Com. v. Burklund, D. (memorandum)
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J-S78020-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DORLEEN BURKLUND Appellant No. 3467 EDA 2012 Appeal from the Judgment of Sentence July 3, 2012 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0000376-2011 BEFORE: SHOGAN, J., OTT, J., and PLATT, J.* MEMORANDUM BY OTT, J.: FILED APRIL 22, 2014 Dorleen Burklund appeals the judgment of sentence entered July 3, 2012, in the Bucks County Court of Common Pleas. Burklund was sentenced to a term of life imprisonment following her jury conviction of first degree murder and possession of a weapon1 for the shooting death of her estranged husband. On appeal, Burklund contends both the trial court and the prosecutor interfered with her right to counsel; the trial court erred in allowing the Commonwealth to admit certain crime scene photographs, in refusing to order sequestration of all witnesses; and the evidence was ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. §§ 2702 and 907(b). J-S78020-13 insufficient to disprove self-defense.2 For the reasons set forth below, we affirm. trial court as follows: Burklund was charged with killing her husband, Michael October 3, 2010, state police were dispatched to the Burklund home, located at 3209 Mink Road in Kintnersville, Bucks County, to investigate the report of a woman who had shot her husband. State police arrived at the location at approximately 3:30 P.M. At that time, Trooper Edward Theodore encountered Burklund and her [then 18-yearoutside of the residence. Burklund then told Trooper Theodore was located in the master bedroom. Burklund also told Trooper Theodore that she had left the gun on the kitchen counter. Theodore noted that Burklund was speaking in a normal tone of voice, she was not yelling, crying or acting upset. Burklund never told Trooper Theodore that victim had attacked her or that he had physically or sexually assaulted her. When other members of the state police arrived on the scene, Trooper Theodore entered the residence, followed unable to find a pulse. Corporal [McLean Keyes] Peeke from the Pennsylvania State Police Forensic Services Unit testified regarding the crime scene evidence. Corporal Peeke stated that a trail of clothing items, including socks, t-shirts, underwear and to the body. No weapons were f ____________________________________________ 2 Although Burklund sets out nine issues in her appellate brief, we have consolidated those claims for disposition. See -5. -2- J-S78020-13 A .38 caliber Smith & Wesson five-shot revolver was recovered from a butcher block in the kitchen of the Burklund divorce attorney addressed to Burklund. The gun was loaded and had three spent shell casings and two live rounds inside. Boxes of .38 caliber ammunition consistent with the handgun were found in the closet of the bedroom furtherest (sic) from the nd had purchased the gun on May 13, 2006. Burklund had acquired a carry permit for the firearm on September 2, 2010. No other weapons were found in the Burklund home. clothing, she gave police officers five empty shell casings and one live round from the back pocket of the jeans she was wearing. Investigators checked Burklund for injuries and photographed her body on the day of the shooting, and no ve for gunshot residue. Victim was shot eight times; three bullets exited his body causing blood spatter patterns on the wall behind the body. The spatter was low to the ground on the wall, indicating that victim was not in an upright position when he was hit with the three bullets that exited his body. Furthermore, the pattern of blood horizontal position. Blood drops in the master bedroom indicated that victim was in the northeast corner of the bedroom when he was first struck, moving towards the final location where he fell facedown into the horizontal position. **** [The medical examiner testified that,] the most likely turned to Burklund, got hit with the shoulder shot, and the two shots to the chest. Thereafter he was shot in the flank, at which point he fell onto his face and finally the last three shots were fired while he lay unmoving on the bedroom floor. **** Burklund presented evidence claiming that she and her husband had fought often, and had been involved in physical -3- J-S78020-13 argument between victim and Burklund in 2008 where Burklund tapped or smacked her husband on his forehead and he slapped encouraged her to apply for a Protection from Abuse order d never attempted to get a PFA, nor on the day of the shooting and that victim had informed him that he needed to go to the house to pick up his uniform. Burklund also testified regarding her relationship with victim. She testified that she went with victim and Gabriel to purchase the gun in 2006. The gun came with a laser sight o noted that she filed for divorce from victim in June 2007. However, the couple continued living in the marital home until January of 2009 when Burklund moved with Gabriel. Burklund testified that after she filed for divorce, her husband physically intimidated her by charging at her, backing her up against walls and breaking things. Burklund testified that she eventually moved out of the marital home, but then decided later to move back into the home[.] However, when Burklund attempted to move back in, the locks on the marital home had been changed and the realtor would not give her a new key. Burklund then changed the locks again and moved back into the house in the beginning of September, 2010. Burklund testified that she believed she that she knew victim was living in the home at the time she changed the locks and entered. Burklund also admitted that she knew that victim was at work and that he would be coming home. Victim came to the home after being away at work and the door to let him in, then went and locked herself in another bedroom with her handgun. Burklund had already removed asked her what she had done with it, she told him that it was in a safe place. Although the couple argued that night regarding whether or not Burklund was going to move back into the home, she continued staying there. -4- J-S78020-13 **** 2010, he petitioned the court to allow victim to lower the sale price of the marital home, and to enforce a prior order by which Burklund taken his gun. Because Burklund had discharged her attorney and was unrepresented, the trial court continued the petition hearing.] Throughout the protracted divorce proceedings, none abuse or threats of physical abuse. On the day of the shooting, victim went to the house to h friends at that time, instead of staying in the Burklund residence, because Burklund was living there. Burklund testified that she saw victim arrive at the home on October 3, 2010. Burklund claimed that she got the gun while she was putting clothing away upstairs in the home. She grabbed bullets from a box and she claimed she was going to load the gun as she was walking but then she realized it had bullets in it already, and placed the extra bullets in her back pocket. Burklund also put the gun in her front pocket at this time. Victim came into the master bedroom to get his uniform out of his closet, and Burklund testified that they began arguing. Burklund claims she cannot recall what they were arguing was very furious at her. Burklund testified that she was trying testified that victim had nothing in his hands except his clothing at that time. Then Burklund testified that she began shooting him. She claimed that victim was coming forward and then fell in front of her. She then reloaded the pistol and shot him again in the back, although she could not remember how many times. Burklund claimed that he started to rise when she shot him the last time. Burklund then called the FBI who transferred her call to 911. Trial Court Opinion, 4/16/2013, at 1-7 (record citations omitted). -5- J-S78020-13 Burklund was subsequently charged with first degree murder and possession of a weapon. On April 20, 2011, the trial court conducted a application for a public defender had been denied. At the status hearing, that he intended to use part of the policy proceeds to retain an attorney for his mother. Based upon this representation, the trial court granted a 30-day continuance. When the trial court conducted another status conference on June 17, 2011, Burklund still had not retained counsel. Moreover, the proceeds from the life insurance policy were tied up in litigation, with no indication when N.T., 6/17/2011, at 6-7. Therefore, the court appointed track of all fees and funds expended so that Burklund could reimburse the office when funds become available.3 However, the court left open the ____________________________________________ 3 The court also directed the county solicitor to file the necessary paperwork to place a lien against her property. N.T., 6/17/2011, at 7-8. That lien was subsequently vacated by court order entered on April 22, 2013. -6- J-S78020-13 possibility that Burklund could retain private counsel if funds subsequently became available to do so. During the ensuing proceedings, no private behalf. A jury trial followed, and on May 18, 2012, the jury returned a verdict of guilty on both charges. Burklund was sentenced on July 3, 2012, to a mandatory term of life imprisonment for first degree murder, and a consecutive term of one to five years imprisonment for possession of a weapon. She filed post sentence motions, which were denied by operation of law on November 9, 2012.4 This timely appeal followed.5 First, Burklund argues the trial court violated her constitutional right to counsel when it declined to continue her case so that she could retain directed her to reimburse the office for its expenses. In a related claim, she ____________________________________________ 4 The 120th day for deciding the post sentence motions expired on November 9, 2012. However, when Burklund filed her notice of appeal on December 3, 2012, the clerk of courts had not yet entered an order on the docket disposing of the post sentence motions. The docket entry was made the appellate jurisdiction has Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836, 838 (Pa. Super. 1999), citing Pa.R.A.P. 905(a)(5). 5 On December 6, 2012, the trial court ordered Burklund to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After receiving an extension of time to await transcription of the notes of testimony, Burklund complied wi statement on March 15, 2013. -7- J-S78020-13 contends the assistant district attorney committed prosecutorial misconduct It is well-established that a criminal defendant has a constitutional right to counsel of her own choosing: The right to counsel is guaranteed by both the Sixth Amendment to the United States Constitution and by Article I, Section 9 of the Pennsylvania Constitution. In addition to guaranteeing representation for the indigent, these constitutional rights entitle Commonwealth v. Novak, 395 Pa. 199, 213, 150 A.2d 102, 109, cert. denied, 361 U.S. 882, 80 S.Ct. 152, 4 L.E is particularly significant because an individual facing criminal Moore v. Jamieson, 451 Pa. 299, 307 08, 306 A.2d 283, 288 (1973). We have held, however, that the constitutional right to counsel Commonwealth v. Robinson, 468 Pa. 575, 592 93 & n. 13, 364 A.2d 665, 674 & own counsel, as well must be weighed against and may be reasonably restricted by Id. at 592, 364 A.2d at 674 (internal quotations omitted). Thus, this Court has explained that while defendants are entitled to choose their own counsel, they should justice. Commonwealth v. Baines, 480 Pa. 26, 30, 389 A.2d 68, 70 (1978). At the same time, however, we have explained justifiable request for delay can render the right to defend with counsel an empty formality Robinson, 468 Pa. at 593 94, 364 A.2d at 675 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)). -8- J-S78020-13 Comonwealth v. McAleer, 748 A.2d 670, 673-674 (Pa. 2000). Moreover, when determining whether a trial court erred in refusing to grant a continuance to a defendant who seeks to retain new counsel, we have, historically, looked at several factors, including:6 continuances in the matter, the timing of the motion, whether private counsel had actually been retained, and the readiness of private counsel to Commonwealth v. Prysock, 972 A.2d 539, 543 (Pa. Super. 2009).7 Here, Burklund claims she informed the trial court from the beginning of the case that she intended to retain private counsel, and counsel had even appeared in court during the April 20, 2011, status hearing. 8 However, when Burklund was still unable to secure the funds to retain counsel two ____________________________________________ 6 Commonwealth v. Prysock, 972 A.2d 539, 541 (Pa. Super. 2009) (citation omitted). 7 The Prysock Court also considered whether the trial court had conducted dissatisfaction with his current counsel to determine whether their dispute wa Prysock, supra, 972 A.2d at 543. That factor is not relevant here since Burklund was not seeking to replace counsel. 8 Brian Fishman, Esquire, attended the April 20, 2011, status hearing as the appropriate arrangements have been made, [was it his] intention to Id. appearance on behalf of Burklund. However, Fishman never entered his -9- J-S78020-13 months later, she argues the trial court forced her to proceed without objection,9 to represent her. Burklund argues that, at that time (June 17, Id. at 20. ument, the trial court found that it did noted that at the June 17, 2011, status hearing, it was unclear when, if ever, funds would become available to Burklund to retain an attorney. All the parties were aware that an injunction had been filed in the estate case seeking to prevent Gabriel from using a portion of his inheritance to fund ____________________________________________ 9 would like to work with and there is the potential [that] these assets will become a Id. at 6. - 10 - J-S78020-13 atter to just sit until property or Id. Therefore, the court Burklund.10 The court further explained: Obviously this Order is subjec counsel of her choice at any time that she has the wish to do that and the ability to do that. But until such time as some other attorney enters their appearance or evidence is presented to me that there are liquid assets available, we will proceed with the public defender representing Ms. Burklund. Id. at 8. We find no abuse of discretion on the part of the trial court in declining repre was denied because she did not meet the indigency requirements, the court ortly after the June 17th hearing, the Bucks ____________________________________________ 10 It bears mention that at the conclusion of the April 20, 2011, status hearing, the trial court warned Burklund that if she did not retain counsel by to enter their appearance with the understanding that they would lien [her] Compare Prysock, supra no indication in the record that Appellant was ever personally warned that he needed to retain counsel by a specific date or that no further continuances would be granted after the trial - 11 - J-S78020-13 directing that the life insurance company refrain from distributing the policy proceeds to Gabriel, in light of his stated intention to use those proceeds to 11 of Burklund, 2013 WL 327622, *2 (E.D. Pa. 2013). eventually released to Gabriel, after See In re Estate The proceeds were Id. at *6. Moreover, the permitting her to change counsel in the future, should funds become available. There is no requirement that a trial court place a murder trial on hold indefinitely until a defendant secures funds to retain private counsel. Accordingly, no relief is warranted on this claim.12 In a related claim,13 Burklund contends the assistant district attorney (ADA) interfered with her constitutional right to counsel, and committed prosecutorial misconduct, when ____________________________________________ 11 The Act provides, in any property or receive any benefit as the result of the death of the In re Estate of Burklund, 2013 WL 327622, *1 (E.D. Pa. 2013) (citation omitted). 12 To the extent Burklund challeng county to place a lien on her property to recoup the costs of her representation, we note that the lien was subsequently vacated, and it is unclear from the record whether Burklund was ever required to contribute financially to her defense. 13 Burklund identifies this claim as issue number two in her brief. -24. - 12 - See J-S78020-13 Id. at 23. Accordingly, she contends that her convictions must be vacated.14 that the Commonwealth contacted victim court concluded that even if the ADA had contacted the executor of the estate, her actions would not amount to prosecutorial misconduct. The court expl hire attorneys for his mother would allow Burklund to acquire property and ____________________________________________ 14 With respect to a claim of prosecutorial misconduct, the Pennsylvania Supreme Court has explained: The claim either sounds in a specific constitutional provision that the prosecutor allegedly violated or, more frequently, like most trial issues, it implicates the narrow review available under Fourteenth Amendment due process. See Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3 constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the Commonwealth v. Cox, 983 A.2d 666, 685 (Pa. 2009) (citation omitted). - 13 - J-S78020-13 15 Id. We agree, and accordingly, conclude that Burklund is entitled to no relief on her claim of prosecutorial misconduct. Next, Burklund contends the trial court erred in admitting four photographs of the victim, which she argues are duplicative and/or inflammatory. Specifically, Burklund objected to photograph C-4, depicting photograph Cautopsy, as both duplicative and inflammatory. Finally, Burklund objected to photographs C-6 and C- within the discretion of the trial Commonwealth v. Malloy, 856 A.2d 767, 776 (2004) (citations omitted). [W]hen the Commonwealth proffers photographs of a homicide victim for admission into evidence, the trial court must engage in a two-part analysis: First a [trial] court must determine whether the photograph is inflammatory. If not, it may be admitted if it ____________________________________________ 15 to the action regarding the insurance litigation, which was eventually Court Opinion, 4/16/2013, at 13. Moreover, the actions of the executor - 14 - J-S78020-13 the facts. If the photograph is inflammatory, the trial court must decide whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. Commonwealth v. Murray, 83 A.3d 137, 156 (Pa. 2013) (citation omitted). The admissibility of the photographs at issue was litigated during a pretrial hearing on April 19, 2012. The trial court considered each photograph individually and concluded that each was admissible. With respect to photograph C-4, the Commonwealth argued that the photograph between photograph C-4 and the photograph that Burklund argued was duplicative. Id. at 9. With regard to photograph C-2, Id. at 13. The court found the photograph was Id. at 14. Lastly, with regard to photographs C-6 and C-7, again, the trial and would be probative to demonstrate the trajectory of the bullet during Id. at 15. While Burklund argues the photographs were inflammatory, selfserving, and cumulative, she fails to set forth any specific basis upon which the trial court abused its discretion. - 15 - Moreover, the photographs, J-S78020-13 themselves, are not included in the certified record. See Commonwealth v. Manley the [A]ppellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious appeal denied, 996 A.2d 491 (Pa. 2010). Therefore, we are unable to review t the photographs were inflammatory. Accordingly, her challenge to the admissibility of the photographs fails. 16 Specifically, Burklund argues the trial court abused its discretion when it (1) sustained mony regarding an incident that occurred in 1999; and (3) objected, sua sponte propensity for violence and anger. She contends that the testimony er state of mind at the time of the shooting, and support her claim of self-defense. Preliminarily, we note that: ____________________________________________ 16 These claims are raised as issues numbered four, five and six in See -36. - 16 - J-S78020-13 The admission of evidence is solely within the province of the trial court, and a decision thereto will not be disturbed absent a showing of an abuse of discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill-will discretion ... is abused. Commonwealth v. Murray, 83 A.3d 137, 155-156 (Pa. 2013) (citations and internal punctuation omitted). admissible in a murder trial when the defendant is claiming self-defense. [I]n a homicide trial, where self-defense is asserted, the defendant may introduce evidence of the turbulent or dangerous character of the decedent. See Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984). This type of character evidence is admissible on either of two grounds: 1) to violent character in an effort to show that the defendant reasonably believed that her life was in danger; and/or 2) to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor. Id.; see also Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971) ed knowledge of the victim's he had a reasonable belief his life was in danger and to prove the allegedly violent propensities of the victim to show he was the aggressor); Cf. Commonwealth v. Romanic, 311 Pa. 415, 166 A. 902 (1933) (single statement by victim that he killed a man is not relevant to establish violent character in effort to show victim was aggressor in encounter with defendant). Commonwealth v. Carbone, 707 A.2d 1145, 1154 (Pa. Super. 1998). However, [w]here violence that the time of the evidence sought to be admitted is a prior act of not reduced to a criminal conviction, the law requires violent act or acts be known to the defendant at the the homicide. The incidents of violence cannot be - 17 - J-S78020-13 and dangerous behavior. Commonwealth v. Stewart, 647 A.2d 597, 598-599 (1994) (footnote and internal citations omitted), aff'd, 690 A.2d 195 (Pa. 1997). Burklund first contends the trial court abused its discretion when it sustained objections to the following questions posed to Gabriel during his cross-examination:17 why Gabriel stopped seeing his father (N.T., 5/16/2013, at 24-25); asking Gabriel to describe how his father yelled at his mother in the past (id. at 29); whether his father struck his mother in the past (id. at 32); whether his father had threatened him in the past (id. at the past and that she was afraid of him (id. at 36-37). Burklund argues that In its 1925(a) opinion, the trial court provided the following cogent explanation for its rulings: In the instant case, the Court prevented Gabriel from testimony on that issue does not tend to establish a material fact nor does it make a material fact more of less likely. Therefore, it bears no relevancy on whether Burklund reasonably believed that she was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force against ____________________________________________ 17 Gabriel was called by the Commonwealth to testify during its case-inchief. - 18 - J-S78020-13 victim to prevent such harm.[18] Gabriel was initially precluded from testifying about prior incidents when he had heard his father yell. However, when the defense rephrased the question to ask whether or not Gabriel had heard his father yell at his mother before, he was allowed to testify. In that instance, the Court w on the date of the shooting. The same rationale applied to why the Court sustained objections to questions regarding whether victim had ever threatened Gabriel. The Court initially sustained an objection when defense counsel asked Gabriel about whether he was aware of a specific incident when victim had struck Burklund. Gabriel had not been present when the incident occurred. Therefore, Gabriel could not testify as to the details of an event to which he had no personal knowledge. However, on cross-examination defense counsel asked Gabriel if he had ever heard instances of abuse, and he testified that he had. When Gabriel testified that he had heard the incident, he was allowed to testify as to what exactly he had heard. Furthermore, Gabriel testified that he had never seen victim abuse Burklund. Therefore, when defense counsel asked whether Gabriel was aware of past abuse, and whether Burklund was afraid of victim, the objections were correctly sustained. knowledge. As discussed above, Gabriel was permitted to testify as to the specific threats and incidents he had actually heard. an abuse of discretion. Trial Court Opinion, 4/14/2013, at 16-17 (record citations omitted). ____________________________________________ 18 During a sidebar discussion, Burklund argued the Commonwealth had opened the door to this testimony by implying during opening statements that Burklund had prevented Gabriel from seeing his father. N.T., 5/15/2012, at 25. She asserted that Gabriel should be permitted to testify that he stopped seeing his father after an incident that occurred one and a half years earlier, and that he should be able to describe that incident. Id. The trial court sustained th opening statements are not evidence, but permitted Gabriel to testify that Burklund did not prevent him from seeing victim, and that it was his choice not to do so. Id. at 26. - 19 - J-S78020-13 Our review of the trial transcript reveals no abuse of discretion on the part of the trial cour he had personal knowledge, and (2) to matters which were relevant to the question of whether Burklund reasonably believed she was in danger on the day of the shooting. Indeed, Gabriel was permitted to testify that: his returning to the house to argue with her (N.T., 5/15/2012, at 31-32); [he] might be nex id. at 33-34); although Gabriel had never observed any physical violence between his parents, he had heard it and knew his id. at 42-43); and Gabriel had seen his father threaten his mother (id. at 57). Further, Gabriel was permitted to describe an incident he heard coming from his and his father was calling her demeaning names. Id. at 46-48. Gabriel testified that, after the incident, he began sleeping in their bedroom because he was afraid for his mother. Id. at 49. Therefore, the trial court properly of which he had personal knowledge and of which were relevant to warranted on this claim. Burklund also argues the trial court erred in precluding her from - 20 - J-S78020-13 regarding these experiences that occurred in 1999 would have explained to the jury why [she] believed that she was in danger and would have Id. at 31-32. Preliminarily, we note that Burklund does not provide this Court with a citation to where she attempted to introduce this evidence at trial. The failure to provide a record citation is grounds for finding waiver. See Commonwealth v. Harris an allegation is unsupported by any citation to the record, such that this Court is prevented from assessing this issue and determining whether error citing Pa.R.A.P. 2119(c). Nevertheless, because the trial court provides a record citation in At trial, defense counsel made the following offer of proof regarding the trial court inquired how the relationship changed, defense counsel Id. at 125. The trial to any proceeding o Id. - 21 - J-S78020-13 testimony because the incident was too remote in time to be relevant to the circumstances involving the shooting, or, more specifically, Burklu purported belief that she was in danger on the afternoon of the shooting. See Trial Court Opinion, 4/14/2013, at 18-19. We agree. The only offer of proof with the incident, which occurred 11 years prior, was that victim struck Burklund. Burklund did not provide any details regarding the circumstances of that incident that would have made it particularly relevant more than a decade later. Furthermore, Burklund was permitted to testify that victim struck her in 2007, and forced her to have sexual relations with him in 2008. Accordingly, we find no abuse of discretion on the part of the trial court in precluding this testimony. Burklund contends the trial court erred when it, sua sponte, stopped defense long- extensive patterns of violence towards [her] and the generally degrading Id. Once again, Burklund failed to provide this Court with a record citation to the allegedly improper actions of the trial court. could find this issue waived. See Harris, supra. - 22 - For that reason, we However, because the J-S78020-13 trial court has, again, graciously provided the citation to the ruling in its opinion, we are able to review this claim. incident after she had filed for divorce when victim forced her to have sex. N.T., 5/16/2012, at 137-138. Counsel then inquired whether there were times, after she had filed for divorce, when victim became angry if she refused to have sex with him. Id. at 138-139. The Commonwealth objected on relevancy grounds. Defense counsel argued the testimony was relevant Id. at 139. Counsel then asked Burklund about the incident Gabriel had overheard, when victim belittled her in their Counsel then asked Burklund how many times, after she filed for divorce, the victim would belittle or be angry with her. At that point, the trial court instructed counsel to sidebar, where the following exchange took place: THE COURT: There was an objection to the question and I indicated I would give you some latitude [Defense Counsel:] THE COURT: The defense, as I understand you have raised it, is one of justification and that her mental state at the time of this killing was that she was in fear of death or serious bodily injury, not that she was subject to being degraded or embarrassed or humiliated. [Defense Counsel:] THE COURT: Focus on the matters which are relevant and not intended solely to elicit sympathy. - 23 - J-S78020-13 Id. at 140-141. of Burk sua sponte 4/16/2013, at 19nt to her defense. Indeed, the fact that victim may have belittled her or become angry with her in the past did not lend credence to her claim that she was in fear for her life on the day of the shooting. Therefore, Burklund is entitled to no relief on her claims that the trial court abused its discretion when it precluded evidence concerning 19 Next, Burklund contends the trial court erred in denying her request to itness sat in unconsciously conform her testimony in a way that would benefit the Pennsylvania Rule of Evidence 615 permits a trial court to order ____________________________________________ 19 We note that both Burklund and Gabriel provided extensive testimony See N.T., 5/15/2012, at 31-34, 42-44, 46-49, 57, 61-62; 5/16/2012, at 133-138, 139, 141-142, 150-152, 154-155, 158, 160, 169, 174. - 24 - J-S78020-13 witnesses for an abuse of discretion. Commonwealth v. Stevenson, 894 A.2d 759, 767 (Pa. Super. 2006) (citation omitted), appeal denied, 917 A.2d an appellant must demonstrate that he or she was actually prejudiced relief may be warranted Id. (citations omitted and emphasis supplied). In the present case, on the first day of trial, Burklund requested that the trial court order sequestration of all witnesses. The Commonwealth ar N.T., 5/15/2012, at 85. Specifically, the Commonwealth intended to have uniform. Based upon the Common Id. at 86-87. Later that day, the Commonwealth clarified its offer of proof and witness. At that point, Burklund renewed her request for sequestration. The trial court, See id. at 101. rebuttal witness. Burklund objected on the basis that she had been permitted to sit in the courtroom for the entire trial. statement on the subject of her testimony - 25 - The Commonwealth which concerned an incident in J-S78020-13 September of 2010, when she accompanied victim to the house after Burklund had moved back in and that defense counsel had a copy of her statement. The trial court, thereafter, permitted her to testify as a rebuttal estified that Burklund acted aggressively toward the victim that day, and was rude to her.20 See N.T., 5/17/2012, at 53-56. was an abuse of discretion. Specifically, she contends vic question, and therefore, the opportunity to shape her testimony so as to discredit Burklund. See The trial court found Burklund was entitled to no relief on this claim: necessary. There is no evidence that Burklund was prejudiced in specific argument regarding possible prejudice was raised during statement, and therefore, her testimony on rebuttal was subject to evaluation under that prior statement. Therefore, the Court exempt from the sequestration order. Trial Court Opinion, 4/16/2013, at 23. We note Burklund does not dispute ____________________________________________ 20 During her direct examination, Burklund had testified that victim acted aggressively toward her the day he brought his mother to their house. with me and said this is my house. -155. - 26 - J-S78020-13 consistent with a prior written statement. Accordingly, we agree with the analysis of the trial court, and adopt its well-reasoned basis. In her final claim, Burklund challenges the sufficiency of the evidence disproving her claim of self-defense.21 Specifically, she argues that she was [of] enduring years of psychological, physical and even sexual abuse at the h contends the Commonwealth failed to establish she provoked the use of force since victim arrived at the house uninvited and initiated the argument that culminated in the shooting. Id. at 40. Lastly, Burklund asserts that the Commonwealth failed to establish that she would have been able to retreat safely from the argument, considering victim was twice her size. Id. Our well-settled standard of review of a challenge to the sufficiency of the evidence is as follows: As a general matter, our standard of review of sufficiency claims to the verdict winner giving the prosecution the benefit of all Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a Commonwealth v. Brewer, 876 A.2d ____________________________________________ 21 eight and nine in her appellate brief. See - 27 - -41. J-S78020-13 Commonwealth need not establish guilt to a mathematical certainty Id.; see also Commonwealth v. Aguado, 760 circumstances established by the Commonwealth need not be o be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. See Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001). Commonwealth v. Pedota, 64 A.3d 634, 636 (Pa. Super. 2013) (citation omitted), appeal denied, 74 A.3d 126 (Pa. 2013). Moreover, it is important witnesses and the weight of the evidence produced, is free to believe all, Commonwealth v. Feese, 79 A.3d 1101, 1119 (Pa. Super. 2013) (quotation omitted). Here, Burklund was convicted of first degree murder and possession of a weapon. To sustain a conviction for first degree murder, the d; (2) the accused caused the death; and (3) the accused acted with malice and the specific Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013). a firearm or other weapon concealed upon [her] person with intent to Burklund argues, however, that the shooting was justified because she acted in self-defense. Our Supreme Court explained the necessary elements - 28 - J-S78020-13 of a self-defense claim in Commonwealth v. Mouzon, 53 A.3d 738 (Pa. 2012): By way of background, a claim of self-defense (or justification, to use the term employed in the Crimes Code) defendant] reasonably believed that he was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force against the victim to prevent such harm; (b) that the defendant was free from fault in provoking the difficulty which culminated in the slaying; and (c) that the [defendant] did Commonwealth v. Samuel, 527 Pa. 298, 590 A.2d 1245, 1247 48 (1991). See also Commonwealth v. Harris, 550 Pa. 92, 703 A.2d 441, 449 (1997); 18 Pa.C.S. § 505.2 Although the defendant has no burden to prove self- burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in selfCommonwealth v. Black, 474 Pa. 47, 376 A.2d 627, 630 (1977). The Commonwealth sustains that burden of not free from fault in provoking or continuing the difficulty which resulted in the slaying; that the slayer did not reasonably believe that [he] was in imminent danger of death or great bodily harm, and that it was necessary to kill in order to save [him]self therefrom; or that the slayer violated a duty to retreat or avoid Commonwealth v. Burns, 490 Pa. 352, 416 A.2d 506, 507 (1980). Id. at 740, whether he was free Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa. Super. 2005) (citation omitted). sufficiency of the evidence in its opinion as follows: - 29 - J-S78020-13 In the instant case, considering the evidence in the light most favorable to the Commonwealth, it is clear that the Commonwealth sustained its burden of negation. The Commonwealth presented substantial evidence that Burklund w moved back into the home while victim was away at work, despite the Court Order that victim would live in the house until it was sold. Burklund also changed the locks to the home, locking victim out while he was at work, despite knowing that victim would return and would be unable to enter his home. Burklund then continued living in the home, despite the volatile situation, and in direct contravention of the Court Order. Burklund testified that she got her gun after seeing victim master bedroom. Burklund als if the gun was loaded, so she grabbed extra ammunition. Therefore, when she opened the gun up and saw the gun was loaded, she put the extra bullets in her pocket. When victim entered the house and came into the master bedroom to retrieve his uniform and clothing for his work trip an argument ensued, according to Burklund. Burklund claimed that she started to something fly by or swing by [her] head, and [she] turned and crime which appeared to have been thrown at Burklund. Burklund could not identify what the alleged object was. Burklund also testified that victim had the clothing found at the scene in his hands at the time. There was also sufficient evidence to allow a reasonable jury to find that Burklund did not reasonably believe that she was in imminent danger of death or great bodily harm. The Commonwealth established that Burklund never filed or sought a PFA order, despite the fact that she claimed the victim abused her. No filings in the divorce action between victim and Burklund mentioned the alleged physical or sexual abuse. Furthermore, Burklund exhibited no injuries on the day of the shooting. Expert testimony regarding blood spatter indicated that victim was not in an upright position when he was hit with at least the three bullets which exited his body. Further expert - 30 - J-S78020-13 testimony established that the pattern of stippling on body indicated a protective posture, as if he were trying to cover his face or head. Evidence also established that at least three of the gunshot wounds were inflicted after victim was lying face down on the carpet. Burklund also had to take the time to reload the gun after shooting victim five times, before she fired the final three shots. Given the fact that Burklund had moved back into the home in contravention of a Court Order, and had changed the locks to the home, all while her husband was away working, a jury could easily find that Burklund was not acting in a manner which rendered her free of blame. Furthermore, there was more than sufficient evidence that Burklund did not reasonably believe she was in imminent danger of death or great bodily harm. There was no evidence that victim had physically attacked her person, nor were any other guns located in the home. Given the number of times victim was shot, and the fact that Burklund felt comfortable taking time to reload her pistol with extra bullets she had previously put in her pocket, a rational jury could easily find beyond a reasonable doubt that Burklund was not acting in self[Furthermore,] Burklund testified that she retrieved the gun from her home and stuck it in her front pocket on the afternoon of the shooting, before victim had even entered the home. Given the fact that the jury rejected her self-defense theory, the jury could find that Burklund concealed the weapon on her person with intent to employ it criminally. Trial Court Opinion, 4/16/2013, at 23-25 (record citations omitted). relevant case law, we find t challenge to the sufficiency of the evidence, and we, therefore, adopt its wellorted a finding of self-defense, the jury was free to reject her testimony in whole or in part. - 31 - J-S78020-13 See Feese, supra; McClendon, supra. presented by the Commonwealth Regardless, the evidence particularly the fact that the victim was unarmed and the fact that Burklund took the time to reload her weapon and continued shooting the victim after he was incapacitated was sufficient to disprove her claim of self-defense beyond a reasonable doubt. sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/22/2014 - 32 -
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