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Commonwealth v. Berry

Superior Court of Pennsylvania

August 31, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
KEITH LAMONT BERRY, Appellant

         Appeal from the Judgment of Sentence December 19, 2016 In the Court of Common Pleas of Northumberland County Criminal Division at No(s): CP-49-CR-0000595-2015

          BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.[*]

          OPINION

          DUBOW, J.

         Appellant, Keith Lamont Berry, appeals from the Judgment of Sentence entered by the Northumberland County Court of Common Pleas following his convictions after a jury trial of Robbery, Theft by Unlawful Taking, Receiving Stolen Property, and two counts of Simple Assault.[1] After careful review, we affirm.

         The underlying facts, as gleaned from the certified record, are as follows. On May 5, 2015, the victim, Mary McGinley, reported an assault to police. Mt. Carmel Borough Police Officer Matthew Dillman responded to the reported assault at the home of the victim's aunt at 131 West Third Street in Mount Carmel, Pennsylvania. Upon arriving at that location, Officer Dillman encountered the victim, who stated that Appellant had punched her in the face inside Appellant's residence at 24 East Second Street, also in Mount Carmel. The victim also reported that Appellant had taken her cell phone when she tried to call police for help. Officer Dillman observed fresh and dried blood on the victim's shirt and chest area, an open wound across the bridge of the victim's nose, a swollen bump on the side of the victim's forehead, and the victim's twisted nose. Officer Dillman called for an ambulance.

         Approximately 30 minutes after responding to the home of the victim's aunt, Officer Dillman traveled to Appellant's residence. When he knocked on the door, there was no answer. Later that evening, Officer Dillman returned to Appellant's home with Corporal David Donkochik and several other officers. Appellant's wife, Anna Marie Soto, answered the door. When the officers explained that they were looking for Appellant, Soto claimed that she did not know Appellant's location. During their conversation with Soto, Corporal Donkochik and Officer Dillman observed droplets, which appeared to be blood, on the tile floor next to a mop and bucket eight feet inside the front door in the same location where the victim stated that Appellant had punched her in the face. The officers photographed the blood droplets and left Appellant's home.

         Shortly thereafter, the officers learned of Appellant's whereabouts and responded to 50 North Maple Street in Mount Carmel. The officers entered the apartment and discovered Appellant hiding in the bathroom with Soto. Appellant was crouching in the shower with the shower curtain closed. Police arrested Appellant and charged him with the above offenses.

         On October 26, 2016, the day before trial, Appellant filed and litigated a Motion in Limine seeking to preclude "[a]ny reference, at any stage of the trial, to the substance being found on the floor of [Appellant's] apartment, as 'blood.'" Appellant's Motion in Limine, filed 10/26/16, at 1. The trial court denied Appellant's Motion in Limine. Appellant proceeded to a jury trial on October 27, 2016, at which the victim, Corporal Donkochik, Officer Dillman, and Emergency Medical Technician Michael Amarose testified. The trial court permitted Corporal Donkochik and Officer Dillman to testify about observing droplets of blood near a mop and bucket in Appellant's home during their conversation with Soto on the date of the incident. The jury convicted Appellant of each of the above charges.

         On December 19, 2016, the trial court imposed a term of 9 to 22 months' incarceration.

         Appellant filed a timely Notice of Appeal. Both Appellant and the trial court[2] complied with Pa.R.A.P. 1925.

         Appellant presents one issue for our review:

Whether the lower court abused its discretion in denial of Appellant's Motion in Limine?

         Appellant's Brief at 5.

         In his sole claim, Appellant avers that the trial court erred in admitting testimony from Corporal Donkochik and Officer Dillman stating that the substance they observed "was indeed blood, despite the absence of tests conducted on the substance." Appellant's Brief at 12. Although Appellant acknowledges that "a lay witness is competent to testify that a stain or stains appeared to him to be blood[, ] Appellant avers that the testimony "was not stated as an opinion or on the belief the substance may be blood, but rather a definitive statement that the substance was in fact blood." Id. (acknowledging Commonwealth v. ...


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