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Appeal from the Judgment of Sentence June 8, 2011 In the Court of Common Pleas of Franklin County. Criminal Division at No(s): CP-28-CR-0001229-2010. Before WALSH, J.
David J. Foster, Lemoyne, for appellant.
Zachary I. Mills, Assistant District Attorney, Chambersburg, for Commonwealth, appellee.
BEFORE: BENDER, P.J., GANTMAN, J., PANELLA, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J., OTT, J., and WECHT, J. OPINION BY PANELLA, J. Gantman, J., concurs in the result. Wecht, J., concurs in the result.
Appellant, Gerald Travis Buterbaugh, appeals from the judgment of sentence arising from a conviction of third-degree murder. We granted en banc review to determine, among other things, whether an automobile constitutes a deadly weapon for purposes of the deadly weapon sentence enhancement. See 204 Pa. Code § § 303.10(a), 303.17b. Because we conclude that it does, and that Appellant's remaining issues do not merit relief, we affirm.
The trial court set forth the relevant facts and procedural history as follows.
This case concerns the murder of Dale Steven Henry, whom [Appellant] struck and killed with his pickup truck on May 31, 2010. The events leading up to Henry's murder begin on the afternoon of May 30. [Appellant] and some friends, including Shane Waters and Nathan Souders[,] were riding four-wheel all-terrain vehicles, or " four-wheeling," at the Waters family farm near Burnt Cabins, in Fulton County. They started at around 5:00 or 6:00 p.m.
By all accounts, [Appellant] was a family man. He had no history of violence, and he had no prior criminal history
to speak of - only a few DUIs and minor offenses. Though [Appellant] had been a heavy drinker in the past, he quit drinking about ten years prior to the incident. On May 30, 2010, however, he was drinking. At trial, [Appellant] said [he] had a " couple of beers," admittedly a bad decision. He told State Police that he drank approximately six beers while four-wheeling that day.
Later that night, [Appellant] suggested to Souders and Waters that they have a drink at the Hillside Tavern, which is on the road between Burnt Cabins and Fannettsburg, on the Franklin County Side of Tuscarora Mountain. They left and drove over the mountain to the bar in [Appellant's] 1986 Ford pickup truck.
The three arrived at the Tavern a little after 1:00 a.m. [on] the morning of May 31, went inside, and ordered a round of drinks. Inside the bar, Souders saw a woman named Jocelyn Gamble he thought he knew and went to talk to her. It is unclear how many people were at the Hillside Tavern. Souders said there were " six or eight[; ]" a bystander said, " less than ten."
Also in the bar was Dale Steven Henry, a 32-year-old white male. He had been drinking a good bit and was drunk at the time -- his blood alcohol content, drawn at 4:05 a.m. was .18%. Henry had not been using any illegal drugs, his history of drug abuse notwithstanding. Waters, who testified for the defense, said that Henry was belligerent. Another bystander testified that Henry was also talking to Ms. Gamble.
While Souders was conversing with his friend, [Appellant] drank two more beers. Souders talked to another woman, named " Courtney," which apparently agitated some of the other six to eight people inside. There is some suggestion that Souders was rude to the woman. At any rate, a confrontation between Souders and the other occupants ensued. The agitators " jumped" Souders and hit him in the back of the head with a beer bottle. Because of the ruckus, the bartender ordered everyone to leave the bar. The people inside complied. [Appellant] and Shane Waters were the last two to leave.
[Appellant] was not involved in the altercation inside the bar. He did not strike anyone and no one hit him. [Appellant] was not involved when the fight spilled outside either, and no one stopped him from going to his truck. There is no evidence that Henry attacked or threatened [Appellant]. Neither did anyone hit Shane Waters.
Souders, on the other hand, was struck again by an unknown assailant, once everyone was outside the bar. According to Waters, Henry was one of the people who attacked Souders, but Souders could not identify Henry as an assailant. [Appellant] also did not know whether Henry assaulted Souders. [Appellant] did not stop to assist Souders, but went straight to his truck, got in and started the engine. Shane Waters pulled Souders away from the fracas and they both got into the truck, Souders in the middle, and Waters in the right passenger seat. In the fight, Souders got a black eye, and a small cut and a bruise to the back of his head. According to [Appellant] and Waters, the angry throng began to throw objects at the truck: beer bottles, rocks, and a pool cue. When the police inspected the scene outside the Tavern, however, they recovered only one broken beer bottle,
no rocks, no pool cue sticks, and no other weapons of any kind.
[Appellant] backed his pickup out onto the road. It stalled and he restarted it, and shifted into forward, pointing toward the road going over the mountain. [Appellant] told police that he was angry and that he revved his engine and spun the tires to try to scare the people outside of the bar. [Appellant] hit the gas and sped forward at " a fairly rapid rate of speed" and accelerated as fast as he could toward Henry. At that time, Henry was standing near the white fog line of the road. Henry had nothing in his hands, and he was not making threatening gestures toward the truck. Henry did not make any sudden movements, and he did not jump in front of the truck. [Appellant] testified that it looked like Henry was throwing something at the truck.
Just before impact, Waters exclaimed, " whoa, there's a guy!" [Appellant] hit Henry head-on, on the passenger side of the front of the truck. The Commonwealth's accident reconstruction expert conducted tests and determined that the truck's speed at the time of impact was 17 miles per hour. The expert also concluded that the truck was travelling at its maximum potential speed when it hit Henry. Both the accident reconstruction expert and the forensic pathologist testified that the speed of impact was sufficient to cause death.
[Appellant] did not apply the brakes, and he did not swerve to avoid Henry. Nathan Souders testified that if he were driving, he thought he could have avoided hitting Henry. In his statement to police, Shane Waters said that " [Henry] could have been avoided," though he later attempted to qualify that statement at trial. Waters also admitted [Appellant] could have avoided the collision if he had applied the brakes instead of accelerating.
For his part, [Appellant] later gave a statement to Trooper Michael Dick and Corporal Paul McMullen at the Pennsylvania State Police Barracks in McConnellsburg:
Q. [Prosecutor] All right. Now, did [Appellant] express any words concerning - to show his anger? Did he describe to you how he felt at the time?
A. [Trooper Michael Dick] He said he was pissed.
Q. And then what did he tell you happened?
A. He said as he's driving, he pulls out onto the road. Now he's angry. He sees someone standing right along the white fog line, and he said he's pissed. He goes, " I'm driving at him. I'm trying to scare him, because I'm trying to push him off the road." Those are his words. " I'm trying to push him off the road." And then he goes, " I may even give a little jerk," and he motions with the steering wheel, a little jerk to the right. He was trying to scare him, he said, and then he struck the victim.
Q. Now, did you specifically ask him whether or not he saw that person on the white fog line?
A. Yes. I asked that question. He said he did see them. In fact, he was trying to scare them.
Q. Now, did Corporal McMullen ask [Appellant] what was going through his mind as he hit that person?
A. Yes, he did.
Q. And what was [Appellant's] response?
A. " Kiss my ass."
[Appellant] sped up the mountain road. He told Souders that he " wanted
to go back and fly through them and get some more." He did not, however, return to the Tavern, because the pickup was being followed. [Appellant] was eventually able to lose the pursuers.
Responding emergency personnel found [Henry] lying face-up on the white fog line of the roadway. He was severely injured. Henry was evacuated by helicopter to Altoona Trauma Center, and he arrived there at 3:56 a.m. on May 31. The treating doctors were of the opinion that Henry's injuries were hopelessly fatal, and they pronounced him dead later on the same day at 2:10 p.m.
The cause of Henry's death was multiple blunt force trauma caused by the collision. The forensic pathologist testified that fatal collision to Henry occurred at a low speed and it is " well-documented that low speed impacts can cause death."
Meanwhile, [Appellant] returned to Jonathan Clark's house to have Souders' injuries attended to. The impact with Henry's body damaged the hood and front radiator grill of the pickup. Afraid that the people from the Tavern were still looking for them, [Appellant] and Waters tried to find a replacement hood for the pickup.
State police canvassed the area, looking for [Appellant] and the pickup truck. Two troopers went to his home, but nobody was there. After contacting [Appellant's] family members, troopers were able to have him voluntarily go to the McConnellsburg Barracks later on the night of May 31. [Appellant] drove his pickup to the Barracks, with a new hood on it. The old, damaged hood was in the bed. After his interview, [Appellant] was not arrested, and State Police continued their investigation. On June 8, 2010, they filed a criminal complaint against [Appellant] charging him with one count of criminal homicide and took him into custody.
[Appellant], represented by Christopher Sheffield, Esq., pleaded not guilty. After a four-day trial, the jury returned a verdict of not guilty on the count of first-degree murder and guilty on the count of third-degree murder.
Due to the gravity of the case and the issues involved, the [trial court] held a special sentencing hearing on June 8, 2011. The [trial court] received statements from the victim's and [Appellant's] friends and family. The [trial court] also received 93 [statements] supporting [Appellant]. [The trial court] determined that the deadly weapon used enhancement applied, and [the trial court] sentenced [Appellant] to 15 to 40 years of incarceration, a standard-range sentence.
Trial Court Opinion, 11/14/11 at 1-8 (original footnotes and citations to the record omitted).
Appellant retained new counsel, David J. Foster, Esq., and filed a timely post-sentence motion. In that motion, Appellant argued that the sentence imposed was manifestly excessive, the evidence was insufficient to sustain the verdict, the verdict was against the weight of the evidence, as well as six additional evidentiary errors. The trial court also granted Appellant's requested leave to file supplemental post-sentence motions to allow additional time to review the trial and sentencing transcripts.
Appellant filed a timely supplemental post-sentence motion raising claims of ineffective assistance of counsel (" IAC" ) as well as challenges to the jury charge. Seeking to pursue his IAC claims on direct appeal, Appellant filed a Waiver of PCRA Rights to Allow Ineffectiveness Claims on Post-Sentence Motions and Direct Appeal. See Commonwealth v. Holmes, 79 A.3d 562, 563-564 (Pa. 2013) (the trial
court has discretion to allow a defendant to litigate multiple or prolix claims of ineffectiveness on post-trial motions and direct appeal where good cause is shown and the defendant knowingly and expressly waives PCRA review). The trial court held a hearing that addressed both Appellant's original and supplemental post-sentence motions. After additional briefing, the trial court denied the motions. Appellant filed a timely notice of appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.
On November 5, 2012, a panel of this Court vacated the judgment of sentence and remanded the matter to the trial court for re-sentencing. The Commonwealth subsequently filed an Application for Reconsideration En Banc, which we granted.
Appellant raises eight (8) issues for our review:
I. Whether [trial counsel] was ineffective for failing to introduce evidence of the victim's violent and aggressive character through his criminal record and specific instances of conduct?
II. Whether the [trial] court erred in failing to charge the Appellant's jury on causation in any manner with respect to criminal homicide as the defense had requested and whether [trial counsel] was ineffective for failing to object?
III. Whether the [trial] court gave a prejudicial charge on the element of malice by giving and emphasizing specific instances of evidence tending to support a finding of malice while failing to give specific instances of evidence tending to negate the element of malice on the Appellant's part and whether [trial counsel] was ineffective for failing to object?
IV. Whether the [trial] court gave an incomplete, misleading and prejudicial instruction on voluntary manslaughter as it related to " circumstances reducing it from murder to manslaughter" and [trial counsel] was ineffective for failing to object?
V. Whether [trial counsel] failed to object to the improper and prejudicial questioning of prosecution witness Nathan Souders and the court erred in refusing to permit the defense to impeach his testimony through the testimony of Keri Clark and to adduce evidence of his injured, inebriated condition through the testimony of Rodney Waters?
VI. Whether [trial counsel] failed to object to the wholesale admission of Appellant's criminal record through the affiant, which record (with one exception) did not involve dishonesty or false statements and all but one of the convictions was more than 10 years old, and thus its admission was irrelevant and highly prejudicial?
VII. Whether the [trial] court erred in applying the deadly weapon enhancement to the Appellant's sentence by finding that the vehicle involved was an " instrumentality[?]"
VIII. Whether the [trial] court abused its discretion and imposed a manifestly excessive sentence by imposing a minimum sentence of 15 years, which includes a deadly weapon enhancement, and a maximum sentence of 40 years, which is the statutory maximum sentence for third-degree murder, in violation of the sentencing code?
Appellant' Brief at 5-6.
We address Appellant's arguments in order, with the exception of the final two
arguments, which we will transpose for ease of disposition. We begin with Appellant's properly preserved six (6) IAC arguments.
Appellant bears the burden of establishing ineffectiveness because the law presumes that counsel provided effective representation. See Commonwealth v. Faulk, 2011 PA Super. 76, 21 A.3d 1196, 1200 (Pa. Super. 2011). To meet this burden, Appellant must establish by a preponderance of the evidence that " (1) [the] underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his [client's] interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different."  Id. (citation omitted). Counsel's effectiveness " cannot be evaluated in hindsight but must be examined in light of the circumstances at the time." Commonwealth v. Hardcastle, 549 Pa. 450, 701 A.2d 541, 547 (Pa. 1997). Appellant's failure to establish any of the aforementioned elements is fatal to his ineffectiveness of counsel claim. See Faulk, 21 A.3d at 1200.
Appellant's defense at trial was homicide by misadventure. He claims the incident was an accident caused by Henry's role as the primary aggressor. Appellant's Brief at 32. Appellant sought to buttress this defense by demonstrating that Henry had a history of violent and aggressive behavior by introducing Henry's criminal record for assault and retaliation against witnesses through the testimony of Trooper Jason Cachara. See Reproduced Record  [" R.R." ] at 111a, 436-437. The Commonwealth objected to the testimony based on the lack of a self-defense claim. See id. at 112a, 438. The trial court ruled that Trooper Cachara could not testify as to Henry's criminal record, see id. at 119a, 467-468, finding that " Henry's criminal history was irrelevant to Appellant's ...