Appeal from the Judgment of Sentence entered July 8, 2010, in the Court of Common Pleas of Luzerne County, Criminal Division, at Nos. CP-40-CR-0004155-2008.
The opinion of the court was delivered by: Strassburger, J.
BEFORE: DONOHUE, OLSON and STRASSBURGER*fn1 , JJ.
Jeremy R. Kendricks, Appellant, appeals from the judgment of sentence following his conviction of murder in the third degree.*fn2 We affirm. On September 20, 2008, Appellant was arrested and charged with criminal homicide for his involvement in the shooting death of Kirk Lipscomb (victim) at the Bull Run Tavern in Plymouth Borough, Luzerne County. Appellant filed pre-trial motions which were heard on April 6 and 8, 2010. On April 16, 2010, the trial court issued findings of fact and conclusions of law disposing of Appellant's pre-trial motions.
Trial commenced on May 3, 2010. During its case-in-chief, the Commonwealth called four witnesses, David Green (Green), Sherman Anderson (S. Anderson), Victor Anderson (V. Anderson)*fn3 , and Neil McMahon (McMahon), all of whom were eyewitnesses to the shooting. On May 7, 2010, following a jury trial, Appellant was convicted of murder in the third degree. On July 8, 2010, Appellant was sentenced to a term of not less than 240 months nor more than 480 months' incarceration. On July 19, 2010, Appellant filed post-sentence motions, which were supplemented on August 24, 2010. These motions were denied by the trial court on October 4, 2010. This timely appeal followed.*fn4
Appellant raises five issues on appeal. We have re-ordered Appellant's claims for ease of disposition.
1. Whether the trial court improperly denied [Appellant's] Motion in Limine to preclude the admission of two autopsy photographs of the [victim] in that the photographs were inflammatory and their evidentiary value was far outweighed by their prejudicial [e]ffect?
2. Whether the trial court improperly permitted the Commonwealth to introduce evidence of [Green] and [S. Anderson's] out-of-court identification of [Appellant] through the use of a photo line[-]up which [was] unduly suggestive and presented a substantial likelihood of misidentification?
3. Whether the trial court improperly permitted Commonwealth witnesses [McMahon] and [V. Anderson] to make in-court identification of [Appellant] when the in-court identification has no independent origin sufficiently distinguishable from the unlawful photo line[-]up that was presented to the witness[es] prior to the trial?
4. Whether the trial court erred in failing to charge/instruct the jury on the "unreasonable belief self-defense" section of the Standard Voluntary Manslaughter Instruction?
5. Whether the verdict was against the weight of the evidence and/or was insufficient to sustain the verdict of guilt?
The first three issues challenge the trial court's admission of certain evidence at trial. Questions of the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).
Appellant claims that the trial court erred in denying Appellant's motion in limine to preclude admission at trial of two color photographs taken during the victim's autopsy. Appellant's Brief at 19.
When considering the admissibility of photographs of a homicide victim, which by their very nature can be unpleasant, disturbing, and even brutal, the trial court must engage in a two-step analysis:
First a [trial] court must determine whether the photograph is inflammatory. If not, it may be admitted if it has relevance and can assist the jury's understanding of 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. Tharp, 830 A.2d 519, 531 (Pa. 2003) (citation omitted).
The color photographs at issue depict two separate gunshot wounds to the body of the victim. The first photograph shows gunpowder stippling around the entry of the first of two gunshot wounds; the second photograph shows the angle of a second wound to the victim's chest. In both photographs, the body has been cleaned of blood, dirt or tissue. Instantly, the trial court determined the autopsy photographs were not inflammatory and had probative value because each would aid the jury's understanding of the testimony of the forensic pathologist called at trial. Trial Court Opinion, 1/31/2011, at 7. In so holding, the trial court noted it was "satisfied that the photographs have probative value; that they are not inflammatory as such; and that the probative value would be greatly diminished were the photographs to be allowed merely in black and white[.]" N.T., 4/16/2010, at 5. Based on our review of the photographs, we agree.
The photographs at issue are relevant to enhance the jury's understanding of the location of the victim's injuries and the stippling effect on the victim's chest which shows that the victim was shot at close range. There is no suggestion that the photographs were unnecessarily gruesome or inflammatory. Thus, the trial court did not err in determining that the probative value of introducing this evidence to demonstrate that the victim was shot at close-range outweighed the potential prejudicial effect of the ...