Yale was approximately 5’6” tall and weighed approximately 290

pounds. Although there were many objects on the staircase leading to the

garage, including a coffee can full of golf balls, an uncovered can of nails, a

pair of boots, and fire extinguisher box, they were largely undisturbed.          A

single nail was found outside of the can. No trace elements such as blood or

fibers from Mrs. Yale’s red boiled-wool coat were found on the stairs.

Although Yale was in the home during the entire time in question, he

testified he did not hear his wife fall down the steps.         Rather, he claimed

that approximately 20 minutes after she said she was leaving the house to

go to a hair appointment, he realized he had not heard the garage door

open.    When he went to investigate, he found his wife at the foot of the

stairs. He further testified he tried to give aid, he rolled her onto her back,

but realized she had died. He then telephoned for help.

        Yale’s   first   three   claims   all   involve   the   testimony   of   the

Commonwealth’s rebuttal witness, Dr. Wayne Ross. Dr. Ross testified as to

the cause and manner of Mrs. Yale’s death.            With regard to his first two

issues, Yale argues this evidence should have been introduced in the

Commonwealth’s case in chief. As such, Yale claims the trial court erred in

allowing Dr. Ross to give opinion testimony on the cause and manner of

death and then compounded the error by denying his request for mistrial.

In support of this claim, Yale cites Daddona v. Thind, 891 A.2d 786 (Pa.

Cmwlth. 2006) which states in relevant part:




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       “Rebuttal evidence” is defined in Black’s Law Dictionary (5th
       ed.1979) as ‘[e]vidence given to explain, repel, counteract, or
       disprove facts [as opposed to opinions] given in evidence by the
       adverse party.’ ” Feingold v. Se. Pa. Transp. Authority, 339
       Pa. Super. 15, 488 A.2d 284, 290 (1985), aff’d, 512 Pa. 567,
       517 A.2d 1270 (1986). “A party cannot, as a matter of right,
       offer in rebuttal evidence which is properly part of his case in
       chief, but will be confined to matters requiring explanation and
       to answering new matter introduced by his opponent.” Clark [v.
       Hoerner], 525 A.2d [377] at 382-83. Indeed, as explained by
       our Supreme Court:

          It is an elementary proposition that the plaintiff must
          prove during his case in chief all essential elements of his
          action as to which he has the burden of proof, and that he
          may not as a matter of right introduce evidence in rebuttal
          which is properly part of his case in chief. The trial court
          has discretion in excluding as rebuttal evidence that which
          is properly part of the case in chief.

       Downey v. Weston, 451 Pa. 259, 268-69, 301 A.2d 635, 641
       [(1973)](emphasis added) (citations omitted). A trial court may
       properly exclude evidence offered on rebuttal if it is cumulative
       of evidence already presented. Estate of Hannis v. Ashland
       State Gen. Hosp., 123 Pa.Cmwlth. 390, 554 A.2d 574 (1989).
       Repetitive testimony is improper rebuttal. Kline v. Behrendt,
       396 Pa.Super. 302, 578 A.2d 526 (1990).

Daddona, 891 A.2d at 813-14. 3

       These    cases    provide     no   support   for   Yale’s   argument.   The

Commonwealth did produce testimony regarding the cause and manner of

death of Mrs. Yale in its case in chief. Dr. Hamel provided lengthy testimony

regarding her expert medical opinion that Mrs. Yale had been murdered and
____________________________________________


3
  Additionally, Yale independently cited the quote from Clark v. Hoerner,
525 A.2d 377 (Pa. Super. 1987), found in Daddona, thereby emphasizing
that point.




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that the genesis of her injuries was not an accidental fall down the steps, but

was from being stomped to death.4

       In his defense, Yale provided two experts who contradicted Dr.

Hamel’s conclusions regarding the manner of death and genesis of the blunt

force trauma. The doctors provided detailed testimony regarding how they

believed Mrs. Yale had suffered her fatal injuries.     Although Drs. Catanese

and Shane held differing opinions on where Mrs. Yale had fallen, they both

agreed that the catastrophic injuries she suffered were the result of an

accident and not inflicted by another human. In rebuttal, Dr. Ross provided

his medical opinion on why Drs. Catanese and Shane were incorrect, which

opinion necessarily included addressing the very issues of manner of death

and genesis of the blunt force trauma. Dr. Ross primarily opined why the

injuries were unlikely to have been caused by the accidental means

described by the defense experts and, secondarily, the most likely method

by which the injuries occurred. This testimony allowed the jury to fully

consider and compare the opinions of the defense experts and the bases of

those opinions. Accordingly, there was nothing improper about the subject

of Dr. Ross’s testimony, nor the scope of that testimony. In light of this, we

find the trial court did not abuse its discretion in allowing Dr. Ross to testify

as to the cause and manner of death.

____________________________________________


4
  Since there was no error in allowing Dr. Ross’s substantive testimony,
there was no error in the trial court’s denial of Yale’s request for mistrial.



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       Yale’s third argument regarding Dr. Ross is a claim the trial court erred

in failing to give a limiting instruction to jury regarding the doctor’s rebuttal

testimony.     Specifically, he wanted the trial court to instruct the jury as

follows:

       You have heard the testimony of Dr. Wayne Ross, offered by the
       Commonwealth in rebuttal. This testimony can only be offered
       to explain, repel, contradict or disprove facts or opinions
       submitted by the defense experts. You cannot consider his
       testimony as evidence of Mr. Yale’s guilt or innocence; rather,
       the Commonwealth must prove his guilt in its case in chief, that
       is the evidence presented before the Defendant’s case. It would
       be improper for you to consider this rebuttal evidence as proof of
       the essential elements of the charges against Mr. Yale. See
       Dadonna [sic] v. Thind, 891 A.2d 786, 813 (2006).

Appellant’s Brief at 18.

       “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court's

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Janda, 14 A.3d 147, 163 (Pa. Super. 2011) (citation

omitted).

       Initially, we note there is no suggested standard jury instruction

regarding the admission or use of rebuttal testimony.            Our review of

Daddona, as well as prior relevant case law,5 also leads us to conclude

____________________________________________


5
  See also, Downey v. Weston, 301 A.2d 635 (Pa. 1973), Potochnik v.
Pittsburgh Rys. Co., 108 A.2d 733 (Pa. 1954); Clark v. Hoerner, 525
A.2d 277 (Pa. Super. 1987).




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there is no absolute rule regarding the use and application of rebuttal

testimony.

       Additionally, our Supreme Court has stated:

       However, it is equally true that it is within the discretion of the
       trial court to permit evidence, in rebuttal, which should have
       been given in chief, provided only that the action of the trial
       court in this regard is not arbitrary or capricious.

Potochnik v. Pittsburgh Rys. Co., 108 A.2d 733, 739 (Pa. 1954) (citation

omitted).

       In its Pa.R.A.P. 1925(a) opinion, the trial court explained:

       The defense objection seems to center on the fact that Dr. Ross
       not only suggested why the defense experts were wrong, but
       that he had his own theory of how Joan Yale received her
       extensive injuries. However, for the jury to understand why Dr.
       Ross felt the defense explanations were wrong, they needed to
       know his analysis of what did happen. It would not have been
       proper to restrict him from giving his own opinion of the
       causation of the injuries. His opinion was similar to that of Dr.
       Hamel, but he did not narrow the cause down to strangulation
       and stomping as she did.       He opined that Joan Yale was
       strangled, her head was struck by a log and/or her head was
       taken and slammed down and scraped.[6] This testimony directly
       contradicted the defense experts.

Trial Court Opinion at 22-23.7
____________________________________________


6
  Dr. Ross also opined that several of Mrs. Yale’s injuries were consistent
with being stomped or kicked, as Dr. Hamel opined.          See N.T. Trial,
10/21/2015, at 89, 96, 119-122.
7
  Although this quote is taken from the section of the trial court opinion
addressing the jury charge, we note it is equally applicable to Yale’s first two
issues regarding Dr. Ross as well.




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        The trial court’s admission of that portion of the rebuttal evidence

addressing the manner of death, even if it should have been admitted in the

case in chief, was neither arbitrary nor capricious. Potochnik, supra (trial

court action in allowing rebuttal testimony may not be arbitrary or

capricious).    Therefore, the trial court’s charge regarding expert witnesses

was proper and the trial court did not err in refusing to give Yale’s proposed

charge limiting the use of rebuttal evidence. Accordingly, Yale is not entitled

to relief on this issue.

        Next, Yale claims the trial court improperly allowed the Commonwealth

to cross-examine defense witness, Robert Vandercar, beyond the scope of

his direct examination. As provided by the Pennsylvania Rules of Evidence, 8

in general, the scope of cross-examination is limited to the subject matter of

the direct examination and matters of credibility.            However, the rule


____________________________________________


8
    Specifically, Pa.R.E. 611(b) states:

        (b) Scope of Cross-Examination. Cross-examination of a
        witness other than a party in a civil case should be limited to the
        subject matter of the direct examination and matters affecting
        credibility, however, the court may, in the exercise of discretion,
        permit inquiry into additional matters as if on direct examination.
        A party witness in a civil case may be cross-examined by an
        adverse party on any matter relevant to any issue in the case,
        including credibility, unless the court, in the interests of justice,
        limits the cross-examination with respect to matters not testified
        to on direct examination.

Pa.R.E. 611(b)



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specifically notes the trial court retains the discretion to admit other inquiry

as it deems proper.

       Vandercar testified on behalf of Yale that he had known Joan Yale for

approximately 45 years, Yale for four years, and had been their neighbor for

four years. He testified he had not heard the Yales arguing. In its Pa.R.A.P.

1925(a) opinion, the trial court characterized this testimony as leading “the

jury to believe that a person who was very familiar with Joan and Ed Yale

and their marriage was unaware of any marital strife.” Trial Court Opinion,

2/16/2016 at 27.       Cross-examination by the Commonwealth attempted to

establish just how well he knew the family and the opportunities he had

actually had to overhear the Yales. The most significant aspect of the cross-

examination was eliciting the testimony that prior to her death, Joan Yale

had told Vandercar she was afraid her husband would kill her.        Vandercar

had revealed this statement to Yale when Yale first approached him to

discuss the fact the police had reopened the investigation. Although a prior

panel of our Court had ruled the statement was inadmissible to show the

victim’s state of mind,9 the trial court allowed the statement into evidence to

show its effect on Yale.10 Additionally, the trial court gave a prompt limiting
____________________________________________


9
  See Commonwealth v. Yale, 116 A.3d 697 (Pa. Super. 2014)
(unpublished memorandum).
10
   Vandercar testified that after he told Yale what his wife said, Yale
“[S]macked himself in the forehead, and he said to me twice, This is a
setup. This is a setup.” N.T. Trial, 10/19/2015 at 80.



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instruction to the jury, explaining they could not consider the evidence for

the truth of the statement, but only for its effect on Yale during the course of

his conversation with Vandercar.

      More importantly, the trial court found that through Vandercar’s direct

testimony, the defense sought to infer that a close friend of the Yales,

especially of Joan Yale, was unaware of any marital discord. We find that

Vandercar’s statement that Joan confided she was afraid of her husband

provided a stark contradiction of that inference. Accordingly, the statement

was both relevant and admissible. See Commonwealth v. Spenny, 128

A.3d 234, 251 (Pa. Super. 2015) (the law is clear that we may affirm the

trial court's decision on any proper basis).

      Reading Vandercar’s testimony in toto, we find the cross-examination

of Vandercar was reasonably related to the subject matter and inferences

raised by the defense during the direct examination. Specifically, Joan Yale’s

statement to Vandercar was not offered to demonstrate her state of mind,

but to contradict the inference that Vandercar was unaware of any trouble

between the Yales, and to demonstrate Yale’s reaction to the statement. As

such, the trial court committed no error in allowing said cross-examination

to proceed.




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        At trial, the Commonwealth offered Philip P. Barletto as an expert in

both blood spatter analysis and crime scene reconstruction.11                    Yale’s

penultimate issue is a claim the trial court erred in accepting Barletto as an

expert in the field of crime scene reconstruction.            At trial, Yale accepted

Barletto as an expert in blood spatter analysis, but challenged his

qualification as a crime scene reconstructionist.          However, in his 1925(b)

statement, Yale claimed the trial court erred in accepting Barletto as an

expert     in   the   field   of   blood   “pattern”   analysis,   not   crime   scene

reconstruction. As such, the issue is arguably waived.



____________________________________________


11
     The standard for expert qualification is well settled.

        The qualification of a witness as an expert rests within the sound
        discretion of the trial court, and the court's determination in this
        regard will not be disturbed absent an abuse of discretion. See
        Commonwealth v. Serge, 837 A.2d 1255, 1260 (Pa. Super.
        2003). As stated by this Court:

           The standard for qualification of an expert witness is a
           liberal one. The test to be applied when qualifying an
           expert witness is whether the witness has any reasonable
           pretension to specialized knowledge on the subject under
           investigation. Commonwealth v. Wallace, 817 A.2d 485
           (Pa. Super. 2002).... A witness does not need formal
           education on the subject matter of the testimony, and may
           be qualified to render an expert opinion based on training
           and experience. Id.
        Commonwealth v. Malseed, 847 A.2d 112, 114 (Pa. Super.
        2004) (emphasis in original) (quoting Serge, supra.).
Commonwealth v. Toritto, 67 A.3d 29, 37 (Pa. Super. 2013).




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      Nonetheless, the trial court determined Barletto was qualified to testify

as a blood spatter expert. The trial court found Barletto had been qualified

as an expert in Pennsylvania courts in the fields of crimes scene processing,

fingerprint analysis, blood spatter analysis, and crime scene reconstruction.

Barletto spent 14 years in the forensic services unit of the Pennsylvania

State Police. He investigated more than 300 deaths and took a variety of

specialized classes, including crime scene reconstruction.       The trial court

stated, “[Barletto] had a reasonable pretension to specialized knowledge on

this subject [blood spatter] due to his extensive experience and training.”

Opinion, at 31.     The certified record reflects this reasoning is equally

applicable to Barletto’s qualifications as a crime scene reconstructionist.

Even if the issue had not been waived, the trial court committed no error in

accepting Barletto as an expert in either field.

      Yale’s final issue is a claim the trial court erred in failing to charge the

jury on the crimes of voluntary and involuntary manslaughter.            On this

issue, we rely on the able analysis of the Honorable Arthur L. Zulick, who

opined:

      [Yale] requested a charge on voluntary and involuntary
      manslaughter. Mr. Yale was charged with a single count of
      criminal homicide in Count I of the information. The parties
      agreed that the jury would be charged on first degree murder
      and third degree murder. The Commonwealth objected to the
      charge on voluntary manslaughter and involuntary manslaughter
      because there was no evidence in the case suggesting that Joan
      Yale’s killing was done in the heat of passion or in a grossly
      negligent fashion. The defense request for the charge was
      denied.


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       The Pennsylvania Supreme Court recently stated:

       [d]efendants are generally entitled to instruction that they
       have requested and that are supported by the evidence.
       We have explained that the reason for this rule is that
       “instructing the jury on legal principles that cannot
       rationally be applied to the facts presented at trial may
       confuse them and place obstacles in the path of a just
       verdict.” A criminal defendant must, therefore, “establish
       that the trial evidence would ‘reasonably support’ a verdict
       based on the desired charge and may not claim
       entitlement to an instruction that has no basis in the
       evidence presented during trial.”

       Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657,
       668 (Pa. 2014).

     The issuance of lesser-included homicide offenses must be
     “firmly grounded in logic and policy,” and cannot be justified “as
     giving a jury discretion to dispense mercy.” Commonwealth v.
     Williams, 415 A.2d 403, 404-05 (Pa. 1994). The Williams
     court cautioned:

       To instruct a jury on possible verdicts that are unsupported
       by any evidence can serve only to pervert justice: Not only
       may the jury be confused by what appear to be irrelevant
       instructions, and thereby possibly reach a mistaken
       verdict, but a conviction for the lesser offense may occur
       out of discriminatory favor for the defendant or out of
       animosity for the victim, or the jury might substitute its
       own visceral reaction for the classification established by
       the legislature.

       Id.

     The elements of a voluntary manslaughter charge are as follows:

       A person who kills an individual without lawful justification
       commits voluntary manslaughter if at the time of the
       killing he is acting under a sudden and intense passion
       resulting from serious provocation by:

       (1) the individual killed.


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        18 Pa.C.S.A. § 2503.

     The elements of an involuntary manslaughter charge are as
     follows:

        Involuntary manslaughter is defined as a killing that occurs
        when, “as a direct result of the doing of an unlawful act in
        a reckless or grossly negligent manner, or the doing of a
        lawful act in a reckless or grossly negligent manner, [an
        individual] causes the death of another person.”

        18 Pa.C.S. § 2504(a).

     Here there was no evidence of any sudden or intense passion
     which incited Edward Yale to kill his wife. No one was present in
     the basement that day before the EMT arrived, other than
     Edward Yale and Joan Yale. The entire defense case was that
     Edward Yale was watching television, not killing his wife in the
     basement. There was not a scintilla of evidence of a serious
     provocation made by Joan Yale to incite her murder. Likewise,
     there was no evidence that she killed in a reckless or grossly
     negligent fashion.      The evidence that she was murdered
     consisted of her injuries and the condition of the scene.

Trial Court Opinion at 24-25.

     Accordingly, the trial court did not err in denying Yale’s requested jury

charges for voluntary and involuntary manslaughter.

     In light of the foregoing, Edward Yale is not entitled to relief.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2016




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