author: MINORA, J.,

text:
    Houck v. Barnes Kasson Hospital

      Kevin P. Foley, for plaintiff.

      Robin B. Synder, for defendant Werne.

      Patrick C. Carey, for defendant Bekele.

      Thomas M. Chairs, for defendant Barnes Kasson County Hospital.

      Elizabeth A. Giannotti, for defendants Marian Community Hospital and Mallik.
    June 29, 2010
   MINORA, J.,

The issues before the court are defendant Tamrat Bekele M.D.’s preliminary objections to the amended complaint and defendants Marian Community Hospital’s and Satish Mallik M.D.’s preliminary objections to the amended complaint.

FACTUAL HISTORY

This case stems from the medical care and treatment Pamela U. Houck, plaintiff, received after being assaulted by her live-in boyfriend on June 11, 2007. On June 11, 2007 plaintiff was physically assaulted by her live-in boyfriend. She arrived at Barnes Kasson Hospital at around 6:45 p.m. That same evening plaintiff was discharged from Barnes Kasson Hospital and driven home by a Susquehanna Police Department patrolman. On the way home the patrolman took plaintiff to Marian Community Hospital. Plaintiff was seen by Dr. Werne for mental health evaluation at 10 p.m. Plaintiff was involuntarily committed to Marian that evening and given psychotropic medications. Plaintiff was discharged from the psychiatric ward at Marian on June 16, 2007. On June 17,2007 plaintiff was admitted to United Plealth Service Hospital, were a CT scan was performed by Dr. Sethi. Plaintiff was diagnosed as suffering from cervical myopathy, C7 radiculopathy, central cord syndrome, C6-7 fracture dislocation, anterolisthesis at C6-7, and perch fact on the left at C6-7. Plaintiff under went surgery on June 23, 2007 to repair these injuries.

PROCEDURAL HISTORY

Plaintiff instituted this medical malpractice claim against defendants by way of praecipe for writ of summons on May 27, 2009. Plaintiff filed a complaint on July 10, 2009. Plaintiff filed an amended complaint on August 31,2009. On September 11,2009 Assistant U.S Attorney G. Michael Thiel, filed a notice of removal pursuant to 28 U.S.C. §2679(d)(2) on the grounds that defendant Richard K. Hacker M.D. was acting within the scope of his employment as an employee of the United States at the time he was alleged to have provided medical care to plaintiff. Judge Kosik of the U.S. District Court for the Middle District of Pennsylvania subsequently dismissed the United States, Richard K. Hacker M.D., as a party to the suit and remanded the matter back to this court.

Defendant Tamrat Bekele M.D. filed preliminary objections and supporting brief to the amended complaint on December 4,2009. On December 12,2009 defendants Marian Community Hospital and Satish Mallik M.D. filed preliminary objections to the amended complaint, and on February 16,2010 they filed a brief in support of their preliminary objections. Plaintiff submitted a memorandum of law in opposition to defendants Marian Community Hospital’s and Satish Mallik M.D.’s preliminary objections to plaintiff’s amended complaint. Plaintiff did not file this response with the prothonatary ’ s office; however they did submit a copy to this court. Plaintiff did not file a response to defendant Bekele’s preliminary objections. At oral argument they asserted that their defenses to Bekele’s preliminary objections were the same argument they put forward in their response to Marian and Mallik’s preliminary objections.

Oral argument on Marian Community Hospital’s, Mallik’s and Bekele’s preliminary objections were held on March 8,2010. This matter is now ripe for disposition.

LEGAL ARGUMENTS OF THE PARTIES

Defendant Bekele raised two preliminary objections. These are lack of specificity as to paragraphs 88 (a) through (r) of plaintiff’s amended complaint, and a request to strike allegations of recklessness on the part of Bekele from the amended complaint because as a matter of law plaintiff’s allegations do not rise to the level of such conduct. Bekele’s second preliminary objection seeks to strike paragraph 88 (r), which states “other careless negligent and/or reckless conduct as may be determined in the course of discovery.”

Defendants Marian and Mallik raise three preliminary objections. These are: (1) lack of specificity to the amended complaint specifically paragraphs 85(d),(g), (h), (j), (q), and 97(p) and (hh); (2) demurrer to Count VI of the amended complaint because it does not properly assert corporate liability claims; and (3) Motion for a demurrer regarding plaintiff’s claim for punitive damages. Marian and Mallik’s third preliminary objection seeks to strike paragraphs 85(q), 97(hh) and 111 (p) which state “other careless negligent and/or reckless conduct as may be determined in the course of discovery.”

While plaintiff only filed a response to Marian and Mallik’s preliminary objections, at oral argument plaintiff’s counsel assert the preliminary objections of all three parties were so similar that his brief in response to Marian and Mallik’s priliminary objections should be treated as a response to Belcele’s preliminary objections as well. We will therefore anaylze Marian and Mallik’s preliminary objections first and apply the same rationale to Bekele’s preliminary objections.

LEGAL STANDARD

Preliminary objections are governed by Pa.R.C.P. 1028, “(a) preliminary objections may be filed by any party to any pleading and are limited to the following grounds: ... (3) insufficient specificity in a pleading.” The Superior Court of Pennsylvania notes that the question presented by Pa.R.C.P. 1028(a)(3) is “whether the complaint is sufficiently clear to enable the defendant to prepare his defense or [if it] informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006) (citing Ammlung v. City of Chester, 224 Pa. Super. 47, 59 n.36, 302 A.2d 491, 498 n.36 (1973) (quoting 1 GoodrichAmram §1017(b)-9)).

The trial court has broad discretion in determining the amount of detail that must be pleaded since this is not something capable of precise measurement. Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677, 681(1978), 2 Goodrich Amram 2d § 1019(a):9 (database updated May 2010). A complaint is sufficiently specific if it provides enough facts to enable the defendant to frame a proper answer and prepare a defense. Boyd v. Rockwood Area School District, 907 A.2d 1157, 1168 (Pa. Commw. 2006). In determining whether a particular paragraph in a complaint is stated with the necessary specificity, such paragraph must be read in context with all the allegations in the complaint. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Commission, 950 A.2d 1120 (Pa. Commw. 2008).

“Preliminary objections in the form of motions to strike items in a complaint under Pa.R.C.P. 1028(a)(3) can be for lack of specificity of pleading pursuant to Pa.R.C.P. 1019(a).” Moore v. Dozwonczyk, no. 07 CV 2074, Minora J., (Oct. 10, 2008) (Lacka. Cty.). Pa.R.C.P. 1019(a) states “The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” The rule requires a plaintiff to plead all the facts that he must prove in order to achieve recovery on the alleged cause of action. The pleading must be sufficiently specific so that the defending party will know how to prepare his defense.” Commonwealth ex rel. Pappert v. TAP Pharmaceuticals Products Inc., 868 A.2d 624, 635 (Pa. Commw. 2005).

The complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim. Cardenas v. Schober, 783 A.2d 317, 325 (Pa. Super. 2001). It is not necessary that the plaintiff identify the specific legal theory underlying the complaint, as it is the court’s duty to discover from the facts alleged in a complaint the cause of action, if any, stated therein. Id. Further, the Rules of Civil Procedure are to be liberally interpreted. See Pa.R.C.P. 126.

The Commonwealth Court provided the guidelines for examining legal insufficiency of a pleading (demurrer) in Richardson v. Beard, 942 A.2d 911, 913 (Pa. Commw. 2008):

“In considering preliminary objections, we must consider as true all well-pleaded material facts set forth in the petition and all reasonable inferences that may be drawn from those facts. Sheffield v. Department of Corrections, 894 A.2d 836 (Pa. Commw. 2006). Preliminary objections will be sustained only where it is clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Id. We need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. Myers v. Ridge, 712 A.2d 791 (Pa. Commw. 1998).” (emphasis added)

“Preliminary objections in the nature of [a] demurrer test the legal sufficiency of the plaintiff’s complaint.” Sexton v. FNC Bank, 792 A.2d 602, 604 (Pa. Super. 2002) (citation omitted), appeal denied, 572 Pa. 725, 814 A.2d 678 (2002). “The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.” Mistick Inc. v. Northwestern National Casualty Company, 806 A.2d 39, 42 (Pa. Super. 2002). (citation omitted) “Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.” (citation omitted) Cooper v. Frankford Health Care System Inc., 960 A.2d 134, 143 (Pa. Super. 2008). Any doubt as to the legal sufficiency of the complaint should be resolved in favor of overruling the demurrer. Kane v. State Farm Fire & Casualty Company, 841 A.2d 1038 (Pa. Super. 2003).

LEGAL ANALYSIS

1. Defendants Marian and Mallik’s Preliminary Objection of Lack of Specificity to Paragraphs 85(d), (g), (h), (j), (q), 97(p) (hh), and lll(p) of Plaintiff’s Amended Complaint

Upon viewing the complaint as a whole it is apparent that plaintiff’s amended complaint, specifically paragraphs 85(d), (g), (h), (j) and 97(p), meet the specificity requirements of Pa.R.C.P. 1028(a)(3) and 1019(a). Paragraph 85(d), (g), (h) and (j) allege how Mallik failed to provide adequate medical treatment. They do so by alleging Mallik failed to order appropriate testing, to request appropriate consultation, refer to a higher level of care, and arrange for appropriate follow-up. Paragraph 97(p) alleges Marian was negligent and breached their duty to the plaintiff by allowing a culture of lack of communication to exist and pervade the hospital and also to exist among medical staff to the detriment of the plaintiff.

We are reminded that a case is not fully tried at the preliminary objection phase of litigation. There are more appropriate stages through the course of the civil litigation process when the parties will be given an opportunity to flesh out and address in more detail the alleged factual issues. Paragraph 85 and the subparagraphs adequately put Mallilc on notice of the alleged violations he made which give raise to their medical malpractice claim. While this paragraph and subparagraphs are not a long recitation of the plaintiffs evidence, absolute specificity is not needed at this stage of the pleadings. Moore, supra.

Likewise paragraph 97(p) while not an in depth recitation of plaintiff’s evidence against Marian, it does sufficiently state the claim which plaintiff is pursuing. When paragraph 97 and the subparagraphs are read as a whole it is apparent that plaintiff is asserting a corporate negligence claim against Marian, and that this corporate negligence claim is in part based upon the lack of communication which occurred between the employees and agents of Marian. This is sufficient to put Marian on notice of what they need to prepare their defense.

Paragraphs 85(q), 97(hh), and 111(p) are too vague and ambiguous. While absolute specificity is not required, the court is required to eliminate broad ambiguous allegations from the complaint. See Rambo, supra, 906 A.2d at 1236 (the complaint should inform the targeted defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense). Paragraphs 85(a), 97(hh), and 111(p) state “other careless negligent and/or reckless conduct as may be determined in the course of discovery.” This language states no claim whatsoever and could allow for an unlimited amount of claims to be introduced by the plaintiff by ambush at a later date. Pennsylvania is a fact pleading state and these paragraphs make broad ambiguous allegations with insufficient notice to a defendant on how to prepare their defense. McShea v. City of Philadelphia, 995 A.2d 334 (Pa. 2010).

Therefore, defendants Marian and Mallik’s preliminary objection for lack of specificity is denied in part and granted in part. An appropriate order will follow.

2. Defendant Bekele’s Preliminary Objection of Lack of Specificity As to Paragraphs 88(a) thru (r) of Plaintiff's Amended Complaint

Paragraph 88(a) thru (q) alleged Bekele failed to obtain a proper history of plaintiff, conduct an adequate physical examination of plaintiff, order appropriate testing, request appropriate consultation, refer to a high level of care, arrange for appropriate follow-up, provide adequate discharge instructions, follow up on specialist’s recommendation, and failed evaluate the primary reasons for plaintiffs consultation.

Again after reviewing the complaint as a whole it is apparent that plaintiff’s amended complaint meets the specificity requirements of Pa.R.C.P. 1028(a)(3) and 1019(a). Paragraph 88 and the subparagraphs adequately put Bekele on notice of the alleged violations he made which give raise to her medical malpractice claim, and how his actions allegedly fell below the required standard of care. While this paragraph and subparagraphs are not a long recitation of the plaintiff’s evidence, absolute specificity is not needed at this stage of the pleadings. Moore, supra.

However, again paragraph 88(r) is identical to paragraphs 85 (q), 97(hh), and 11 l(p). It is a broad ambiguous allegation, which could allow for an unlimited amount of claims to be introduced by the plaintiff at a later date. Therefore defendant Bekele’s preliminary objection for lack of specificity is denied in part and granted in part. An appropriate order will follow.

3. Defendant Marian’s Preliminary Objection of Demurrer to Count VI of the Amended Complaint Because It Does Not Properly Assert Corporate Liability Claims

Marian argues that plaintiff’s amended complaint alleges direct negligence claims against Marian under Count VI, that are separated from plaintiff’s claims of corporate liability (Count VIII) and vicarious liability (Count X) against Marian. Marian points to paragraph 97(b), (d), (e), (g), (h), (i), (j), (w), (y) and (z) and requests the court to dismiss these sections of the amended complaint. Plaintiff asserts paragraph 97 and the subparagraphs properly assert a corporate negligence claim, specifically that Marian was negligent in supervising the quality of the medical care or lack thereof which plaintiff received.

Paragraph 97 and the above listed subparagraphs state:

“Defendant, Marian Community Hospital, and its agents, employees, representatives and/or ostensible agents were careless and negligent and breached their duty to the plaintiff in one or more of the following ways:

“b. Failing to timely and with appropriate frequency determine the condition of the plaintiff;
“d. Failing to timely and with appropriate frequency notify other hospital staff members and/ or representatives of the worsening condition of the plaintiff;
“e. Failing to notify appropriate hospital officials, medical staff members, department heads or administrative representatives of the circumstances that existed with respect to the plaintiff when defendants Mallik, Bekele and/or Werne and each of them, did not adequately respond to the plaintiff’s worsening condition.
“g. Failing to transfer the plaintiff to a medical facility that had physicians available to perform the necessary diagnostic procedures on the plaintiff;
“h. Failing to inform the plaintiff of her worsening condition;
“i. Failing to follow prescribed rules, regulations and policies and acceptable ouedioal standars and procedures in the care of the plaintiff;
“j. Failing to actively and continually review the treatment of the plaintiff, and the actions or inactions of defendants Mallik, Bekele and/or Werne and each of them, concerning the same;
“w. Failing to accurately determine how the plaintiff received such severe trauma to her back and neck;
“y. Failing to properly evaluate, diagnose and treat plaintiff’s neck injury;
“z. Failing to follow their own prescribed rules, regulations, policies and accepted medical standards and procedures in requiring review of patient hospital records in the care and treatment of the plaintiff.”

Under the doctrine of corporate negligence a hospital is directly liable if it fails to uphold any one of the following four duties: “(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.” Brodowski v. Ryave, 885 A.2d 1045, 1056 (Pa. Super. 2005), quoting Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991). These duties run directly from the hospital to the patient. Id. (citation omitted) “An injured party need not rely on the negligence of a third-party, such as a doctor or nurse, to establish a cause of action for corporate negligence.” Id.

Marian is asking the court to read each subparagraph individually, however we must view the subparagraphs in the proper context and read the complaint as a whole. Unified Sportsmen, supra. As a whole, paragraph 97 is alleging not that the hospital failed to act, but that it’s agents, employees, representatives and/or ostensible agents failed to perform the described actions. These allegations go directly to the third Thomson v. Nason, (supra) duty to oversee all persons who practice medicine within its walls as to patient care. Further subparagraphs (e), (f), (i), (z) go to Marian’s duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients, the fourth Thomson v. Nason (supra) duty.

Taking as true all well plead facts and inferences we are left to conclude that paragraph 97(b), (d), (e), (g), (h), (i), (j), (w), (y) and (z) properly detail and assert a claim for corporate negligence against Marian. These paragraphs make allegations which deemed as true could support a claim of corporate negligence. At this stage of the litigation process, we must allow the plaintiff to proceed with his claim.

Therefore, defendant Marian’s preliminary objection of demurrer to Count VI of the amended complaint because it does not properly assert corporate liability claims is denied. An appropriate order follows.

4. Defendants Marian andMallik’s Preliminary Objection of Demurrer To Strike Paragraphs 85(q), 97(hh) and lll(p)

As this court has already decided to strike paragraphs 85(q), 97(hh), and 11 l(p) there is no need to decide this issue. Therefore, this preliminary objection is deemed moot.

5. Defendant Bekele ’s Preliminary Objection To Strike Paragraph 88(r)

As this court has already decided to strike paragraph 88(r) there is no need to decide this issue. Therefore, this preliminary objection is deemed moot.

ORDER

And now, June 29, 2010, upon consideration of the pleadings and their supporting briefs, it is hereby ordered as follows:

(1) Defendants Marian Community Hospital’s and Satish Mallik M.D.’s preliminary objection of lack of specificity to paragraphs 85(d), (g), (h), (j), (q) and 97(p) and (hh) of plaintiff’s amended complaint is denied in part and granted in part. Paragraphs 85(q) and 97(hh) are stricken from the amended complaint.

(2) Defendant Tamrat Bekele M.D.’s preliminary objection of lack of specificity as to paragraphs 88(a) through (r) of plaintiff’s amended complaint is denied in part and granted in part. Paragraph 88(r) is stricken from the amended complaint.

(3) Defendant Marian Community Hospital’s preliminary objection of demurrer to Count VI of the amended complaint because it does not properly assert corporate liability claims is denied.

(4) Defendants Marian Community Hospital’s and Satish Mallik M.D.’s preliminary objection to strike paragraphs 85(q), 97(hh) and 111(p) is deemed moot.

(5) Defendant Tamrat Bekele M.D.’s preliminary objection to strike paragraph 88(r) is deemed moot.

      . Defendant Barnes Kasson County Hospital filed preliminary objections to the amended complaint on February 25,2010 and plaintiff filed preliminary objections to defendant Barnes Kasson’s preliminary objections to the amended complaint on March 8,2010. Those matters were not before the court at the tune of the oral argument and therefore are not discussed in this memorandum and order.


source: Caselaw Access Project

author: MINORA, J,

license: Public Domain

text:
    Golden v. Smolko

      James E. Foerstner and Sal Cognetti Jr., for plaintiffs.

      Dominick J. George and Jaynes C. Sargent Jr., for defendants.
    June 4, 2010
   MINORA, J,

INTRODUCTION

Before the court are defendants’ Milan J. Smolko M.D. and Milan J. Smolko M.D. P.C., post-trial motion requesting a new trial. This matter resulted in a jury verdict rendered against all of the named defendants. However, prior to the closing arguments being presented defendant Lillian Longendorfer D.O. reached a settlement with the plaintiffs in exchange for a joint tort-feasor release. For reasons articulated in the following memorandum defendants’ Milan J. Smolko M.D. and Milan J. Smolko M.D. P.C. post-trial motion for a new trial is granted.

STATEMENT OF THE CASE

This case is derived from the care and treatment of Terrence Golden, plaintiffs’ decedent, a 59-year-old man who suffered and died from bladder cancer. On September 22,2002 Mr. Golden presented at Dr. Smolko’s office with complaints of long-standing urinary urgency and difficulty postponing urination, or frequent urination symptoms. Dr. Smolko diagnosed Mr. Golden as has having an enlarged prostate and prescribed Flomax.

On January 7, 2003 Mr. Golden presented at Dr. Smolko’s office with complaints of a slow urine stream, getting up twice in the night to urinate, and some burning during urination. Dr. Smolko diagnosed Mr. Golden as suffering from prostatitis and prescribed an anesthetic, antibiotics, and a muscle relaxant. June of 2003 Mr. Golden contacted Mr. Smolko by phone and Dr. Smolko refilled his prescriptions.

On July 16, 2003 Mr. Golden returned to see Dr. Smolko. At that time Dr. Smolko performed a cystoscopy and bladder biopsy. The biopsy was read and interpreted by co-defendant Dr. Longendorfer, a pathologist at Wayne Memorial Hospital. Dr. Longendorfer diagnosed the biopsy as “urinary bladder muscosal tissue showing features suggestive of chronic cystitis. No evidence of malignancy.” N.T. 05/06/09, p. 66.

On August 26, 2003 Mr. Golden returned to see Dr. Smolko, complaining of continued and persistent burning upon urination. Dr. Smolko ordered a PSA to test for prostate cancer. Plaintiffs alleged and presented evidence Dr. Smolko altered his medical records to make it appear as if at this visit he ordered a urine culture and urine cytology test. N.T. 5/6/09 pp. 201-203. On December 2, 2003 Mr. Golden visited Clinical Laboratories for a urine study, the results of which indicated that Mr. Golden had blood in his urine. Dr. Smolko took no action upon receiving the Clinical Laboratories results.

In March of2004 Mr. Golden saw Dr. Cassone, a different urologist, complaining of blood in the urine, Dr. Cassone performed a urinalysis which revealed the presence of blood, and performed an IVP and cystoscopy. These tests revealed Mr. Golden had a urethral stricture. In April of 2004 a repeat cystoscopy suggested that questionable bladder tumors might be present. In June of 2004 Dr. Cassone repeated the cystoscopy and performed a transurethral resection of the prostate and bladder biopsies. The biopsies revealed Mr. Golden had invasive high-grade transitional cell carcinoma.

In August of 2004 Mr. Golden underwent a radical cystectomy (bladder removal and reconstruction), lasting nine and a half hours. Mr. Golden had several more surgeries and underwent chemotherapy. Mr. Golden also had several reoccurrences and subsequent surgeries. On January 21, 2008 Mr. Golden succumbed to the cancer and passed away.

On April 13, 2005, plaintiffs commenced this suit by filing a complaint alleging medical malpractice against the defendants for failure to properly diagnose and treat Terrence Golden’s bladder cancer. On October 2, 2008 plaintiffs filed a second amended complaint. The civil jury trial of this case began on May 4,2009 and a verdict was rendered by the Jury on May 13,2009. On May 22, 2009 defendants Milan Smolko M.D. and Milan Smolko M.D. P.C. filed a timely post-trial motion requesting a new trial on six grounds. On June 29, 2009, plaintiffs filed an answer to defendants post-trial motion. On December 1,2009, upon transcript completion, defendants filed a memorandum of law in support of their post-trial motion, and on January 5,2010 plaintiffs filed a memorandum of law in opposition to defendants’ post-trial motion. On January 19, 2010 defendants filed a supplemental memorandum of law in support of their post-trial motions. On January 26, 2010 this court presided over an oral argument regarding defendants’ post-trial motion. As this matter has been properly plead, briefed, and argued it is now ripe for disposition.

STAND AND OF REVIEW

Pursuant to Ra.R.C.P. 227.1, post-trial motions may be filed upon written motion by any party to an action and, the court may;

“(1) order a new trial as to all or any of the issues; or
“(2) direct the entry of judgment in favor of any party; or
“(3) remove a nonsuit; or
“(4) affirm, modify or change the decision; or
“(5) enter any other appropriate order.”

The Commonwealth Court in Luzerne County Flood Protection Authority v. Reilly, 825 A.2d 779, 782 (Pa. Commw. 2003), quoting the Pennsylvania Supreme court explained how a trial court should evaluate a motion for a new trial.

“It is important to recognize that the trial court’s decision whether to grant a new trial rests on its preliminary or predicate decision as to whether any reasons exist for granting a new trial. In other words, there are two levels to a trial court’s decision whether to grant a new trial: First, the court must determine whether, colloquially speaking, a ‘mistake’ (or mistakes) was made at trial. Second, the court decides whether the mistake (or mistakes) is sufficient basis for granting a new trial. The first decision — whether a mistake was made — may involve factual, legal, or discretionary matters. However, the second and ultimate decision — whether to grant a new trial — is always a discretionary matter because it requires consideration of the particular circumstances of the ease.”

“When deciding to grant or deny a new trial, the trial court must first engage in a two-part analysis: (1) whether a mistake occurred at trial; and (2) whether the mistake was prejudicial to the moving party.” Slappo v. J’s Development Associates Inc., 791 A.2d 409, 414 (Pa. Super. 2002).

The purpose of post-trial motions is to give the trial court an opportunity to review and reconsider its earlier rulings and correct its own errors that may have occurred at the trial court level before an appeal is taken. Post-trial motions should be granted only where there is clear error of some kind, whereby someone has suffered prejudice by that error. Lahr v. City of York, 972 A.2d 41, 47 (Pa. Commw. 2009).

“Consideration of all new trial claims is grounded firmly in the harmless error doctrine ‘which underlies every decision to grant or deny a new trial. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake.’” Rettger v. UPMC Shadyside, 991 A.2d 915, 923-24 (Pa. Super. 2010).

LEGAL ANYLSIS

The six issues the defendants raised in their motion for post-trial relief are: (1) Plaintiffs failed to prove causation, (2) The court should have granted Dr. Smolko’s request for a mistrial upon plaintiffs’ reference to Dr. Smolko’s alleged addiction to OxyContin; (3) The court erred in providing a supplemental jury charge to the jury after completion of the initial charge; (4) The court should have precluded the testimony of Joseph Duffy; (5) The court erred in allowing counsel for the settling Defendant, Dr. Longendorfer, to present closing arguments to the jury; and (6) The court should have precluded the testimony of Dr. Eisneberger as it was cumulative. Due to the fact that we find the second issue to be dispositive of the case, we will address this issue first.

1. The Court Should Have Granted Dr. Smolko’s Request for a Mistrial Upon Plaintiffs ’ Reference to Dr. Smolko’s Alleged Addiction to OxyContin

Defendants have asserted they are entitled to a new trial because the plaintiffs’ counsel intentionally violated this court’s in limine ruling. Specifically asserting that this court’s ruling barred plaintiffs’ counsel from mentioning or referring to Dr. Smolko as an addict or addicted to the narcotic OxyContin. Defendants assert the Superior Court’s ruling Poust v. Hylton, 940 A.2d 380 (Pa. Super. 2007) and Siegal v. Stefanyszyn, 718 A.2d 1274 (Pa. Super. 1998), mandates that a mistrial be awarded when counsel for a party violates an in limine ruling.

Plaintiffs contends that defendant is barred from asserting a violation of the in liinine ruling because defense counsel did not immediately request a mistrial at the time of the incident, and therefore has waived any appealable issue they may have had. Further, plaintiffs assert that when viewing the cross-examination of Dr. Smolko in context, the plaintiffs did not violate the court’s in limine ruling. It is plaintiffs’ contention that because Dr. Smollco was misleading the jury, they had a right to question him about being addicted to OxyContin. Further, plaintiffs assert that the holdings of both Poust and Siegal are inapplicable in this case.

Defendant presented a motion in limine to preclude the use of Dr. Smolko’s guilty plea in drug court, to preclude the presentation of evidence on the subject of Dr. Smolko’s OxyContin use, and to preclude the use of Dr. Smolko’s loss of his medical license at trial. N.T. 5/6/09, p. 10 11. 18-25. Plaintiffs’ counsel voluntarily withdrew the requested use of Dr. Smolko’s guilty plea in drug court, and therefore the only issues this court ruled on where whether Dr. Smolko’s loss of medical license and OxcyCotin use could be raised at trial. N.T. 5/6/09, p. 17 11.15-18. This court specifically allowed testimony on Dr. Smolko’s use of prescribed OxyContin, to be introduced at trial. N.T. 5/6/09, p. 2411.13-25. This court also specifically denied the use of Dr. Smolko’s loss of his medical license at trial. N.T. 5/6/09, p. 27 11. 15-16. As to the use of the word addict we stated “Now, listen, if he comes in and denies stuff like that it can come in on cross-examination we understand, but his use of the prescription drug I’ll allow it to be probed without indicating that it was an addiction and you can go into the fact whether it was used in accordance with the prescription and things like that; all right.” N.T. 5/6/09, p. 27 11. 19-25.

During the plaintiffs’ case in chief Dr. Smollco was called to testify. It is this interaction between plaintiffs’ counsel and Dr. Smollco, which defendants assert violated this court’s in limine ruling. Plaintiffs’ counsel inquired into Dr. Smolko’s use of OxyContin and then asked whether OxyContin was an addictive drug and whether Dr. Smolko was addicted to OxyContin. As soon as plaintiffs’ counsel asked Dr. Smolko if he was addicted to OxyContin defense counsel objected and this court sustained the objection. Plaintiffs’ counsel then finished their examination of Dr. Smolko and the jury was dismissed for lunch. Immediately following the jury’s dismissal defense counsel moved for a mistrial and this court denied the request. This court offered to give a curative instruction, to which defense counsel declined. N.T. pp. 105 to 116.

First, we find plaintiffs’ counsel argument that defendants waived this issue to be disingenuous. Defense counsel immediately objected to the questioning of Dr. Smolko about his addiction to OxyContin, and then moved for a mistrial at the first trial break. Both parties were aware the court was going to recess for lunch at the conclusion of plaintiffs’ examination of Dr. Smolko. N.T. p. 105 1. 1. The trial break at which defense counsel moved for a mistrial was immediately following Dr. Smolko’s examination by the plaintiffs. Therefore, defense counsel timely and specifically moved for a mistrial and filed post-trial motions, as required. Harman ex rel. Harman v. Borah, 562 Pa. 455, 471, 756 A.2d 1116, 1124 (2000).

Plaintiffs’ counsel’s question to Dr. Smolko asking “Did you become addicted to OxyContin?” was a violation of this court’s in limine ruling, thereby meeting the first prong of the two-prong test, whether a mistake occurred at trial. Therefore, we must determine if the mistake was prejudicial to the moving party or merely harmless error.

When a trial court reviews a motion for a new trial the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the verdict winner. Hohns v. Gain, 806 A.2d 16, 19 (Pa. Super. 2002); Fanning v. Davne, 795 A.2d 388, 393 (Pa. Super. 2002). A trial judge enjoys broad powers and discretion in the handling of alleged prejudicial remarks made during argument and the trial court’s charge to the jury may serve to counter any prejudice that may arise from counsel’s remarks. Daddona v. Thind, 891 A.2d 786, 809 (Pa. Commw. 2006). “While remarks by counsel may constitute grounds for a mistrial, such remarks must be beyond correction by any admonition which the court may give the jury, (citation omitted) In deciding whether the remarks are beyond correction, we must look at the totality of the circumstances and whether the offending statements were cut short by opposing counsel before serious damage was caused.” Id. at 810.

“[A] new trial is not required where the remarks made by counsel were neither inflammatory nor prejudicial.” Mansour v. Linganna, 787 A.2d 443, 449 (Pa. Super. 2001). “However, there are certain instances where the comments of counsel are so offensive or egregious that no curative instruction can adequately obliterate the taint.” Young v. Washington Hospital, 761 A.2d 559, 562 (Pa. Super. 2000).

In Poust v. Hylton, 940 A.2d 380 (Pa. Super. 2007), the Superior Court held that the trial court’s denial of plaintiffs’ request for a mistrial was an abuse of discretion when defense counsel used the word cocaine, in violation of a court order, during cross-examination of a witness. In Poust, the plaintiffs had filed a motion in limine to preclude defense counsel from using the word cocaine, with reference to plaintiffs’ decedent. During cross-examination of plaintiffs’ witness, defense counsel specifically asked the witness a question referencing cocaine in the decedent’s system. Plaintiffs’ counsel objected and the trial court sustained the objection. A side-bar was held were plaintiffs’ counsel requested a mistrial. At some point later in that same day of trial, the court denied plaintiffs’ request for a mistrial and decided a curative instruction would not be given.

The Superior Court in Poust stated, “The grant of a motion in limine is a court order that must be observed. To allow appellee’s counsel to violate such a court order, without the declaration of a mistrial, as was immediately sought by appellant’s counsel here, would defeat the intended purpose of such orders.” 940 A.2d at 385. The Superior Court went on to state, “The trial court clearly abused its discretion in failing to grant the requested relief of a mistrial, which should have been granted to appellant immediately at the time that the court order was violated by defense counsel.” Id. Further, the court stated, “Under Pennsylvania law, appellant was entitled to the declaration of a mistrial, ipso facto, immediately upon appellee’s counsel’s flagrant and intentional use of this obviously prejudicial word ‘cocaine’, in violation of the prior pretrial preclusion order of the trial court.” Id.

The case sub judice is factually similar to Poust. Plaintiffs’ counsel violated this court’s in limine ruling that they could not refer to Dr. Smolko’s use of OxyContin as an addiction. Plaintiffs’ counsel flat out asked Dr. Smolko “Did you become addicted to OxyContin?” N.T. 5/6/09, p. 1061. 19. As such, under the precedent set by the Poust case we must grant defendant’s motion for a mistrial. The word addict in the present situation is as prejudicial as the use of the word cocaine in the Poust case. Just as in Poust, the word was uttered during counsel’s cross-examination of a witness and immediately objected to. While the offending remarks were cut short, the totality of the circumstances renders the mere use of the word addict prejudicial.

The defendants had sought and obtained an in limine ruling excluding the questioning of Dr. Smolko on his addiction to OxyContin. A court order should not be violated. Plaintiffs’ counsel had the opportunity to request a side-bar to revisit this court’s ruling on the admissibility of Dr. Smolko’s addiction to OxyContin. Instead plaintiffs’ counsel felt they had a right to violate this court’s in limine ruling because in their opinion Dr. Smolko was being uncooperative and untruthful about his use of OxyContin. Plaintiff does not have the right to unilaterally decide to disregard in limine rulings, if such were the case then what would be the point of seeking in limine rulings, and where would be the force in a court’s order?

Plaintiffs’ counsel had other options available to them but instead choose to violate this court’s order. This intentional violation enhances the prejudicial nature of counsel’s action because it shows a disregard for a prior exclusionary ruling of the court, a ruling which the parties had relied upon in formulating their trial strategy. See Commonwealth v. Padilla, 923 A.2d 1189, (Pa. Super. 2007) (a ruling on pretrial motion in limine provides counsel with a basis upon which to structure trial strategy).

Further, use of the word addict is beyond harmless error and requires the granting of a new trial. Black’s Law Dictionary defines addict as “a person who habitually uses a substance.” Black’s Law Dictionary (8th ed. 2004). Webster’s Dictionary defines addict as “one who habitually uses and has an uncontrollable craving for an addicting drug.” Webster’s Third New International Dictionary, copyright 1993. Addiction is defined as “the compulsive uncontrolled use of habit forming drugs beyond the period of medical need or under conditions harmful to society.” Id.

These definitions illustrate both the stigma and the prejudice the words addict or addiction carries with them. Once a witness, or person, is given this label the stigma can overshadow all other aspects of their testimony. The visceral effect the word has on a jury makes it impossible for them to reach a verdict based on the evidence and not on a personal bias or prejudice. “[Ojnce the skunk is in the box, the odor is ineradicable.” Commonwealth v. Padilla, 923 A.2d at 1196.

Therefore, viewing the evidence in the light most favorable to the verdict winner, we are left to conclude that a mistake occurred at trial and the mistake was more than mere harmless error. It was highly prejudicial to the defense. As such, a new trial must be granted to rectify the injustice that would result if the verdict were left to stand.

CONCLUSION

After evaluating the arguments of both parties it is the conclusion of this court that defendants’ post-trial motion for a new trial should be granted. There are certain instances where the comments of counsel are beyond correction by curative instructions. Young v. Washington Hospital, 761 A.2d 559, 562 (Pa. Super. 2000). This court initially offered to give a curative instruction and defense counsel declined. However, upon further review of the precedential case law we are left to conclude defendant’s prejudice exceeded the ability of the court to reverse plaintiffs counsel’s mistake with a curative instruction. Motions in limine orders are court orders that must be observed. They should not be intentionally disregarded. To allow an intentional violation of a court’s order without consequences would emasculate the prior court order and render it irrelevant. Parties would not need to go through with the motion in limine process if the orders were not to be upheld by the court. Further, the prejudicial effect the word addict has on the jury is incurable. This is especially so given the facts and circumstances of our case when the defendant is a physician in possession of a DEA license allowing him to prescribe regulated substances, similar to the one he is accused of abusing. Therefore, defendant’s post-trial motion for a new trial on the grounds that this court should have granted defendants’ request for a mistrial upon plaintiffs’ reference to Dr. Smolko’s alleged addiction to OxyContin is granted. This disposition resolves the entire ease. The rest of the issues raised in defendants’ post-trial motion, which the court deemed without merit, are therefore rendered moot.

An appropriate order follows.

ORDER

And now, June 4, 2010, upon consideration of the defendants’ motion, the parties’ briefs, and oral argument of able counsel it is hereby ordered that defendants’ post-trial motion is for a new trial is granted.

      . Morrison v. Department of Public Welfare, 538 Pa. 122, 133, 646 A.2d 565, 571 (1994).

      . The issue of whether plaintiff’s counsel’s use of the word addict violated this court’s in limine ruling.


text:
    Ward v. Moses Taylor Hospital

      Steven G. Wigrizer, for plaintiffs.

      Dominick J. Georgetti, Chris J. Carling, and Patrick C. Carey, for defendants.
    April 23, 2010
   MINORA, J.,

I. INTRODUCTION

Currently before this court are the preliminary objections of the collective defendants to plaintiffs’ amended complaint sounding in medical malpractice. By way of background, the amended complaint alleges that plaintiff John J. Ward presented himself to Moses Taylor Hospital on August 16, 2007 suffering from partial paralysis. Plaintiffs allege that due to negligent treatments, specifically a delay in diagnosis and transfer, coupled with the use of the drug Heparin, John J. and suffered complete paralysis resulting in quadriplegia.

The defendants filed preliminary objections to plaintiffs’ amended complaint that originally were two-fold. The second preliminary objection was based on alleged technical pleading violations per Pa.R.C.P. 1028(a)(3) and Pa.R.C.P. 1019(a). Defendants claimed that the pleadings were open-ended and did not focus on what defendants did nor did not do relative to certain specific acts. However, those preliminary objections have been resolved by stipulation of counsel dated January 19,2010 and approved and filed of record January 21, 2010. So we will not belabor that point.

The remaining preliminary objection in the nature of a demurrer as per Pa.R.C.P. 1028(a)(4) contends that the plaintiffs, in Count III of their amended complaint, have not adequately pled a cause of action for negligent infliction of emotional distress suffered by Wife-plaintiff, Rhoda and and therefore, that cause of action should be dismissed as a matter of law.

The matter has been thoroughly briefed and argued on January 19, 2010 and is now ripe for disposition.

II. ISSUE

Should defendants’ preliminary objections in the nature of a demurrer as per Pa.R.C.P. 1028(a)(4) claiming that plaintiff’s claim for negligent infliction of emotional distress (Count III) be dismissed as a matter of law?

III. DISCUSSION

A. The General Standards for a Demurrer Under Pa.R.C.P. 1028(a)(4)

A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings and no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer. All material facts set forth in the pleading and all inferences reasonably deducible therefrom, must be admitted as true. Further, the impetus of our inquiry is to determine the legal sufficiency of the complaint and to determine whether the pleading would permit recovery if ultimately proven. Since sustaining a preliminary objection in the nature of a demurrer will result in a denial of a claim or a dismissal of a suit, a demurrer should only be granted where the case is clear and free from doubt. Cooper v. Frankford Health Care System Inc., 960 A.2d 134, 143-44 (Pa. Super. 2008). (internal citations omitted) See also, Hess v. Fox Rothschild LLP, 925 A.2d 798, 805-806 (Pa. Super. 2007) and Petsinger v. Department of Labor and Industry, Office of Vocational Rehabilitation, 988 A.2d 748 (Pa. Commw. 2010).

With those guiding principles in mind, we can now examine plaintiffs’ claim for negligent infliction of emotional distress.

B. The Legal Sufficiency of Count III of Plaintiff’s Amended Complaint (Negligent Infliction of Emotional Distress)

The watershed case establishing a cause of action for negligent infliction of emotional distress is Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). In that case, the Pennsylvania Supreme Court outlined the factors necessary for a bystander who was not within the zone of danger to sustain a cause of action for negligent infliction of emotional distress: (1) whether the plaintiff was located near the scene of the accident as contrasted with one who is a distance away from it; (2) whether the shock resulted from the direct emotional impact upon the plaintiff from the sensory and contemporaneously observation of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether the plaintiff and the victim were closely related. Sinn v. Burd, 486 Pa. 146, 170-71, 404 A.2d 672, 685 (1979).

In the medical malpractice setting, one suing for negligent infliction of emotional distress at witnessing another’s injury must have observed the negligent act or conduct giving rise to such injury, not just its consequences, and a family member who did not actually observe the allegedly negligent diagnosis, surgery, or other procedure carried out on the patient has no claim to damages for the mental trauma of seeing the patient dead or deteriorating because of the negligence. See Halliday v. Beltz, 356 Pa. Super. 375, 514 A.2d 906 (1986); Tackett v. Encke, 353 Pa. Super. 349, 509 A.2d 1310 (1986). Some courts have even gone so far to say that one cannot observe a doctor’s professional misjudgment or omission. See Tackett v. Encke, supra.

Moreover, the emotional distress suffered must be more than mere emotional impact of a temporary nature. It is well established that temporary fright, nervous shock, nausea, grief, rage and humiliation, if transitory, are not compensable harm but that long continued nausea or headaches, repeated hysterical attacks or mental aberration are compensable injuries. Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 44-45, 633 A.2d 605, 609 (1993). Also compensable are continuing depression, nightmares, stress and anxiety that require treatment. See Love v. Cramer, 414 Pa. Super. 231, 606 A.2d 1175 (1992).

If we look at paragraph 97 of plaintiffs’ amended complaint, plaintiff Rhoda and certainly alleges severe depression, stress, anxiety, insomnia, stomach distress and emotional shock all of which are causing her alleged ongoing harm and which may be permanent.

Certainly, these manifestations meet the guidelines of thq Armstrong and Love cases cited above, in describing the types of ongoing long-lasting injuries that must be alleged to support the emotional distress criteria. Likewise, the plaintiff Rhoda and alleges observing several discrete and identifiable traumatic events of alleged negligence (see paragraphs 75, 76, 77 and 78 of amended complaint) including inappropriate administration of Heparin, ordering Heparin without physically evaluating the patient, diagnosing CVA/stroke without an adequate basis and reaching definitive diagnosis without examining the patient.

This certainly meets pleading requirements for the “discrete and identifiable traumatic incidents of negligence” prong of the theory of negligent infliction of emotional distress as they could be characterized collectively as at least a mixture of commissions and omissions. The plaintiff has precisely pled her cause of action in accord with the requirements of existing case law. We are compelled to give the benefit of a close case to the non-moving party (plaintiff herein) as per the Cooper case supra.

Plaintiff has pled ongoing harm which may be permanent. Plaintiff has also pled the observation of a number of discrete, identifiable and traumatic events of alleged negligence. It is here that we have difficulty. The observation of “inappropriate administration of Heparin”; of “ordering Heparin without physically evaluating patient”; “diagnosing CVA/stroke without an adequate basis”; and “reaching a definitive diagnosis without evaluating the patient.” See plaintiffs’ amended complaint at paragraphs 75, 76, 77 and 78.

These observations, if made as pled, would still need to be perceived as well as discerned and appreciated for their medical significance in order to cause the plaintiffs alleged injuries. In other words, to meet the Sinn v. Bnrd test, supra, the plaintiff would need to do more than observe these events, she would need to contemporaneously observe it, appreciate its adverse medical significance upon her husband and at the same moment suffer emotional shock causing a direct emotional upset upon the plaintiff.

This court believes that to appreciate the medical significance of these alleged negligent acts would require a level of medical expertise far beyond that of a typical layperson. Because the requirements of the case law do not require this, we are mandated to suspend our common sense and overrule the proffered preliminary objections in the form of a demurrer.

Further Pa.R.C.P. 1019(c) indicates when pleading the performance or occurrence of conditions precedent it is sufficient to aver generally that all conditions precedent have been performed or have occurred. Certainly, this level of pleading precision has been achieved here. Issues of ultimate proof cannot be a concern of the courts at this stage of the proceeding.

Because the denial of a demurrer is not a final appeal-able order, there appears to be no remedy despite the obvious need for appellate review herein. The need arises because the situation as pled here is capable of repetition and recurring harm.

We are guided by the governing law and therefore we are mandated to overrale and dismiss the demurrer.

Therefore, at the pleading stage, the plaintiff, Rhoda Ward, has pled sufficient facts to support a potential claim for negligent infliction of emotional distress and collective defendants’ demurrer to Count III of plaintiffs’ amended complaint (negligent infliction of emotional distress) will be overruled and dismissed.

An appropriate order follows.

ORDER

And now to wit, April 23, 2010, upon due consideration of collective defendants’ preliminary objection in the nature of a demurrer to Count III (negligent infliction of emotional distress) of plaintiffs’ amended complaint and the able arguments of counsel and in accordance with the foregoing memorandum, it is hereby ordered and decreed that said demurrer is overruled and dismissed.


author: JENKINS, J,

text:
    Commonwealth v. Cleveland

      Michael Dugan, for Commonwealth.

      Orion Rose, for defendant.
    July 7, 2010
   JENKINS, J,

Enraged that Amber Jackson broke off their romance, Freddie Cleveland tracked Jackson down to her parents’ home, broke in through a window, and stabbed her to death. Cleveland incurred serious injuries during his assault that required hospitalization, but he recovered quickly enough to give a Mirandized confession the next day. Unbeknownst to Cleveland, the police refused to allow his attorney to contact him and ignored his attorney’s demands not to question him.

The court denied Cleveland’s motion to suppress his confession and his motion in limine to exclude photographs of Amber’s corpse. A jury found Cleveland guilty of first degree murder and related offenses, and the court imposed a mandatory sentence of life imprisonment for the murder conviction and consecutive sentences for criminal trespass and possession of an instrument of crime.

Cleveland filed a timely notice of direct appeal and a timely statement of matters complained of on appeal. He later submitted a supplemental statement of matters complained of on appeal. Pursuant to Pa.R.A.P. 1925(b) (2), the court will accept the supplemental statement for filing.

The court rejects Cleveland’s argument that the police violated his Fifth Amendment rights by preventing his attorney from contacting him before his confession. The United States Supreme Court has held that “[e] vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Moran v. Burbine, 475 U.S. 412, 422, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1985). Cleveland never requested an attorney during his interrogation and was unaware that an attorney asked to visit him. He was alert and composed during his interrogation and waived his Miranda rights knowingly, voluntarily and intelligently.

Cleveland also alleges that he invoked his Fifth Amendment right to counsel during his confession by asking whether he would be allowed to see an attorney when he was out of the hospital. The pertinent decisions establish, however, that Cleveland did not assert his right to counsel merely by indicating his desire to meet with an attorney at some future time.

Finally, Cleveland contends that the jury should not have viewed “gruesome” photographs of Jackson’s corpse. Cleveland’s attorney expressly waived his objection to all photographs admitted into evidence during trial. Assuming that Cleveland preserved his objection, the photographs were not prejudicial and were relevant to demonstrate Cleveland’s homicidal intent. And in any event, the other evidence of guilt was overwhelming.

For these reasons, the court recommends that Cleveland’s judgment of sentence be affirmed.

FACTUAL HISTORY

Cleveland dated Amber Jackson while Amber was in high school, and after her graduation, they lived together at the Drexel Brook Apartments for 2-3 months. N.T., 3/23/10, pp. 214-17. On December 29,2008, Amber broke off their relationship and moved back to her parents’ house in Drexel Hill. N.T., 3/23/10, pp. 170, 174,216.

One day later, on December 30, 2008, Cleveland returned his keys to the lease administrator at the Drexel Brook Apartments. N.T., 3/24/10, pp. 203-206. When the administrator opined that Cleveland and Amber were too young to live together, Cleveland “became a little bit animated . . . [H]e said, you never know, and he might get back together [with her].” N.T., 3/24/10, p. 205.

Later that afternoon, Amber arrived at her parents’ house while conversing with Daniel Bronner on her cell phone. N.T., 3/23/10, pp. 174,177,273-75. She informed Bronner that Cleveland was outside the house. N.T., 3/23/10, p. 275. Bronner heard Cleveland beg Amber for a hug and ask “why they couldn’t be together, if he was good enough for her.” N.T., 3/23/10, pp. 276-77. Concerned for her safety, Amber entered her parents’ house and instructed her younger sister, April Jackson, to close the blinds and not to go outside. N.T., 3/23/10, p. 277. Amber said that she saw Cleveland outside. N.T., 3/23/10, p. 277.

Amber and April were the only persons in the house. N.T., 3/23/10, pp. 174, 177. Moments after Amber arrived, April heard glass break on the front door. N.T., 3/23/10, p. 179. Amber tried to keep the door closed, shouting: “Go away, Fred.” N.T., 3/23/10, pp. 179-180. Over the phone, Bronner heard glass breaking and Amber screaming: “Fred, no, don’t do this.” N.T., 3/23/10, p. 278. A genetic analyst for the Commonwealth identified a blood stain on the front door as matching Cleveland’s DNA profile. N.T., 3/25/10, p. 19.

Amber told April to hide and call their father, Wayne Jackson. N.T., 3/23/10, p, 180. April ran to her bedroom closet, called Wayne on her cell phone, and reported that “something was wrong, and . . . Fred was in the house, and... he was going to hurt Amber.” N.T., 3/23/10, pp. 181,184; see also, N.T., 3/23/10, pp. 220-21. April heard footsteps running up the back steps and the kind of screaming she associated with scary movies, N.T., 3/23/10, p. 185. The screaming eventually stopped, and she heard footsteps going downstairs. N.T., 3/23/10, pp. 191-92.

Wayne Jackson arrived home nine minutes after April’s phone call and saw the center glass broken on the front door. N.T., 3/23/10, pp. 222,224-25. April approached him and said that she saw somebody’s foot in the kitchen. N.T., 3/23/10, p. 239. Wayne ran into the kitchen and saw Cleveland lying there, gasping for air with a dark spot on his shirt and a cut on his throat, N.T., 3/23/10, pp. 240, 260. Officer Cosentino of the Upper Darby Police, who had arrived at the residence shortly after Wayne, saw Cleveland lying in the kitchen and identified the spot on his clothes as blood. N.T., 3/24/10, pp, 11-12,14. A genetic analyst for the Commonwealth found that the blood stain on Cleveland’s shirt matched Amber’s DNA profile. N.T., 3/25/10, pp. 13-14.

Wayne ran upstairs in search of Amber and found her lying in a pool of blood in the bathroom. N.T., 3/23/10, pp. 241 -42. She had been stabbed with a butcher’s knife from the kitchen. N.T., 3/23/10, pp. 246-252. The Commonwealth’s medical examiner determined that she died from 26-28 stab wounds and five-10 slash wounds on her head, chest, hands and back. N.T., 3/25/10, pp. 54-63. A stab wound is deeper than it is long on the skin, while a slash wound is a more superficial wound inflicted when the knife is waved in a slashing manner. N.T., 3/25/10, pp. 54-55.

Cleveland was non-responsive and had a life-threatening injury to his chest. N.T., 3/24/10, p. 40. He underwent successful emergency surgery at the University of Pennsylvania Hospital. N.T., 3/24/10, p. 52.

On the evening of December 31,2008, prior to Cleveland’s arraignment, Captain Rhoades of the Upper Darby Police Department interviewed Cleveland at the hospital. N.T., 3/25/10, pp. 114-15,118. Eighteen hours had passed since Cleveland’s surgery. N.T., 3/25/10, p. 141. He received opiate pain relievers two hours before the interview, N.T., 3/25/10, pp. 136-38. Before the interview, an attorney hired by Cleveland’s family had faxed one letter to the Upper Darby Police Department demanding that Cleveland not answer any questions or provide any statements and had presented a second letter with the same demand to a police officer outside Cleveland’s room. SH, 3/11/10, pp 41-44; SH, 3/15/10, pp. 3-10; exhibits DS-2, DS-3. The police ignored the attorney’s demands. Id. Cleveland was not aware that he had an attorney, because the police refused to allow the attorney to contact him. Id.

While Cleveland was lying in bed, Captain Rhoades introduced himself and his partner, Detective Missimer, and advised that they were investigating Amber’s murder, N.T., 3/25/10, p. 118. Cleveland responded: “Okay,” N.T., 3/25/10, p. 118. Captain Rhoades asked Cleveland what day it was, and Cleveland answered (correctly) that it was his birthday. N.T., 3/25/10, p. 118. The captain asked if Cleveland understood who he and Chuck Missimer were, and Cleveland answered: “Yeah, you’re the detectives here about the murder.” N.T., 3/25/10, pp. 118-19. The captain stated that he wanted to interview Cleveland about the murder investigation, and Cleveland agreed. N.T., 3/25/10, p. 119.

The captain gave Cleveland Miranda warnings and told him that he was under arrest for Amber’s murder. Cleveland asked thoughtful and lucid questions about what prison he would be going to, what his bail would be, and whether he would get bail. N.T., 3/25/10, p. 119. The captain recited each question on Upper Darby’s Miranda form, and Cleveland answered each one in the affirmative, signifying that he understood his rights and agreed to an interview. N.T., 3/25/10, pp. 120-22. Cleveland read the form without asking questions and appeared to understand what Captain Rhoades was saying. N.T., 3/25/10, p. 123. He did not look confused. N.T., 3/25/10, p. 124. Captain Rhoades perceived that Cleveland “was not out of it by any stretch” and saw him sign the appropriate box with handwriting that was “probably neater than mine.” NT., 3/25/10, p. 124. Cleveland’s condition did not resemble patients who are “so sedated or so out of it that you can’t interview them [because] they don’t know what they are saying.” N.T., 3/25/10, p. 125.

Captain Rhoades again asked Cleveland his name. He answered: “Frederick Cleveland.” N.T., 3/25/10, p. 126. The captain asked his date of birth, and Cleveland replied: “12/31 of 1986.” N.T., 3/25/10, p. 127. Cleveland then “gave me his age as . . . 22, that was important to me because he was 21 yesterday.” N.T., 3/25/10, p. 127. Cleveland also provided his correct address: 6 West Plumstead Avenue in Lansdowne. N.T., 3/25/10, p. 127.

Captain Rhoades testified that the following conversation took place:

“[Captain Rhoades asked:] ‘Fred do you know anything about what happened inside of 455 Foss Avenue last night?’ The defendant answered, T don’t remember anything. I woke up inside an ambulance or a hospital.’ He then reviewed the question and the answer, and he put his initials, F.C., by that answer in my presence. I then said to him, ‘Fred, anything else you want to add to this statement?’ And he answered, ‘No.’ He then reviewed the question and the answer, and put his initials, F.C., by that answer in my presence. He then asked would he be allowed to see a lawyer when he got out of the hospital. And I said\ ‘Well, Freddie, you could see a lawyer whenever you want. There’s a Miranda form that I showed you. And you don’t have to wait until you get out of the hospital. ’ And he said, ‘No, I understand that, but I don’t remember anything.’ And I said, ‘Well, Fred, you can stand by your statement if you want to. But this isn’t the first murder that Fve investigated, and it’s not the first murder that [Detective Missimer’s] investigated. But I know this. This is the first murder you’ve committed. ’ And without hesitation, he said ‘Yes, it is. ’ He looked me right in the eyes when he said that. ” N.T., 3/25/10, pp. 128-29. (emphasis added)

Captain Rhoades added:

“[Tjhere was no doubt in my mind that, based on 28 years as a cop, and based on 50 years on this planet, he knew what was occurring in that room. I based that on several issues. His date of birth. That it was his birthday. When I asked him what day it was, when I went in there, I expected, Wednesday. He knew it was his birthday. When I asked him his age, he knew he was 22. And, as I said, the day before, he was 21. The doctors weren’t there to talk to him. I talked with him ... If he wasn’t able to be interviewed, he would not have been interviewed.” N.T., 3/25/10, pp. 138-39.

Captain Rhoades admitted that opiates affect ability to reason and judgment. N.T., 3/25/10, p. 141. Defense counsel asked whether the captain knew that the interview took place “18 hours after they had his chest open, and they were sewing his insides back together . . . .” N.T., 3/25/10, p. 141. The captain answered that he did not know when the operation took place and did not recall seeing chest tubes coming out Cleveland’s side. N.T., 3/25/10, pp. 141-42.

Captain Rhoades’ trial testimony was both credible and consistent with his testimony during pretrial suppression hearings concerning Cleveland’s interview. Captain Rhoades omitted details during trial that he provided during the suppression hearing — e.g, Cleveland was “calm [and] aware of his surroundings,” SH, 3/11/10, p. 21, “was absolutely paying attention,” SH, 3/11/10, p. 21, and “did not appear to be in any pain, discomfort,” SH, 3/11/10, p. 26 — but these omissions did not impair his credibility or demonstrate that Cleveland’s statement was involuntary or procured through illegal means.

DISCUSSION

I. The Court Properly Denied Cleveland’s Motion to Suppress his Post-Arrest Statement to Captain Rhoades in the Hospital

Cleveland argues that the Fifth Amendment required suppression of his post-arrest, pre-arraignment statement to Captain Rhoades, because the police prevented Cleveland’s attorney from speaking with him before he met Captain Rhoades.

When reviewing an order denying a motion to suppress evidence, an appellate court is limited to determining whether the evidence of record supports the factual findings, inferences and legal conclusions of the suppression court, Commonwealth v. Bennett, 827 A.2d 469, 475 (Pa. Super. 2003). In so doing, the appellate court considers only the evidence of the prosecution along with defense evidence that, fairly read in the context of the entire record, remains uncontradicted. Commonwealth v. Fitzpatrick, 446 Pa. Super. 87, 91, 666 A.2d 323, 325 (1995). Questions of credibility and the weight to be accorded to witness testimony are issues within the sound discretion of the trial court. Id. If the record supports the factual findings of the trial court, the appellate court may reverse only for an error of law. Id.

In response to a motion to suppress, the Commonwealth bears the burden of production and persuasion to prove that it did not obtain the challenged evidence in violation of the defendant’s rights. Commonwealth v. West, 834 A.2d 625, 629 (Pa. Super. 2003) (citing Commonwealth v. Wilmington, 729 A.2d 1160, 1163 (Pa. Super. 1999), appeal denied, 565 Pa. 644, 771 A.2d 1284 (2001)). The Commonwealth must prove by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. Smith, 784 A.2d 182, 186 (Pa. Super. 2001) (citing Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1985)).

Although the court did not enter findings of fact and conclusions of law when it denied Cleveland’s suppression motion, the analysis in this opinion will allow higher courts to perform appellate review. Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002) (notwithstanding absence of pretrial findings of fact and conclusions of law, Superior Court was able to conduct appellate review based on trial court’s Rule 1925(a) opinion).

The police did not violate Cleveland’s Fifth Amendment rights by preventing his attorney from speaking with him before his interrogation, since he knowingly, voluntarily and intelligently waived his Miranda rights and was unaware that an attorney was attempting to contact him. Moran, supra, is squarely on point. There, the suspect confessed to murdering a young woman after receiving Miranda warnings and executing a series of written waivers. At no point during the course of the interrogation, which occurred prior to arraignment, did he request an attorney. While he was in police custody, his sister attempted to retain a lawyer to represent him. The attorney telephoned the police station and received assurances that the suspect would not be questioned further until the next day. In fact, the interrogation session that yielded the inculpatory statements began later that evening. The United States Supreme Court held that the police did not violate the suspect’s Fifth Amendment rights. Where a suspect waives his Miranda rights prior to arraignment, the court observed, failure by the police to inform the suspect that an attorney tried to contact him does not invalidate an otherwise proper waiver. The court reasoned that “[e] vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Id., 475 U.S. at 422. The court continued:

“We have never read the constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights... Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the state’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” Id. at 422-23.

The court emphasized that “the level of the police’s culpability in failing to inform respondent of the telephone call has [no] bearing on the validity of the waivers . .. [T]he state of mind of the police is irrelevant to the question of the intelligence and voluntariness of [the suspect’s] election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident.” Id. at 423.

Nor did the failure to inform the suspect of his attorney’s telephone call invalidate the waiver:

“Granting that the ‘deliberate or reckless’ withholding of information is objectionable as a matter of ethics, such conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. Because [the suspect’s] voluntary decision to speak was made with full awareness and comprehension of all the information Miranda requires the police to convey, the waivers were valid. Id. at 423-24.

As in Moran, Cleveland did not know that an attorney was attempting to contact him, since Upper Darby police refused to allow the attorney to visit Cleveland and disregarded the attorney’s letters demanding that Cleveland not provide any statement. Under Moran, this behavior, while arguably unethical, does not violate the Fifth Amendment. The fact that Cleveland’s family hired counsel did not trigger Cleveland’s Fifth Amendment rights, since this right is personal and cannot be invoked by another party. Commonwealth v. Hall, 549 Pa. 269, 285, 701 A.2d 190, 198 (1997) (citing Commonwealth v. Lark, 505 Pa. 126, 133, 477 A.2d 857, 861 (1984); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)) (while police interviewed defendant, attorney called the police at request of defendant’s mother, but police represented that they were not questioning defendant and would not allow attorney to speak with defendant; court refused to find Fifth or Sixth Amendment violations, since defendant himself never asked for an attorney, and only defendant controls authority to exercise his rights); see also, Commonwealth v. Edmiston, 535 Pa. 210, 227 n.1, 634 A.2d 1078, 1086 n.1 (1993) (defendant’s mother alleged that police refused to permit her to contact counsel while she was at police barracks; following Moran, [v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)], court held that “events occurring outside of the presence of a suspect and entirely u own to him can have no bearing on the capacity to comprehend and knowingly relinquish his constitutional rights ... any right to the presence of legal counsel belonged solely to appellant and may not be assumed by third parties. He was informed that his mother was present and stated he did not want to see her. Any actions by her outside of the appellant’s presence have no bearing upon an analysis relating to a waiver of his rights”).

Furthermore, like the suspect in Moran, Cleveland knowingly, voluntarily and intelligently waived his Miranda rights before giving his statement. Cleveland was composed, alert, thoughtful and not in visible pain despite undergoing major surgery 18 hours earlier and receiving pain medication two hours before Captain Rhoades arrived. He understood everything Captain Rhoades was saying; he was oriented as to time, place and circumstances; he spoke in a manner that demonstrated-his lucidity; he readily agreed to participate in an interview, and Captain Rhoades and Detective Missimer did not threaten him with repercussions if he refused to give a statement. See Commonwealth v. Bracey, 541 Pa. 322, 334, 662 A.2d 1062, 1068 (1995) (defendant did not establish that his physically weakened condition rendered his confession involuntary; although defendant had suffered severe burns, he was made as comfortable as possible during interview, he was stable, alert, coherent and cooperative, and he expressly understood and waived his Miranda rights; record was devoid of any evidence that defendant’s powers of resistance were weakened or that his self-determination was undermined); see also, United States v. Cristobal, 293 F.3d 134, 141 (4th Cir. 2002) (defendant’s waiver of Miranda rights while hospitalized prior to police interrogation was voluntary, even though he had received painkillers and narcotics prior to waiver; defendant never requested not to be interviewed, no officer harmed or threatened defendant if he did not waive his rights, officer who conducted interrogation checked with nurse to make certain defendant was alert before interrogation, and officer fully advised defendant of the nature of investigation, read defendant his Miranda rights, and made sure that defendant was willing participant in interview); United States v. Guay, 108 F.3d 545 (4th Cir. 1997) (citing United States v. George, 987 F.2d 1428 (9th Cir. 1993) (“a defendant may voluntarily waive his rights even when in the hospital, on medication, or in pain”); Escobar v. State, 699 So.2d 988 (Fla. 1997) (although defendant was earlier wounded in shoot-out with police, at time of waiver, hospital records showed his vital signs stable and that he was alert and active and oriented as to time, place and circumstances).

Thus, even though the police prevented Cleveland’s attorney from speaking with him and disregarded the attorney’s demands not to interview him, Cleveland’s statement to Captain Rhoades was not subject to suppression under the Fifth Amendment.

Cleveland also contends that he invoked his right to counsel during the interrogation by asking whether he could see an attorney when he left the hospital. While Pennsylvania courts have not addressed this scenario, other courts have found similar requests too equivocal to constitute invocation of the right to counsel under the Fifth Amendment.

Courts apply an objective standard in determining whether the defendant has invoked the right to counsel. Davis v. United States, 512 U.S. 452, 458-59, 114 S.Ct, 2350, 129 L.Ed.2d 362 (1994) (citing Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987)). The defendant must “articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. at 459. It is not enough that the defendant might be invoking the right to counsel; he must do so unambiguously. Id. When he makes an ambiguous statement, police officers need not cease an interrogation, id. at 459-60, 114 S.Ct. 2350 (citation omitted), or ask clarifying questions. Id. at 461 - 62. Thus, the defendant’s statement in Davis, “maybe I should talk to a lawyer,” was too ambiguous to constitute a request for counsel under the Fifth endment. Id. at 462.

Following Davis, courts have found a variety of statements too ambiguous to constitute invocation of the right to counsel. See United States v. Peters, 435 F.3d 746, 751 (7th Cir. 2006) (defendant did not unambiguously invoke his right to counsel when, after a significant time period elapsed following reading of Miranda warnings, during which he waived right to attorney and interrogation began, he stated “I’d like to get to that part now,” in reference to officer’s earlier statement, at time that warnings were read, that defendant would be taken to pretrial services to determine whether he was financially eligible for appointed counsel); United States v. Banks, 282 F3d 699, 706 (9th Cir. 2002) (defendant’s assertion during interrogation “that he wanted to consult with a lawyer about the possibility of making a ‘deal’ in exchange for divulging information about his suppliers” was not an invocation of right to counsel concerning questions on other matters); United States v. Brown, 287 F.3d 965, 972-73 (10th Cir.2002) (suspect’s contradictory answers on Miranda waiver form that he would answer questions without an attorney and that he wanted to talk to a lawyer too ambiguous to constitute invocation of right to counsel); Mitchell v. Gibson, 262 F.3d 1036, 1056 (10th Cir.2001) (defendant’s inquiry to police whether he needed an attorney not unequivocal request for counsel under Davis); United States v. Zamora, 222 F.3d 756, 766 (10th Cir.2000) (“I might want to talk to an attorney” ambiguous); Diaz v. Senkowski, 16 F.3d 61, 63-64 (2d Cir.1996) (“Do you think I need a lawyer?” ambiguous); Flamer v. Delaware, 68 F3d 710, 725 (3d Cir.1995) (defendant’s request to call someone about possible representation ambiguous); Commonwealth v. Jones, 439 Mass. 249, 786 N.E.2d 1197, 1206 (2003) (“Em going to need a lawyer sometime” not sufficient); State v. McCray, 332 S.C. 536, 506 S.E.2d 301, 306 (1998) (post-waiver statement by defendant he would retain lawyer at some future date not invocation of right to counsel); compare Arizona v. Roberson, 486 U.S. 675, 108 S.Ct 2093, 100 L.Ed.2d 704 (1988) (accused invoked right to counsel where he stated he wanted a lawyer before answering any police questions).

Cleveland did not unambiguously state that he wanted to speak to an attorney before talking with Captain Rhoades. Nor did he demand that an attorney be present during the interview. He merely asked whether he could speak with an attorney after the interview — specifically, after he got out of the hospital. This did not constitute an unequivocal invocation of his right to counsel during the interview, so it did not require Captain Rhoades to stop the interview or ask Cleveland to clarify his request. The court properly denied Cleveland’s motion to suppress.

II. Cleveland Waived his Objection to Photographs of the Crime Scene; in any Event, the Photographs Were Admissible

Cleveland insists that the court abused its discretion by permitting the jury to view “unnecessary, inflammatory, prejudicial . . . [and] gruesome” photographs of Amber Jackson.

Cleveland waived his objection to all photographs introduced during trial. Prior to trial, defense counsel objected to only three of the dozen or so photographs that the Commonwealth intended to introduce. N.T., 3/18/10, pp. 6-8. Counsel withdrew his objection to the first photograph when the Commonwealth agreed to block out Amber’s eyes and nose. N.T., 3/18/10, pp. 11-13. The court sustained counsel’s objection to the second photograph, N.T., 3/18/10, pp. 13-15, so the Commonwealth did not introduce it during trial. The court asked the Commonwealth to change the third photograph from color to black-and-white and to black out Amber’s eyes. N.T., 3/18/10, pp. 16-18.

During trial, defense counsel stated that he had no objection to the photographs introduced into evidence. N.T., 3/23/10, pp. 242-44 (“no objection” to Commonwealth exhibits 11A-11E); N.T., 3/24/10, pp. 16-17 (no objection raised to exhibit 11 A); N.T., 3/25/10, pp. 64-67 (counsel stated that he had no objection to Commonwealth exhibits 54A-54F and 55). In particular, counsel did not object to exhibit 55, the photograph that the court directed the Commonwealth to change to black-and-white with blacked-out eyes. N.T., 3/25/10, p. 66. Thus, Cleveland has not preserved any objection to the photographs for appeal. Commonwealth v. Solana, 588 Pa. 716, 734-35, 906 A.2d 1180, 1191 (2006) (in capital appeal, since photographs from autopsy and actual shirt and shorts worn by murder victim were admitted without objection, defendant waived objections to admission of this evidence); Commonwealth v. Bruce, 916 A.2d 657, 670 (Pa. Super. 2007) (defendant waived objection to admission of photographs by stating “no objection” when Commonwealth moved for their admission).

Even if Cleveland preserved his objection to the photographs, there was no error. Pennsylvania appellate courts review the admission of photographs for abuse of discretion. Commonwealth v. Malloy, 579 Pa. 425, 438, 856 A.2d 767, 775 (2004). Here, the photographs were relevant because they corroborated eyewitness testimony about the location and circumstances of the murder. They also correlated the medical examiner’s detailed testimony about the location of Amber’s wounds. Finally, and perhaps most importantly, they demonstrated Cleveland’s specific intent to commit first-degree murder.

Nor were the photographs prejudicial. Our Supreme Court has stated:

“[Pjictures of the victim are not per se inadmissible. In relation to admissibility of these photographs, we have promulgated the following test:
“[A] 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. If an inflammatory photograph is merely cumulative of other evidence, it will not be deemed admissible.
“‘The admissibility of photos of the corpse in a homicide case is a matter within the discretion of the trial court, and only an abuse of discretion will constitute reversible error.’ [Commonwealth v.] Rush, [538 Pa. 104, 646 A.2d 557,] 560 [(1994)]. As we also explained in Rush:
“A criminal homicide trial is, by its very nature, unpleasant, and the photographic images of the injuries inflicted are merely consonant with the brutality of the subject of inquiry. To permit the disturbing nature of the images of the victim to rule the question of admissibility would result in exclusion of all photographs of the homicide victim, and would defeat one of the essential functions of a criminal trial, inquiry into the intent of the actor. There is no need to so overextend an attempt to sanitize the evidence of the condition of the body as to deprive the Commonwealth of opportunities of proof in support of the onerous burden of proof beyond a reasonable doubt. Further, the condition of the victim’s body provides evidence of the assailant’s intent, and, even where the body’s condition can be described through testimony from a medical examiner, such testimony does not obviate the admissibility of photographs.
“[Commonwealth v. ] Robinson, [581 Pa. 154, 864 A.2d 460,] 501-502. (citations omitted) Neither graphic testimony nor the pictures’ gruesome nature precludes admissibility of photographs of a homicide scene. See e.g., Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203, 217 (1997) (‘While the presence of blood on the victim depicted in the photographs is unpleasant, it is not in and of itself inflammatory.’); Rush, at 559-60 (pictures of victim’s body at crime scene were admissible despite medical examiner’s testimony); Commonwealth v. Gorby, 527 Pa. 98, 588 A.2d 902, 908 (1991) (no abuse of discretion in allowing photographs ‘which depicted a large gaping gash on the victim’s neck as well as 13 other knife wounds located on the victim’s hands, arms, back, and chest’); Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367, 1373-74 (1991) (no abuse of discretion in allowing photographs of victim’s slashed throat, open eye, and other head injuries as evidence of specific intent to kill).” Commonwealth v. Wright, 599 Pa. 270, 304, 961 A.2d 119, 138-39 (2008); see also, Commonwealth v. Tharp, 51A Pa. 202, 224, 830 A.2d 519, 531-32 (2003), cert. denied, 541 U.S. 1045, 124 S.Ct. 2161, 158 L.Ed.2d 736 (2004) (introduction of photographs was proper even though testimonial evidence to demonstrate injuries was available); Commonwealth v. Begley, 566 Pa. 239, 268, 780 A.2d 605, 622-23 (2001) (“even where the body’s condition can be described through testimony from a medical examiner, such testimony does not obviate the admissibility of photographs”) (quoting Commonwealth v. Jacobs, 536 Pa. 402, 407, 639 A.2d 786, 789(1994)).

In Wright, the Supreme Court rejected the defendant’s argument that photographs of the decedent’s body were inflammatory, had no overwhelming evidentiary value, and were cumulative of other evidence:

“[Appellant] fails to specify how they are inflammatory, why they lack evidentiary value, or what other evidence they duplicate. He merely restates the standards, in hopes this court will formulate arguments on his behalf
“The trial court explained the photographs were not cumulative, but rather illustrated the area of the shooting, position of the body, location of the shell casings, and corroborated Mrs. Mowery’s testimony, which appellant contested. It admitted the photographs because ‘they were neither gruesome nor necessarily explicit in their portrayal of the body’. . . Having reviewed the photographs at issue, we agree the pictures are not unnecessarily gruesome and only show limited amounts of dried blood. We conclude the trial court did not abuse its discretion in determining the photographs were relevant and not inflammatory.” Id., 599 Pa. at 305, 961 A.2d at 139.

Similarly, in Malloy, the defendant “assert[ed] that the introduction of the two autopsy photographs was prejudicial [but did] not offer any explanation as to why that is so.” Id., 856 A.2d at 777. Thus, the trial court properly held that “admission of the photographs was proper because the stippling effect and the effect of the shooting at close-range, which was relevant to the charge of first-degree murder, could not be adequately explained without the photographs.” Id.

Furthermore, in Commonwealth v. Edwards, 521 Pa. 134, 151, 555 A.2d 818, 827 (1989), the trial court admitted 13 photographs of the victim’s body which depicted her beaten face, the strangulation area of her neck, wounds on her hands and fingers, bite marks on her legs, and explicit photographs of her chest and abdomen related to the sexual nature of the attack. Id. The Supreme Court concluded that “[t]he photographs admitted were not inflammatory and were relevant in aiding the jury to understand the events of the crime charged.” Id.

As in the foregoing decisions, the rulings in this case concerning the photographs did not harm Cleveland. The court reviewed several photographs prior to trial and excluded one photograph that might have inflamed the jury due to the amount of blood around Amber’s head. Two other photographs were blacked out in part and/or changed from color to black-and-white to prevent prejudice. The remaining photographs presented no danger of prejudice.

Even if the photographs admitted into evidence were inflammatory, their admission was harmless error, for the other evidence of Cleveland’s guilt was overwhelming. Amber had broken off her relationship with Cleveland one day before the murder. Cleveland was upset that the relationship ended, as shown by his conversation with the manager of the apartment where he and Amber resided and by his conversation with Amber outside her parents’ house shortly before the attack. Two witnesses, Brannon and April Jackson, heard Cleveland smash the front door window and break into Amber’s parents’ house as Amber implored Cleveland to stay out. A blood stain on the front door matched Cleveland’s DNA profile. April heard Cleveland pursue Amber upstairs, where April heard screaming that sounded like a horror movie. Cleveland attacked Amber ferociously with a butcher’s knife that he grabbed from the first floor kitchen. Amber’s father and a police officer found Cleveland lying in the kitchen minutes after he staggered downstairs from, the bathroom where Amber lay dead. Given this evidence, it is virtually inconceivable that exclusion of the photographs would have resulted in a different verdict.

CONCLUSION

For the foregoing reasons, Cleveland’s judgment of sentence should be affirmed.

      . On May 24,2010, the court ordered Cleveland to file a statement by June 14,2010. On June 10,2010, Cleveland filed a timely statement In which he requested leave to file a supplemental statement after receiving the transcript from the second day of suppression hearings. On June 21, 2010, one week after the deadline, Cleveland submitted a supplemental statement clarifying a suppression issue.
      Rule 1925(b)(2) authorizes the appellant to file a supplemental statement “upon [his] application ... and for good cause shown.” The court finds that Cleveland’s request in his statement for leave to file a supplemental statement constitutes an “application” under Rule 1925(b) (2). Cleveland also showed good cause for filing a supplemental statement, viz., he did not have the transcript from the second day of suppression hearings when he filed his statement, and he needed to review this transcript to determine whether there were any appealable issues.
      The court has re-ordered the issues raised on appeal for the sake of convenience.

      . The ferocity of this attack moved the prosecutor to comment: “(Cleveland) couldn’t have (Amber), so no one else was.” N.T., 3/26/10, p. 88.

      . The court also rejected the suspect’s Sixth Amendment and due process arguments.

      . For similar decisions from other jurisdictions, see Matney v. Armontrout, 956 F.2d 824 (8th Cir.1992) (Moran applies though defendant had earlier personally retained counsel, where defendant did not know attorney had been turned away; such a defendant “exhibits an even greater understanding of the nature of his legal rights”); Bell v. State, 280 Ga. 562, 629 S.E.2d 213 (2006) (where defendant’s mother hired lawyer for defendant and police refused to let lawyer see defendant, all unknown to defendant, defendant’s subsequent Miranda waiver valid); State v. Williams, 99 Ohio St. 3d 439, 793 N.E.2d 446, 459 (2003); State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61, 71-72 (2002) (under Moran, police were not required to inform defendant during interrogation that his father had retained counsel on his behalf and that counsel was present at police station, even though defendant had asked to speak to his father); Ajabu v. State, 693 N.E.2d 921 (Ind. 1998) (where father without son’s knowledge retained attorney who called the jail and asked that son not be questioned, but son not told, Moran applies); State v. Ringo, 30 S.W.3d 811 (Mo. 2000) (Moran applies where defendant’s sister contacted attorney and asked him to go to police station to check on defendant; when attorney did, police refused to let him see defendant; no suggestion defendant aware of sister’s efforts); Jackson v. Commonwealth, 255 Va. 625, 499 S.E.2d 538 (1998), (under Moran, fact, unknown to defendant, that police delayed in allowing mother to see him has no bearing on waiver of rights); State v. Earls, 116 Wash.2d 364, 805 P.2d 211 (1991) (Moran applies where defendant knew his ex-wife was trying to retain counsel for him, but did not know police failed to deliver message to call him from attorney she contacted).

      . Cleveland does not argue that his Sixth Amendment rights were violated, but it would not have helped him to raise this defense. He had not been arraigned at the time of his interrogation, so his Sixth Amendment rights had not yet attached.

        Nor did Cleveland argue that the police violated his rights under the Pennsylvania Constitution. If he had, Commonwealth v. Arroyo, 555 Pa. 125, 723 A.2d 162 (1999), probably would have barred relief. In Arroyo, during police questioning, an attorney telephoned the police barracks and requested to speak with the defendant to determine if he desired counsel. The police refused the attorney’s request and did not inform the defendant that the attorney had attempted to contact him. The Arroyo court observed that Moran involved a “strikingly similar” scenario, id, 555 Pa. at 132, 723 A.2d at 165, and noted that the defendant accepted Moran as foreclosing any federal constitutional claims. Id. at 133, 723 A.2d at 166. Arroyo went on to hold that the police did not violate the defendant’s right to counsel and to due process under Pennsylvania Constitution, and that the defendant’s right against self-incrimination was no greater under the Pennsylvania Constitution than under the Fifth Amendment. Id. at 135, 723 A.2d at 166-67 (citing Commonwealth v. Morley, 545 Pa. 420, 429, 681 A.2d 1254, 1258 (1996); Commonwealth v. Swinehart, 541 Pa. 500, 512-18, 664 A.2d 957, 962-965 (1995)).