Com. v. Winter, J. (memorandum)

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J-S35039-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JEREMIE MICHAEL WINTER, Appellant No. 1715 MDA 2013 Appeal from the Judgment of Sentence August 23, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001295-2012 BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.* MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 18, 2014 Jeremie Michael Winter (Appellant) appeals from the judgment of sentence entered August 23, 2013, after he was found guilty of statutory sexual assault, corruption of minors, and furnishing liquor to a minor.1 We affirm. Appellant was charged with the aforementioned offenses after he was accused of giving a minor female fruit punch mixed with vodka, and then engaging in sexual intercourse with her after she blacked out. While in Lancaster County Prison awaiting trial, Appellant provided a statement to police in which he admitted to giving the victim an alcoholic beverage and ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. ยงยง 3122.1(a)(1), 6301(a)(1), and 6310.1(a), respectively. J-S35039-14 having intercourse with her. He, however, denied that the victim was unconscious at the time. On May 23, 2013, Appellant filed an omnibus pre-trial motion, in which he argued that his statement should be suppressed because it was obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). A suppression hearing was held immediate 10, 2013. At the hearing, Officer Michael Kimes testified that he neglected to bring a written Miranda waiver form with him for Appellant to sign on the day in question. N.T., 6/10/2013, at 9. However, Officer Kimes stated that he provided Appellant with Miranda warnings verbally, and that Appellant agreed to waive his rights before giving the statement. Id. Appellant denied the account of Officer Kimes, and testified that he was never provided with his Miranda warnings. Id. at 44-51. Appellant further testified that he denied having intercourse with the victim while speaking to police, but that the officers ignored his claims of innocence and created a false statement. Id. at 51Appellant proceeded to a jury trial. Id. at 61. should be discredited by the jury because it was obtained by police coercion. resist the officers and supported his claim that the statement was involuntary. At the start of the second day of trial, defense counsel informed -2- J-S35039-14 the trial court that he intended to call Ms. Dawn Boltz to the stand. N.T., Id. The trial court Id. Defense counsel admitted that he did not provide the Commonwealth with an expert report, and the Commonwealth objected Id. at 135-36. The [Appellant] was mentally ill at the time or somehow in such a diminished capacity that he was unable to understand the circumstances of either the Id. at 136. Defense cli Id. The trial court concluded that the evidence would not be admitted. Id. at 136-37. Later that same day, Appellant took the stand in his defense. Defense that he did. Id. Id. at 166. The Commonwealth objected, and a discussion was held at sidebar. Id. The trial court informed defense counsel that Appella Id. However, the trial court stated that it -3- J-S35039-14 Id. The trial court proceeded to evidence that will be introduced into evidence that [Appellant] is legally or Id. Defense counsel then asked Appellant about his mental capacity. Id. and sometimes has a difficult time reading, writing, and processing information. Id. Appellant then testified that he did not have intercourse with the victim; that he was not read his Miranda rights; and that he provided a false confession to police because he was scared, and because the police refused to believe that he was innocent. Id. at 167-70. At the conclusion of trial, Appellant was found guilty of all charges. On August 23, 2013, Appellant received an aggregate sentence of 14 months to 6 years of incarceration. Appellant timely filed a notice of appeal. The trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925, and Appellant timely complied. Appellant now raises the following issues on appeal. I. Did the trial court err in refusing to permit Dawn Boltz, Lancaster County Behavior Health and Developmental Services, this testimony was admissible and relevant to question of the II. Did the trial court err in refusing to allow [Appellant] to testify that he is mentally retarded, and in instructing the jury that it into evidence that [Appellant] is legally or medically mentally -4- J-S35039-14 Appellant first argues that the trial court erred by precluding him from calling Ms. Boltz as a witness. We emphasize that the dmission of evidence is a matter within the sound discretion of the trial court, and will not be reversed absent a showing that the trial court clearly abused its Commonwealth v. Akbar, 3451 EDA 2010, 2014 WL 1697016 at *6 (Pa. Super. filed April 30, 2014) (quoting Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009)). An abuse of discretion is not a mere error in judgment. Id. an abuse of discretion occurs when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown Id. (quoting Montalvo, 986 A.2d at 94). be sufficient to alert the trial judge to the purpose for which the evidence is being offered, and a trial court's exclusion of evidence must be evaluated on appeal by a review of the contents of the offer at the time it was made. Commonwealth v. Newman, 555 A.2d 151, 156 (Pa. Super. 1989) (citing Commonwealth v. Gibson, 400 A.2d 221 (Pa. Super. 1979); Commonwealth v. Cain, 369 A.2d 1234 (Pa. 1977)). Here, Appellant attempted to call Ms. Boltz midway through his trial. The record does not reflect that the Commonwealth or the trial court was ever made aware of the existence of Ms. Boltz or the possible contents of -5- J-S35039-14 her testimony prior to June 11, 2013. When asked for an offer of proof, the explained with only minimal specificity to what Ms. Boltz would testify, and whether Ms. Boltz was being offered as an expert witness, a lay witness, or Appellant was that would render her testimony relevant. Counsel simply indicated that Ms. Boltz the Behavioral Health/Behavioral Services testimony.2 Appellant next contends that the trial court erred by preventing him ____________________________________________ 2 The trial court concluded that the testimony of Ms. Boltz was properly excluded pursuant to Pa.R.Crim.P. 568. Trial Court Opinion, 10/18/2013, at 3-5. Rule 568 requires that a defendant seeking to admit expert testimony in support of a defense based on insanity, mental infirmity, or other mental disease, defect, or condition must provide notice Pa.R.Crim.P. 568(A)(1), (2). , and may affirm Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012) (quoting In re Jacobs, 15 A.3d 509 n.1 (Pa. Super. 2011)). solely to challenge the voluntariness of his confession, and not to establish a defense to the crimes for which he was being tried, we agree with Appellant that Rule 568 is inapplicable. -6- J-S35039-14 Appella -22. The trial court explained that Appellant was given a sufficient opportunity to testify regarding his alleged mental infirmity, and Trial Court Opinion, 10/18/2013, at 6-7. We agree with the trial court. testimony where scientific, technical, or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the Commonwealth v. Chmiel, 30 A.3d 1111, 1140 (Pa. 2011). This Court has explained that, while a lay witness may testify as to the medical condition of a person, that witness testify to matters involving the existence or nonexistence of a disease, which is discoverable only through the training and expertise of a In re Mampe, 932 A.2d 954, 960 (Pa. Super. 2007). By extension, while a lay witness may testify ge condition, that witness should not be permitted to provide a specific mental diagnosis. rt has American Psychiatric Association, or by those adopted by American Association on -7- J-S35039-14 Intellectual and Developmental Disabilities. Commonwealth v. Williams, 61 A.3d 979, 981-82, 982 n.8 (Pa. 2013).3 In doing so, the Court has question involving whether a petitioner fits the definition of mental retardation is fact intensive as it will primarily be based upon the testimony Id. at 981 (quoting Commonwealth v. Crawley, 924 A.2d 612, 616 (Pa. 2007)). Here, Appellant was permitted to testify about his mental limitations. was necessa ____________________________________________ 3 These standards are as follows. The [American Association on Intellectual and Developmental Disabilities] defines mental retardation as a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in the conceptual, social, and practical adaptive skills. The American Psychiatric Association defines mental retardation as significantly subaverage intellectual functioning (an IQ of approximately 70 or below) with onset before age 18 years and concurrent deficits or impairments in adaptive functioning. Thus, ... both definitions of mental retardation incorporate three concepts: 1) limited intellectual functioning; 2) significant adaptive limitations; and 3) age of onset. Williams, 61 A.3d at 982 (quoting Commonwealth v. Miller, 888 A.2d 624, 629-30 (Pa. 2005)) (italics, quotation marks, and citations omitted). -8- J-S35039-14 testimony, we conclude that the trial court did not abuse its discretion. 4 No relief is due. Accordingly, because we conc entitles him to relief, we affirm his judgment of sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/18/2014 ____________________________________________ 4 In support of his argument, Appellant directs us to Commonwealth v. Shain Id. at 1248. The relative then described why he considered the victim to be Id. Well, he could neither read nor write. He had no formal education. He spent eight years from (sic) the State Mental Hospital, upstate ). Shain argued that the relative should not have been permitted Id. at 1250. was competent to express his opinion as to the mental capabilities and limitations of the victim. Id. (citing Commonwealth v. Knight, 364 A.2d 902 (Pa. 1976), and Commonwealth v. Young, 419 A.2d 523 (Pa. Super. 1980)). Thus, Shain stands for the proposition that it is not an abuse of discretion to permit a expert testimony, where that reference is amply explained by a testifying witness. Shain does not mandate that a trial court must always allow a upport of expert testimony. -9-

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