J-S30033-20
2020 PA Super 178
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRADY COLLIN DISTEFANO : No. 1873 WDA 2019
Appeal from the Order Entered November 14, 2019
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0000416-2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JULY 29, 2020
The Commonwealth of Pennsylvania appeals the order of the Court of
Common Pleas of Indiana County granting Appellee Brady Collin DiStefano’s
motion in limine in part by precluding the prosecution from offering evidence
relevant to the causation of the death of the victim, Caleb Zweig. The
Commonwealth argues that the trial court’s pre-trial order will substantially
handicap the prosecution of this case in a future jury trial. We reverse the
trial court’s order and remand for further proceedings.
This Court previously summarized the factual background of this case
as follows:
At approximately 11:00 p.m. on Friday, February 3, 2017,
DiStefano and two of his fraternity brothers at the Indiana
University of Pennsylvania, Trevor King (“King”) and Caleb Zweig
(“Zweig”), left a house party, located on Wayne Avenue in
Indiana, to walk back to their respective homes. See N.T. [],
4/16/17, at 3-6, 25-26. King’s testimony at the preliminary
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* Former Justice specially assigned to the Superior Court.
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hearing established the following. King, Zweig, and DiStefano had
all consumed alcohol during the evening. Id. at 4-5, 7, 22-24.
DiStefano was “pretty intoxicated at the time and [exhibited]
slurred speech.” Id. at 7. King stated that Zweig “was also
intoxicated but ... not nearly as bad,” i.e., as DiStefano. Id. While
the three young men were walking on the sidewalk, King was
approximately ten feet in front of DiStefano and Zweig. Id. at 26-
27. King then heard DiStefano and Zweig “bickering a little bit”
and “arguing about something.” Id. at 6, 27.
King described what next transpired as follows:
I heard them bickering and I turned around and they were
[ ] in each other's face and like what guys do [sic], and they
had their chests puffed out a little bit[,] and [ ] not really
harming each other[,] [ ] just poking each other. I said to
quit it and turned around and kept walking. And I watched
for a few more seconds and I heard a scuffle[,] or heard
something that got my attention[,] and I turned back
around and I saw [that Zweig] was on his back[, i.e., on the
sidewalk,] and [DiStefano] [ ] had his back toward me and
was kneeling over top of [Zweig.]
…
[DiStefano] was on top [of Zweig]. [DiStefano's] knees were
on the pavement but his hands were on [Zweig's] chest area
and I didn't really see. I didn't take time to assess the
situation[,] and I ran up and separated the two. And I threw
[DiStefano] off of [Zweig].
Id. at 7-8 (footnote added, questions by the prosecutor and some
paragraph breaks omitted). King stated that DiStefano did not
resist when King physically removed DiStefano from Zweig. Id. at
9, 32; but see also id. at 31-32 (wherein King stated that “it was
pretty forceful[,] like I yanked [DiStefano] off of [Zweig]”).
…
King acknowledged that, in his police report, he had stated that
he saw DiStefano's “hands [ ] up around [Zweig's] neck or chest
area[, but] I wasn't really sure.” Id. at 9. On cross-examination,
King stated that DiStefano's “hands were on [Zweig,] but I don't
know if [DiStefano] was choking him or not[,] and [DiStefano's
hands] were up here in this area[,]” (i.e., King demonstratively
motioned to his neck area). Id. at 28. King agreed that it was
“just seconds before [King] turned around[, i.e., upon hearing the
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scuffle,] that [King] went over and [ ] helped, [and] pulled
[DiStefano] off[.]” Id. at 31. King stated that “the longest time
that I guess [DiStefano] could have had his hands on [Zweig] was
like five or six seconds tops.” Id.
King testified that the following transpired after he “threw
[DiStefano] off of” Zweig:
So[,] immediately there was probably like two or three
people that came around. [Zweig] was on his back on the
sidewalk[,] and so I knelt down and I picked him up so
[that] he was sitting up[,] and made sure he was still
breathing [ ] okay[.] [ ] I didn't check his pulse or anything
but he was visibly breathing and his chest was rising and
falling[,] and some weird noises [were] coming from his
throat. So I just thought that he was okay enough[,] so I
just held him up there. And then at that time[,] ... [the]
three [other students who] ... came from across the street
[ ] were helping me.
Id. at 9; see also id. at 36 (wherein King stated that Zweig was
“groaning at the time and moaning.”). King explained that
although Zweig was breathing at this time, he was unconscious.
Id. at 10. King and three other individuals then picked Zweig up,
carried him a few feet to lay him on the grass, and positioned him
on his side. Id. at 34-35. Someone called 911, and an ambulance
was dispatched to the scene. Id. at 11, 35.
After the ambulance arrived, King looked around to locate
DiStefano but could not find him. Id. at 11-12. Accordingly, King
began to walk back to the house that was hosting the house party
in an attempt to locate DiStefano, and spotted him trying to reenter the house from the rear stairs. Id. at 12. King stated that
the residents of the house would not permit DiStefano to enter
because the police had been called. Id. King said that he would
assist DiStefano to get back home, as he was significantly
intoxicated. Id. at 13. King testified that he noticed DiStefano had
sustained a scrape to the side of his head, but King did not know
how this had occurred. Id. at 12, 30. King eventually got
DiStefano back to DiStefano's apartment, at which time King left
and walked to his own apartment. Id. at 14.
In the meantime, the ambulance rushed Zweig to the emergency
room at the Indiana Regional Medical Center. Id. at 76. However,
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despite lifesaving efforts by medical professionals, Zweig died
shortly after arriving. Id. Zweig's body was then released to the
Indiana County Coroner's Office for an autopsy. Id.
The police officer who had received the initial dispatch on the night
of the incident, Detective John Scherf (“Detective Scherf”) of the
Indiana Borough Police Department, also testified at the
preliminary hearing. Detective Scherf stated that shortly after
Zweig's death, he conducted interviews of potential witnesses that
night. Id. at 76-77. On the morning after the incident, Detective
Scherf interviewed King at the police station, and King gave a
written and verbal statement. Id. at 78, 15-16.
The trial court described what transpired after Detective Scherf
had conducted his interviews.
[Detective Scherf] proceeded to [DiStefano's] apartment to
investigate. When Detective Scherf arrived at [DiStefano's]
apartment in the early morning hours of February 4, 2017,
a female answered the door, indicated [that DiStefano] was
sleeping inside, and that he had been injured in a fight with
someone named Caleb. Detective Scherf then applied for
and was issued a search warrant for [DiStefano's]
apartment and cellular phone[,] as well as a warrant for
[DiStefano's] person. Shortly thereafter, [DiStefano] was
transported to the Indiana Borough Police Station to be
interviewed. [DiStefano] was later charged with aggravated
assault and[,] after the receipt of Zweig's autopsy results,
with criminal homicide.
Trial Court Opinion and Order, 11/13/17, at 1-2 (footnotes added,
some capitalization omitted).
The forensic pathologist who performed the autopsy on Zweig,
Ashley Zezulak, M.D. (“Dr. Zezulak”), also testified at the
preliminary hearing. The trial court summarized Dr. Zezulak's
testimony as follows:
When asked if she was able to render an opinion on the
cause of death, she replied, “[s]omewhat of an opinion.
More from an investigative standpoint[,] seeing that I didn't
find any significant anatomical findings during the autopsy.”
([N.T., 4/16/17,] at 51[ ]). Dr. Zezulak stated that[, in her
autopsy report,] she indicated [Zweig's] cause of death was,
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“[a]sphyxiation, secondary to presumed chokehold and
chest compression.” ([Id.] at 52[; see also id. at 53-54
(wherein Dr. Zezulak explained that “[i]t is not uncommon
for us to have cases where we do not have any certain
anatomic findings[,] when we work with the police and the
coroners and the story evolves. It is more of what we call a
diagnosis of exclusion.”)]). She stated that the only trauma
she found was a scalp hemorrhage, but that it was not large
enough to have caused [Zweig's] death[.]
…
When asked about how she arrived at her opinion, Dr.
Zezulak indicated that she had relied on information given
to her by Jerry Overman [(“Overman”)], the Indiana County
Coroner. ([Id.] at 66[ ]). According to Overman, [Dr.
Zezulak recounted, Zweig] had been found unresponsive
after a physical assault. ([Id.] at 67[ ]).
Trial Court Opinion and Order, 11/13/17, at 3-4 (footnotes and
emphasis added).
Commonwealth v. DiStefano, 1785 WDA 2017, 2018 WL 5076959, at *1-
3 (Pa.Super. October 18, 2018) (unpublished memorandum) (footnotes
omitted). After the preliminary hearing, the magisterial district judge found
the prosecution had presented a prima facie case for both criminal homicide
and aggravated assault and thus, bound the charges over for court.
On September 4, 2017, DiStefano filed a habeas petition requesting that
the trial court dismiss the homicide and aggravated assault charges on the
basis that the prosecution did not have sufficient evidence to establish a prima
facie case that DiStefano committed these crimes. After a hearing, the trial
court entered an order on November 9, 2017, granting DiStefano’s habeas
petition and dismissing both charges. The Commonwealth appealed.
On October 18, 2018, this Court affirmed the trial court’s November 9,
2017 order in part in so far as it dismissed the criminal homicide charge
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against DiStefano. See DiStefano, 2018 WL 5076959, at *1-3. This Court
agreed with the trial court’s assessment that the Commonwealth failed to
present a prima facie case to support a homicide conviction as the
prosecution’s evidence only established a “tenuous inference that DiStefano
had caused Zweig’s death.” DiStefano,
2018 WL 5076959, at *7.
However, this Court reversed the trial court’s dismissal of the
aggravated assault charge, finding that the evidence of record established a
prima facie case of aggravated assault. This Court expressly found that the
evidence presented by the Commonwealth supported an inference that the
victim was knocked to the ground as a result of the altercation.
In addition, when viewing the evidence in the light most favorable to
Commonwealth, this Court found there was sufficient evidence to establish
that the victim suffered serious bodily injury and that DiStefano had met the
“recklessness” element of the aggravated assault, as his conduct “almost
assured that Zweig would sustain an injury.” DiStefano, 2018 WL 5076959,
at *7. As a result, this Court remanded for further proceedings.
Upon remand, on August 22, 2019, DiStefano filed motions in limine,
seeking, inter alia, to exclude all evidence of Zweig’s death from being
admitted as evidence at trial. On August 30, 2019, the trial court entered an
order reserving its ruling on this motion and on November 8, 2019, DiStefano
renewed his motions in limine. On November 14, 2019, the trial court entered
an order, stating in pertinent part:
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[DiStefano’s] Motion in Limine seeking to exclude evidence of the
victim’s death is granted in part and denied in part. The
Commonwealth shall be permitted to present evidence that the
victim is deceased to explain to the jury his absence at trial and
why the expert testimony from a forensic pathologist is being
presented. The homicide charge has been dismissed, therefore,
no evidence shall be permitted to prove that [DiStefano] caused
the victim’s death. If requested by the defense the Court will
instruct the jury as to the weight to be given to the victim’s death.
Order, 11/14/19, 2.
On December 12, 2019, the Commonwealth filed a notice of appeal,
certifying that the trial court’s November 14, 2019 order terminates or
substantially handicaps the prosecution of this case. See Pa.R.A.P. 311(d).
The Commonwealth raises the following question for review on appeal:
Whether the trial court erred as a matter of law and clearly abused
its discretion when it granted in part and denied in part
[DiStefano’s] Motion in Limine finding that the Commonwealth is
only permitted to present evidence of the Victim’s death to explain
his absence from trial and not to prove [DiStefano] caused the
Victim’s death when [DiStefano] is facing trial on a charge of
Aggravated Assault and death is indicative of serious bodily injury.
Commonwealth’s Brief, at 8.
Our standard of review is as follows:
when reviewing the denial of a motion in limine, we apply an
evidentiary abuse of discretion standard of review. See
Commonwealth v. Zugay, 745 A.2d 639 (Pa. [Super.] 2000)
(explaining that because a motion in limine is a procedure for
obtaining a ruling on the admissibility of evidence prior to trial,
which is similar to ruling on a motion to suppress evidence, our
standard of review of a motion in limine is the same of that of a
motion to suppress). The admission of evidence is committed to
the sound discretion of the trial court and our review is for an
abuse of discretion.
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Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa.Super. 2018) (quoting
Commonwealth v. Stokes,
78 A.3d 644, 654 (Pa. Super. 2013) (some
citations omitted)).
Specifically, the Commonwealth argues that the trial court abused its
discretion in finding any evidence relevant to the causation of the victim’s
death was irrelevant and unduly prejudicial.1 The Commonwealth asserts that
the trial court’s ruling “create[s] an unrealistic construct that handcuffs the
Commonwealth unreasonably for the duration of [DiStefano’s] trial and
sterilizes the trial in favor of [DiStefano].” Commonwealth’s Brief, at 17.
As a general rule, “the threshold inquiry with admission of evidence is
whether the evidence is relevant.” Commonwealth v. Cook, 597 Pa. 572,
602,
952 A.2d 594, 612 (2008) (citations omitted). Our rules of evidence
state that “[a]ll relevant evidence is admissible, except as otherwise provided
by law. Evidence that is not relevant is not admissible.” Pa.R.E. 402.
Pennsylvania Rule of Evidence 401 provides that “[e]vidence is relevant if: (a)
it has any tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in determining the
action. Pa.R.E. 401. Further, this Court has provided that “[e]vidence is
relevant if it logically tends to establish a material fact in the case, tends to
make a fact at issue more or less probable or supports a reasonable inference
____________________________________________
1 DiStefano’s motion in limine solely challenged the admissibility of evidence
relevant to the causation of the victim’s death on the grounds that it was
irrelevant and unduly prejudicial. DiStefano did not challenge whether Dr.
Zezulak offered proper expert testimony under Pa.R.E. 702.
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or presumption regarding a material fact.” Commonwealth v. Akhmedov,
216 A.3d 307, 316 (Pa.Super. 2019).
However, “[t]he court may exclude relevant evidence if its probative
value is outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
In resolving DiStefano’s motion in limine prior to his trial on the charge
of aggravated assault, the trial court held that the prosecution would be
permitted to offer evidence of Zweig’s death as well as Dr. Zezulak’s finding
that Zweig had suffered a scalp hemorrhage, but would be precluded from
offering evidence seeking to prove that DiStefano’s conduct caused the
victim’s death. The trial court reasoned as follows:
The record as it presently stands on this particular issue is
the exact record that existed following the hearing on
[DiStefano’s] Pre-Trial Motions. Accordingly, this is the sole
evidence that the Court was able to consider when ruling on
[DiStefano’s] Motions in Limine. To the Court’s knowledge, at no
time since the criminal homicide charges were dismissed did
District Attorney Dougherty take any further action to obtain
additional expert testimony or evidence supporting a causal
connection between [DiStefano’s] actions and Zweig’s death.
Even if the Commonwealth had medical evidence in addition to Dr.
Zezulak’s testimony, District Attorney Dougherty failed to make
any attempt to present this evidence to the Court despite being
given the opportunity to do so.
In ruling on [DiStefano’s] Motion in Limine, the Court
determined that the fact that Zweig suffered a scalp hemorrhage
was relevant to the aggravated assault charge. Introduction of
this evidence of this injury necessitates Dr. Zezulak’s testimony of
her autopsy findings. Evidence of Zweig’s death is probative
because it provides an explanation for why he will not be present
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at trial and why the testifying medical professional is a medical
pathologist. For these reasons, the Court found that the probative
value of the evidence of the fact of Zweig’s death outweighed
prejudice to [DiStefano] and was admissible.
With respect to the admissibility of evidence of causation of
death, the Court found that any probative value was outweighed
by unfair prejudice to [DiStefano]. As discussed above, Dr.
Zezulak was unable to definitively state how Zweig died and found
no physical evidence of trauma that would have been fatal. This,
along with other testimony, failed to establish that [DiStefano]
caused Zweig’s death, and led to the dismissal of the homicide
charge against [DiStefano]. Furthermore, despite having ample
opportunity to do so, the Commonwealth has failed to present any
supplemental evidence relating to the cause of death. For this
reason, it would be highly prejudicial to [DiStefano] to allow the
Commonwealth to suggest that [DiStefano’s] actions in any way
caused Zweig’s death or advance such a theory. Due to the lack
of supporting evidence on the issue, the Court does not believe it
was error to exclude evidence of causation of death.
Trial Court Opinion, 2/4/20, at 4-5.
In this case, the Commonwealth seeks to prosecute DiStefano with
Aggravated Assault under Section 2702 of the Crimes Code, which provides
that “[a] person is guilty of aggravated assault if he: [] attempts to cause
serious bodily injury to another, or causes such injury intentionally, knowingly
or recklessly under circumstances manifesting extreme indifference to the
value of human life.” 18 Pa.C.S.A. § 2702(a)(1). “Serious bodily injury” is
defined as “[b]odily injury which creates a substantial risk of death or
which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. §
2301 (emphasis added).
In addition, this Court has clarified that:
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[w]here the victim suffers serious bodily injury, the
Commonwealth is not required to prove specific intent. The
Commonwealth need only prove the defendant acted recklessly
under circumstances manifesting an extreme indifference to the
value of human life. For the degree of recklessness contained in
the aggravated assault statute to occur, the offensive act must
be performed under circumstances which almost assure
that injury or death will ensue.
Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa.Super. 2007) (en
banc) (citations and paragraph breaks omitted) (emphasis added).
We agree with the Commonwealth that evidence related to the causation
of the victim’s death is relevant to allow the factfinder to determine whether
DiStefano (1) caused the victim serious bodily injury that created a
“substantial risk of death” and (2) acted with recklessness in that his assault
of the victim was “performed under circumstances which almost assure[d]
that injury or death [would] ensue.” 18 Pa.C.S.A. § 2301; Patrick, supra.
The result of the trial court’s decision to exclude any evidence related
to the causation of the victim’s death is that Dr. Zezulak will not be permitted
to testify as to her expert opinion that the victim’s cause of death was
“asphyxiation, secondary to presumed chokehold and chest compression.”
N.T. 4/16/17, at 52.
However, we disagree with the trial court’s finding that it would be highly
prejudicial to the defense to allow Dr. Zezulak to offer an expert opinion on
causation of the victim’s death. Our Supreme Court has held “in the case of
expert testimony, [t]o be relevant, evidence need not be conclusive.”
Commonwealth v. Hawk, 551 Pa. 71, 77,
709 A.2d 373, 376 (1998)
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(quoting Commonwealth v. Crews, 536 Pa. 508, 523,
640 A.2d 395, 402
(1994)).
Our courts have reasoned that expert testimony is not rendered
inadmissible simply because the expert’s data or examination results are
inconclusive. See Commonwealth v. Minerd, 562 Pa. 46,
753 A.2d 225
(2000) (concluding trial court did not err in allowing expert to testify regarding
her inconclusive examination results of her physical examination of the child
victims); Hawk,
551 Pa. at 79,
709 A.2d at 377 (finding trial court abused its
discretion in precluding the prosecution from offering an expert’s testimony
regarding rape kit test results, stating that “[t]the inconclusiveness of the
negative test results does not render the scientist’s testimony inadmissible”).
As such, Dr. Zezulak’s opinion as to the causation of the victim’s death
is admissible evidence. The weight and persuasiveness of Dr. Zezulak’s
testimony will be for the jury to decide. It is well-established that “jurors, as
factfinders, are entrusted with the responsibility of evaluating the evidence
and rendering a decision based on the evidence presented and the inferences
deduced therefrom.” Minerd, 562 Pa. 46, 57,
753 A.2d 225, 231. The jury
will be “free to evaluate Dr. Zezulak’s testimony and accept or reject some,
none, or all of her expert opinion.”
Id. at 58,
753 A.2d at 231-232 (citation
omitted).
Moreover, in addition to this expert testimony, there is the eyewitness
testimony of King, who reported that after hearing a scuffle, he saw the victim
laying on his back while DiStefano had his knees over the victim and his hands
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on the victim’s chest area. It is within the province of the jury to make
credibility determinations on such evidence as well as with Dr. Zezulak’s
testimony.
For the foregoing reasons, we find that the lower court abused its
discretion in excluding evidence related to the causation of the victim’s death.
As such, we reverse the trial court’s order and remand for further proceedings.
Order reversed. Remand for further proceedings consistent with this
decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2020
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