Justice EAKIN.
This is a direct appeal from a death sentence imposed after a jury convicted appellant of first degree murder and abuse of a corpse.
In the early morning hours of March 1, 2007, a custodian at the Lawrence County Career and Technical Center noticed a van traveling slowly through the school's parking lot. Later that morning, a teacher at the Center found a nude body lying sideways in the parking lot, and called the police. Investigators soon identified the victim and determined she was last seen alive on the evening of February 27. Around 3:00 p.m. on March 1, a PennDOT road crew alerted State Police after discovering clothing strewn along a roadway in Butler County. State Police recovered a bra, blue jeans, a sock, a flannel long-sleeve shirt, thermal bottoms, a black slipper, a sock covered in blood, a sweatshirt covered in blood, a blood-soaked pillow, a bloodstained cover for the arm of a couch, and a blood-covered tablecloth.
Dr. James Smith, a board certified forensic pathologist, performed an autopsy on the victim's body, which revealed ten lacerations on her head and face, including two on both her left and right temple, three on the back of her head, and three on her scalp. The victim suffered a fracture at the base of her skull, a laceration of her brain, and a fracture on the back of her skull. She also had two broken ribs and bruising on her head, face, lower back, and legs. Dr. Smith determined the cause of death was blunt force trauma to the head. Because the lacerations looked identical, he opined she had been repeatedly struck with the same round object.
State Police found material under the victim's fingernails and seminal fluid on her body, which allowed them to produce a DNA profile. The profile was entered into the Combined DNA Index System, a nationwide database which includes DNA profiles of convicted felons; a database in Virginia matched the DNA profile to appellant. DNA testing further revealed the blood on the thermal bottoms and black slipper was the victim's, while blood from the tablecloth matched both the victim and appellant.
Appellant was interviewed by State Police; he denied meeting the victim or ever having her in his residence. State Police executed a search warrant of appellant's residence, and discovered a couch matching the arm cover recovered on the road. A sequin was found that matched the bra discovered along the roadway. Bloodstains were found on appellant's mattress and the floor between his bed and nightstand. State Police also executed a search warrant for appellant's van, and found the victim's blood on the driver-side door window.
Investigation revealed appellant was scheduled to work February 28, but called his employer to excuse himself; he returned to work March 1, at 2:47 p.m. The clothing, found around 3 p.m. that day, was on a route appellant could have used to get to his workplace.
When a death sentence is imposed, "this Court has an obligation to review the record to ensure the evidence sufficiently supports the first degree murder conviction and the finding of aggravating circumstances, and that the sentence was not the product of passion, prejudice, or other arbitrary factors." Commonwealth v. Dick, 602 Pa. 180, 978 A.2d 956, 958 (2009) (citing 42 Pa.C.S. § 9711(h)(3)(i)-(ii)). Appellant raises four other issues in his appeal, which we have reordered for ease of discussion: whether there is sufficient evidence to support the aggravating circumstance of torture; whether the trial court inappropriately admitted two photographs of the victim's body; whether the Commonwealth's DNA expert improperly referred to appellant's prior bad acts; and whether appellant was entitled to a voluntary manslaughter jury instruction.
When reviewing the sufficiency of the evidence for first degree murder, we are "obliged to determine whether the evidence presented at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to satisfy all elements of the offense beyond a reasonable doubt." Commonwealth v. Brown, 605 Pa. 103, 987 A.2d 699, 705 (2009) (citing Commonwealth v. Baumhammers, 599 Pa. 1, 960 A.2d 59, 68 (2008)). "To obtain a first-degree murder conviction, the Commonwealth must demonstrate that a human being was unlawfully killed, the defendant perpetrated the killing, and the defendant acted with malice and a specific intent to kill." Commonwealth v. Montalvo, 604 Pa. 386, 986 A.2d 84, 92 (2009) (quoting Commonwealth v. Kennedy, 598 Pa. 621, 959 A.2d 916, 920 (2008)). An intentional killing is a "[k]illing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(d). The Commonwealth may use solely circumstantial evidence to prove a killing was intentional, and the fact-finder "`may infer that the defendant had the specific intent to kill the victim based on the defendants use of a deadly weapon upon a vital part of the victims body.'" Brown, 987 A.2d at 705 (quoting Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 651 (2008)).
We find the Commonwealth provided sufficient evidence to prove each element of first degree murder. Appellant called off work the day after the victim was last seen. The next morning, a van was seen driving slowly through the parking lot where, a short time later, the victim's body was found. The victim's blood was found in appellant's residence and his van. Appellant's DNA was found under the victim's fingernails and on her body. Clothes and other evidence containing the victim's blood were found along a route between appellant's residence and his place of employment, shortly after he appeared for work. The tablecloth found on the side of the road was stained with the victim's and appellant's blood.
Dr. Smith, who performed the autopsy on the victim's body, testified the victim suffered from ten lacerations to her head and face caused by a round blunt object.
The trial court admitted two photographs of the victim's body lying in the parking lot where it was found. The court determined the photographs were not inflammatory because they did not accentuate the victim's injuries. Noting the photographs were taken from a distance, the court found they did not depict the victim's injuries in an unduly graphic or unfairly prejudicial manner. The court reasoned these photographs were relevant to the abuse of a corpse charge because they showed the body as it was discovered, showed the victim's injuries, and clarified witness testimony regarding the body and its location.
Appellant claims these photographs were inflammatory because they were in color and the victim's blood-covered body and face can be seen in one photograph. Appellant also contends the prejudicial effect of the photographs outweighed their probative value, as they were not useful to show the victim's injuries, and the Commonwealth did not offer any specific reason to introduce them. Appellant also alleges these photographs were merely cumulative as three witnesses testified to the condition and location of the victim's body.
The Commonwealth contends the photographs were not inflammatory because they were not close-ups of the victim's body and did not show any visible wounds. The Commonwealth argues the photographs were properly admitted, as they corroborated witness testimony regarding the condition of the victim's body and that appellant left the victim's body in the parking lot.
We will affirm a trial court's admission of photographs absent an abuse of discretion. Commonwealth v. Pruitt, 597 Pa. 307, 951 A.2d 307, 319 (2008) (citing Commonwealth v. Solano, 588 Pa. 716, 906 A.2d 1180, 1191 (2006)). Further,
Id. (quoting Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519, 531 (2003)).
While appellant claims the presence of blood in these color photographs is inflammatory, that result is not made out by the mere depiction of blood. Although "[t]he presence of blood on the victim depicted in the photographs is unpleasant, it is not in and of itself inflammatory." Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203, 217 (1997) (citing Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710, 716 (1994)). Murder evidence is not often agreeable, but sanguinity does not equal inadmissibility.
"[P]hotographic images of a homicide victim are often relevant to the intent element of the crime of first-degree
While appellant argues such evidence is cumulative, as other witnesses testified to the condition of the victim's body in the parking lot, a witness's ability to testify as to the condition of a body does not render photographs of the body inadmissible. See, e.g., id., 951 A.2d at 320 (rejecting argument that autopsy photographs were cumulative of witness testimony); Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557, 560 (1994) ("[E]ven where the body's condition can be described through testimony from a medical examiner, such testimony does not obviate the admissibility of photographs.").
The trial court reduced any potential for prejudice caused by the photographs by prohibiting them from entering the jury room during deliberations and instructing the jury it should not allow the photographs to inflame it. See Pruitt, 951 A.2d at 319 (noting appropriate instruction can minimize danger of inflaming jury). Clearly, the trial court did not abuse its discretion in admitting these photographs.
Appellant next argues the DNA expert implied he committed criminal acts in Virginia; the expert noted appellant had a matching DNA profile in Virginia, thereby improperly introducing prior bad acts evidence, he contends. The trial court granted appellant's motion in limine to exclude any reference to felons in descriptions of the DNA databases used by the Commonwealth. While the witness testified a Virginia database matched the DNA profile to appellant, the court found the expert neither referenced nor mentioned that the database contained felons' profiles. Further, the court noted appellant failed to timely object to the expert's testimony at trial.
The Commonwealth also argues appellant waived this claim by failing to make a timely objection to the testimony, and appellant concedes: "a review of the record indicates that the discussions of this matter were not preserved on the record and no timely objection was made on the record. Therefore, this issue would be deemed to be waived." Appellant's Brief, at 15. We agree. Even if the witness had mentioned the source of the Virginia profile, by failing to timely object to this testimony, appellant has waived this argument, and he cannot raise it now. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
The trial court also denied appellant's request to instruct the jury on voluntary manslaughter.
Appellant did not present any witnesses or evidence during the guilt phase, but points to the Commonwealth's evidence showing: the victim suffered numerous blows to the head; she was found in the nude; appellant engaged in sexual intercourse with the victim; blood was found on the victim's undergarments, a bedroom pillow, and in appellant's bedroom; and the victim may have engaged in acts of prostitution. Appellant claims the victim's injuries are those caused by someone in the heat of passion, and a jury could infer that he and the victim had a dispute over payment, provoking him to commit voluntary manslaughter.
When reviewing a challenge to a jury instruction, we review the charge as a whole to ensure it was a fair and complete statement of the law. Montalvo, 986 A.2d at 99 (quoting Commonwealth v. Saunders, 529 Pa. 140, 602 A.2d 816, 818 (1992)). This Court has recently explained:
Id., 986 A.2d at 100 (emphasis in original) (citations omitted). After reviewing the record, we confirm there is no evidence appellant was actually provoked, that provocation existed at the time of the murder, or that it caused him to kill the victim. Without such evidence, there is no support for a voluntary manslaughter charge. Appellant needs more than his own creativity and speculation to support the requested jury instruction, and the trial court properly denied appellant's request.
Having determined appellant's conviction should be affirmed, we proceed to the sufficiency of the evidence supporting the finding of torture, the sole aggravating circumstance supporting the death sentence and the only sentencing phase claim. The trial court concluded sufficient evidence supported the jury's finding the Commonwealth had proven the aggravating circumstance of torture. The court noted the victim was missing for over 24 hours, suggesting her injuries could have been sustained over a prolonged time period. The victim sustained ten lacerations to her head and face, at least five of which were not likely to cause death, and most of those were not likely to cause unconsciousness; thus, the court believed it was likely
Appellant argues there is insufficient evidence to support the aggravating circumstance of torture, as there is no evidence he intended to cause the victim pain separate from his intent to kill. Appellant claims the blows to the victim's head were to a vital area of her body, thus delivered with an intent to kill. Because any one of the majority of these blows could have rendered the victim unconscious, appellant suggests the victim was likely unconscious and not suffering any pain after the first blow. Appellant contends there was no evidence showing the victim's wounds were inflicted over a long time period, or that she was restrained.
The Commonwealth argues the victim suffered multiple injuries in both vital and non-vital areas of her body, including multiple non-fatal, but painful, wounds such as her broken ribs. The Commonwealth further contends because not all of the blows were fatal, the jury could have concluded the victim suffered non-fatal blows before she died. As the victim was missing for more than 24 hours, the Commonwealth claims appellant could have injured the victim over that length of time.
The problem with the Commonwealth's position is that it cannot prevail by proving what might have happened—it always has the burden to provide the existence of an aggravating circumstance beyond a reasonable doubt. 42 Pa.C.S. § 9711(c)(1)(iii). We have repeatedly explained:
Montalvo, 986 A.2d at 109-110 (quoting Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 425 (2008)) (internal citations omitted).
Although the victim was missing for more then 24 hours, there is no actual evidence regarding the duration of appellant's attack. It is possible the attack took hours, but it is equally possible it was complete in short order. There simply is no evidence to prove how long the assault lasted—there is no proof that appellant engaged in a prolonged attack or a brief intense one. The Commonwealth's burden
Moreover, there is no evidence the victim was conscious when appellant inflicted all these wounds. We previously held "[h]ow long a victim can withstand the cruel, depraved attacks of her murderer before unconsciousness overtakes the mind is not part of the Commonwealth's burden nor is such a consideration part of the aggravating circumstance under discussion." Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d 699, 709 (1989). While the jury is not obligated to conclude the first potentially fatal injury resulted in immediate death, Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 289 (2008), it is clear that "`whether the victim was conscious when the wounds were received'" is one of the factors in determining whether the torture aggravator applies. Montalvo, 986 A.2d at 110 (quoting Powell, 956 A.2d at 425). A torture aggravator is supported when there is some indication the victim was conscious, or at least could have been alive, when suffering his or her wounds. See, e.g., id. (noting medical testimony found all victim's injuries occurred while she was alive); Powell, 956 A.2d at 426 (observing defendant admitted victim was conscious during multiple beatings); Commonwealth v. Cuevas, 574 Pa. 409, 832 A.2d 388, 395 (2003) (finding witness testified victim was alive after attack); Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d 1086, 1099 (1998) (noting medical testimony indicated victim was conscious when attacked); Marinelli, 690 A.2d at 212 (accepting medical testimony that victim was conscious during beating); Commonwealth v. Stevens, 543 Pa. 204, 670 A.2d 623, 628 (1996) (relying upon medical testimony that shooting was incapable of killing or causing victim to lose consciousness).
A careful review of the record shows there was no testimony or evidence regarding the order of injuries. Further, there was no evidence as to when in the series of blows the victim lost consciousness or died, or whether she was conscious or alive during the attack. It is possible she did not die until the end—it is equally possible, however, that she expired at the outset. As the Commonwealth cannot establish which is true, there was insufficient evidence for the jury to determine the victim was conscious during the attack.
We have in other cases affirmed the torture aggravator in the absence of medical testimony showing the victim was conscious during the attack, because there was an indication the victim was alive after being bound and the manner of death included strangulation and stabbing in addition to beating. See Pagan, 950 A.2d at 289. Here, although appellant inflicted multiple blows upon the victim, he did not switch his manner of attack, and he used the same weapon, which is consistent with a concerted and efficient attack. There is no evidence the victim was bound, and none showing appellant was not content to beat the victim. See Karenbauer, 715 A.2d at 1099 (quoting Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305, 1321 (1996)) ("There must be an indication that the killer was not satisfied with the killing alone."). Just as "to read the aggravating circumstance of torture so broadly as to cover all painful demises would be contrary to the General Assembly's intent regarding aggravating circumstances," Commonwealth v. Ockenhouse, 562 Pa. 481, 756 A.2d 1130, 1136 (2000), to find this beating was torture would allow the torture aggravator to be applied to nearly all beating deaths. Such a result would be contrary to the General Assembly's intent. Accordingly, the manner of death does not support a finding that appellant intended to torture the victim.
In conclusion, our review of the record establishes sufficient evidence supports appellant's first degree murder conviction, and we reject appellant's guilt phase claims. However, we conclude the Commonwealth was unable to present sufficient evidence to prove the existence of an aggravating circumstance of torture beyond a reasonable doubt. Accordingly, we vacate the sentence of death and remand to the trial court for imposition of a life sentence. 42 Pa.C.S. § 9711(h)(4).
Judgment of sentence of death vacated; case remanded.
Jurisdiction relinquished.
Chief Justice CASTILLE, Justices SAYLOR, BAER, TODD, McCAFFERY and ORIE MELVIN join the opinion.
18 Pa.C.S. § 2503.