J-A27031-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

ROBERT FERRANTE, :

:

Appellant : No. 660 WDA 2015

Appeal from the Judgment of Sentence February 4, 2015

in the Court of Common Pleas of Allegheny County,

Criminal Division, No(s): CP-02-CR-0013724-2013

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 18, 2018

Robert Ferrante (“Ferrante”) appeals from the judgment of sentence 

entered following his conviction of first-degree murder. See 18 Pa.C.S.A. 

§ 2502. We affirm.

We adopt the thorough and comprehensive summary of the factual 

history of this case, as set forth in the Opinion of the Honorable Jeffrey 

Manning, for the purpose of this appeal. See Trial Court Opinion, 9/15/16, 

at 4-23. 

Briefly, the Commonwealth’s evidence established that at 11:18 p.m., 

on April 17, 2013, Autumn Klein, M.D., Ph.D. (“Dr. Klein”), was seen leaving 

Presbyterian University Hospital, her place of employment. Upon arriving at 

her residence, Dr. Klein collapsed. At 11:52 p.m., Dr. Klein’s husband, 

Ferrante, called for an ambulance. Pittsburgh paramedics Jerad Albaugh and 

Steve Mason arrived at the residence, where they found Dr. Klein 
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unconscious on the kitchen floor. Ferrante told the paramedics that he was 

upstairs when Dr. Klein had entered the home, and discovered Dr. Klein 

when he came downstairs. Ferrante explained to paramedics that a zip lock

bag containing a white powder, found in the kitchen, contained creatine. 

Ferrante explained that Dr. Klein took the creatine to help with fertility. 

At the hospital, Andrew Farkas, M.D. (“Dr. Farkas”), asked Ferrante 

whether Dr. Klein had suffered previously from headaches. Ferrante stated 

that right before collapsing, Dr. Klein had complained of not feeling well. 

When placing an IV, Dr. Farkas observed that Dr. Klein’s blood was bright 

red. Dr. Klein was subsequently transferred to the intensive care unit 

(“ICU”). Three days later, the supervising physician in the emergency room, 

Thomas Martin, M.D. (“Dr. Martin”), told Dr. Farkas that the results of Dr. 

Klein’s blood test indicated the presence of a high level of cyanide. Dr. 

Farkas contacted the Allegheny County Medical Examiner’s Office and 

informed them of his concerns regarding Dr. Klein. Dr. Klein was 

pronounced dead on April 20, 2013. 

On July 24, 2013, Ferrante was charged with one count of criminal 

homicide for the death of Dr. Klein. A jury ultimately convicted Ferrante of 

first-degree murder. Following the preparation of a pre-sentence

investigation report, the trial court sentenced Ferrante to life in prison. 

Ferrante filed post-sentence Motions and supplemental post-sentence 

Motions, all of which the trial court denied. Ferrante filed a Motion to 
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reconsider the denial of his post-sentence Motions, which the trial court also 

denied. Thereafter, Ferrante timely filed a Notice of appeal, followed by a 

court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained 

of on appeal.

Ferrante raises the following claims for our review:

I. Whether the Commonwealth had a duty to disclose to 

[Ferrante] before trial that [the] Nichols Institute

(“Nichols”), a/k/a Quest Diagnostics, [Incorporated 

(“Quest”),] had a criminal conviction and had committed 

other bad acts which were relevant to the reliability of the 

Quest cyanide test result introduced at trial?

II. Whether the evidence was insufficient to sustain a 

conviction of first-degree murder?

III. Whether the guilty verdict of first-degree murder was 

against the weight of the evidence?

IV. Whether the [trial] court erred in denying [Ferrante’s] 

suppression Motions [Nos.] 1, 20, 24, 28, 38, 60, 63, 

[and] 64[,] [and] allowing the fruits of the 

Commonwealth’s illegal searches and seizures to be 

introduced at trial against [Ferrante]?

Brief for Appellant at 1. 

Ferrante first claims that the Commonwealth violated the United 

States Supreme Court’s holding in Brady v. Maryland, 373 U.S. 83 (1963), 

by not disclosing that a subsidiary of Quest, Nichols Institute1 had a prior 

crimen falsi conviction. Brief for Appellant at 20. Ferrante argues that the 

Commonwealth had an affirmative duty to disclose exculpatory evidence, 

 

1

Ferrante argues that, the fact that Nichols was a subsidiary of Quest is a 

distinction without a difference, as the two are “interchangeable,” as Quest 

had paid Nichols’s criminal and civil fines. Brief for Appellant at 24. 
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even though there had been no request for such evidence by the accused. 

Id. Ferrante contends that after trial, his counsel discovered that Nichols 

had been convicted of a felony, for which it paid a fine of $40 million. Id. 

Ferrante additionally points out that Quest had paid $241 million to settle 

claims regarding Nichols’s violations of the False Claims Act, for 

systematically overcharging California’s Medi-Cal program for over 15 years. 

Id. at 21. Ferrante states that a determination of the cause of Dr. Klein’s 

death depended upon the reliability of Quest’s tests of Dr. Klein’s blood. Id. 

Regardless of whether the Commonwealth knew of this information, Ferrante 

claims that the Commonwealth had an obligation to find out and disclose 

Nichols’s prior criminal conviction and bad acts. Id. at 22. Ferrante asserts 

that these criminal convictions, “as well as the numerous lawsuits, are 

reflective of [the] lax standards and unreliable testing methods” of Quest. 

Id.

“In Brady, the United States Supreme Court held that the suppression 

by the prosecution of evidence favorable to an accused upon request violates 

due process where the evidence is material either to guilt or to 

punishment[,] irrespective of the good faith or bad faith of the prosecution.” 

Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001) (internal 

quotation marks and citation omitted). 

Pursuant to Brady and its progeny, the prosecutor has a duty to 

learn of all evidence that is favorable to the accused which is 

known by others acting on the government’s behalf in the case, 

including the police. Kyles v. Whitley, 514 U.S. 419, 437, 115 
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S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Pursuant to Kyles, “the 

prosecutor’s Brady obligation clearly extends to exculpatory 

evidence in the files of police agencies of the same government 

bringing the prosecution.” Commonwealth v. Burke, 566 Pa. 

402, 781 A.2d 1136, 1142 (Pa. 2011). Moreover, there is no 

Brady violation when the defense has equal access to the 

allegedly withheld evidence. See Commonwealth v. Spotz,

587 Pa. 1, 896 A.2d 1191, 1248 (Pa. 2006) (“It is well 

established that no Brady violation occurs where the parties had 

equal access to the information or if the defendant knew or could 

have uncovered such evidence with reasonable diligence.”

(internal citation omitted)).

Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013). 

Our Supreme Court has explained that, in order to establish a Brady

violation,

a defendant must show that: (1) evidence was suppressed by 

the state, either willfully or inadvertently; (2) the evidence was 

favorable to the defendant, either because it was exculpatory or 

because it could have been used for impeachment; and (3) the 

evidence was material, in that its omission resulted in prejudice 

to the defendant. However, [t]he mere possibility that an item 

of undisclosed information might have helped the defense, or 

might have affected the outcome of the trial, does not establish 

materiality in the constitutional sense. Rather, evidence 

is material only if there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the 

proceeding would have been different. A reasonable probability 

is a probability sufficient to undermine confidence in the 

outcome. 

Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (internal quotation 

marks and citations omitted). 

Pennsylvania Rule of Criminal Procedure 573 codified the United States 

Supreme Court’s holding in Brady: 

Mandatory. In all court cases, on request by the defendant, 

and subject to any protective order which the Commonwealth 
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might obtain under this rule, the Commonwealth shall 

disclose to the defendant’s attorney all of the following 

requested items or information, provided they are 

material to the instant case. The Commonwealth shall, when 

applicable, permit the defendant’s attorney to inspect and copy 

or photograph such items.

(a) Any evidence favorable to the accused that is material 

either to guilt or to punishment, and is within the 

possession or control of the attorney for the 

Commonwealth[.]

Pa.R.Crim.P. 573(B)(1)(a) (emphasis added). 

We have reviewed the parties’ arguments regarding this claim, as set 

forth in their briefs, and the record certified to this Court on appeal. 

Further, we have reviewed the trial court’s comprehensive and well-reasoned 

Opinion with regard to this claim. See Trial Court Opinion, 9/15/15, at 39-

40. We agree with the sound reasoning of the trial court, as set forth in its 

Opinion, and affirm on this basis with regard to Ferrante’s first claim, albeit 

with the following addendum. See id.

There is nothing of record indicating that the Commonwealth had, in 

its 

possession, evidence of Nichols’s conviction.

2

 Further, Ferrante had equal 

access to information regarding Nichols’s conviction of misbranding, and 

could have uncovered such conviction with due diligence. See id. However, 

 

2 Evidence of unrelated civil settlements generally would not be admissible. 

See Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) 

(recognizing that “evidence of prior bad acts or unrelated criminal activity is 

inadmissible to show that a defendant acted in conformity with those past 

acts or to show criminal propensity.”). 
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more fundamental to Ferrante’s claim, even if the Commonwealth were 

under a duty to discover and disclose the conviction of Nichols, we cannot 

conclude that the information was “material,” as Ferrante had suffered no 

prejudice from the Commonwealth’s non-disclosure. 

Nichols previously had pled guilty to misbranding a 

Chemiluminescence Intact Parathyroid Hormone Immunoassay (“PHI”), 

which is used to test parathyroid hormone (“PTH”) levels in patients.

 See 

U.S.F.D.A. “Quest Diagnostics Incorporated To Pay $302 Million to Resolve 

Allegations that a Subsidiary Sold Misbranded Test Kits.” (available at:

https://www.fda.gov/ICECI/CriminalInvestigations/ucm261942.htm, 

(12/15/17). “The PTH tests at issue ... were widely used by medical 

practitioners to determine if patients suffering from conditions such as End 

Stage Renal Disease were also suffering from hyperparathyroidism, a 

condition which involves the overactivity of the parathyroid glands and the 

release of excessive amounts of PTH.” Id. As alleged in the criminal 

information against Nichols, there were periods of time in which the 

Advantage Intact PTH Assay provided elevated results, yet Nichols 

improperly represented that its results were similar to another test. Id. 

The Quest technicians testifying in this case did not use the Advantage 

Intact PTH Assay to determine the levels of cyanide in Dr. Klein’s blood. 

Thus, we cannot conclude that Nichols’s misbranding conviction, a conviction 

involving a different testing procedure for a different substance, was 
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“material.” Similarly, even if such evidence was admissible, we would 

conclude that Ferrante suffered no prejudice resulting from the alleged nondisclosure, as the evidence was not “material.” Consequently, Ferrante is 

not entitled to relief on this claim. 

For the above-stated reasons, we additionally deny Ferrante’s 

Application for a remand to explore whether the Commonwealth was aware 

of Nichols’s conviction.

Ferrante next claims that the evidence was not sufficient to sustain his 

conviction of first-degree murder. Brief for Appellant at 25, 26. Ferrante 

argues that the Commonwealth’s case “rested solely on circumstantial 

evidence,” and that the Commonwealth failed to prove that he had caused 

Dr. Klein’s death. Id. at 25. In support, Ferrante directs our attention to 

the following evidence, presented at trial. 

Ferrante asserts that although the Center for Disease Control and 

Prevention states that cyanide poisoning “produced symptoms within 

seconds to minutes; death may occur within minutes[,]” and that such 

symptoms include nausea, vomiting, abdominal pain and irritation of the 

lining of the esophagus and stomach, were not observed by the first 

responders or the staff at the emergency room. Id. at 26. Ferrante points 

to testimony that the symptoms presented by Dr. Klein were inconsistent 

with cyanide poisoning. Id. at 27. Ferrante additionally refers to the 

testimony of Cyril Wecht, M.D. (“Dr. Wecht”), who opined that Dr. Klein’s 
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“cause of death was undetermined, but could lead to a conclusion of cardiac 

dysrhythmia.” Id. Ferrante posits that the evidence does not exclude other 

hypotheses consistent with his innocence, and that Dr. Klein could have died 

from cardiac dysrhythmia. Id. 

Ferrante also asserts that there were conflicts in the Commonwealth’s 

evidence as to the level of cyanide found in Dr. Klein’s blood. Id. at 28. 

Specifically, Ferrante contends that the Commonwealth “ignored the NMS

[Labs (“NMS”)] results in favor of a single result from an unaccredited, nonforensic laboratory with a history and reputation for dishonesty.” Id. 

Ferrante points out the discrepancies in the cyanide level reported by Quest, 

and the level indicated in a second test performed by NMS. Id. at 28-29. In 

addition, Ferrante relies on evidence that Dr. Klein’s organs were accepted 

for transplantation to living people, as no cyanide was detected by the 

Center for Organ Recovery & Education (“CORE”). Id. at 28. According to 

Ferrante, “[a] conviction based on conjecture, especially here[,] when 

scientific evidence and technology was available to prove guilt/innocence to 

a certainty, cannot stand.” Id. at 29. 

Finally, Ferrante directs our attention to the testimony of Quest lab 

technician Sonia Obscemea, who stated that Quest’s test could have 

produced a false positive result. Id. Ferrante also argues that the trial 

court should have considered the known or potential rate of error. Id. 
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The standard we apply in reviewing the sufficiency of the evidence is 

whether,

viewing all the evidence admitted at trial the in the light most 

favorable to the verdict winner, there is sufficient evidence to 

enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not 

weigh the evidence and substitute our judgment for the factfinder. In addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant’s 

guilt may be resolved by the fact-finder unless the evidence is so 

weak and inconclusive that as a matter of law no probability of 

fact may be drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving every element 

of the crime beyond a reasonable doubt by means of wholly 

circumstantial evidence. Moreover, in applying the above test, 

the entire record must be evaluated and all evidence actually 

received must be considered. Finally, the finder of fact[,] while 

passing upon the credibility of witnesses and the weight of the 

evidence produced[,] is free to believe all, part or none of the 

evidence.

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015) 

(citation omitted).

In its Opinion, the trial court set forth a comprehensive summary of 

the evidence presented at trial, viewed in a light most favorable to the 

Commonwealth, as verdict winner. See Trial Court Opinion, 9/15/13, at 4-

23. The trial court addressed Ferrante’s challenge to the sufficiency of the 

evidence, in its Opinion, and concluded that the claim lacks merit. Id. at 40. 

We agree with the sound reasoning of the trial court, as set forth in its 

Opinion, and affirm on this basis with regard to Ferrante’s second claim. See 

id. at 4-23, 44. 
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In his third claim, Ferrante argues that the verdict is against the 

weight of the evidence. Brief for Appellant at 30, 39. In support, Ferrante 

points out that Quest is not an accredited forensic laboratory and that 

forensic laboratories are subject to stringent requirements. Id. at 30-31. In 

addition, Ferrante asserts that Quest did not follow its own standard 

operating procedures, when it failed to repeat the cyanide test; its control 

test was not negative for cyanide; and the lab technician failed to run a 

dilution control. Id. at 31-32. According to Ferrante, Obcemea, the lab 

technician, “could not remember how many spectrophotometers she used at 

that time or which machine she used on Klein’s blood sample.” Id. at 33. 

Further, Ferrante asserts that Obcemea could not remember whether the 

spectrophotometer that she used to test Dr. Klein’s sample was the one 

taken out for repairs a week later. Id. Ferrante also points out that Dr. 

Klein’s blood cyanide level was amended three times by different Quest 

personnel, and that a false positive can result from the method used by 

Quest to test the sample. Id. at 34-35. Ferrante directs our attention to 

other purported errors by Obcemea, and violations of Quest’s standard 

operating procedures. Id. at 35-39. 

In order to preserve a challenge to the verdict as against the weight of 

the evidence, “the issue must be raised with the trial judge in a motion for a 

new trial either orally prior to sentencing, by written motion prior to 

sentencing, or in a post-sentence motion.” Commonwealth v. Lewis, 45 
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A.3d 405, 410 (Pa. Super. 2012) (en banc). As our Supreme Court has 

explained,

[t]he decision to grant or deny a motion for a new trial based 

upon a claim that the verdict is against the weight of the 

evidence is within the sound discretion of the trial court. Thus, 

the function of an appellate court on appeal is to review the trial 

court’s exercise of discretion based upon a review of the record, 

rather than to consider de novo the underlying question of the 

weight of the evidence. An appellate court may not overturn the 

trial court’s decision unless the trial court palpably abused its 

discretion in ruling on the weight claim. Further, in reviewing a 

challenge to the weight of the evidence, a verdict will be 

overturned only if it is so contrary to the evidence as to shock 

one’s sense of justice. 

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016). 

In his post-sentence Motions filed on February 17, 2015, Ferrante 

challenged the weight of the evidence based upon the following assertions:

The verdict was also against the weight of the evidence. As 

stated above, the Commonwealth’s toxicology evidence was “so 

unreliable and/or contradictory as to make any verdict based 

thereon pure conjecture.” Commonwealth v. Farquharson, 

467 Pa. 50,60, 354 A.2d 545, 550 (1976). The Commonwealth’s 

experts (i.e., the pathologist and the toxicologist) accepted the 

Quest blood test result (3.4 mg/L or 2.2 mg/L) without 

reservation. The Pennsylvania Courts have held that if the basis 

for the expert’s opinion is faulty (i.e., reliance on the Quest 

results here) the opinion is incompetent and entitled to no 

weight. See Viener v. Jacobs, 834 A. 2d 546 (Pa. Super. 

2003); see also Commonwealth v. Sero, 387 A.2d 63 (Pa. 

1978).

On the other hand, the defense experts did not accept this faulty 

Quest evidence and concluded that a finding of cyanide 

poisoning could not be made within any reasonable degree of 

medical certainty, and that the cause of death was consistent 

with cardiac. Hence, the opinions of the defense experts are 

entitled to greater weight. Accordingly, [Ferrante] is entitled to, 

at a minimum, a new trial.
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Post-Sentence Motions, 2/17/15, at 7. In his Supplemental Post-Sentence 

Motions, Ferrante raised no further challenge to the verdict as against the 

weight of the evidence. 

As set forth above, Ferrante did not challenge the verdict as against 

the weight of the evidence, based upon Quest’s purported violation(s) of its 

standard operating procedures. The trial court did not address these 

contentions in its Opinion. “[A] challenge to the weight of the evidence must 

first be raised in the trial court and failure to do so [will constitute] a waiver 

of the claim.” Commonwealth v. Widmer, 689 A.2d 211, 212 (Pa. 1997). 

Because Ferrante failed to preserve this challenge to the weight of the 

evidence before the trial court, in his post-sentence Motions, we conclude 

that it is not preserved for our review.3 See Cash, 137 A.3d 1270; see 

also Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the first time 

on appeal). 

In his fourth claim, Ferrante claims that the trial court erred in denying 

the following suppression Motions: Numbers 1, 20, 24, 28, 38, 60, 63 and 

64. Brief for Appellant at 39. Ferrante argues that by denying these 

Motions, the suppression court improperly permitted “fruits of the 

Commonwealth’s illegal searches and seizures to be introduced against 

[Ferrante] at trial.” Id. (capitalization omitted). Specifically, Ferrante 

 

3 To the extent that Ferrante generally challenges the verdict as against the 

weight of the evidence, we affirm on the basis of the trial court’s Opinion 

with regard to Ferrante’s claim. See Trial Court Opinion, 9/15/16, at 44.
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argues that the Quest blood test results are “prone to error and are entitled 

to no weight[;]” “the search warrants were issued based upon the 

Commonwealth’s misstatements relative to the Quest tests[;] and the 

evidence seized pursuant to those warrants must be suppressed.” Id. 

Ferrante first argues that the items seized pursuant to the search 

warrant for Ferrante’s vehicle should have been suppressed. Id. at 40. In 

this regard, Ferrante states that the search warrant sought evidence of 

“cyanide and any and all items that are capable of storing, transporting or 

delivering cyanide.” Id. (capitalization omitted). Ferrante challenges the 

seizure of his computer, a Lexar “jump drive,” and a USB storage device 

from the trunk of his car. Id. According to Ferrante, because this initial 

seizure was unlawful, evidence seized from these items, pursuant to 

subsequent warrants, are fruits of the poisonous tree, and should be 

suppressed. Id. at 41.

In its Opinion, the trial court addressed Ferrante’s challenge to the 

seizures resulting from the vehicle search, and concluded that the challenge 

lacks merit. See Trial Court Opinion, 9/15/13, at 24-32. We agree with the 

sound reasoning of the trial court, as set forth in its Opinion, and affirm on 

this basis as to Ferrante’s challenge to the items seized from his vehicle. 

See id.

Ferrante next challenges the search warrants seeking computers, 

laptops and other electronic devices. Brief for Appellant at 41. Ferrante 
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argues that there is no information, in the affidavits of probable cause,

indicating why evidence of a crime may be found in these computers or 

devices. Id. Ferrante contends that the initial search warrants sought 

“[a]ny and all computers or laptops that may contain [c]yanide information.” 

Id. at 42. Ferrante asserts that the warrants were overbroad, and 

“permitted an illegal rummaging through [Ferrante’s] computers in search of 

incriminating evidence.” Id.

In its Opinion, the trial court addressed these contentions and 

concluded that they lack merit. See Trial Court Opinion, 9/15/13, at 32-37. 

We agree with the sound reasoning of the trial court, as set forth in its 

Opinion, and affirm on this basis with regard to Ferrante’s assertions. See 

id.

In his fourth claim, Ferrante also argues that the evidence seized 

should be suppressed because the search warrants were not stored in the 

Allegheny County Department of Court Records. Brief for Appellant at 43. 

Ferrante contends that law enforcement officials violated Pa.R.Crim.P. 210 

(Return of Papers to Clerk) by not maintaining and preserving these records. 

Brief for Appellant at 43. 

Our review of the record discloses that Ferrante did not raise this claim

in his Pa.R.A.P. 1925(b) Concise Statement of matters complained of on 

appeal. Accordingly, it is waived. See Commonwealth v. Castillo, 888 

A.2d 775, 780 (Pa. 2005) (stating that “[a]ny issues not raised in a 
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Pa.R.A.P. 1925(b) statement will be deemed waived.”); see also 

Commonwealth v. Mason, 130 A.3d 601, 635-36 (Pa. 2015) (stating that 

“[i]ssues not raised in the lower court are waived and cannot be raised for 

the first time on appeal.”). 

Finally, we address an Application for Relief, filed by Ferrante. In his 

Application, Ferrante asks this court to remand the case for an evidentiary 

hearing. Application for Relief, 10/20/17. Ferrante contends that at an 

evidentiary hearing, he would present evidence related to the testing of Dr. 

Klein’s liver, prior to the transplant of that organ. Id. Ferrante directs our 

attention to testimony, by Dr. Wecht and another expert, that cyanide is not 

limited to blood, but is deposited in organs and tissues throughout the body. 

Id. at 4. 

Pennsylvania Rule of Criminal Procedure 720(c) provides that “[a] 

post-sentence motion for a new trial on the ground of after-discovered 

evidence must be filed in writing promptly after such discovery.” 

Pa.R.Crim.P. 720(c). 

Our review of the record discloses that the evidence related to Dr. 

Klein’s transplanted organ is not “newly discovered,” but cumulative to other 

evidence presented at trial. During opening arguments, defense counsel 

informed the jury that 

[t]he samples and the blood that [were] sent to CORE, the 

transplant people, [tested] negative, negative for cyanide. The 

organs, there is a liver and a healthy kidney in two people as we 

talk. Dr. Martin thought it was so critical when he heard about 
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the cyanide level of 3.4, he frantically called CORE to hold off on 

the transplantation. Where do we clean our blood from? Our 

liver and kidneys. Well, they are in two healthy people for all we 

know because there was successful transplantation and the 

blood testing was negative. 

N.T. (Vol. I), 11/4-7/13, at 66. Dr. Wecht also testified regarding two tests 

performed by CORE on body tissues from Dr. Klein. N.T. (Vol. IV), 11/4-

7/13, at 163. Dr. Wecht stated that the two tests on Dr. Klein’s tissues 

came back “negative.” Id. 

Contrary to Ferrante’s assertion, the letter from a transplant recipient, 

regarding the condition of his/her organ, is merely cumulative of the results 

of the CORE test. As such, we decline Ferrante’s request for a remand on 

this issue.

Ferrante’s Application further alleges a claim of ineffective assistance 

of counsel. Absent extraordinary circumstances, which do not exist here, 

“claims of ineffective assistance of counsel are to be deferred to PCRA 

review; trial courts should not entertain claims of ineffectiveness upon postverdict motions; and such claims should not be reviewed upon direct 

appeal.” Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). We 

decline to remand the matter for a hearing, without prejudice to Ferrante’s 

right to raise this claim in a timely filed petition under the Post Conviction 

Relief Act.4

 

4 See 42 Pa.C.S.A. §§ 9541-9546.
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Motion to file exhibit under seal granted; Applications for Relief 

Denied; Judgment of Sentence Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/18/2018
Circulated 12/22/2017 12:16 PM

IN THE COURT OF COMMON PLEAS FIFTH JUDICIAL DISTRICT 

ALLEGHENY COUNTY, PENNSYLVANIA 

COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION 

v. CC No.: 2013013724 

ROBERT FERRANTE, 

Defendant. 

OPINION 

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Honorable Jeffrey A . 

Manning, P.J. 

Court of Common Pleas 

Room 325 Courthouse 

436 Grant Street 

Pittsburgh, PA 15219 

Counsel of Record: 

For the Defendant: 

Christopher Eyster, Esq. 

110 Ross Street, Suite 340 

Pittsburgh, PA 15219 

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For the Commonwealth: 

Lisa Marie Pellegrini, Esq. 

Assistant District Attorney 

Allegheny County DA's Office 

303 Courthouse 

436 Grant Street 

Pittsburgh, PA 15219 

1 
IN THE COURT OF COMMON PLEAS FIFTH JUDICIAL DISTRICT 

ALLEGHENY COUNTY, PENNSYLVANIA 

COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION 

v. CC No.: 2013013724 

ROBERT FERRANTE 

Defendant. 

OPINION 

Manning, J. 

The defendant was charged by criminal information with one 

count of Criminal Homicide arising out of the poisoning death of his 

wife, Autumn Klein. The defendant filed an Omnibus Pre-Trial Motion 

that included 89 separate motions seeking to suppress evidence. 

Following a hearing on 10/20/14, the defendant's Motions were 

denied. He then proceeded to a jury trial which commenced on 

October 23, 2014, and concluded on November 7, 2014, with the jury 

returning a verdict of guilty of Murder of the First Degree. Post 

Sentence Motions were filed and denied. A timely Notice of Appeal was 

filed and the defendant, pursuant to this Court's Order, filed a Concise 

Statement of Matters Complained of on Appeal. This Court then 

ordered an Amended Concise Statement filed because the defendant's 

original Concise Statement averred that he was challenging the Court's 

denial of his Pre-Trial Motion. Because that Pre-Trial Motion challenged 

2 
the denial of the Pre-Trial Motion. As that motion included 89 distinct 

suppression motions, many of which were withdrawn by the defendant 

and/or were conceded by the Commonwealth, the defendant was 

ordered to specify which of those motions are being challenged on 

appeal. His Amended Concise Statement of Matters Complained of on 

Appea I provided that specificity. 

The defendant raised, in his Concise Statement and Amended 

Concise Statement, the following claims: 

1. The Court erred in entering several Orders prior to 

the trial concerning custody of the parties' minor 

child, Cianna Ferrante; 

2. The Court erred in denying the Suppression Motions 

numbered 1, 20, 21, 28, 38, 60, 63 and 64, that 

were set forth in the defendant's Omnibus Pre-Trial 

Motion; 

3. The Court erred in its rulings on the defendant's 

Post Sentence Motions concerning the allegation 

that the Commonwealth committed a Brady violation 

by failing to disclose a criminal conviction of 

Nicholas Institute Diagnostics; 

4. The Court erred in denying the Motion for Judgment 

of Acquittal based on the insufficiency of the 

evidence; 

5. The Court erred in denying the Motion for a new trial 

because the verdict was against the weight of the 

evidence; and 

6. The Court violated Pennsylvania Rule of Criminal 

Procedure 581(i) in failing to issue written findings 

of fact and conclusions of law regarding the denial of 

the defendant's suppression motions. 

3 
Before turning to the legal issues, it is important to review the 

facts established by the evidence, keeping in mind that those facts 

must be construed in favor of the Commonwealth as the verdict 

winner. The Commonwealth's evidence established that victim, Dr . 

. Autumn Klein, was seen leaving Presbyterian University Hospital at 

approximately 11:18 p.m. (I, 90

1) At approximately 11:52 p.m. on 

that same date, the defendant telephoned 911 requesting an 

ambulance as his wife had collapsed. (I, 76-77) 

A Pittsburgh City Paramedic, Jerad Albaugh, responded with his 

partner, Steve Mason. They entered the house and found Dr. Klein 

lying on the kitchen floor, unconscious. She was breathing and had a 

pulse, but her blood pressure was low. When he asked the defendant 

what happened, he said that he was upstairs with his daughter and., 

and· when he came down, found his wife lying on the floor. (I, 114- 

116) 

Paramedic Albaugh indicated that the victim's condition began to 

worsen; she remained non-responsive and her heart rate, breathing 

and blood pressure worsened. He realized that they had to transport 

her immediately. As he was treating Dr. Klein, he heard his partner 

ask the defendant about a ziplock bag with a white substance in it that 

was sitting on the counter. The defendant said that his wife was trying 

I The designation "I, 90", refers to the volume of the transcripts and the page number. 

4 
to get pregnant and was taking fertility drugs as well as creatine as a 

supplement to help her get pregnant. They then transported Dr. Klein 

to Presbyterian Hospital as it was only a block and half away. (I, 121) 

At the hospital, Dr. Klein came under the care of Andrew Farkas, 

M.D., an emergency room resident. She was non-responsive and a 

check of her vital signs indicated that she was extremely ill. (I, 130) 

He began an IV line and intubated her to allow her to use a ventilator 

to assist in her breathing. (I, 132) When the defendant arrived, he 

told Dr. Farkas that his wife had no health problems other than low 

thyroid. When asked if she suffered from headaches, he told them that 

she told him immediately prior to her collapse that she was not feeling 

well and had a headache. He further related that she has had some 

fainting episodes in the weeks or months prior to her collapse. (I, 133- 

134) Dr. Farkas also noticed, when placing a central line, that her 

blood was bright red. He said that this is a sign that she had a lot of 

acid in her blood which was a sign of a severe metabolic dysfunction. 

(I, 143) Dr. Klein was eventually transferred to the Intensive Care Unit 

and Dr. Farkas was no longer involved in her care. 

Three days later he spoke with Thomas Martin, M.D., the 

supervising physician in the ER, who advised him that the test results 

from the blood taken from Dr. Klein were back and indicated the 

presence of a high level of cyanide. (I, 149). Dr. Farkas became 

5 
concerned and contacted the Allegheny County Medical Examiner's 

office and advised them of these results. 

Dr. Martin was on duty when the victim was brought in. He 

examined Dr. Klein and concluded that she was critically ill. (I, 163). 

While supervising her treatment, he spoke with the defendant, who 

told him: 

... that his wife had worked until late in the evening and 

had come home and that shortly after arriving home she 

had complained of a headache and grabbed her head, 

assumed somewhat of a squatting position, and then had 

collapsed. He told me that over the preceding weeks 

preceding this presentation Dr. Klein had had two what he 

characterized as more minor episodes where she 

complained of light-headedness. I believe one of them 

was while she was at church. He told me that she was 

somewhat resistant to having these looked into. They had 

informally consulted a physician friend who I think 

provided some assurance but it didn't sound like she had 

had any major investigation into these episodes. 

(I, 166). The defendant added that she had been taking some 

vitamins and had been on fertility drugs until February. 

Dr. Martin testified that while he was treating Dr. Klein her 

heart stopped twice and she had to be resuscitated. Eventually, she 

was placed on extracorporeal membrane oxygenation (ECMO), which 

assists the heart. Though this stabilized Dr. Klein, she remained 

critically ill. (I, 184-187). She was transferred to the cardio-thoracic 

intensive care unit and was no longer under Dr. Martin's direct care. 

He later learned that she had died on April 20, 2013. 

6 
Dr. Jon Rittenberger was part of the post-cardiac arrest team 

which follows patients who had suffered cardiac arrest. When he first 

encountered her, she was critically ill and " ... appeared neurologically 

devastated." (I, 216). In addition to examining her, he reviewed the 

records from her ER treatment and was struck by the fact she was 

recalcitrant to everything that was tried to restore her cardiac and 

pulmonary function, which was unusual in a young, healthy person. 

(I, 221). Because her symptoms and presentation were consistent 

with cyanide poisoning, he ordered a test to determine the cyanide 

level in her blood. (I, 225). Blood for that test was drawn on April 18 

at 2:32 p.m. to be sent to Quest Diagnostics for testing. 

Throughout April 18 and 19, though the functioning of her other 

organs seemed to slowly improve, Dr. Klein's condition remained 

"grave", according to Dr. Rittenberger. On April 18 he conducted a 

brain death test, the results of which indicated that Dr. Klein had 

suffered brain death. (I, 228). A second such test on the 19th was 

consistent with the first one. 

Between the first and second brain death tests, after advising 

the defendant of the results of the first brain test, Dr. Rittenberger 

discussed the possibility of an autopsy with the defendant. He 

explained that it was initially believed that Dr. Klein may have suffered 

from episodes of passing out and that such incidents can be caused by 

7 
a rhythm disturbance to the heart which can be genetic. Because she 

had a daughter who might inherit the gene causing this disturbance, 

he suggested an autopsy to explore possibility. Dr. Ferrrante did not 

agree and would not agree to an autopsy. (I. 230) 

Dr. Rittenberger also testified that when he ordered the test for 

cyanide levels on April 18, he told only Dr. Callaway, who was 

assisting her caring for the victim and the nurse who drew the blood. 

(I, 239). He did not discuss it with the defendant or the victim's 

parents or other family members. He did not learn of the test results 

until Dr. Farkas called him on April 23, three days after Dr. Klein's 

death on April 20. (I, 232). 

Former Pennsylvania State Trooper Scott Lucas testified 

regarding assistance he provided to the Pittsburgh Police in accessing 

various electronic devices seized in this matter pursuant to search 

warrants. (I, 479) He related an exchange of messages between the 

I-Phone belonging to Dr. Klein and her husband, the defendant, that 

took place on April 17, 2013. The gist of those messages were that 

Dr. Klein was advising the defendant that she was ovulating and he 

was reminding or encouraging her to take creatine to assist in her 

fertility. (I,. 488-490). 

The defendant was interviewed by detective James McGee on 

April 25, 2013, two days after it had been determined that Dr. Klein 

8 
had died from cyanide poisoning and an investigation opened into her 

death. The defendant stated that his wife had ceased fertility 

treatment earlier that year but that he had put her on a creatine 

regimen that he said might help her get pregnant. (I, 426) He said 

that his wife seemed happy. On the night of April 17, according to the 

defendant, his wife came home around 11:00, kissed him on the 

cheek, said she did not feel well and collapsed to the floor. (I, 428) 

He called 911 and attempted to perform CPR while waiting for the 

ambulance. When asked if he had creatine in the home, he showed 

the detective two ziplock bags that contained creatine and allowed 

them to take the bags. (I, 430) Det. McGee asked the defendant if 

he knew how his wife died and he said he thought it was a heart attack 

or a brain condition. When he advised the defendant that his wife died 

from cyanide poisoning, " ... he looked at his daughter and said why 

would she do this to herself and then he looked back at me and said 

who would have done this to her." (I, 436-437) 

On May 2, 2013 police searched the lab area used by Dr. 

Ferrante and others. On the side of the lab used by a Dr. Friedlander, 

a 125 gram bottle of potassium cyanide was located. A search of Dr. 

Ferrante's area of the lab resulted in the seizure of a 500 gram bottle 

of potassium ferricyanide. (I, 459-460) Law enforcement returned to 

the lab again on May 3, 2013 and were directed to a refrigerator on 

9 

/ 

the defendant's side of the lab where a 250 milligram bottle of 

potassium cyanide was located. The seal on the bottle was broken. 

(I, 461-463) 

Michelle Perpetua was the manager for the lab where Dr. 

Ferrante worked. (I, 532) Her duties include ordering supplies or 

materials needed by the doctors. (I, 534) The requests for supplies 

always came to her through the defendant's assistants; never through 

him. On April 15, 2013, however, he came to Ms. Perpetua and asked 

her to order potassium cyanide for him. She did so and it was 

delivered the next day. (I, 540-545) After hearing in the media that 

the victim died from cyanide poisoning, she reported this purchase to 

her superior. (I, 547) 

Amanda Mihalik, a research assistant for the defendant, testified 

that a day or so before Dr. Klein collapsed, the defendant asked her to 

transfer some creatine to a ziplock bag which he said he was going to 

give to his wife. (II, 85) She also observed the defendant mixing 

things in beakers, in the lab, and drinking it. She thought this odd 

because they were not supposed to take any food or drink into the lab 

because of the dangerous chemicals present. (II, 8) The defendant's 

chief research assistant, Jinho Kim, testified that he has worked for the 

defendant since December 2007. He had never used, or saw the 

defendant use, cyanide in any research. {II, 104-107) 

10 
On April 16, 2013, Dr. Ferrante came to him and handed him a 

plastic bottle containing cyanide. He did not explain to him at that 

time what the cyanide was for when he handed it to him, but came 

back a few minutes later and explained that he planned to use the 

cyanide for future experiments. Dr. Kim asked if he should put the 

cyanide in a locked cabinet, but the defendant said that was not 

necessary so he stored it under his work bench. (II, 109) He did not 

see the cyanide again until after Dr. Klein died, when detectives came 

to the lab looking for cyanide and he found it in the refrigerator. He 

had not moved it from under his bench. (II, 110) 

Pennsylvania State Trooper John Roche testified regarding a 

search he conducted of the data copied from the hard drive of a silver 

MacBook Pro, serial number C02CM349DC7C. These searches were 

conducted using search terms to try to detect what terms may have 

been searched on internet search engines on that computer. (II, 162- 

164) This search revealed that, on January 31, 2013, at various 

times throughout the day, the following terms were searched for on 

the Google search engine: "Cyanide polsonlnq": " Human Toxicity 3- 

Nitropropionic Acid"; "Toxicity 3-Nitroproprionic Acid Cardiomyopathy"; 

and " Toxic Dose Human 3-Nitroproprionic Acid Cardiomyopathy". (II, 

167-168. On February 18 "Divorce in Pa" was searched. On February 

19, the term II Does Increased Vaginal Size Suggest Wife is Having Sex 

11 
with Another" was searched. (II, 169). Additional Google searches 

were conducted for "Creatine IVF" on March 3 and for "This is What a 

Heart Attack Feels Like to a Woman Billboard" on March 15; fro 

On April 14 the term "Potassium Cyanide Neuroscience Project" 

was searched as was "Potassium Cyanide Sigma". (II, 170-171) On 

April 22 and 23, 2013, the following Google searches were conducted: 

" "medical examiner toxicology report"; "Toxicology Studies Potassium 

Cyanide"; " Detecting Cyanide Poisoning"; " Potassium Cyanide 

Detection Blood Urine"; "Dialysis and Removal of Toxins"; 

"Cardiopulmonary Failure Metabolic Acidosis Causes"; and "Causes 

Sudden Death Acute Cardiopulmonary Failure Metabolic Acidosis 

Causes". (II, 172-174). The searches on the 23rd were made prior to 

the defendant meeting with the detectives and being advised that his 

wife had died of cyanide poisoning. 

Trooper Roche testified that "Safari" is another internet search 

engine that was accessed to search a variety of terms on this 

computer. His review of the hard drive revealed that the following 

web addresses were accessed on January 8, 2013: "Cyanide Poisoning 

Causes, Symptoms, Treatments, Went to Seek Medical Care:" on 

MedicineHealth.com, "Cyanide Poisoning Causes, Symptoms, 

Treatment, Cyanide Poisoning Causes" on MedicineHealth.com ", 

"Cyanide Poisoning, Causes, Symptoms, Diagnosis and Treatment" on 

12 
MedicineHealth.com ", "Illinois Man Killed By Cyanide Poisoning After 

Striking It Rich In Lottery" at CNN.com and "Cyanide Poisoning" at 

Wikipedia The Free Encyclopedia. (II, 175-178) On April 14, 2013 

the web address "http://www.sigma-aldrich.com/catalog/display/ 

msdscontent.do" was accessed. On April 22, 2013, "Toxicology 

Reporting" at the Miami Dade County Medical Examiner Toxicology 

website, '"'Cyanide Poison Hard to Detect" at CNN.com, " Emergency 

Response Safety and Health Database Systemic Agent Potassium 

Cyanide NIOSH" at the CDC website, " How Would a Coroner Detect 

When Someone is Killed by Cyanide" from an article from Yahoo.com, 

"How Can You Detect Potassium Cyanide", "How Would You Test for 

Potassium Cyanide", "The Facts About Cyanide" were searched for on 

April 22, 2013. (II, 175-181). 

Sonia Obcemea testified that she is a medical technician at 

Quest Laboratories. She has a degree in chemistry and has worked at 

Quest for 37 years. She has conducted more than a thousand tests on 

blood for the presence of cyanide. (II, 291, 294) She was assigned 

to test the sample of Autumn Klein's blood sent by Presbyterian 

Hospital. She tested it on April 20, 2013. (II, 295) Initially, she 

observed that the blood was a very deep color red, which indicated to 

her that it was likely to contain a high level of cyanide. (II, 299) Her 

13 
testing revealed that the amount of cyanide was 2.2 milligrams per 

liter, a " ... very, very high" result. (II, 303) 

Ryan Bartoletti, was a group leader at Quest. Part of his job was 

to review the results of others on his team, including those of Ms. 

Obcemea. He was tasked with checking the results reached by Ms. 

Obcemea. (II, 355) He testified that in doing so, he made an error 

that led to a higher reading, 3.4 milligrams per liter. He described his 

error: 

... It's set up where the Y axis here is the absorbance 

value and the X axis here is the concentration of cyanide 

given that absorbance value following on this line. Where I 

made the error when I did the checking of Sonia's work 

was I confused the axises. 

Q. Why did you do that? 

A. I don't honestly know. So what I did then is 

instead of plotting the absorbance on the Y axis to get the 

concentration on the X axis, I plotted the absorbance on 

the X axis to then get the concentration on the Y axis 

giving me that higher value. 

Q. Now, you then came up with - 

A. It was a value of .67. 

Q. Okay. And that .67, you had to multiply - 

A. By the dilution factor. 

Q. So we'll just use this chart over here because it's 

easier. So you came up -- you - 

ATTORNEY PELLEGRINI: May he step down? May he 

step down? 

14 
THE COURT: Yes. 

Q. Just make sure the jury -- just describe to the 

jury what you did. 

A. So initially, like I said, this was not here, this is 

the writing that I put in after I was -- after I was done 

reviewing the work. So the absorbance stays the same. 

There was no changing of any -- there's no additional work 

done with the sample. I used the data that Sonia 

generated. So on that plot that's shown up there, when I 

plotted .54 on the X axis and drew up to our line and then 

over to the Y axis to get the concentration which was 

incorrect, I got this .67 value, and because she had done 

the sample on a time slide solution, which I'm sure she 

already described, I multiplied that times the concentration 

to get the 3.35 value for the concentration of cyanide in 

that patient's sample. 

Q. So then I'll show you what I've marked, using 

those calculations, did you then generate a final report? 

A. Yeah, I entered the value into our lab information 

system and then released it to our client, and because we 

round to one decimal place, it went out as 3.4 to the client. 

(II, 355-357) He said that the data that resulted from the testing was 

correct, but that he applied that data incorrectly to reach the higher 

result that was forwarded to the hospital. After discovering the error, 

he did not retest because either level was a lethal amount. (II, 359) 

Quest clinical technology supervisor Michael Browne testified 

that, in response to a search warrant, he retrieved the "run", or 

paperwork, from the testing performed on the victim's blood sample. 

(II, 391) When he reviewed the run, he noted that there was a 

discrepancy in the results. The discrepancy was the result of a 

15 
calculation error by Mr. Bartoletti. (II, 396) Browne took this 

information to his supervisor, Dr. Edinboro, who instructed him to 

issue an amended report with the correct result. (II, 397) This 

amended report had the same value originally obtained by Ms. 

Obcamea. (II, 398) 

Allegheny County Medical Examiner Toxicologist Alesia Smith 

testified that she conducted a test on a blood sample from the victim. 

She described the testing process at length, explaining that her 

process does not result in a specific number result, but only a positive 

(for the presence of cyanide) or a negative (if there is no cyanide 

present). (II, 435-446) She tested a sample of whole blood collected 

from the victim on 4/18/13 at 6:00 a.m. (II, 448) The blood tested 

positive for the presence of cyanide. (III, 8) A fellow toxicologist, 

Rafael Gelpi, testified that he tested a blood plasma sample drawn 

from the victim on April 18 at 8:00 a.m. (III, 31) He described the 

results: 

The results were very remarkable. I tested the plasma as 

you can see. This right here, yellow is a reaction to plasma 

in comparison with red blood cells. I have been doing this 

test for 23 years. This is the first time that I ever seen a 

plasma react. It gives me indication that there has to be a 

lot of cyanide in there. You do see cyanide on plasma in 

low concentrations but there has to be a lot in whole 

blood. 

3 (II, 3) 

16 
Nancy Love, employed in the trace section of the Medical 

Examiner's Office, testified that she was asked to determine the 

volume of three containers of cyanide. Commonwealth Exhibit 170, 

Laboratory item 40-A, was a bottle labeled to contain 500 grams of 

Sigma potassium ferricyanide. It contained 313 grams. 86. 

Commonwealth Exhibit 171, Laboratory Item 40-b was a Sigma 

potassium cyanide bottle labeled to contain 25 grams. It was found to 

contain 24.868 grams on one weighing and 25.158 grams on another. 

(III, 86-87) Commonwealth exhibit 172, laboratory item 41, was a 

container of Sigma Potassium Cyanide labeled to contain 250 grams 

and found to contain 241.7 grams when initially weighed and 241.6 

grams after an amount was removed for testing. (III, 87-88; 90-91) 

Environmental chemist Olexa then testified that the substance within 

each of the bottles tested was, in fact, cyanide. Potassium 

ferricyanide in laboratory item 40-A and potassium cyanide in 40-B 

and 41. (III, 115-116) 

Todd Lukasevic, Associate Medical Examiner for Allegheny 

County, testified as to the cause of death of the victim. He performed 

the autopsy on Dr. Klein on April 21, 2013. The autopsy revealed no 

obvious cause of death. (III, 289) After preserving the brain and 

tissue from the heart for further testing, the body was released to the 

family. The death certificate stated that the cause was "pending 

17 
toxicology result, neuro-pathologist consultation and cardiac 

pathologist consultation ... " He then was notified by Dr. Farkas of the 

determination by Quest that there was lethal dose of cyanide in the 

victim's blood. (III, 292) He immediately called the funeral home to 

which the body was released and learned that she had been cremated. 

As the investigation into the cause of death continued, Dr. Lukasevic 

reviewed a report from the cardiac pathologist to whom he had sent 

the cardiac tissue. She reported that there was no evidence of disease 

of the heart that could have caused death. (III, 295) The 

neuropathologist who examined the brain reported the final diagnosis 

as "global ischemic encephalopathy.", which Dr. Lukasevic described 

as the brain being dead from lack of blood and oxygen. (III, 296) 

This finding was " ... a very significant finding and consistent with a 

toxic ingestion of cyanide", according to Dr. Lukasevic. (II, 296) He 

stated that he believed that Dr. Klein died from cyanide poisoning. In 

offering that opinion, he considered all of the blood test results. He 

said that it did not matter if the quantitative results were 2.2 or 3.4, 

the correct and erroneous results reported by Quest. The manner of 

death, he concluded, was homicide. He held these opinions to a 

reasonable degree of medical certainty. (Ill, 300) 

His opinion that cyanide was the cause of death was 

corroborated by Christopher Holstage, M.D., a faculty member at the 

18 
Medical College of Virginia. Dr. Holstage is also a fellow in medical 

toxicology. He reviewed the medical records of the treatment of Dr. 

Klein, as well as the toxicology results, and concluded, within a 

reasonable degree of medical certainty, that her cause of death was 

cyanide poisoning. (III, 347-410) 

The defendant presented Robert Alan Middleberg, a forensic 

toxicologist at NMS laboratories. He testified that his lab was asked to 

conduct toxicology tests on two blood samples taken from the victim. 

The sample they tested, according to the witness, was drawn at 3: 31 

p.m. on April 18, 2013. (III, 465 & 526). Testing of that sample 

revealed a level of between .3 and .5 micrograms per milliliter. (III 

464) He did not believe that Dr. Klein had "clear cyanide findings in 

her. " (III, 490) He testified that he could not state, with certainty, 

what role, if any, cyanide played in the death of the victim. (IIII, 

492). 

Dr. Middleberg reviewed the police reports of the interviews of 

Drs. Martin, Farkas, Calloway, Sappington, Pizon, Guyette and 

Rittenberger. (III, 496). He also reviewed the criminal complaint. He 

did not, however, review any other police reports or interviews or the 

victim's medical records. (III 497) He acknowledged that he was not 

aware that the victim had undergone dialysis prior to writing his report 

and that that could affect the test levels. (III, 499) 

19 
The defendant presented Lewis Nelson, M.D., Vice Chair of the 

Department of Emergency medicine at NYU Hospital and a medical 

toxicologist. He testified out of order and was videotaped and the 

video played during the defendant's case. His testimony appears in 

Volume III of the transcripts, pp. 162 - 212. He stated that, in his 

opinion, based on the medical records he reviewed, it could not be 

stated with certainty that Autumn Klein died from cyanide poisoning. 

(III, 165-167. He acknowledged that her symptoms and condition 

upon admission and through the course of treatment to her death was 

consistent with cyanide poisoning, but believed that that were there 

too many inconsistencies for him to be certain that cyanide poisoning 

was the cause of death. (III, 185) 

The defense also presented Shaun Carstairs, M.D., an attending 

ER physician and medical toxicologist. He reviewed the medical 

records, the criminal complaint, the autopsy results, interviews of 

various treating physicians and the reports of the other toxicologists 

and physicians who rendered opinions in this matter. (III, 559). He 

concluded " ... that based upon the records that I had an opportunity to 

review, I can't -- it's my opinion that it cannot really be definitively 

stated that Dr. Klein died as a result of cyanide poisoning. (III, 565). 

He provided several reasons for his opinion. First, he believed that the 

victim was conscious upon he arrival to the ER. (III, 565). Second, 

20 
the test result from the two laboratories, Quest and NMS, showed 

disparities. He said that the initial results from Quest were modified 

downwards for reason that were not clear to him. (III, 566). He also 

did not think that any of her symptoms were specific to cyanide 

poisoning. (III, 566). 

Forensic Pathologist, Dr. Cyril H. Wecht, also testified for the 

defense. He concluded that " ... the cause of death in this case is 

undetermined and hence the manner of death is undetermined." (IV, 

161). He explained how he reached that conclusion: 

So you have very significant inconsistencies ranging from a 

corrected level of 2.2 micrograms per milliliter which could 

be a factor and 0.3 to 0.5 which is a normal level by two 

large national laboratories. You have other tests that are 

significant that is consistent for metabolized thiocyanate 

that are within normal ranges. You have two tests done by 

CORE on body tissues which are negative so you've got a 

mixed bag and that's what leads me at that point and 

today to the opinion that I've rendered as undetermined. 

(IV, 162-163). He also suggested that a long history of ingesting large 

doses of creatine could lead to false positives for cyanide. (IV, 171). 

The defendant's daughter, Kim Ferrante, testified that she told 

her father, sometime on Saturday, April 20, that a test for the 

presence of cyanide had been ordered. During her direct testimony, 

when asked if she was aware of the pending cyanide test, she said, 

"So, I think that one of the cardiologists or cardio-thoracic surgeons 

told me--". (IV, 223) Later, when asked by the prosecutor to identify 

21 
the doctor who told her about the cyanide test, she said, " It wasn't a 

doctor. I overheard two nurses discussing it at the nurse's station. 

(IV, 229). She was also present when the possibility of an autopsy 

being performed was discussed and said that her father did not oppose 

an autopsy, but wanted to make sure that her organs would be 

donated. (IV, 225). She was involved in the funeral arrangements and 

said that it was her understanding that Dr. Klein had expressed a wish 

to be cremated. (IV, 226). 

The defendant also testified. He denied having anything to do 

with the death of his wife. He explained that the cyanide he ordered 

was connected with research he was planning to do with stem cells. 

(IV, 253). His searches in January for terms associated with cyanide 

were, he claimed, related to this research. (IV, 255). He said that 

discussions about the autopsy were to make sure that that did not 

interfere with her desire to donate her organs. (IV, 289). When asked 

about the internet searches related to toxicology testing for the 

presence of cyanide or how a medical examiner would detect cyanide, 

he explained: 

I knew her organs had been donated. It was still 

unbelievable to me that her organs could be donated if 

there was cyanide. I knew the ME had done his exam and 

had not heard back, no results. Typical of myself, when 

something really bothers me, I just Google and look up 

everything about it, how it could have happened, why it 

could have happened, et cetera. 

22 
(IV, 291). He claimed that his daughter had told him about the 

pending cyanide test. (IV, 291) He acknowledged that he was 

interviewed by representatives of CORE, the Center for Organ Donation 

and Recovery regarding his donation of his wife's organs after knowing 

about the pending cyanide test but never discussed that with those 

representatives. (IV, 323-324) 

The first claim raised by the defendant concerns three orders 

entered regarding the custody Cianna Ferrante, the minor child of the 

victim and defendant, who was 6 years old when her mother was 

murdered. On July 24, 2013, pursuant to a Petition for Special Relief 

filed in the Family Division of this Court at FD 13-003356, the 

Honorable David Cashman entered an order granting legal and 

physical custody of Cianna to her maternal grandparents, Lois and 

Charles Klein. Later, by order dated January 24, 2014, this Court 

denied a request from the defendant that an order that he have no 

contact with his daughter be lifted. The Court also noted in that order 

that the issue of custody was to be addressed in the context of the 

custody matter which, after Judge Cashman's initial Order was entered 

pursuant to the Petition for Special Relief, was then assigned to Judge 

Cathleen Bubash serving in this Court's Family Division. Finally, the 

Court denied the defendant's February 2, 2015 Motion to Lift No 

23 
Contact Order, again noting that questions pertaining to custody were 

to be presented to Judge Bubash. 

This Court did not enter a final Order regarding custody. The 

defendant's requests that this Court address custody matters were 

referred to Judge Bubash. It is this Court's understanding that there 

were additional proceedings before Judge Bubash that resulted in the 

entry of a final custody order and that the defendant is pursuing an 

appeal of that order before the Superior Court at 1923 WDA 2015. As 

no final order was entered and the defendant is currently litigating 

custody in the Superior Court, this claim is without merit. 

The defendant challenges this Court's denial of 82 of the 80 

separate Suppression Motions that were included in his Omnibus PreTrial Motion. The defendant challenged the sufficiency of the Affidavits 

of Probable Cause and/or the scope of the warrant in the following 

Motions: lst3, 20th4, 21st5, 28th

6 and 60th7. As they involve the same 

legal principles, they will be addressed together. 

Pa. R. Crim. P. 503 provides in pertinent part: 

(B) No search warrant shall issue but upon probable 

2 Those are the motions numbered 1, 20, 21, 28, 38, 60, 63 and 64. 

3 Search warrant No. 2244-2013, executed May 3, 2013 authorizing search of 2013 Hyundai motor vehicle. 

4 Search warrant No. 2689-2013, executed May 29, 2013 authorizing search of Apple Macbook Air 

computer. 

5 Search warrant No. 2690-2013, executed May 29, 2013, authorizing search of Apple Macbook Air 

computer. 

6 Search warrant No. 2697-2013, executed May 29, 20123 authorizing search of a 4 GB Lexas Flash Drive. 

7 Search warrant No. 6526-2013, executed December 23, 2013, authorizing search of Macbook Air laptop 

computer. 

24 
cause supported by one or more affidavits sworn to 

before the issuing authority in person or using 

advanced communication technology. The issuing 

authority, in determining whether probable cause has 

been established, may not consider any evidence 

outside the affidavits. 

(D) At any hearing on a motion for the return or 

suppression of evidence, or for suppression of the fruits 

of evidence, obtained pursuant to a search warrant, no 

evidence shall be admissible to establish probable 

cause other than the affidavits provided for in 

paragraph (B). 

Pa.R.Crim.P. 503(8), (D) (emphasis added). The Pennsylvania 

Supreme Court has held that "[i]n analyzing whether a warrant was 

supported by probable cause, judicial review is confined to the four 

corners of the affidavit." Commonwealth v. Coleman, 574 Pa. 261, 830 

A.2d 554, 560 (2003) (citation omitted) (emphasis added), appeal 

denied, 581 Pa. 696, 864 A.2d 1203 (Pa.2004). 

The only facts relevant to this Court's determination of the 

validity of the warrants are those contained within the four corners of 

affidavits. In Commonwealth v Edmunds, the Pennsylvania Supreme 

Court explained that the twin aims of Article 1, Section 8 of the 

Pennsylvania Constitution are "the safeguarding of privacy and the 

fundamental requirement that warrants shall only be issued upon 

probable cause." Id. at 899. Probable cause is determined based on 

the totality of the circumstances. Commonwealth v. Gray, 503 A.2d 

921 (1985). The totality of the circumstances test is satisfied where 

25 
the police officers have a reasonable belief that the items to be seized 

are related to criminal conduct and that those items are presently 

located in the place to be searched. Commonwealth v. Jackson, 337 

A.2d 582 (1975). 

Consistent with these aims, to be valid, a warrant must describe 

the place to be searched and the items to be seized with specificity, 

and the warrant must be supported by probable cause. The place to be 

searched must be described with enough precision to allow "the 

executing officer to ascertain and identify, with reasonable effort, the 

place intended, and where probable cause exists to support the search 

of the area so designated, a warrant will not fail for lack of 

particularity." Commonwealth v. Carlisle, 501 A.2d 664 

(Pa.Super.1985), aff'd 534 A.2d 469 (1987), citing In re Search 

Warrant B-21778, 491 A.2d 851, 856 (1985), aff'd 521 A.2d 422 

(1987) (rejecting attorney's claim that place to be searched in search 

warrant should have been restricted to his personal office). 

Where a search warrant adequately describes the place to be searched 

and the items to be seized, the scope of the search "extends to the 

entire area in which the object of the search may be found ... " 

Commonwealth v. Reese, 549 A.2d 909, 911 (1988). A warrant is 

unconstitutional for over breadth only when it authorizes in clear or 

specific terms the seizures of an entire set of items, or documents, 

26 
many of which will prove unrelated to the crime or investigation. 

Commonwealth v. Santer, 454 A.2d 24 (Pa. Super. 1982). 

In Santer, the defendant filed a motion to suppress evidence 

obtained from his office because "the search warrants were defective 

in that they were overly broad in describing the items to be seized and 

therefore constituted unlawful general search warrants." Id. at 25. The 

warrant at issue identified the items to be seized as: "All 

Patient/Physician records and charts. All ledgers and bookkeeping 

pertaining to patients and visits." Id. at 26. The Superior Court 

determined that the warrant was improper because "[d]espite this 

specificity, the warrant was not restricted . . to the files of the eight 

named individuals . . Instead, it authorized the seizure of all of the 

patients' 'records and charts,' and all 'ledgers and bookkeeping 

pertaining to patients,' whether the patients were or were not taking· 

any drugs, and whether they were current patients or had not been 

patients for many years." Id. at 27-28 (emphasis in original) (footnote 

omitted). 

The United States Supreme Court has recognized the inherent 

difficulty, and, in fact, unavoidability, in ignoring all innocent records 

while searching for incriminating ones: 

"In searches for papers, it is certain that some innocuous 

documents will be examined, at least cursorily, in order to 

determine whether they are in fact, among those papers 

authorized to be seized. Similar dangers, of course, are 

27 
present in executing a warrant for the 'seizure' of 

telephone conversations. In both kinds of searches, 

responsible officials, including judicial officials, must take 

care to assure that they are conducted in a manner that 

minimizes unwarranted intrusions upon privacy." 

Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976). See also 

Commonwealth v. Rega, 70 A.3d 777, 785 (Pa. 2013) (acknowledging 

the difficulty in avoiding the search of innocuous documents). 

The Affidavit of Probable Cause submitted with the request for 

the search warrant application for the search of Hyundai Motor Vehicle 

owned by the defendant alleged: 

"The City of Pittsburgh Homicide Unit is presently 

conducting an investigation into the poisoning death of 

Dr. Autumn Kline, a W/F with a date of birth of 

11/30/1971. Dr. Kline resides at 219 Lytton Avenue, 

Pittsburgh, PA 15213. 

On April 17, 2013, Dr. Kline was transported by 

Pittsburgh Medics from her address listed above to 

UPMC Presbyterian Hospital unresponsive. Dr. Klein 

entered the emergency room unresponsive and 

remained unresponsive until April 20, 2013 at 1231 

hours where she was pronounced deceased by Dr. 

Joseph Darby. Prior to' the victim being taken to the 

Allegheny County Medical Examiner's office for an 

autopsy the victim's organs were retrieved by C.O.R.E. 

at the hospital. 

On April 21, 2013, Dr. Luckasevic of the Allegheny 

County Medical Examiner's Office performed an autopsy 

on the victim, and part of the autopsy procedure is to 

draw blood from the victim and have the blood tested 

for numerous drugs and chemicals. 

On April 22, 2013, the victim was taken to McCabe

1

s 

Funeral Home, and on April 23, 2013, the victim was 

taken to Pittsburgh Crematory for cremation. 

28 
On April 23, 2013, Allegheny County Medical 

Investigator Kelly Vay contacted the Pittsburgh Bureau 

of Police Homicide Office and talked to Detective James 

McGee. Ms. Vay relayed the above information and 

informed Detective McGee the victim's blood came back 

and there is a high level of Cyanide in the victim's blood. 

Dr. Luckasevic informed Detective McGee the level of 

Cyanide in the victim's blood was a lethal dose and was 

the cause of her death. 

On April 25, 2013, at 1300 hours Detectives James 

McGee and Robert Provident interviewed the husband of 

the victim, Doctor Robert Ferrante, and he informed 

detectives that on April 17, 2013 he was at home and 

the victim, his wife, came home from work around 2300 

hours this same date. Dr. Ferrante stated she gave him 

a kiss on the cheek, stated she was not feeling good, 

and then passed out onto the kitchen floor. Dr. Ferrante 

stated the victim did not go unconscious, she was 

unable to speak, and had an upward gaze. Dr. Ferrante 

stated the victim did not go unconscious, she was 

unable to speak, and had an upward gaze. Dr. Ferrante 

stated he called 911 and the operator was giving him 

instructions on how to perform CPR on the victim. Dr. 

Ferrante stated after he got off the phone with 911 he 

contacted a friend, Dr. Robert Friedlander, and told him 

what was occurring. 

During an interview with Dr. Ferrante, it was learned 

that he put the victim on a Creatine regimen in order to 

help with her trying to get pregnant. Dr. Ferrante stated 

the victim would take five grams of Creatine in the 

morning and five grams of Creatine in the evening. Dr. 

Ferrante said that Creatine has an awful taste, se he 

would mix it in a sugary drink or would mix it with 

cinnamon sugar and put it on the victim's toast in the 

morning. 

Also during this interview, your affiant asked Dr. 

Ferrante, who is a Professor of Neurological Surgery, if 

he knew how the victim died. He replied she either died 

of a brain injury or of a heart attack. Your affiant then 

informed Dr. Ferrante that the victim died as a result of 

29 
a Cyanide poisoning. The only comment Dr. Ferrante 

made was "why would she do that to herself"? 

Dr. Luckasevic told investigators that Cyanide has a 

rapid effect on humans when taken, and, if the dose is 

large enough, is always fatal. According to Dr. Ferrante, 

the victim came home and was home for several 

minutes then collapsed. Knowing the speedy effects of 

Cyanide, it is believed that the victim consumed the 

Cyanide at her residence. 

A purchase order was obtained during the investigation 

showing that Dr. Ferrante purchased Cyanide on April 

15, 2013. Dr. Ferrante works in a laboratory where he 

has access to Cyanide. It was learned from Doctor Maria 

Baldwin that the victim did not work in a research 

laboratory, she did not do any bench work in a 

laboratory, and all of her work was involved in patient 

care. 

Your affiant is requesting a search warrant for the 

vehicle of Doctor Robert Ferrante, which is a 2011 

Hyundai Pennsylvania plat HVL-7823, to search for any 

items that may be used to store, transport, or 

administer the delivery of Cyanide. Also to search for 

any computers, or laptops, that may have stored 

information pertaining to Cyanide, or any and al 

literature pertaining to Cyanide, or chemical logs that 

would track the usage or distribution of Cyanide." 

(Search Warrant No. MD2244-2013). 

The defendant, in his motion, challenged the warrant on several 

bases: that the affidavit did not establish probable cause; that the 

affidavit contained information previously obtained unlawfully; that the 

· warrant was overbroad; that the affidavit included false statements 

and/or that the area or items to be searched was not adequately 

described. No evidence was presented at the suppression hearing as 

30 
to his motion. Accordingly, the claims that the affidavit contained 

information that had been illegally obtained or contained falsehoods 

were, in essence, abandoned at the hearing as additional evidence 

would had to have been presented to establish those claims. No such 

evidence was presented. 

As for the sufficiency of the affidavit, this claim was without 

merit. The facts set forth above established that the victim died from 

cyanide poisoning; that because cyanide is fact acting she likely 

ingested it when she was home with the defendant and her daughter; 

that the defendant purchased cyanide two days prior to his wife's 

death and had access to cyanide at his laboratory. These facts were 

more than sufficient to establish probable cause to believe that some 

evidence of cyanide, including trace amounts in the car or in 

containers within the car, might be present. The officers knew that 

cyanide was accessible to the defendant at his laboratory and knew 

that the victim ingested cyanide at home. These facts supported the 

conclusion that the cyanide had to be moved from the defendant's 

office to the home and the most likely means to do so was the 

defendant's vehicle. 

Moreover, there was evidence that the cyanide had only recently 

been ordered. Computers and other electronic devices are likely to 

have records of any purchases made online, either through web 

31 
browser histories, e-mail order confirmations or receipts. They may 

also reveal internet searches about the effects of cyanide. The affidavit 

clearly provided sufficient facts to allow a judge to conclude that such 

evidence might be present on computers and other electronic devices 

accessible to the defendant. The warrants did not permit the search 

of the contents of the electronic devices; only their seizure. The 

searches for the content were the subject of subsequent warrant 

applications. 

The next three applications for search warrant, involving the 

20th, 21st, and 28th the Motion to Suppress, relied on Affidavits of 

Probable Cause that set forth, nearly verbatim, the same facts. They 

were significantly longer than the affidavit quoted from above, but set 

forth essentially the same factual circumstances surrounding the death 

of Autumn Klein. The first portion of the affidavits recounted the 

training and education of the affiant. The second provided a summary 

of the relevant technology, explaining the various technical aspects of 

computers and internet searches. The third section of the affidavits set 

forth, in terms very similar to that set forth above, the history of the 

investigation. The final section identified the various electronic items, 

including computers, cell phones, smart phones and various storage 

devices that had been seized pursuant to earlier search warrants that 

law enforcement now wanted to access. These warrants sought 

32 
authority to examine the contents of the various devices to search for 

specific and particular information. 

The search warrant challenged in the 20th Motion to Suppress 

sought authorization to search the contents of MacBook Air laptop with 

a serial number of C02D94JRDDR4. The 21st Motion challenged the 

warrant for the search of the contents of a MacBook Air laptop with a 

serial number of C02D94BODDRO while the28th Motion challenged 

the warrant permitting the search of the contents of an external hard 

drive identified as the "G Tech External HOD". 

As to each of these search warrants, the affidavits clearly set 

forth sufficient basis to believe the evidence of the crimes committed 

could be found in the data stored on the these devices; the two laptop 

computers and the external hard drive. The affidavits stated the 

following, as to each of the items: 

Your affiant avers that those who possess laptop 

computers such as the Apple MacBook or laptop [serial 

number omitted] normally incorporates and uses such 

a device or item on a regular, routine basis. Electronic 

devices, advances the technology and/or in items such 

as this have allowed one's ability to create, store, 

search or communicate documents, messages, ideas, 

images or other data more conveniently and with 

greater ease than ever before. This date, once created, 

is normally retained within the item or device. These 

items or devices may also be thought of as a storage 

container from which evidence of a crime may be 

recovered. In this instance, your affiant avers that 

amount the data contained therein is evidence 

regarding the means, research, planning, motive, 

commission and/or the identification of suspects 

33 
and/or suspect collaboration with others. 

Common motives include murder for gain, revenge, 

elimination, jealousy or lust of killing. In addition, 

forensic analysis of these items may indicate 

whether any of the aforementioned data sought 

by law enforcement pursuant to this investigation 

has been modified or deleted in any manner. 

(Commonwealth Exhibit 11, Suppression Hearing, Emphasis added). 

Each of these search warrants then used exactly the same language in 

describing what data was to be searched for and seized: 

1. Contents containing in whole or in part evidence of 

means, research, planning, motive, commission and or 

suspect identity and/or collaboration with others regarding 

the suspected criminal homicide of Dr. Autumn Klein, 

including but not limited to: letters, documents, email 

contents, history or any other communication or 

correspondence including the identification of email 

addresses, user names or similar contact or address type 

data, web browser and/or internet search histories; 

images, graphic, videos, documents; all of the 

aforementioned to include any deleted data. 

2. Indicia or use, ownership or control over the item to be 

searched. 

3. Any data or evidence indicating attempts or act 

intended to conceal or prevent the discovery of the crime 

of. criminal homicide, including any data deletion. 

4. Financial documents or other data reflecting checking, 

saving or investment accounts, transactions or records of 

Dr. Autumn Klein, Dr. Robert Ferrante, and/or others 

including financial intuition names, account numbers and 

addresses. 

All forensic searches to be conducted by Pennsylvania 

State Police Computer Crimes Unit Trooper D. Scott Lucas 

and/or other members under his supervision and/or 

34 
control and pursuant to standard forensic methods and 

practices as determined by Tpr. Lucas. 

The items to be sought in the search were items that would be 

evidence relevant to establishing " ... means, research, planning, 

motive, commission and or suspect identity and/or collaboration with 

others regarding the suspected criminal homicide of Dr. Autumn 

Klein." This was not a blanket authorization to go fishing in these 

computers for anything and everything. The search was limited to 

data that fit within this limitation. 

In Commonwealth v. Orie, 88 A.3d 983 (Pa. Super 2014), the 

Superior Court held that applications seeking authority to search the 

data on previously seized computers were not overbroad where they 

identified the specific data that they were searching for. In Orie, the 

data was information relevant to political campaign activities as the 

charges in that case involved her use of state employees to perform 

such activities while being paid by the state. Because the data 

requested as specified, the warrant was not overbroad. 

The warrant applications for these three warrants also 

specifically identified data that would be relevant to the crime charged. 

The Commonwealth was only seeking data that would show, 

" ... means, research, planning, motive, commission and or suspect 

identity and/or collaboration with others regarding the suspected 

criminal homicide of Dr. Autumn Klein." In addition, the warrant 

35 
sought any "indicia of use, ownership or control" over the item being 

searched. Certainly, evidence showing that that the defendant had 

access to or control over the computer or other electronic device was 

certainly relevant. 

The Commonwealth indicated that it would use standard forensic 

methods to search for and secure the evidence that fit within the 

parameters set forth in the application. It was not a fishing expedition 

and the Commonwealth neither requested nor was granted access to 

all data on any of these devices. The applications identified the items 

to be searched for with sufficient particularity and the Motions to 

Suppress that evidence were properly denied. 

In the 6Qth Motion, again, the Affidavit of Probable Cause is 

nearly identical to those described above, setting forth the affiant's 

education, experience and training, the technical aspects of 

computers, as well as a history of the case. In this Affidavit, the 

Commonwealth sought authorization to search the contents of another 

computer that had been seized pursuant to an earlier search warrant. 

That warrant led to the seizure of a safe in the defendant's office. 

After obtaining a warrant authorizing the search of the safe, the 

Commonwealth discovered that the safe contained a computer. The 

computer had been secured in the safe since its original seizure seven 

months previously. 

36 
As with the affidavits submitted with the applications for the 

search warrants addressed above, the affidavit and application 

specifically identified the data that would be sought in the forensic 

analysis of this computer. It was not overbroad. 

In the 38th Motion to Suppress, the defendant seeks to suppress 

evidence obtained as a result of a warrant that authorized the search 

of the contents of the defendant's g-mail account. Once again, the 

Affidavit of Probable Cause laid out the history of the investigation of 

this matter as set forth earlier in this Opinion. With regard to the mail 

account, the affiant stated the following: 

On May 31, 2013, your affiant was provided additional 

investigative information from the University of 

Pittsburgh, including email account information for Dr. 

Ferrante. Among the email accounts provided for Dr. 

Ferrante was the Gmail account rjferr25@gmail.com. 

Your affiant is aware that Gmail is a free email service 

provided by Google, and that rjferr25@gmail.com 

appears to be a valid Gmail email address. Your affiant 

also avers that Google maintains the following initial 

information from those who first subscribe to the Gmail 

service: 

• First and last name 

• Birthday 

• Gender 

• Mobile Phone number 

• Current email address 

• Location (i.e., USA) 

Google also maintains email content from the Gmail 

accounts, including sent, received, draft and deleted 

emails indefinitely. Your affiant is also aware that 

Google internet searches conducted while logged in 

37 
under a Gmail account may be stored by Google as 

well. 

Your affiant avers that subscriber information and 

email content of rjferr25@gmail.com will provide 

information pertinent to the ongoing criminal homicide 

investigation, and requests that the contents of this 

account from January 1, 2013 to date of this search 

warrant, including incoming, outgoing, draft and 

deleted content be provided. 

Your affiant avers that those who subscribe and have 

access to electronic mail (email) normally incorporate 

and use such a device or items on a regular and 

routine basis. Electronic mail, advances in technology 

and/or items such as this have allowed one's ability to 

create, store, search or communicate documents, 

messages, ideas, images or other data more 

conveniently and with greater ease than ever before. 

This data, once created, is normally retained within the 

item or device. These items or devices may also be 

thought of as a storage container from which evidence 

of a crime may be recovered. In this instance, your 

affiant avers that among the data contained therein is 

evidence regarding the means, research, planning, 

motive, commission and/or the identification of 

suspects and/or suspect collaboration with others. 

Common motives include murder for gain, revenge, 

elimination, jealousy or lust of killing. In addition, 

forensic analysis of these items may indicate whether 

any of the aforementioned data sought by law 

enforcement pursuant to this investigation has been 

modified or deleted in any manner." 

The Court is satisfied that the affidavit of probable Cause established 

the likelihood that evidence could be found in the contents of the 

defendant's Gmail account and that the application was sufficiently 

specific about what data would be sought. 

38 
Next, the defendant contends that the Court erred in denying his 

claim that he was entitled to a new trial due to a Brady violation. The 

defendant contends that the Commonwealth failed to disclose that 

· Nichols Institute of Diagnostics, Inc .. was convicted of a criminal 

offense involving dishonesty . Attached to the Post Trial Motion and 

marked exhibit C is a copy of the judgment of sentence in The United 

States of America v. Nichols Institute of Diagnostics, Inc., case 

number 09-CR-0203-SJ, in which the corporate defendant pleaded 

guilty to one count violating 21 USC § 333(a)(2). A fine of 30 million 

dollars was imposed a result of that conviction. The Criminal 

Information, also attached as an exhibit, states that Nichols Institute 

of Diagnostics, Inc., a California corporation at the time, misbranded 

or mislabeled a testing device they manufactured. Another document, 

a memo from the Department of Justice, states that Nichols Institute 

of Diagnostics is a subsidiary of Quest Diagnostics, Inc. and that the 

guilty plea that Nichols made was pursuant to a global settlement in 

which Quest Diagnostics also settled a civil matter related to the same 

allegations. 

This claim is specious. Quest Diagnostics did not plead guilty to 

a crime. A subsidiary, Nichols Diagnostic, did. More importantly, 

Quest Diagnostics did not testify in this trial. Four employees of Quest, 

Leslie Edinboro, Sonia Obcemea, Ryan Bartoletti and Michael Browne 

39 
did. They described the testing of the blood sample taken from the 

victim that was determined to contain cyanide. None of these 

witnesses could have been impeached with evidence that a subsidiary 

of the corporation they worked for was convicted in an unrelated 

criminal matter. A witness may be impeached by the witness's own 

conviction for a crime of falsehood because a crime of falsehood calls 

into question the witnesses credibility or honesty. A conviction of a 

corporate entity that employs the witness says absolutely nothing 

about the credibility of the individuals employed. by that corporation, 

particularly when there is no suggestion that these particular 

employees had anything to do with the conduct that led to the 

conviction. 

The defendant next two claims raise challenges to the weight of 

the sufficiency of the evidence. The standard to be applied in reviewing 

a challenge to the sufficiency of the evidence is" ... whether viewing all 

the evidence admitted at trial in the light most favorable to the verdict 

winner, there is sufficient evidence to enable the fact-finder to find 

every element of the crime beyond a reasonable doubt." 

Commonwealth v. Passmore, 857 A.2d, 697, 706 (Pa. Super 2004). 

The Court in Passmore went on to note: 

In applying the above test, we may not weigh the 

evidence and substitute our judgment for the factfinder. In addition, we note that the facts and 

circumstances established by the Commonwealth need 

40 
not preclude every possibility of innocence. Any doubts 

regarding a defendant's guilt may be resolved by the 

fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of 

fact may be drawn from the combined circumstances. 

The Commonwealth may sustain its burden of proving 

every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, 

in applying the above test, the entire record must be 

evaluated and all evidence actually received must be 

considered. Finally, the trier of fact while passing upon 

the credibility of witnesses and the weight of the 

evidence produced, is free to believe all, part or none 

of the evidence. 

Ibid, at 706- 707. 

Applying this test to the evidence presented makes it abundantly 

clear that the evidence in this case was sufficient to sustain the jury's 

verdict. The Commonwealth presented expert testimony which 

opined that the Autumn Klein's death was caused by cyanide 

poisoning. They presented expert testimony from those who tested a 

sample of her blood who stated that it contained lethal levels of 

cyanide. Although the defense attacked the validity of the test of the 

blood for the presence of cyanide, it is apparent that the jury accepted 

the explanation proffered by Quest employer Bartoletti regarding his 

error that lead to the seemingly inconsistent results. 

The Commonwealth also offered circumstantial evidence which, 

taken in a light favorable to the Commonwealth as the verdict winner, 

tended to corroborate the Commonwealth's theory that the defendant 

used cyanide to poison his wife. The most compelling of the 

41 
circumstantial evidence is, quite simply, the timeline. Dr. Klein was 

seen on security video leaving Presbyterian Hospital in no apparent 

distress. According to the defendant, within minutes of arriving home, 

she collapsed on the floor and was soon non-responsive, as she 

remained until her death two days later. All of the medical experts 

who testified that such a collapse would occur within minutes of a 

person ingesting cyanide. The medical experts also were in agreement 

that the physical symptoms she exhibited at the scene and later at the 

hospital were consistent with cyanide poisoning, although the 

Commonwealth experts also indicated that such symptoms could be 

consistent with other causes of death, although none were able to 

identify such other cause of death. 

Finally, there was circumstantial evidence consisting of emails 

between the victim and the defendant which suggested marital 

difficulties as well as the defendant's internet searches surrounding 

cyanide poisoning, both before and after his wife's collapse. Of 

particular relevance would be those searches that he conducted on his 

computer after his wife's collapse but before the detectives advised 

him that his wife had died of cyanide poisoning. Searches on his 

computer for information as to how difficult it is for a medical 

examiner to detect the presence of cyanide is certainly suspicious of a 

guilty mind. Although the defendant explained that he had learned 

42 
that there was a pending cyanide test prior to being told that his wife 

had died from cyanide poisoning, his daughter's testimony regarding 

how she came to learn of that was inconsistent. She initially stated on 

direct examination that she was told about the cyanide testing by a 

"cardiologist or cardio-thoracic surgeon ... " (IV, 223) but, later, 

claimed to have overheard two nurses talking about it. Moreover, 

neither her nor her father mentioned the cyanide test when the police 

first advised them that the cause of death was cyanide poisoning. The 

jury was certainly free to assess the credibility of this explanation in 

rendering their verdict. 

Ultimately, this verdict in this case turned on the expert 

testimony. As with any witness, a jury is free to believe some, none 

or all of the testimony of an expert witness. It is for the fact finder to 

ascertain what happened based on that, and other, testimony. It was 

for the jury to decide if they accepted the opinion of the 

Commonwealth witnesses on the issue of causation or if the testimony 

of the defendant's witnesses were sufficient to raise a reasonable 

doubt. By their verdict, the jury made it clear that they credited the 

. testimony of the Commonwealth's witnesses. Once the jury 

determined that Dr. Klein's death was caused by cyanide, the 

remaining circumstantial evidence was certainly sufficient to prove that 

the defendant caused her to ingest the cyanide that killed her. The 

43 
Court is satisfied that the evidence in this matter was sufficient to 

support that finding and support the verdict of guilty. 

The weighing of evidence is the exclusive province of the fact 

finder. As was pointed out above, the jury is free to believe all, part, 

or none of the evidence and to determine the credibility of the 

witnesses. A reviewing court cannot substitute its judgment for that of 

the finder of fact and may only reverse a jury's verdict if it is so 

contrary to the evidence as to shock one's sense of justice. 

Commonwealth v. Begley, 780 A.2d 605, 619 (2001). This jury's 

verdict was not, in any way, contrary to the evidence presented. It 

was consistent with the evidence presented by the Commonwealth. 

That the jury credited that evidence over the evidence presented by 

the defendant is not a basis for claiming that the verdict was against 

the weight of the evidence. This Court's sense of justice was not 

shocked by the verdict. Accordingly, the Post Trial Motion seeking a 

new trial on the basis that the verdict was against the weight of the 

evidence was properly denied. 

Finally, the defendant contends the Court erred in failing to 

comply with the requirements of Pennsylvania Criminal Procedure 532 

(I) by not issuing written findings of fact and conclusions of law at the 

time the suppression motions were denied. The purpose of this rule to 

provide the reviewing court with the facts as found by the suppression 

44 
court and the legal reasoning that led to the Court's suppression 

decision. This Court has done that in this Opinion as to those 

suppression rulings that the defendant is challenging in this appeal. 

The Court set forth its factual findings as to each of the six 

suppression rulings identified in the Amended Concise Statement of 

Errors and explained its legal reasoning as to each ruling. The 

reviewing court thus has everything it will need to address the 

defendant's claim that this Court erred in denying those motions. 

For the reasons set forth, the defendant's judgment of sentence 

should be affirmed. 

BY THE COURT: 

Date: 

45