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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ADAM ROSEN, : No. 1260 EDA 2014

:

 Appellant :

Appeal from the PCRA Order, April 9, 2014,

in the Court of Common Pleas of Montgomery County

Criminal Division at No. CP-46-CR-0005182-2001

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 11, 2015

Appellant appeals the order denying his second petition filed pursuant 

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. 

Finding no error on appeal, we affirm.

Appellant was originally convicted by jury trial of first degree murder 

on May 2, 2002 in connection with the June 30, 2001 stabbing death of his 

wife. On June 6, 2003, this court affirmed the judgment of sentence, and on 

October 2, 2003, our supreme court denied appeal. Commonwealth v. 

Rosen, 830 A.2d 1052 (Pa.Super. 2003) (unpublished memorandum), 

appeal denied, 832 A.2d 436 (Pa. 2003). On September 27, 2004, 

appellant filed his first PCRA petition. While the petition was dismissed on 

March 1, 2005, on November 23, 2005, this court reversed on the basis that 

trial counsel was ineffective in failing to call character witnesses. 
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Commonwealth v. Rosen, 890 A.2d 1105 (Pa.Super. 2005) (unpublished 

memorandum), appeal denied, 906 A.2d 542 (Pa. 2006).

On July 21 and 22, 2008, appellant was tried at a bench trial, and was 

again convicted of first degree murder. On December 8, 2009, this court 

affirmed the judgment of sentence, and on April 25, 2012, our supreme 

court affirmed this court. Commonwealth v. Rosen, 988 A.2d 146 

(Pa.Super. 2009), affirmed, 42 A.3d 988 (Pa. 2012).

On April 5, 2013, appellant filed the instant, counseled PCRA petition. 

Following a hearing on March 3, 2014, appellant’s PCRA petition was denied 

by order entered April 9, 2014. This timely appeal followed.

Appellant raises a single claim of ineffective assistance of trial counsel 

on appeal indicating that counsel’s failure to rebut the testimony of the 

Commonwealth’s medical expert, Dr. Ian Hood, with conflicting expert 

medical opinion was ineffective. The particular testimony to which appellant 

objects is as follows:

Q. Doctor, when we spoke, you had mentioned 

something about this not being an overkill?

A. Yes. That’s really a term of art. It has no 

particular scientific basis.

It’s a matter of experience, in that -- where 

there’s a lot of emotion involved. You see it a 

lot in domestic cases, particularly homosexual 

males is where it was first described. Then the 

person who’s doing the killing just continues to 

flail away with whatever weapon they’re using 

at the victim, long after the victim has ceased 

to struggle.
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We call that overkill. It is often characterized 

by a multiplicity of wounds, much more than 

you see here. And clear evidence of the 

wounds being inflicted on somebody. There is 

no bruising anymore. So you have a couple of 

dozen wounds that are clustered in one area, 

all going in the same way, indicating that the 

individual is no longer moving, and that we 

would call overkill.

Q. Are the injuries to Hollie consistent with an 

overkill, in your opinion?

A. Not in number and not in their distribution, 

either. She’s clearly moved while being --

while sustaining these wounds.

Notes of testimony, 7/21/08 at 110-111.

Essentially, appellant complains that he was relying upon his alleged 

rage or heat of passion to negate the specific intent to kill necessary for a 

first degree murder conviction and that this testimony served to vitiate that 

defense. Appellant calls attention to the fact that the trial court specifically 

found a specific intent to kill based upon the victim’s wounds. (Appellant’s 

brief at 17.) Appellant asserts that expert medical opinion was available to 

indicate that the wounds were consistent with rage or heat of passion.

We find no error with the PCRA court’s holding. After a thorough 

review of the record, the briefs of the parties, the applicable law, and the 

well-reasoned opinion of the PCRA court, it is our determination that there is 

no merit to the question raised on appeal. Judge Demchick Alloy’s thorough, 

23-page opinion, filed on June 16, 2014, comprehensively discusses and 
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properly disposes of the question presented. We will adopt it as our own 

and affirm on that basis with the following additional analysis.

We find that although Judge Tressler relied upon the wounds, it was 

not because they indicated a lack of rage or heat of passion. It is fortunate, 

in this regard, that we are reviewing a bench trial, because when the trial 

judge announced his decision, he related the reasoning behind his decision, 

and in so doing, allowed this court to look into the mind of the finder-of-fact. 

While the trial judge did base his decision on the wounds, he clearly did not 

rely on Dr. Hood’s testimony as negating appellant’s assertion of heat of 

passion:

Now, I don’t think the Commonwealth has 

proven beyond a reasonable doubt that the initial 

argument did not occur downstairs. There is no 

evidence that the former Mrs. Rosen was not an 

instigator in the argument.

However, when they went upstairs, things 

changed drastically, and I don’t think that that had 

anything to do with the argument they were having 

or the fact that she might even have threatened him.

I think it had everything to do with the fact 

that he had finally come down with his decision as to 

what he was going to do with his wife. I base that 

on the wounds.

First of all, there is no doubt in my mind that 

the chest wound occurred before the neck wound. 

That chest wound was wide. It was gaping. It was 

three inches long. It went through two ribs. It was 

five inches deep. That was the power. It entered 

the upper left lobe of the lung.
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The most important thing about that was there 

was a moving motion, as was described by 

Doctor Hood, which meant there was a struggle. 

She was alive.

The reason that that gaping hole was an 

inch-and-a-half across was because, as she moved, 

the knife, in turn, stayed solid, and she turned with 

her body; that widened the hole.

I don’t doubt that the first witness that we had 

-- I forget his name -- the gentleman going to the 

bar, for the bar exam. I don’t doubt that he heard a 

scream. I’m confident, beyond a reasonable doubt, 

that that is the scream he heard.

The other gentleman was walking the dog. 

Mr. Winters pointed out he didn’t hear anything.

That’s because, I looked at the record, and he 

was never asked by anybody at any time. That’s 

why there was no evidence of that.

I believe that at the time that that scream 

went, that that was when the knife was in her chest. 

And in order to silence her, because of that scream, 

that’s when Adam plunged the knife into her neck, 

and he did it with the intention of killing her.

Then to even further prove that intent, after 

she had had her part of her voice box sliced off and 

her jugular cut -- by the way, that was another 

three-and-a-half inch long by one-and-a-half inch 

crossway wound, and that went six or seven inches 

deep. I believe Doctor Hood said it almost came out 

the other side of her throat. That certainly was a 

wound that was intended to kill.

Then on top of that, she’s now rolled over or 

slides down. The knife wound in the upper back 

goes in so deep it goes into the right lung. Then, 

again, there is some type of movement, although not 

nearly as much.
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Then finally, the three stabs at the bottom of 

the upper body. They’re each four inches deep. 

They go right in and come right out. At that point, 

there is absolutely no resistance.

So I think that the evidence shows beyond a 

reasonable doubt that, although he might not have 

originally started the fight -- he might not even 

have, originally, intended to kill her, at that moment, 

the moment the fight started, there is no doubt in 

my mind that he did intend to kill her when he stuck 

that knife into her chest, and, certainly, when he 

slashed her throat to keep her quiet. The only way 

he could do that was to kill her, and, also, the 

wounds in the back, to make sure she was dead.

Notes of testimony, 7/21/08 (Day Two) at 41-44.1

The trial court clearly based its finding of a specific intent to kill on the 

lethal nature of the chest and neck wounds. “It is well-settled that specific 

intent to kill can be established through circumstantial evidence such as the 

use of a deadly weapon on a vital part of the victim’s body.” 

Commonwealth v. Johnson, 107 A.3d 52, 66 (Pa. 2014). Of course, 

stabbing a person in the abdomen would supply specific intent under this 

formula; however, how much more certain is death than when the left chest, 

where the heart is located, or the throat, with its vital arteries and veins, is 

slashed deeply open? This patently indicates that appellant specifically 

intended to kill his wife. We also agree with the court that the stabbing of 

 

1 Both trial transcripts are dated July 21, 2008, although they are marked as 

occurring over two days.
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the victim’s back, where she now no longer moved in response, was done to 

insure that she was, in fact, dead.

Finally, a defendant asserting a claim of ineffective assistance of 

counsel must show that: 1) the underlying legal claim has arguable merit; 

2) counsel had no reasonable basis for his or her action or omission; and 

3) defendant suffered prejudice as a result. Commonwealth v. Watkins, 

108 A.3d 692, 702 (Pa. 2014). Since the trial court relied upon the utterly 

lethal nature of the chest and neck wounds to find a specific intent to kill, 

and not upon any implication by Dr. Hood’s testimony that this was not a 

rage or heat of passion killing, we find that expert medical testimony 

countering Dr. Hood would not have changed the result at trial; hence, we 

find no prejudice and no ineffectiveness.

Accordingly, having found no merit to the issue on appeal, we will 

affirm the order entered below.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/11/2015