Appeal from the September 5, 2000 Judgment of Sentence, the October 28, 2002 Order Denying Post Sentence Motions and the January 22, 2003 Order granting permission to appeal nunc pro tunc the underlying charges in the Court of Common Pleas of Blair County, Criminal Action Number 1980 of 1998.
The opinion of the court was delivered by: Mr. Justice Eakin
CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ.
This is a direct appeal from a death sentence imposed following appellant's conviction of first degree murder, simple assault, aggravated assault, two counts of recklessly endangering another person, burglary, and criminal trespass.*fn1 At the penalty phase, the jury found two aggravating circumstances and one mitigating circumstance.*fn2
The jury found the aggravating circumstances outweighed the mitigating circumstance and imposed a death sentence for appellant's first degree murder conviction. Appellant filed post-sentence motions, which were denied. This appeal followed.*fn3 We affirm appellant's convictions and death sentence.
Tammy Mowery and her husband, James Mowery, had two children. In March, 1998, the couple separated; Mrs. Mowery began a romantic relationship with appellant and became pregnant with his child. The Mowerys reconciled in July, 1998, after which they were victims of several acts of vandalism, including the killing of the family's pet rabbit; they blamed appellant, but he was never charged. At some point, appellant moved into his mother's house, next door to the Mowerys.
In the early morning of Thanksgiving Day, November 26, 1998, Mrs. Mowery saw appellant near the lot where the Mowerys' vehicle was parked. Afterward, Mr. Mowery discovered their vehicle's tires had been flattened. Assuming appellant was responsible, the Mowerys called 911 around 4:00 a.m.; Officer Koehle of the Altoona Police Department investigated, but appellant was not interviewed or arrested.
Approximately an hour later, the Mowerys saw appellant near their property again. Mr. Mowery called 911 at 5:20 a.m. and was told the police were at another crime scene. The Mowerys went outside to confront appellant. The three argued about the tires and the unborn child;*fn4 the Mowerys told appellant they had called the police. The argument ended, and the Mowerys went inside.
A few minutes later, appellant telephoned the Mowerys. Mrs. Mowery hung up on appellant, but he called back and left a message that was ultimately deleted from the Mowerys' answering machine. Appellant then called 911 and City Hall at 5:51 a.m. to speak to the officer who had been at the Mowery home earlier; he was told a citation would be issued against him.
When Mr. Mowery saw appellant standing in the Mowerys' backyard, he contacted 911 a third time at 6:41 a.m., and was advised police would respond. Mr. Mowery called 911 a fourth time at 6:43 a.m. The tape of that call recorded Mr. Mowery's report that appellant was breaking into the Mowerys' house, shots being fired, and Mrs. Mowery screaming. The 911 operator again told Mr. Mowery the police were on the way. At 6:47 a.m., the Mowerys' answering machine recorded a call from the 911 operator.
Mrs. Mowery was the only witness to testify to the events inside the house. She testified that while appellant was breaking in, the Mowerys ran to their bedroom where their six-year-old son was sleeping. Mr. Mowery went into the closet before appellant reached the bedroom. Appellant apparently cut his hand on the door knob of the Mowerys' house, which he shot to gain entry, and his route from the back door to the bedroom was later traced by his blood stains. Mrs. Mowery, still pregnant with appellant's child, locked the door to the room and attempted to hide. Appellant broke open the bedroom door and had a brief exchange with Mrs. Mowery during which he put his gun to her head.
Appellant found Mr. Mowery in the closet and shot him four times. After emptying his pistol, he reloaded and shot Mr. Mowery once more. He then turned to Mrs. Mowery and said something to the effect of "I told you this was gonna happen." N.T. Trial, 4/13/00, at 139. As he was speaking, he gestured with the gun in his hand in the direction of Mrs. Mowery and her son. Appellant then left the room, and Mrs. Mowery called 911 at 6:49 a.m. to report her husband had been shot. At approximately the same time, the police arrived and saw appellant leaving in his Jeep.*fn5
Police followed appellant on a low-speed chase for approximately 15 minutes until he arrived at the home of his former girlfriend. With the murder weapon in his hand, appellant went to the porch and began knocking on the door. Officer Koehle ordered him to drop the gun and step away from the door. Appellant instead aimed the gun at the officers as they raised their weapons against him. Appellant remained in a standoff with the officers for approximately 30 minutes. While Officer Kimmen negotiated with appellant, appellant stated he had just "toasted a guy" and did not want to go to jail. Eventually the officer convinced appellant to give up his weapon, and police arrested him. He had the loaded murder weapon on his person along with an empty clip, approximately 60 rounds of ammunition, a Taser gun, and a can of pepper spray. After being treated at the hospital for his hand injuries, appellant was taken to Blair County Prison.
Prior to the December 2, 1998 preliminary hearing, the trial court appointed public defender John Sifford to represent appellant. Attorney Sifford reported appellant did not recall the incidents in question. During the pre-trial period, appellant was hospitalized at least twice due to prison officials' concerns about his mental health and counsel's request for a review of his competency. In March, 1999, the court appointed Attorney Thomas Hooper as defense counsel due to a conflict between appellant and the public defender's office. In February, 2000, appellant withdrew a previously filed petition for a competency determination and indicated his desire to proceed to trial.
Appellant filed a motion requesting the jury be empanelled from outside Blair County, which the trial court granted. Prior to trial, a jury for an unrelated Blair County death penalty case was scheduled to be selected in Lebanon County in April, 2000, but that defendant entered a plea, obviating the need for a trial. Appellant's trial, originally scheduled for June, 2000, was moved to April to take advantage of the already scheduled process for choosing a Lebanon County jury. The court appointed Attorney Steven Passarello, who had prepared for the other death penalty case, as co-counsel to assist Attorney Hooper, and Attorney Kirk Kling was appointed as co-counsel to prepare for the penalty phase. Both attorneys joined the case approximately one month prior to trial; both filed motions for continuances which were denied. Jury selection occurred in Lebanon County March 20 through March 24, 2000. Trial occurred in Blair County April 10 through April 19, 2000. The court sequestered the jury during the trial.
Defense counsel challenged the Commonwealth's theory of the case primarily through cross-examination, particularly of Mrs. Mowery, the forensic pathologist who performed the autopsy, and the arresting officers. The defense also presented the testimony of a neighbor who stated he heard the Mowerys arguing during the summer months of either 1997 or 1998, not on the morning of the murder, and the testimony of an investigator who created a diagram of the Mowerys' house, which was used to buttress the defense's theory of the case. Appellant did not testify.
During closing arguments, defense counsel questioned Mrs. Mowery's characterization of the marriage as "wonderful" and hypothesized that after the argument in the backyard with appellant, the Mowerys argued - possibly violently - between themselves. They posited appellant, fearing for the safety of the woman carrying his child, broke into the house by shooting the locked door. They suggested Mrs. Mowery stayed downstairs in an attempt to calm appellant down and convince appellant to give her the gun. According to the theory, Mrs. Mowery went upstairs only to find Mr. Mowery livid in response to appellant's presence in the house. Potentially fearing for her own safety, Mrs. Mowery shot Mr. Mowery. Hearing the gun fire, appellant ran up to the bedroom and broke open the locked door, not knowing who had been shot. Counsel suggested this theory explained why appellant's blood was found on a path directly from the kitchen to the bedroom rather than all over the house, which counsel suggested would be expected if appellant had been searching for the Mowerys. Counsel argued appellant picked up the gun, which Mrs. Mowery had dropped. According to counsel, Mrs. Mowery told appellant to "get out," which she was heard saying on the tape of the 911 call before the operator came on the line. Mrs. Mowery testified she had directed the comment toward her children.
Counsel also questioned the veracity of the police officers' testimony concerning appellant's alleged "I toasted a guy" confession, noting Officer Kimmen amended his report to include the confession after originally omitting it, and Officer Koehle previously testified at the suppression hearing that he could not hear the conversation between Officer Kimmen and appellant, even though at trial he testified he heard the part of the conversation containing the confession.
The jury found appellant guilty as stated above. He was sentenced to death for first degree murder, and received a consecutive aggregate sentence of 14 to 28 years imprisonment for his other convictions. On June 16, 2000, the court appointed Attorney Thomas Forr as appellate counsel. Attorney Forr filed a number of post-sentence motions. Following hearings, the trial court denied all motions. This appeal followed.
Sufficiency of the Evidence
We begin by independently reviewing the evidence to ensure it is sufficient to support appellant's first degree murder conviction. Commonwealth v. Zettlemoyer, 454 A.2d 937, 942 n.3 (Pa. 1982), cert. denied, 461 U.S. 970 (1983) (this Court undertakes review of sufficiency of evidence in every case where death penalty is imposed). When reviewing the sufficiency of the evidence, we must determine whether the evidence at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to establish all elements of the offense beyond a reasonable doubt. Commonwealth v. Bridges, 757 A.2d 859, 864 (Pa. 2000).
A person is guilty of first degree murder where the Commonwealth proves: (1) a human being was unlawfully killed; (2) the person accused is responsible for the killing; and (3) the accused acted with specific intent to kill. See 18 Pa.C.S. § 2502(a); Commonwealth v. Spotz, 759 A.2d 1280, 1283 (Pa. 2000). 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). Specific intent to kill can be inferred from the use of a deadly weapon upon a vital part of the victim's body. Commonwealth v. Fletcher, 750 A.2d 261, 267 (Pa. 2000).
At trial, the Commonwealth presented compelling evidence of appellant's guilt: eyewitnesses, circumstances, an unassailable time-line, motive, forensics, and a confession. Through the 911 tapes, a six-minute time-line was established, starting with appellant shooting his way into the home. The jury heard the 911 tape of Mr. Mowery yelling that appellant was shooting his way into the home; the shots and Mrs. Mowery's screams were audible. Appellant's blood was tracked from the back door to the bedroom where the Mowerys fled. Mrs. Mowery testified appellant broke into the bedroom where she, her husband, and her six-year-old son were attempting to hide, waved the gun in their direction, and once he found Mr. Mowery in the closet, shot him repeatedly, and reloaded before shooting him again. Appellant changed the clip to reload the gun; his blood was found inside the gun. Appellant shot Mr. Mowery three times in the back and twice in the head. The six-minute time-line concluded with Mrs. Mowery calling 911 to tell the operator her husband had just been shot; at the same time, police arrived to see appellant leaving the scene. After a low-speed chase and a 30-minute standoff during which appellant stated he just "toasted a guy" and did not want to go to jail, appellant was apprehended with the murder weapon, a Taser gun, pepper spray, 60 rounds of ammunition, and the empty clip on his person.
This evidence, and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth, supports appellant's first degree murder conviction. Mr. Mowery was unlawfully killed; there is nothing in the record to support the legal justification for use of deadly force against him. Mrs. Mowery's testimony, as well as the other evidence, including the confession, identified appellant as the person responsible for deliberately shooting Mr. Mowery. Appellant shot Mr. Mowery three times in vital body parts, reloaded, and shot him again; the evidence supports the jury's finding of a specific intent to kill. See 18 Pa.C.S. § 2502(d); Spotz, at 1283; Fletcher, at 267.
In reaching the verdict, the jury was free to weigh and reject the questions trial counsel raised concerning Mrs. Mowery's and the police officers' credibility.*fn6 We will not disturb the jury's credibility determinations. See Commonwealth v. Simmons, 662 A.2d 621, 630 (Pa. 1995) (assertion that inconsistencies rendered witness not credible meritless because credibility is for jury to determine).
Turning to appellant's other claims, we note he separates the issues into three categories:*fn7 due process, trial error, and ineffective assistance of counsel. We will address them in turn, reordering the issues within these categories where appropriate for ease of discussion.
Appellant alleges several due process violations, relying on the Fifth Amendment of the United States Constitution*fn8 as well as Article 1, § 9 of the Pennsylvania Constitution.*fn9 A "due process inquiry, in its most general form, entails an assessment as to whether the challenged proceeding or conduct 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental' and that 'define[s] the community's sense of fair play and decency.'" Commonwealth v. Kratsas, 764 A.2d 20, 27 (Pa. 2001) (citation omitted). While not capable of an exact definition, basic elements of procedural due process are adequate notice, the opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case. Commonwealth v. Thompson, 281 A.2d 856, 858 (Pa. 1971).
Appellant alleges co-counsel had insufficient time to prepare for trial. Specifically, he argues the following violated his due process rights: Attorney Passarello was appointed 12 days before jury selection, Attorney Kling was appointed five days before jury selection, and requests for continuances by Attorneys Kling and Passarello were denied; newly appointed counsel had little time to prepare forensic, ballistic, and mitigation experts and investigators to develop effective expert testimony; and the trial was moved forward from June to April, resulting in incomplete defense investigations before trial. Because these issues are intertwined, we combine their discussion.
Appellant notes the American Bar Association (ABA) guidelines recommend two qualified trial attorneys should represent the defendant in death penalty cases. Appellant's Brief, at 22 (citing ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 2.1). This Court has never endorsed or adopted the ABA guidelines in full. Williams, at 527 n.6 (Saylor, J., dissenting). We do not do so now. Appointment of additional counsel is not a right; it is within the trial court's discretion. Commonwealth v. Champney, 832 A.2d 403, 414 (Pa. 2003) (citation omitted) (holding one attorney was sufficient to try entire capital case). Appointment of counsel must be made at such time as to provide counsel with adequate time to prepare for trial; however, mere brevity of time to confer with counsel before trial does not constitute ineffective assistance. Commonwealth v. Ford, 421 A.2d 1040, 1042 (Pa. 1980) (citing Commonwealth v. Hill, 301 A.2d 587 (Pa. 1973)); see also Commonwealth v. Williams, 950 A.2d 294, 313 (Pa. 2008) (noting short amount of time to prepare for trial is not per se ineffectiveness).
Due process requires appellant be provided counsel, and Attorney Hooper was qualified to serve in that capacity. Attorney Hooper was appointed over a year prior to trial.
Not one but two more attorneys were appointed to assist Attorney Hooper. Attorney Passarello testified at the post-trial motions hearing that he was prepared for trial, and having more time would not have changed the defense. N.T. Post-Trial Motions, 5/3/01, at 182, 203. Attorney Kling was appointed to handle only the penalty phase; he was present during jury selection and the entire guilt phase. Attorney Kling's mitigation expert discovered no mitigating circumstances; counsel was aware of this nearly three weeks prior to the penalty phase. The problem was not lack of time; it was the lack of mitigation discovered by the expert. See Trial Court Opinion, 10/29/02, at 18. As due process was satisfied by appointing Attorney Hooper, appointing additional counsel closer to the time of trial cannot be construed as a denial of due process. See id., at 17.
With respect to a continuance, "[t]he denial of a request for a continuance is within the sound discretion of the trial court and will not be reversed absent a showing of an abuse of discretion." Commonwealth v. Busanet, 817 A.2d 1060, 1076 (Pa. 2002). In determining whether denial of a continuance in a criminal case was an abuse of discretion, we consider the nature of the crime and the attending circumstances. Commonwealth v. Scott, 365 A.2d 140, 143 (Pa. 1976). We also have regard for the orderly administration of justice and the criminal defendant's right to have adequate time to prepare a defense. Commonwealth v. Crews, 640 A.2d 395, 403 (Pa. 1994).
Attorney Hooper had more than a year to prepare, and the case was dated when the continuance was requested.*fn10 Trial Court Opinion, 10/29/02, at 45. The trial court noted, "We had no reason in the world to believe it was not in the best interest of [appellant], the Commonwealth, the witnesses, the victims, and our limited court resources to accomplish this trial during this time frame." Id. Nothing in the record suggests the defense investigators were unable to complete their work prior to trial. Id., at 28. The experts, whom counsel chose not to call at trial, could not contradict the Commonwealth's version of the shooting to a reasonable degree of medical certainty;*fn11 more time to review the medical evidence would not have changed this damning fact. Id., at 22. Thus, appellant does not establish the trial court abused its discretion in denying the continuance.
Appellant next claims his due process rights were violated because he had insufficient preparation time with counsel before his preliminary hearing. He claims the time he spent with Attorney Sifford the day of the hearing was inadequate to prepare him for it. Pennsylvania Rule of Criminal Procedure 122 requires counsel be appointed prior to the preliminary hearing to all defendants without financial resources or who are otherwise unable to employ counsel. Pa.R.Crim.P. 122. Due process requires counsel be provided at all "critical stages" of a criminal prosecution. Coleman v. Alabama, 399 U.S. 1,7 (1970). A "critical stage" is one in which the accused's substantive rights may be affected. Commonwealth v. D'Amato, 856 A.2d 806, 821 (Pa. 2004). Neither the Rules of Criminal Procedure nor due process requires the appointment be made within a specific amount of time prior to the preliminary hearing, and appellant offers no authority for this proposition.
Here, counsel was appointed just prior to the December 2, 1998 hearing; although appellant could have requested counsel as early as Monday, November 30, 1998, the first business day after his arrest, he waited until the day of the hearing to request representation. Trial Court Opinion, 10/29/02, at 8. Further, as Attorney Sifford testified, appellant had no memory of what occurred the day of the incident. N.T. Post-Trial Motions, 5/2/01, at 49, 53, 56. Thus, any potential conversations between his arrest and the date of the preliminary hearing would have been fruitless. Furthermore, appellant does not claim any specific prejudice resulting from lack of a longer meeting with Attorney Sifford. We perceive no due process violation.
Appellant also argues his due process rights were violated when, on three occasions prior to trial, the trial court denied his request to appoint new counsel because of Attorney Hooper's refusal to communicate with him.*fn12 Pennsylvania Rule of Criminal Procedure 122(C) provides "[a] motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons." Pa.R.Crim.P 122(C). To satisfy this standard, a defendant must demonstrate he has an irreconcilable difference with counsel that precludes counsel from representing him. Commonwealth v. Spotz, 756 A.2d 1139, 1150 (Pa. 2000) (citing Commonwealth v. Tyler, 360 A.2d 617, 619 (Pa. 1976)). The decision whether to appoint new counsel lies within the trial court's sound discretion. Id. (citing Commonwealth v. Segers, 331 A.2d 462, 465 (Pa. 1975)).
Appellant asserts he and Attorney Hooper had irreconcilable differences, alleging a breakdown in communication between May and November of 1999. Attorney Hooper testified at the post-trial motions hearing that appellant met with him at least 12 times during that period, including at an arraignment in June, during numerous meetings regarding prison treatment, at a psychiatric evaluation in August, and at a hearing to discuss his transfer from county prison. N.T. Post-Trial Motions, 5/2/01, at 69-95. The trial court found appellant's claim was not credible because many of these meetings involved court appearances or were otherwise documented. Trial Court Opinion, 10/29/02, at 15. The court further noted any "communication breakdowns" stemmed from appellant's lack of cooperation and refusal to follow counsel's advice. Id. As appellant failed to demonstrate irreconcilable differences between Attorney Hooper and himself, the trial court did not abuse its discretion in denying appellant's request for change of counsel.
Appellant also argues the following violated his due process rights: the trial court rushed jury selection and forced counsel to exclude potentially favorable jurors without an effort at rehabilitation; appellant was incarcerated from November 26 through December 2, 1998, prior to his preliminary hearing, without having the opportunity to speak to counsel; he was denied the opportunity to meet with counsel between December 2 and December 21, 1998, while at SCI Camp Hill for a mental health evaluation; and Attorney Hooper filed pre-trial motions without consent by or discussion with appellant. These remaining claims are included in summary fashion in appellant's list of due process issues, but he does not include any argument supporting these claims in the body of his brief, and offers no authority supporting his proposition that a new trial is necessary. It is not our obligation to formulate appellant's arguments for him; these claims are dismissed.*fn13
This Court has long held "[a]lthough a perfectly conducted trial is indeed the ideal objective of our judicial process, the defendant is not necessarily entitled to relief simply because of some imperfections in the trial, so long as he has been accorded a fair trial. 'A defendant is entitled to a fair trial but not a perfect one.'" Commonwealth v. Martinolich, 318 A.2d 680, 695 (Pa. 1974) (quoting Hill, at 590); see also Michigan v. Tucker, 417 U.S. 433, 446 (1974); United States v. Lane, 474 U.S. 438, 445 (1986). If a trial error does not deprive the defendant of the fundamentals of a fair trial, his conviction will not be reversed. Commonwealth v. Ravenell, 292 A.2d 365, 369 (Pa. 1972) (citing Commonwealth v. Lopinson, 234 A.2d 552, 565 (Pa. 1967)); Commonwealth v. Thomas, 189 A.2d 255, 261 (Pa. 1963). We are aware appellant's trial was not perfect, but our species itself is not perfect; our review is not to measure perfection. Based on our examination, however, we are convinced appellant received a fair trial, and all errors are harmless in light of the overwhelming evidence of guilt.
Appellant first argues he is entitled to a new trial because the trial court erred in denying his continuance requests. Appellant does not offer additional authority or argument, but simply refers to the due process argument he already presented. See Appellant's Brief, at 36. As previously noted, the trial court did not abuse its discretion in refusing to grant a continuance. See supra, at 11-12.
Appellant argues the trial court erred in allowing the Blair County District Attorney's Office to proceed because of a conflict of interest. In spring, 1998, Attorney Catherine Miller assisted in representing appellant in civil matters, and Mrs. Mowery accompanied appellant to a meeting with Attorney Miller. Later that year, Attorney Miller became an assistant district attorney for Blair County. Once appellant was arrested for the murder, Attorney Miller immediately notified the district attorney she could not be personally involved in this case. See Trial Court Opinion, 4/27/00, at 2. The trial court found Attorney Miller did not disclose any information to the district attorney's office of any knowledge she had of appellant, and her only involvement with appellant's case was purely ministerial, having recused herself from representing the Commonwealth in this matter. Id., at 2-3.
"[A] prosecution is barred when an actual conflict of interest affecting the prosecutor exists in the case; under such circumstances a defendant need not prove actual prejudice in order to require that the conflict be removed." Commonwealth v. Eskridge, 604 A.2d 700, 702 (Pa. 1992). The trial court conducted an in-depth review under the Rules of Professional Conduct and determined there was no conflict of interest. See Trial Court Opinion, 4/27/00, at 3 (conducting analysis under Pa.R.C.P. 1.6-1.11). The trial court found Attorney Miller's only involvement with appellant's case was in answering a phone call and providing the district attorney a message concerning the deadline for production of crime lab reports. Id., at 2. The trial court found appellant failed to demonstrate any conflict and denied the request for recusal. Id., at 5. Appellant does not allege any facts to rebut the trial court's finding; he merely offers bald assertions the trial court abused its discretion. As we find no such abuse, this issue is meritless.
Appellant next argues the trial court erred in failing to provide him with a transcript of jury orientation, at which he and his counsel were not present. Several jury orientations were held at the start of each day of the week-long voir dire, covering general information such as trial structure, daily schedules, and general definitions of the crimes involved. Appellant claims "numerous references were made [during voir dire] to the [c]court having off the record discussions with members of the jury panel for which neither [a]ppellant nor his counsel were present[,]" Appellant's Brief, at 34; thus, he argues he has a right to a complete trial transcript, which should include jury orientation. He also argues orientation was a critical phase of the trial, making it reversible error for him not to be present.
Although this Court has not held jury orientation is a non-critical phase of trial, other courts have so ruled. See, e.g., State v. Delgado, 513 A.2d 701, 704 (Conn. App. Ct. 1986); Gattis v. State, 637 A.2d 808, 812 (Del. 1994), cert. denied, 513 U.S. 843 (1994). Here, appellant and his counsel were invited to attend jury orientation, but chose not do so until the third day of voir dire, when the trial court required counsel attend; as the voir dire questions were repeating the information presented at orientation, it was the trial court's hope that this would allow voir dire to move more expediently. See Trial Court Opinion, 10/29/02, at 48-49. The trial court noted, "The jury orientations in our county are never matters of record. That has been true for the entire 30 years I have been a member of the trial bar, [p]ublic [d]efender's [o]ffice, and [c]court of this [c]county. If this is an error, we have never conducted an appropriate trial." Id., at 48. Furthermore, "[n]o one was denied the opportunity to be present. Nothing was done without counsel and [appellant] being completely aware of it. No one, counsel or [appellant], was excluded from anything .. Counsel heard (ultimately) the entire orientation because we required it. No objection was made." Id., at 49 (emphasis in original). Appellant offers no authority supporting how failure to attend jury orientation prejudiced him. Accordingly, no relief is due.*fn14
Appellant next argues the trial court erred in denying his request for instantaneous transcripts of Dr. Cottle and Mrs. Mowery's trial testimony so defense expert Dr. Williams could review it. This issue is presented in summary fashion in appellant's brief; he does not develop argument on it or reference where this request was made in the record. For these reasons alone, this claim fails.
Appellant next argues he is entitled to a new trial because the trial court erred in admitting evidence of the blood swabbed from his hands at the hospital. On the day of the murder, while appellant was under arrest, police took him to the hospital for treatment of his injured hands. Without obtaining a warrant, a police officer swabbed blood from appellant's hands and, upon appellant's admission to the hospital, took possession of his bloody clothing. Appellant argues this evidence was collected without his knowing, intelligent consent, and without a warrant; therefore, the seizure was unlawful, and the trial court should have suppressed the evidence. Appellant offers no authority supporting his proposition that a new trial is necessary under these facts, and merely refers to the Fourth Amendment and Article I, § 8's warrant requirement. See Appellant's Brief, at 36-37 (citing U.S. Const. amend. IV; Pa. Const. art. I, § 8).
The standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the record supports the factual findings and whether the legal conclusions drawn from those facts are correct. Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003). A warrantless search or seizure is per se unreasonable unless it falls within a specifically enumerated exception. Commonwealth v. Wright, 742 A.2d 661, 664 (Pa. 1999) (citing Katz v. United States, 389 U.S. 347, 357 (1967)). Of course, probable cause must first be established:
[O]nly in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a warrantless search.
Thus, a dual inquiry, both parts requiring affirmative answers must be made: first, whether there existed probable cause to search; and secondly, whether exigent circumstances can be found to excuse the obtaining of a warrant. ...