J-S49011-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ARTHUR BURTON SCHIRMER

Appellant No. 2644 EDA 2013

Appeal from the Judgment of Sentence March 18, 2013

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0002107-2010

BEFORE: OLSON, OTT and STABILE, JJ.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 23, 2014

Appellant, Arthur Burton Shirmer, appeals from the judgment of 

sentence entered on March 18, 2013, following his jury trial convictions for 

first-degree murder and tampering with physical evidence.1 After careful 

consideration, we affirm. 

The esteemed trial court set forth the applicable factual and procedural 

history of this case as follows:

[...] Appellant was a pastor whose second wife, Betty 

Schirmer, appeared to have died in a car accident in [July,] 

2008. Following [the suicide of one of Appellant’s 

parishioners, Joseph Musante, which occurred on or about 

October 29, 2008, more than three months after Betty’s 

death], the car accident was investigated further. The 

police came to believe that [] Appellant critically injured his 

____________________________________________

1 18 Pa.C.S.A. §§ 2502(a) and 4910, respectively.
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wife and then staged a car crash to make her impending 

death appear to be an accident. [] Appellant’s first wife, 

Jewel, also pre-deceased him after purportedly falling down 

the stairs in 1999.[fn] The circumstances of Jewel’s death 

were admitted into evidence for limited purposes pursuant 

to Pa.R.E. 404(b). 

* * *

On November 15, 2010, the Commonwealth filed a 

criminal information. 

On May 20, 2011, [] Appellant filed an omnibus 

motion [alleging, inter alia, that suppression was warranted 

based upon purported omissions and misstatements in the 

affidavits of probable cause attached to the search warrants 

that were issued]. 

On January 30, 2012, [the trial court] held the first 

omnibus hearing. On February 7, 2012, [the trial court] 

held the second omnibus hearing. 

On March 19, 2012, [] Appellant filed a brief in 

support of his omnibus motion. On April 4, 2012, the 

Commonwealth filed a brief in opposition. 

On May 18, 2012, [the trial court] entered an opinion 

and order denying [] Appellant’s omnibus motion.

On June 1, 2012, [] Appellant filed four separate 

motions in limine challenging the admissibility of certain 

evidence on the basis of relevance, unfair prejudice, and 

improper character evidence. 

On August 14, 2012, [] Appellant filed a brief in 

support of his motions in limine. On August 24, 2012, the 

Commonwealth filed a brief in opposition. 

On November 16, 2012, [the trial court] entered an 

opinion and order denying [] Appellant’s motions in limine.

On January 22, 2013, [following a ten-day trial,] the 

jury found [A]ppellant guilty of murder in the first degree 

and tampering with evidence.
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On March 18, 2013, [the trial court] sentenced [] 

Appellant to life in prison without the possibility of parole for 

the first[-]degree murder conviction. [The trial court] also 

sentenced [] Appellant to three (3) to twenty-four (24) 

months in prison for the tampering with evidence 

conviction. On March 28, 2013, [] Appellant filed 

post-sentence motions. On April 22, 2013, [] Appellant filed 

a supplemental post-sentence motion and a brief in support. 

On May 3, 2013, the Commonwealth filed a brief in 

opposition. 

On August 23, 2013, [the trial court] denied [] 

Appellant’s post-sentence motions.

[fn] [...] Appellant was not on trial for the murder of Jewel 

Schirmer. That alleged homicide occurred in Lebanon 

County and Lebanon County had charged but not yet 

prosecuted [] Appellant at the time of the instant murder 

trial. 

Trial Court Opinion, 11/12/2013, at 1-3 (most footnotes and superfluous 

capitalization omitted). This timely appeal resulted.2

On appeal, Appellant presents the following issues for our review:

1. Should the Commonwealth be permitted to introduce 

irrelevant and presumptively prejudicial evidence that a 

defendant might have murdered his first wife ten years 

earlier to try to prove that he had now murdered his 

second wife, where the deaths were separated in time 

____________________________________________

2

 Appellant filed a notice of appeal on September 19, 2013. On September 

20, 2013, the trial court ordered Appellant to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant 

complied timely. The trial court filed an opinion pursuant to Pa.R.A.P. 

1925(a) on November 12, 2013, largely incorporating its prior opinions 

dated May 18, 2012 (denying Appellant’s omnibus motion), November 16, 

2012 (denying Appellant’s motions in limine), and August 23, 2013 (denying 

Appellant’s post-sentence motions).
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and the circumstances surrounding the two deaths were 

different?

2. Where a man committed suicide after learning that his 

reverend was having an affair with that man’s wife, can 

such evidence be admitted at the trial of that reverend 

for an unrelated murder when the sole basis for its 

admission is that the man’s suicide sparked an 

investigation into the unrelated murder of the reverend’s 

first and second wives?

3. Did the introduction of altered digital images of luminal 

glowing on a garage floor where the images never 

existed in real life and only tended to confuse and 

mislead the jury violate Pa.R.E. 403 and Pa.R.E. 901 in 

this close circumstantial evidence case?

4. Are a [d]efendant’s [c]onstitutional [r]ights violated 

when he is denied the ability to present relevant 

testimony from a witness on his own behalf where that 

witness was the hair dresser who saw the alleged victim 

hours before her death and she would have testified that 

she cut the hair of the alleged victim who did not appear 

in distress or upset, and that it seemed to be a usual day 

for her?

5. Do misstatements and omissions of facts and undisclosed 

sources of expert opinion render a search warrant invalid 

where the statements are necessary to establish that a 

crime occurred and the police officer includes the 

statements despite having evidence suggesting 

otherwise?

Appellant’s Brief at 5-6 (suggested answers omitted).

In his first issue presented, Appellant contends that the trial court 

erred by allowing the Commonwealth to present evidence, pursuant to 

Pa.R.E. 404(b), pertaining to the death of Appellant’s first wife, Jewel, in 

1999. Id. at 16. He claims:
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The death of his first wife [, Jewel,] in 1999, had only been 

ruled a homicide as of 2012. However, the circumstances 

of [Jewel’s] death were very different from the 

circumstances surrounding [, Betty’s,] death. The 

Commonwealth maintained that the murder of [Jewel] was 

admissible because it went to prove [Appellant’s] intent and 

it also rebutted [Appellant’s] claim that [Betty] died in an 

accidental motor vehicle crash. The [Commonwealth’s] 

introduction of evidence [relating to Jewel’s] murder was 

not relevant to intent and had little if any probative value in 

rebutting the claim of accident; rather, it simply suggested 

that [Appellant] had killed before and would do it again.

Id. at 16. Appellant argues this matter is factually distinguishable from our 

Supreme Court’s decision in Commonwealth v. Boczkowski, 846 A.2d 75 

(Pa. 2004). Appellant’s Brief at 16-27.

“On appeals challenging an evidentiary ruling of the trial court, our 

standard of review is limited.” Commonwealth v. Aikens, 990 A.2d 1181, 

1184 (Pa. Super. 2010) (citation omitted). “A trial court's decision will not 

be reversed absent a clear abuse of discretion.” Id. “[An a]buse of 

discretion is not merely an error of judgment, but [occurs only] where the 

judgment is manifestly unreasonable or where the law is not applied or 

where the record shows that the action is a result of partiality, prejudice, 

bias or ill will.” Id. at 1184-1185.

“Evidence is relevant if: (a) it has any tendency to make a fact more 

or less probable than it would be without the evidence; and (b) the fact is of 

consequence in determining the action.” Pa.R.E. 401. “Evidence that is not 

relevant is not admissible.” Pa.R.E. 402. Further, even if evidence is 

relevant, “[t]he court may exclude relevant evidence if its probative value is 
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outweighed by a danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.” Pa.R.E. 403.

With regard to Pa.R.E. 404:

Generally, 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. Pa.R.E. 404(b)(1). However, evidence of prior 

bad acts may be admissible when offered to prove some 

other relevant fact, such as motive, opportunity, intent, 

preparation, plan, knowledge, identity, and absence of 

mistake or accident. Pa.R.E. 404(b)(2). In determining 

whether evidence of other prior bad acts is admissible, the 

trial court is obliged to balance the probative value of such 

evidence against its prejudicial impact. 

Aikens, 990 A.2d at 1185 (citation omitted).

 In Boczkowski:

Independent trial evidence established that [Boczkowski’s] 

former wife, Elaine Boczkowski, had been found dead in her 

bathtub in Greensboro, North Carolina, on November 4, 

1990. The factual circumstances of that death bore a 

marked similarity to the circumstances surrounding 

Maryann's [1994] death [in Ross Township, Pennsylvania]: 

Elaine died in her bathtub, Maryann in a hot tub. Both 

women were in their thirties and in good health. 

[Boczkowski] reported to the North Carolina police that 

Elaine had been drinking alcoholic beverages before 

entering the bathtub; he told Ross Township police that 

Maryann had been drinking prior to entering the hot tub. 

[Boczkowski] told police in both jurisdictions that he and his 

wife had a minor argument on the evening before the 

death. In each case, police noticed that [Boczkowski] had 

fresh scratch marks on his arms, hands and torso shortly 

after his wife's death. The autopsies of both women 

revealed that they had died from asphyxiation, not 

drowning.
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Commonwealth v. Boczkowski, 846 A.2d 75, 82 (Pa. 2004).

The Boczkowski Court determined that evidence regarding Elaine’s 

death was admissible in Maryann’s murder trial, because: 

Given the remarkable similarity between the manner in 

which both of [Boczkowski’s] wives were killed, evidence 

concerning the circumstances of Elaine's death supported a 

reasonable inference that Maryann's death was not 

accidental, but rather, was a result of [Boczkowski’s] 

deliberate act. We agree with the Superior Court that the 

evidence was highly relevant and that its probative value 

outweighed any potential for unfair prejudice. As to the last 

point, we note that the trial court repeatedly and clearly 

charged the jury that the evidence was admitted for the 

limited purpose of excluding accident as the manner of 

death, and could not be considered for any other purpose. 

[Commonwealth v.] Spotz, 756 A.2d [1139,] 1153 [(Pa. 

2000)](fact that trial court clearly instructed jury that it 

could only consider other crimes evidence for relevant 

limited purposes and not merely as evidence of appellant's 

propensity to commit crimes weighed against claim of 

error). 

Boczkowski, 846 A.2d at 89.

We do not believe that the factual discrepancies between the murders 

in the present case, and those which occurred in Boczkowski, were so 

overwhelming as to preclude application of the rule followed by our Supreme 

Court in that case. Here, the trial court determined that the deaths of Jewel 

and Betty were substantially similar and that the probative value of evidence 

pertaining to Jewel’s death outweighed its prejudicial effect. The trial court 

concluded that “[t]he evidence of the similarities between the cause of death 

in both cases – Jewel and Betty – could support a conclusion that Betty’s 

death was not the result of an accident but was instead the intended 
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consequence of [Appellant’s] behavior.” Trial Court Opinion, 11/16/2012, at 

5. The trial court further noted:

Dr. Wayne Ross, a forensic pathologist reviewing the 

records of both Jewel Schirmer and Betty Schirmer, found 

that the damage to the scalp and skull showed remarkably 

similar patterns on both women. Dr. Ross opined that the 

evidence in both records was suggestive of staging. Both 

women lived for a short time after their respective 

“accidents” and died later at the hospital. [Appellant] was 

allegedly devoid of emotion at both accident scenes. There 

is some evidence of [Appellant] having extramarital affairs 

in both cases. In both instances [Appellant] is the only 

person known to have been with the victims prior to the 

accidents. Thus, if there [were] foul play in the deaths of 

the two women, [Appellant] would be the only logical 

suspect as no others were present. [Appellant] argues that 

Betty’s death was accidental. The Commonwealth must 

prove that this is not true and that [Appellant] caused 

Betty’s death. Evidence of a strikingly similar [prior] death 

is relevant evidence for the Commonwealth that the 

[present] death was not accidental, and was instead the 

intended consequence of [Appellant’s] deliberate actions. 

[...]

[The trial court then] consider[ed] and balance[d] the 

competing interests at stake. The deaths of [Appellant’s] 

two wives do bear many similarities[, h]owever, a 

significant amount of time did elapse between the two 

deaths. Additionally, the evidence of Jewel’s death [is] 

extensive, and there is a definite concern that essentially a 

trial within a trial will result. This carries a danger of 

distracting or confusing the jury, a danger that [the trial 

court] carefully considered. Nevertheless, [the trial court 

found] that evidence of Jewel Schirmer’s death [was] 

directly relevant, both as evidence of [Appellant’s] intent 

and to rebut his claim that the death [of Betty] was 

accidental. The comparison of head injuries – one resulting 

from an alleged fall down the stairs, and the other from a 

car accident – is far more probative than an analysis of the 

head trauma experienced only by Betty Schirmer. While the 
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evidence is certainly prejudicial, [the trial court did] not find 

that the probative value [was] outweighed by the prejudice. 

Id. at 5-6.

Upon review, we discern no abuse of discretion in admitting evidence 

of the death of Appellant’s first wife, Jewel. Appellant claims his second 

wife’s death was an accident. Pursuant to Pa.R.E. 404(b)(2), the 

Commonwealth was permitted to rebut that defense with evidence of Jewel 

Schmirer’s death to show an absence of an or accident. We reject 

Appellant’s contention that this case is factually distinct from Boczkowski. 

Here, Appellant claimed that both of his wives’ deaths were accidental.3 

Despite the fact that the alleged accidents appeared to be distinct, both 

women had almost identical head wounds that suggested they had been 

bludgeoned with a long cylindrical object such as a crowbar before the 

staging of the alleged accidents. More specifically, Dr. Wayne Ross at trial 

opined:

So the comparison is traumatic brain injury for both 

individuals, Jewel Schirmer, Betty Schirmer, multiple 

impacts to multiple sides of the head. Craniotomies are on 

the left side of the head, lacerations times two on the right 

side of the head. The lacerations look similar. The 

lacerations have similar orientation, going up and down. 

And the lacerations are compatible with impacts with a long 

cylindrical object, a crowbar, or other things. 

So, the comparison, what we call similarities, are 

extremely similar. And as a forensic pathologist, when 

____________________________________________

3 Appellant claimed that Jewel died as a result of a fall down a set of stairs. 

He claimed that Betty died as a result of a motor vehicle accident.
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we’re drawing conclusions about reconstructing injuries and 

accidents, we look at the pattern of injuries. We look at the 

similarities. We look at the crime scene, and we try to piece 

it all together so we are able to draw conclusions about the 

cause of death, the manner of death, but also conclusions 

about the scenes.

N.T., 1/15/2013, at 90-91. The similarities in the manner of both women’s 

deaths were evidence of lack of an accident. Moreover, like in Boczkowski, 

Appellant was the last person who was with the victims in both cases. The 

trial court carefully weighed the probative value of the evidence with the 

potential prejudice.

Additionally, the trial court issued cautionary instructions, immediately 

after testimony pertaining to Jewel Schirmer’s death and during the official 

jury charge prior to deliberations. N.T., 1/15/2013, at 100-102; N.T., 

1/22/2013, at 157-158. Those instructions specified that the jury was only 

to consider evidence of Jewel’s death for the limited purpose of determining 

the absence of an accident, as mandated by Rule 404. “The jury is 

presumed to have followed the court's instructions.” Commonwealth v. 

Akbar, 91 A.3d 227, 233-234 (Pa. Super. 2014). For all of the foregoing 

reasons, Appellant’s first issue lacks merit.

In his second issue presented, Appellant claims the trial court erred by 

permitting the Commonwealth to enter evidence at trial regarding the 

suicide of Joseph Musante, one of Appellant’s parishioners.4 Appellant’s Brief 

____________________________________________

4 Mr. Musante was the husband of Appellant’s administrative assistant. N.T., 

1/11/2013, at 120; N.T., 1/14/2013, at 115. Mr. Musante broke into 

(Footnote Continued Next Page)
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at 28. Appellant asserts that “the suicide as presented merely tended to 

establish that [Appellant] was a bad person and had contributed to the death 

of Joseph Musante” and “merely a guise for introducing irrelevant prior acts 

evidence in this case.” Id. at 31. Appellant contends that the trial court 

agreed that evidence tending to show that Appellant caused the death of Mr. 

Musante would pose substantial prejudice, but then permitted the admission 

of five witnesses who testified about the suicide, “graphic photographic 

evidence” including a photo of Mr. Mustante’s lifeless body seated behind 

Appellant’s desk, a letter written by Mr. Musante’s sister to church officials 

which “states that [Appellant] shares in responsibility for [Mr.] Mustante’s 

death[.]” Id. at 33. Appellant argues “if police needed to describe why 

the investigation was reinitiated four months after the death of [Appellant’s] 

second wife, the Commonwealth could have done so with far less detail then 

was admitted in this case.” Id. at 34. 

The Commonwealth proffered evidence pertaining to Mr. Musante’s 

suicide as an effort to explain to the jury why the investigation into the 

death of Betty was reopened after its initial closure as an accident, and to 

offer the jury a complete story on the factual background of the instant 

offenses. Again, “[r]ulings on the admissibility of evidence are within the 

(Footnote Continued) _______________________

Appellant’s office at the church and committed suicide while sitting at 

Appellant’s desk. N.T., 1/11/2013 at 47-56. Mr. Musante believed that his 

wife and Appellant were having an affair. Id. at 120.
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discretion of the trial judge, and such rulings form no basis for a grant of 

appellate relief absent an abuse of discretion.” Commonwealth v. Green, 

76 A.3d 575, 583 (Pa. Super. 2013) (citation omitted). “While it is true that 

evidence of prior crimes and bad acts is generally inadmissible if offered for 

the sole purpose of demonstrating the defendant's bad character or criminal 

propensity, the same evidence may be admissible [...] where the acts were 

part of a chain or sequence of events that formed the history of the case and 

were part of its natural development.” Id. “The ban on prior bad acts 

evidence, and the lion's share of associated exceptions ... are set forth in 

Pa.R.E. 404(b)[,] however, [t]he res gestae or ‘history of the case’ 

exception, however, does not spring from Pa.R.E. 404.” Id. Such exception 

is described as a:

special circumstance, one where evidence of other crimes 

[or prior acts] may be relevant and admissible ... where 

such evidence was part of the chain or sequence of events 

which became part of the history of the case and formed 

part of the natural development of the facts. This special 

circumstance, sometimes referred to as the “res gestae” 

exception to the general proscription against evidence of 

other crimes [or prior acts], is also known as the “complete 

story” rationale, i.e., evidence of other [] acts is admissible 

“to complete the story of the crime on trial by proving its 

immediate context of happenings near in time and 

place.”

Id. at 583-584 (internal citations omitted; emphasis in original).

Here, the trial court determined:

[E]vidence regarding the suicide of Joseph Musante and 

the affair between his wife and [Appellant] was relevant. ... 

[The trial court] considered the evidence of the suicide 
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carefully. The suicide was a critical event in triggering the 

police investigation. In fact, due largely to [Appellant’s] 

staging of the [car] accident [that Appellant claimed caused 

Betty’s death], police did not initially conduct a thorough 

investigation of the car accident. The break-in at the 

church and suicide in [Appellant’s] office were the events 

that caused police to take a second look at [the death of 

Appellant’s] second wife, and ultimately triggered an 

investigation into the death of his first wife as well. Without 

evidence of the suicide, the Commonwealth’s case would 

have been severely disadvantaged as the timeline would 

have been confusing. An unexplained gap in the timeline 

and investigative process would have had potential to 

confuse and distract the jurors. The Commonwealth did not 

indicate that [Appellant] caused the death of Joseph 

Musante nor did they argue that [Appellant’s] “bad act” of 

engaging in an [] affair with Mr. Musante’s wife meant that 

[Appellant] was a bad person and thus guilty of murder.

The testimony regarding the suicide was instead 

admitted to explain the course of events, particularly the 

course of investigation. The suicide and testimony from 

family members gave context for statements made by 

[Appellant] to church authorities during an investigation by 

church officials. [Appellant’s] statements to Bishop [Peggy] 

Johnson that his wife’s seatbelt had “come undone” at the 

moment of impact was used to explore the various different 

stories [Appellant] provided regarding the actual mechanics 

of the accident that he claimed caused [Betty’s] death.

Absent any testimony regarding the suicide and related 

affair between [Appellant] and Mrs. Musante the trial would 

have consisted of testimony that was illogical and 

disconnected. Further, as [the trial court] stated in [its] 

November 16[, 2012] opinion: 

Additionally, evidence of the affair and suicide 

are not highly prejudicial. The suicide is temporally 

distinct from the alleged homicide. Evidence of it 

serves as explanation for the resurgence of 

investigation into Betty’s death. It is not likely to 

confuse the jury and it is unlikely that the jury will 

be distracted from the task at hand – determining 

whether [Appellant] killed his wife – by evidence that 
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Joseph [Musante] killed himself. There is no reason 

to conclude that the jury would be so inflamed by 

evidence of the suicide that they would determine 

[Appellant’s] guilt on a basis other than the evidence 

relating to the death of his wife.

Similarly, while evidence of the affair may 

be prejudicial, this prejudice does not outweigh 

its probative value. Without evidence of the 

affair, the suicide is illogical, and without the 

suicide, the timeline of the investigation would 

appear completely baffling. Such a logical gap 

would in fact be more likely to distract the jury from 

their careful consideration of the evidence of guilt or 

innocence than the evidence of the affair and suicide. 

Without this evidence, there are clear logical gaps in 

the Commonwealth’s “story.”

Trial Court Opinion, 8/23/2013, at 13-14 (emphasis added).

Here, the evidence of Mr. Musante’s suicide was close in time and 

place to the criminal investigation surrounding Betty’s death and necessary 

to complete the whole story as to why her death was deemed an accident 

originally, but was subsequently reopened. The investigation was 

complicated, made difficult by the fact that Betty’s death appeared staged, 

and involved multiple authorities from both the church and police 

departments. Throughout the investigation, Appellant gave conflicting 

stories to church officials and the police that formed the basis for the natural 

progression of the investigation. Thus, evidence of the suicide was clearly 

relevant to complete the story regarding the charged offenses. Moreover, 

the suicide was completely distinct from Appellant’s charged crimes and the 

minimal likelihood of the jury convicting him on such evidence was 
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outweighed by the probative value of evidence of the suicide. Furthermore, 

upon independent review, the Commonwealth did not inappropriately argue 

that Appellant caused Mr. Musante’s death or that causing someone to 

commit suicide was consistent with the murder of Appellant’s second wife. 

The evidence was tailored to the investigation and formed part of the chain 

or sequence of events which became part of the history of the case. As 

such, we discern no abuse of discretion or error of law by the trial court in 

admitting evidence of Mr. Musante’s suicide.5 Thus, Appellant’s second issue 

is meritless. 

____________________________________________

5 We briefly address Appellant’s alternative assertion that the prejudice of 

the cumulative evidence of Mr. Musante’s death outweighed its probative 

value. Appellant claims that it was improper for the trial court to have 

permitted the Commonwealth to admit into evidence a photo of Mr. 

Mustante’s lifeless body seated behind Appellant’s desk, a letter written by 

Mr. Musante’s sister to church officials, and the testimony of five witnesses. 

Appellant’s Brief at 33. 

Initially, we note that the photograph and the letter to church officials are 

not contained in the certified record. The certified record consists of the 

“original papers and exhibits filed in the lower court, the transcript of 

proceedings, if any, and a certified copy of the docket entries prepared by 

the clerk of the lower court.” Pa.R.A.P.1921. “Our law is unequivocal that 

the responsibility rests upon the appellant to ensure that the record certified 

on appeal is complete in the sense that it contains all of the materials 

necessary for the reviewing court to perform its duty.” Commonwealth v. 

Preston, 904 A.2d 1, 7 (Pa. Super. 2006). “[A]ny document which is not 

part of the officially certified record is deemed non-existent—a deficiency 

which cannot be remedied merely by including copies of the missing 

documents in a brief or in the reproduced record.” Id. at 6. “Simply put, if 

a document [or photograph] is not in the certified record, the Superior Court 

may not consider it.” Id. at 7. Thus, due to the failure to include the 

exhibits in the certified record, we are unable to review them and, therefore, 

(Footnote Continued Next Page)
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In his third issue presented, Appellant claims that the trial court erred 

by allowing “digitally altered images” depicting luminol testing6 because the 

admitted photographs7 were “fabricated” and made “the garage floor look 

like it was covered in blood.” Appellant’s Brief at 35. More specifically, he 

argues that “[t]hese digitally altered images were not fair and accurate 

depictions of how the lumin[o]l looked on the garage floor, and the 

alterations to the photographs were never noted by the State Police and 

therefore the process and system used to create them could not even be 

described at trial.” Id. at 36. Thus, he contends that “the introduction of 

(Footnote Continued) _______________________

may not consider whether evidence of the photograph and letter to church 

officials in relation to Mr. Musante’s death was unduly prejudicial. 

Regarding Appellant’s claim that the Commonwealth unnecessarily presented 

five witnesses to testify about the suicide, we conclude that the trial court 

did not abuse its discretion in permitting such testimony. Upon review, no 

one witness was able to explain the affair and subsequent suicide in the 

context of both the church and police investigations. As previously stated, 

this was a complex matter made difficult by staging the death to look like an 

accident. Based upon our standard of review, we conclude that the trial 

court properly weighed the prejudicial nature of the aforementioned 

evidence with its probative value and we discern no abuse of discretion in its 

admission at trial.

6

Luminol is a chemical that illuminates when it contacts the iron component 

of blood. Commonwealth v. Williams, 854 A.2d 440, 443 (Pa. 2004).

7 Again, the actual photographs of the luminol testing are not contained in 

the certified record and we may not consider them. See Pa.R.A.P.1921; 

Preston, 904 A.2d at 7. However, we are able to reach the merits of 

Appellant’s argument based upon our review of the witness testimony 

pertaining to luminol photography as presented at trial. 
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those images only tended to confuse and mislead [the] jury[.]” Id. at 35-

36. 

Our standard of review is as follows:

Admission of evidence is within the sound discretion of the 

trial court and will be reversed only upon a showing that the 

trial court clearly abused its discretion. The requirement of 

authentication or identification is codified at Pennsylvania 

Rule of Evidence 901, 42 Pa.C.S.A.: “(a) General provision. 

The requirement of authentication or identification as a 

condition precedent to admissibility is satisfied by evidence 

sufficient to support a finding that the matter in question is 

what its proponent claims.” Pa.R.E. 901(a). Testimony of a 

witness with personal knowledge that a matter is what it is 

claimed to be may be sufficient to authenticate or identify 

the evidence. Pa.R.E. 901(b)(1).

Abuse of discretion is shown in the record where the court 

does not apply the law in reaching judgment, or exercises 

manifestly unreasonable judgment, or judgment that is the 

result of partiality, prejudice, bias, or ill will. 

Commonwealth v. Mitchell, 883 A.2d 1096, 1109-1110 (Pa. Super. 2005) 

(internal citations omitted). 

On the issue of the photographs depicting luminol testing, the trial 

court herein determined:

At trial, the Commonwealth submitted various images of the 

blood which luminesced in the garage of [] Appellant’s 

parsonage. What [] Appellant pervasively phrases as 

“computer generated images” are, in fact, the overlaid 

photographs of the garage when it was lit and the garage 

when it was dark. The photograph overlay process occurs 

thus: A camera is placed in a certain position and takes a 

photograph while the room’s lights are on; without moving 

the camera, the photographer then takes another 

photograph when the room’s lights are off. The photograph 

of the luminescing blood is then overlaid onto the 

photograph of the lit room. Luminol photography must be 
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conducted in almost complete darkness in order to view the 

luminescence. Considering the dark background of the 

luminesced photograph, the photographs were combined 

into a single image in order to show the location of the 

blood in the garage. The blood’s location would, otherwise, 

be very difficult for the jury to determine. Adobe Photoshop 

was employed in order to combine the photographs.

Trial Court Opinion, 11/12/2013, at 5.

Upon review of the record, we conclude that Appellant is not entitled 

to relief. The Commonwealth presented the testimony of Pennsylvania State 

Police Trooper John Corrigan, who the trial court accepted as “an expert in 

crime scene processing, evidence collection, enhancement techniques, 

including the use of luminol.” N.T., 1/9/2013, at 70. Before admitting 

photographs of the luminol testing, Trooper Corrigan identified them and 

stated that the photographs fairly and accurately depicted the luminol 

testing process. Id. at 94. “Luminol is an enhancement or a detection of 

blood” that is “mostly used at crime scenes for blood that’s not visible to the 

naked eye or from blood that’s already been cleaned up.” Id. at 95. Police 

conduct testing in the dark, because they spray luminol onto an area of the 

search and a chemical reaction creates a blue glow that indicates a reaction 

to blood. Id. at 96. Trooper Corrigan applied luminol to Appellant’s garage 

and took a photograph in complete darkness of areas that were luminescing. 

Id. at 96-98. He then took a flash photograph from the identical location to 

show the affected area in the light. Id. at 98-99. The photographs were 

properly authenticated and accurately showed the garage in the light and 

dark.
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Utilizing computer technology, Trooper Corrigan then overlaid the two 

photographs to show the relationship between the glowing luminol and the 

physical layout of the garage. Id. at 99-103. Trooper Corrigan testified 

that he layers the photographs on top of one another because

if [he] show[ed] you a true luminol photograph you’re going 

to see little blue specs, and you’re not going to see anything 

else in relationship to those blue specs, so it’s not going to 

be of any value. It could be in the middle of [his] living 

room. It could be in the middle of your living room. You’re 

not going to know where it’s taken. 

Id. at 98-99. Based upon the foregoing, the trial court properly weighed the 

probative value of the photographs with the potential prejudice. In fact, 

showing the jury the original photographs, but not the single overlaid 

photograph, would be potentially more confusing and misleading to them. 

Thus, Appellant’s third issue lacks merit. 

 In his fourth issue presented, Appellant claims that the trial court 

erred in precluding him from calling Jewel Schirmer’s hairdresser as a 

witness at trial. Appellant’s Brief at 44. Appellant asserts that the 

hairdresser was prepared to testify that Jewel had an early morning hair 

appointment on the day of her death and there was nothing “out of the 

ordinary that day.” Id. at 45. Appellant argues that the “appointment itself 

was relevant because it would have made it less likely for [Jewel] to have 

showered on the morning of her death.” Id. Appellant proffered this 

testimony to refute Commonwealth witness, Dr. Wayne Ross’ opinion “that 

he could not rule out forceful penetration of the rectal area of [Jewel].” Id. 
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Thus, Appellant contends that the hairdresser’s testimony was offered to 

provide the jury with the inference that “the presence of semen near 

[Jewel’s] anus could be explained from sex occurring the night before that 

remained near that portion of her body.” Id.

The trial court precluded the proffered testimony as irrelevant. Trial 

Court Opinion, 11/12/2013, at 6. Citing Pa.R.E. 401, the trial court noted 

that “Appellant was not on trial for the murder of Jewel” and the proffered 

testimony that there was nothing unusual about Jewel’s behavior on the day 

of the murder “had no tendency to make a material fact in the homicide of 

Betty Schirmer more or less likely.” Id. at 6-7. 

Based upon our standard of review regarding the admissibility of 

evidence, we conclude that the trial court did not abuse its discretion by 

precluding the proffered testimony. Appellant claims that the witness would 

have testified that there was nothing unusual on the day of Jewel’s death. 

The submitted evidence was entirely tangential to the death of Betty 

Schirmer. Moreover, the inferences to be drawn were speculative, at best, 

because the hairdresser did not have first-hand knowledge of Jewel’s sexual 

activity or hygiene on the day in question. Accordingly, we agree that the 

proffered testimony was irrelevant to the current matter and the trial court 

properly precluded it from trial pursuant to Pa.R.E. 402. Accordingly, 

Appellant’s fourth issue is without merit.
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Finally, Appellant argues that the search warrants obtained in this 

case8 were based upon misstatements, omissions of fact, and unsupported 

expert conclusions and, thus, the trial court erred by failing to suppress the 

physical evidence recovered by police upon execution of those warrants. 

Appellant’s Brief at 46-52. Appellant points to three specific statements, as 

set forth in the affidavits of probable cause, which he believes contained 

misstatements or omissions. First, Appellant contends that the affidavits 

omitted certain circumstances related to the death of his first wife, Jewel. 

Specifically, Appellant argues that the affiant “deliberately omitted from the 

affidavit of probable cause certain circumstances surrounding the death of 

[Jewel] that a reasonable person would want to know.” Id. at 50. Appellant 

goes on to state that at the time the affidavits were signed, the affiant had 

records from Lebanon County “where EMT’s stated that it appeared [Jewel] 

had fallen straight back from the top of the stairs” and “information that 

[Jewel]... died of a heart attack.” Id. Appellant further claims that the 

affidavits omitted any reference to the findings of Dr. Isadore Mihalakis that 

____________________________________________

8

 There were seven search warrants issued in this case, all utilizing 

substantially similar affidavits of probable cause. Trial Court Opinion, 

5/18/2012, at 13. The warrants were issued for the parsonage and garage 

at the United Methodist Church in Reeders, Pennsylvania, the 2007 PT 

Cruiser involved in the motor vehicle crash, and Appellant’s residence. 

Moreover, the warrants authorized the search and seizure of computers and 

electronic devices found at the United Methodist Church and in the 2007 PT 

Cruiser. Finally, police obtained a search warrant to draw Appellant’s blood 

for DNA purposes. Id. 
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Betty’s death may or may not be consistent with a motor vehicle accident, or 

Dr. Mihalakis’ written report that concluded that Betty’s injuries were, in 

fact, consistent with a motor vehicle accident. Id. at 50-51. Finally, 

Appellant argues that because “it was not mentioned in the warrant [that the 

affiant] had any training in blood splatter analysis” and the affidavit of 

probable cause “does not state any source for [the affiant’s] conclusions that 

a low speed accident could not cause the injuries suffered by [Appellant’s] 

second wife, the conclusions he writes are themselves misstatements.” Id.

at 51.

Our standard of review in addressing a challenge to the denial of a 

suppression motion is

limited to determining whether the suppression court's 

factual findings are supported by the record and whether 

the legal conclusions drawn from those facts are correct. 

Because the Commonwealth prevailed before the 

suppression court, we may consider only the evidence of 

the Commonwealth and so much of the evidence for the 

defense as remains uncontradicted when read in the context 

of the record as a whole. Where the suppression court's 

factual findings are supported by the record, we are bound 

by these findings and may reverse only if the court's legal 

conclusions are erroneous. Where, as here, the appeal of 

the determination of the suppression court turns on 

allegations of legal error, the suppression court's legal 

conclusions are not binding on an appellate court, whose 

duty it is to determine if the suppression court properly 

applied the law to the facts. Thus, the conclusions of law of 

the courts below are subject to our plenary review. 

Moreover, it is within the suppression court's sole province 

as fact finder to pass on the credibility of witnesses and the 

weight to be given their testimony. 
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Commonwealth v. Baker, 24 A.3d 1006, 1015 (Pa. Super. 2011) (internal 

citations, quotations and brackets omitted).

“Search warrants must be supported by probable cause.” 

Commonwealth v. Johnson, 42 A.3d 1017, 1031 (Pa. 2012) (citation 

omitted). “Probable cause exists where the facts and circumstances within 

the affiant's knowledge and of which he has reasonably trustworthy 

information are sufficient in themselves to warrant a man of reasonable 

caution in the belief that a search should be conducted.” Id. In order to 

secure a valid search warrant,

an affiant must provide a magistrate with information 

sufficient to persuade a reasonable person that there is 

probable cause for a search. The information must give the 

magistrate the opportunity to know and weigh the facts and 

to determine objectively whether there is a need to invade a 

person's privacy to enforce the law.

In determining whether a search warrant is based upon 

probable cause, [the United States Supreme Court has 

stated]:

The Fourth Amendment's commands, like all 

constitutional requirements, are practical and not 

abstract. If the teachings of the Court's cases are to 

be followed and the constitutional policy served, 

affidavits for search warrants, such as the one 

involved here, must be tested and interpreted by 

magistrates and courts in a commonsense and 

realistic fashion. They are normally drafted by the 

nonlawyers in the midst and haste of a criminal 

investigation. Technical requirements of elaborate 

specificity once exacted under common law 

pleadings have no proper place in this area. A 

grudging or negative attitude by reviewing courts 

toward warrants will tend to discourage police 
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officers from submitting their evidence to a judicial 

officer before acting.

Baker, 24 A.3d at 1017(citations and quotations omitted).

Regarding misstatements in affidavits of probable cause, since 1970 

Pennsylvania courts have consistently found:

misstatements of fact will invalidate a search warrant and 

require suppression of the fruits of the search only if the 

misstatements of fact are deliberate and material.

While we have recognized that the veracity of facts 

establishing probable cause recited in an affidavit 

supporting a search warrant may be challenged and 

examined, [our courts] have not suggested that every 

inaccuracy will justify an exclusion of evidence obtained as a 

result of the search. The question of whether a 

misstatement was deliberately made is to be answered by 

the lower court. 

Id. at 1017 (emphasis in original). Moreover, this Court has concluded a 

misstatement is immaterial “if an independent basis exists to support a 

finding of probable cause.” Commonwealth v. Antoszyk, 985 A.2d 975, 

982 (Pa. Super. 2009).

Where omissions are the basis for a challenge to an affidavit of 

probable cause supporting a warrant, we apply the following test:

(1) whether the officer withheld a highly relevant fact within 

his knowledge, where “any reasonable person would have 

known that this was the kind of thing the judge would wish 

to know”; and (2) whether the affidavit would have 

provided probable cause if it had contained a disclosure of 

the omitted information.

Commonwealth v. Taylor, 850 A.2d 684, 689 (Pa. Super. 2004).
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Here, based upon our standard of review, we discern no abuse of 

discretion or error of law in denying suppression. The trial court set forth 

the applicable legal principles, scrutinized the affidavits of probable cause at 

issue, and thoughtfully examined the testimony of the investigating officers 

and affiant to conclude that there were no material misstatements or 

omissions. Trial Court Opinion, 5/18/2012, at 13-23. We agree. 

With regard to Appellant’s first allegation of error that “it was a 

misstatement to discuss the death of [Appellant’s] first wife without 

mentioning a conclusion referenced in a Lebanon County [p]olice report that 

indicated Jewel Schirmer suffered a myocardial infarction[,]” the trial court 

determined:

Detective [James] Wagner and Trooper [William] Maynard 

both made clear at the time of the omnibus hearing that 

there were no medical records to sustain a conclusion that 

Jewel died of a heart attack. [Trooper] Maynard and 

[Detective] Wagner were clear that they did not rely on 

information contained in the Lebanon County [p]olice 

report; but rather based their information and conclusions 

on the coroner’s report. They did not have medical 

records in their possession at the time the warrants were 

issued. The only clear misstatement in the affidavits 

regarding Jewel’s death was the statement that her 

manner of death was determined to be accidental. In 

reality, the manner of death remained “undetermined” at 

the time the affidavits were written and sworn to.

Once again, probable cause is present where “the facts 

and circumstances within the affiant’s knowledge and of 

which he has reasonable trustworthy information are 

sufficient in themselves to warrant a man of reasonable 

caution in the belief that a search should be conducted.” 

Commonwealth v. Thomas, 292 A.2d 352, 357 (Pa. 1972). 

It is manifestly reasonable to rely on the coroner’s report 
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which was received from Dr. Wayne Ross, rather than 

another county’s police records. At the time the affidavits 

were written, the only indication of a myocardial infarction 

was contained in the Lebanon County police report. This 

resulted from Chief Deputy Coroner Patty Garber indicating 

to the police that Kidney One and Hershey Medical Center 

had indicated to her that the heart was damaged. 

However, Dr. Ross had never received records from Kidney 

One or Hershey Medical Center to support that 

determination.

An assertion in a police report that someone else had 

heard from yet a third party that there was a problem with 

the heart is unreliable information in comparison to the 

coroner’s report. The affidavit merely characterized the 

death of Jewel Schirmer as “suspicious.” The affidavit did 

mischaracterize the status of her death by relating that the 

manner of death was determined to be accidental. 

Excising the statement that manner of death was 

accidental strengthens the conclusion that the death of 

[Jewel] was suspicious.

The omission of any mention of a myocardial infarction 

with respect to Jewel’s heart was not a highly relevant 

fact. However, even if this [were] a highly relevant fact, 

probable cause would still exist with the disclosure of the 

omitted information.

 Id. at 22. 

Regarding Appellant’s contention that the affiant omitted an expert 

report prepared by Dr. Mihalakis,9the trial court found credible the affiant’s 

____________________________________________

9 Specifically, Appellant challenges the statement in the affidavit that “Betty 

Schirmer’s body could not have slammed around inside the car from the 

impact with the guardrail... Betty Schirmers [sic] injuries are consistent with 

an assault or beating with a blunt force object or weapon.” Trial Court 

Opinion, 5/18/2012, at 17. Appellant argues that this is a misstatement 

because it does not reference Dr. Mihalakis’ written report that stated that 

Betty’s injuries were consistent with an automobile accident in which the 

victim was an unrestrained passenger.

(Footnote Continued Next Page)
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testimony that he did not review the report prior to applying for the search 

warrants and that he had only been told that the injuries could have been 

consistent with an automobile accident, but may have been inflicted prior. 10 

Id. at 19. Moreover, even though Dr. Mihalakis’ written report was not 

referenced in the affidavit, the trial court found that the omission of any 

reference in the affidavit to Dr. Mihalakis’ report was not relevant as the 

report contained numerous factual inaccuracies. Id. at 18. Finally, the trial 

court concluded that the affidavit had sufficient independent bases to 

establish probable cause that Betty’s injuries were inconsistent with the 

vehicular accident, stating:

[T]he affidavit would still allege that there was no evidence 

of braking or skid marks, and that the damage to the 

vehicle was very minor. Examination of the blood evidence 

indicated that the victim was bleeding prior to the accident. 

[Appellant] gave contradictory statements to the deputy 

coroner and to the police. The death of [Appellant’s] first 

wife was suspicious. 

Id. at 20. 

(Footnote Continued) _______________________

10

 The affiant, James Wagner, a detective with the Pocono Township Police 

department was investigating the case and working in conjunction with Tom 

McAndrew, an officer with the Pennsylvania State Police. N.T., 1/30/2012, 

at 62-68. Trooper McAndrew met with Dr. Mihalakis to examine the blood 

evidence. Id. at 68. Trooper McAndrew relayed Dr. Mihalakis’ initial 

findings to Detective Wagner, but Detective Wagner did not see Dr. 

Mihalakis’ formal report until after the searches were conducted. Id. at 69. 

At the time he submitted applications for the search warrants, Detective 

Wagner testified that, “[a]ll [he] knew at that time was Trooper McAndrew 

told [him] that the injury to Betty’s head was what [Dr. Mihalakis] would 

expect to find or see in a [vehicular] crash.” Id. at 69. 
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Finally, pertaining to Appellant’s claim that the affiant lacked expertise 

in rendering a conclusion that a low speed accident could not cause the 

injuries suffered by the victim, the trial court concluded: (1) the affiant 

testified previously in the Commonwealth as an expert in blood spatter 

analysis; (2) prior to applying for a search warrant, the affiant consulted 

with another investigating officer who was qualified as an expert in “blood 

stain analysis and crime scene processing[;]” and, (3) an expert from New 

York concurred that the victim was bleeding prior to entering the car before 

the search warrants were issued. Id. at 21. Accordingly, the trial court 

found that “the conclusions of a township detective with training in the field 

of blood stain analysis and a state trooper qualified as an expert in blood 

stain analysis, together with the concurrence of another expert in the field is 

enough to support the statement about the victim bleeding prior to the 

accident.” Id. at 21-22. 

We discern no abuse of discretion or error of law with respect to any of 

the conclusions reached by the able trial court in denying Appellant’s motion 

to suppress based on the affidavits of probable cause issued in support of 

the search warrants. The affidavits of probable cause were accurate 

reflections of the knowledge known to the affiant at the time of the 

applications. There was no deliberate withholding of information and there 

were no material misstatements in the affidavits of probable cause. 

Moreover, there were sufficient independent bases within the affidavits of 
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probable cause to support the issuance of search warrants in this case. 

Accordingly, Appellant’s final issue does not merit relief.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2014