J-S78019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BEAU W. CHERMER

Appellant No. 128 WDA 2016

Appeal from the Judgment of Sentence October 19, 2015

In the Court of Common Pleas of Beaver County

Criminal Division at No(s): CP-04-CR-0001125-2012

CP-04-CR-0001130-2012

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.: FILED MARCH 14, 2017

Beau W. Chermer appeals from the judgment of sentence imposed on 

October 19, 2015, in the Court of Common Pleas of Beaver County. At 

Docket No. 1125-2012, the trial judge1found Chermer guilty of murder of 

the second degree.2 At Docket No. 1130-2012, Chermer pled guilty to 16 

counts arising from the same incident, including aggravated assault, 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 Although Chermer and his co-defendant, Joseph Arlott, were tried 

together, after the mistrial was granted and the new trial rescheduled, 

Chermer opted for a bench trial.

2 18 Pa.C.S. § 2502(b).
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burglary, robbery, criminal conspiracy, and related offenses.3 Chermer was 

sentenced to life in prison without the possibility of parole and a consecutive 

aggregate term 19 to 50 years’ imprisonment on three conspiracy 

convictions, namely, conspiracy to commit robbery, conspiracy to commit 

aggravated assault, and conspiracy to commit burglary.4 Chermer claims 

(1) the trial court erred in imposing sentence on more than one of the 

conspiracy charges,5(2) the trial court erred in denying Chermer’s motion 

and amended motion to bar retrial on double jeopardy grounds and other 

constitutional grounds, (3) the evidence was insufficient to sustain the 

verdict for murder in the second degree, (4) the evidence was against the 

weight of the evidence to support the conviction for murder in the second 

degree, and (5) the trial court erred in failing to strike the Commonwealth’s 

rebuttal testimony of James Smith, M.D. Based upon the following, we 

affirm the judgment of sentence at Docket No. 1125-2012, and vacate the 

judgment of sentence at Docket No. 1130-2012 and remand for 

resentencing.

____________________________________________

3 18 Pa.C.S. §§ 2701(a)(1), 3502(a)(1), 3701(a)(1)(i) and 903, 

respectively. 

4 The trial court opted not to sentence Chermer on any of the other counts 

to which he pled guilty. See Sentence Order, 10/19/2015.

5 The trial court has agreed that it erred in sentencing Chermer 

consecutively on the three counts of conspiracy and has asked this Court to 

vacate that sentence and remand for resentencing. For purposes of our 

discussion, we will address this issue last.
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The trial court has summarized the facts and procedural history of this 

case, as follows:

On August 26, 2015, the Court returned a verdict finding 

[Chermer] guilty of Murder of the Second Degree (Felony 

Murder) at Case No. 1125 of 2012. Prior to trial, [Chermer] had 

waived his right to a trial by jury and agreed to be tried at Case 

No. 1125 of 2012 in a Bench Trial. Also before trial, [Chermer] 

plead[ed] guilty to all sixteen (16) counts at Case No. 1130 of 

2012, arising out of the same incident. The counts at Case No. 

1130 of 2012, which [Chermer] plead[ed] guilty to, include: (1) 

Aggravated Assault, (2) Criminal Conspiracy to Commit 

Aggravated Assault, (3) Aggravated Assault, (4) Criminal 

Conspiracy to Commit Aggravated Assault, (5) Burglary, (6) 

Criminal Conspiracy to Commit Burglary, (7) Robbery, (8) 

Criminal Conspiracy to Commit Robbery, (9) Unlawful Restraint, 

(10) Criminal Conspiracy to Commit Unlawful Restraint, (11) 

Theft by Unlawful Taking, (12) Criminal Conspiracy to Commit 

Theft by Unlawful Taking, (13) Simple Assault, (14) Criminal 

Conspiracy to Commit Simple Assault, (15) False Imprisonment, 

and (16) Criminal Conspiracy to Commit False Imprisonment. On 

the first case, [Chermer] was sentenced on October 19, 2015 to 

life in prison without the possibility of parole. On the second 

case, [Chermer] received three (3) separate sentences for 

Criminal Conspiracy to Commit Robbery, Criminal Conspiracy to 

Commit Aggravated Assault and Criminal Conspiracy to Commit 

Burglary, each to be served consecutively. The aggregate 

sentence for the three (3) convictions required [Chermer] to 

undergo imprisonment for not less than nineteen (19) years, nor 

more than fifty (50) years, each to be served consecutively to 

the life imprisonment sentence at Case No. 1125 of 2012.1 

[Chermer] received no additional sentences for the other 

thirteen (13) counts he plead[ed] guilty to at Case No. 1130 of 

2012.

_____________________________________

1 Specifically, for the conviction of Criminal Conspiracy to 

Commit Robbery, [Chermer] was sentenced to undergo 

imprisonment in a State Penal or Correctional Institution 

or Facility for not less than 102 months nor more than 

240 months; for the conviction of Criminal Conspiracy to 

Commit Aggravated Assault, [Chermer] was sentenced to 
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undergo imprisonment for not less than 84 months nor 

more than 240 months; and for the conviction of Criminal 

Conspiracy to Commit Burglary, [Chermer] was 

sentenced to undergo imprisonment for not less than 42 

months nor more than 120 months; each sentence was 

required to be served consecutively to each other. 

_______________________________________

Following the sentencing, [Chermer] filed an Omnibus PostSentence Motion on October 26, 2015, requesting judgment of 

acquittal to be entered on the Second Degree Murder charge and 

requesting the sentences for the Conspiracy charges to be 

vacated, and only one (1) sentence for conspiracy be imposed. 

Chermer then filed a Supplemental Omnibus Post-Sentence 

Motion o[n] December 23, 2015, requesting judgment of 

acquittal for the Murder conviction, a new trial for the Murder 

conviction, and a motion for modification of sentence for the 

Conspiracy convictions. This Court denied that motion on 

January 4, 2016. [Chermer] then filed this direct appeal to the 

Superior Court of Pennsylvania.

****

At trial, the Court heard testimony from multiple medical 

professionals regarding the cause of the victim’s (Daniel J. 

Santia) death. After being tortured and beaten by [Chermer] and 

the Co-Defendant2 during a home invasion, the eighty-one (81) 

year old victim suffered a traumatic brain injury. The victim was 

found the day after the attack and was rushed to the hospital. 

Testimony provided that the victim suffered from a pre-existing 

heart condition, requiring him to take Coumadin, a blood 

thinner, to prevent blood clots. Due to the severe brain injury, 

the treating physicians suspended the victim’s normal 

medication and briefly took him off of the Coumadin to help treat 

the brain trauma. Testimony provided by Doctor Christina Toevs, 

the Medical Director of the Trauma Intensive Care Unit of 

Allegheny General Hospital, explained that it was customary to 

stop prescribing Coumadin for thirty (30) days following severe 

brain injuries in patients. The victim ultimately died twenty-one 

(21) days after the brutal attack.

______________________________
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2 The Co-Defendant in this case is Joseph Michael Arlott, 

who was convicted by a jury of all counts at Case No. 1126 

of 2012 and at Case No. 1127 of 2012.

__________________________________

The Commonwealth’s Forensic Pathologist, Doctor James Smith, 

determined the cause of death to be from acute myocardial 

infarction, as a direct result of the trauma that had occurred to 

the victim’s brain twenty-one (21) days previously. While all 

parties agreed that the victim’s pre-existing heart condition 

played a role in his death, experts disagreed that the brain 

trauma was the underlying cause of the victim’s death. 

Commonwealth witnesses and experts all provided that the brain 

injury is what placed the victim in the hospital and what 

eventually caused his death. Doctor Smith explicitly stated that 

the brain trauma was the direct cause of the victim’s death. (Tr. 

Transcr. Vol. V, 127-208 (Aug. 21, 2015). There was no doubt 

that [Chermer] and Co-Defendant [Arlott] caused the victim’s 

extensive brain trauma. [Chermer’s] Forensic [Expert], Doctor 

Cyril Wecht, on the other hand, testified that it was his opinion 

that the victim’s death was not the result of the brain trauma, 

and that he believed the evidence showed that the brain injury 

had mostly healed and played no role in the victim's death. 

This Court returned a verdict of guilty for the Second Degree 

Murder charge.

Trial Court Opinion, 2/23/2016, at 1-2, 3-5.

Chermer first claims the trial court erred in denying his motion to 

dismiss the charges against him on double jeopardy grounds. Our scope 

and standard of review for this question is as follows: “An appeal grounded 

in double jeopardy raises a question of constitutional law. This [C]ourt's 

scope of review in making a determination on a question of law is, as 

always, plenary. As with all questions of law, the appellate standard of 

review is de novo.” Commonwealth v. Taylor, 120 A.3d 1017, 1020 (Pa. 

Super. 2015) (citation omitted). Further,
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the double jeopardy clause of the Pennsylvania Constitution 

prohibits retrial of a defendant not only when prosecutorial 

misconduct is intended to provoke the defendant into moving for 

a mistrial, but also when the conduct of the prosecutor is 

intentionally undertaken to prejudice the defendant to the point 

of the denial of a fair trial.

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992).6

Here, Detective Robert Chamberlain, of the District Attorney’s Office, 

testified he had taken a series of photographs of the victim when he visited 

him in the hospital some weeks after the assault. These photographs 

showed the victim, still alive, to be severely bruised and battered. In the 

midst of Detective Chamberlain’s testimony, lead detective Greg Durkos, of 

the Hopewell Police Department, informed one of the prosecuting attorneys 

he believed he had taken the photographs shortly after the victim’s 

admission into the hospital. Indeed, prior to Detective Chamberlain’s 

testimony, ADA Frank Martocci expressed a concern regarding when the 

photographs had been taken, believing they depicted fresher injuries. N.T. 

Trial, 1/29/2014 at 191. Accordingly, in attempting to authenticate the 

photographs, Detective Chamberlain, while believing he had taken the 

pictures, could not accurately date the pictures and stated he would have to 

check the time signature on his computer at his office. 

____________________________________________

6

In Smith, our Supreme Court broadened the double jeopardy protection 

provided by the federal courts and United States Constitution, which requires 

the prosecution to have intentionally caused a mistrial through misconduct. 

See Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 

(1982).
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After the close of testimony for the day, Detective Durkos conclusively 

demonstrated he had taken the pictures by examining the relevant 

information contained on his computer. The next day, the Commonwealth 

alerted both the defense and trial court to the problem. The Commonwealth 

also offered to present testimony to the jury detailing the mistake and 

thereby correcting any misimpression Detective Chamberlain’s testimony 

caused. However, the defense requested a mistrial and the trial court 

granted it. 

Subsequently, Chermer and Arlott sought to bar retrial on the ground 

of double jeopardy.7 An extensive hearing on the issue was held on March 

24, 2014 at which both Detectives Durkos and Chamberlain testified. In 

denying the motion to bar a retrial, the trial court stated in its March 31, 

2014,8opinion:

Based upon all the evidence presented and the argument of 

counsel, this Court finds no reason to change the Court’s Opinion 

and Order of February 18, 2014 on the issue of intentional 

misconduct by the prosecution in permitting Detective 

Chamberlain to attempt to authenticate the twenty (20) 

photographs which he clearly did not take. As pointed out in the 

February 18, 2014 Opinion, the prosecution’s preparation for 

____________________________________________

7 Chermer initially filed an interlocutory appeal regarding the double 

jeopardy issue. However, the interlocutory appeal was quashed by per 

curiam order, dated September 22, 2014. Our Supreme Court subsequently 

denied allowance of appeal, see 112 A.3d 649 (Pa. 2015) (Table).

8 The trial court authored two opinions regarding the double jeopardy issue, 

having granted reconsideration after initially denying the motion to bar a 

retrial. The March 31, 2014 opinion is the second of the opinions.
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trial is suspect and did bring about the trial error, however, that 

conduct has not been proven to rise to the level of having been 

committed purposefully or in bad faith with the intent to prevent 

the Defendants from receiving a fair trial, it did not constitute an 

intentional attempt to deny or subvert the Defendants’ 

constitutional rights, and it certainly was not a trial strategy 

undertaken to provoke he Defendants into seeking a mistrial. 

This Court cannot ignore the fact that the inaccurate testimony 

was called to everyone’s attention by the Commonwealth itself. 

As to the first ground raised, the defendants have not 

established grounds to require the barring of re-trial on Double 

Jeopardy grounds.

Trial Court Opinion, 3/31/2014 at 3.

We have reviewed the certified record, including the relevant notes of 

testimony from the initial trial and the hearing on the motion to bar a retrial. 

We find no error in the trial court’s conclusion. Chermer has presented no 

evidence or argument to overcome the fact that the Commonwealth came 

forward itself to disclose the problem, a problem that might never have been 

evident without that disclosure. In order to prevail on this claim, Chermer 

must demonstrate that the Commonwealth acted intentionally in trying to 

provoke a mistrial or in attempting to deny him a fair trial. The trial court 

determined that such improper intent was inconsistent with self-disclosure 

and denied Chermer relief. We affirm that decision.

Next, Chermer argues there was insufficient evidence to support his 

conviction of second-degree murder. Specifically, he claims the 
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Commonwealth failed to prove a sufficient nexus between the assault of the 

victim and his demise.9

The standard of review for claims of insufficient evidence is wellsettled. With respect to such claims, we consider the evidence in 

the light most favorable to the Commonwealth as verdict winner. 

In that light, we decide if the evidence and all reasonable 

inferences from that evidence are sufficient to establish the 

elements of the offense beyond a reasonable doubt.

Commonwealth v. Thur, 906 A.2d 555, 568-69 (Pa. Super. 2006) (citation 

omitted).

The Crimes Code defines murder of the second degree as follows:

(b) Murder of the second degree.--A criminal homicide 

constitutes murder of the second degree when it is committed 

while defendant was engaged as a principal or an accomplice in 

the perpetration of a felony.

18 Pa.C.S. § 2502(b).

Chermer’s claim of insufficiency is a challenge to causation.

To establish criminal causation, the Commonwealth must prove 

that the defendant's conduct was so directly and substantially 

linked to the actual result as to give rise to the imposition of 

criminal liability. Commonwealth v. Long, 425 Pa. Super. 170, 

624 A.2d 200, 203-204 (1993), appeal denied, 535 Pa. 170, 633 

A.2d 150 (1993) (citing Commonwealth v. Rementer, 410 Pa. 

Super. 9, 598 A.2d 1300, 1304 (1991), appeal denied, 533 Pa. 

599, 617 A.2d 1273 (1992)).

In Rementer, we set forth a two-part test for determining 

criminal causation. First, the defendant's conduct must be an 

antecedent, but for which the result in question would not have 

____________________________________________

9 Because Chermer pled guilty to all the underlying crimes, including 

burglary, aggravated assault, and robbery, the only real issue at trial was 

whether the assault caused the victim’s death.
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occurred. Rementer, 598 A.2d 1305; 18 Pa.C.S.A. § 303(a)(1). 

A victim's death cannot be entirely attributable to other factors; 

rather, there must exist a “causal connection between the 

conduct and the result of conduct; and causal connection 

requires something more than mere coincidence as to time and 

place.” Rementer, 598 A.2d at 1305, n. 3 (quoting LaFave and 

Scott, Substantive Criminal Law, Vol. 1, Ch. 3., at 391–392 

(1986)). Second, the results of the defendant's actions cannot 

be so extraordinarily remote or attenuated that it would be 

unfair to hold the defendant criminally responsible. Rementer, 

598 A.2d at 1305.

As to the first part of the test, the defendant's conduct need not 

be the only cause of the victim's death in order to establish a 

causal connection. Rementer, 598 A.2d at 1305. “Criminal 

responsibility may be properly assessed against an individual 

whose conduct was a direct and substantial factor in producing 

the death even though other factors combined with that conduct 

to achieve the result.” Long, 624 A.2d at 203 (citing 

Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d 889 (1974), 

appeal dismissed, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304 

(1974)). The second part of the test is satisfied when the 

victim's death is the natural or foreseeable consequence of the 

defendant's actions. Id. (citing Rementer and Commonwealth 

v. Pacquette, 451 Pa. 250, 301 A.2d 837 (1973)). “Where the 

fatal result was an unnatural or obscure consequence of the 

defendant's actions, justice would prevent us from allowing the 

result to have an impact upon a finding of the defendant's guilt.” 

Id. at 204, 624 A.2d 200 (citing Rementer, 598 A.2d at 1306-

1307).

Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa. Super. 2008).

There is no dispute the victim suffered from medical problems prior to 

the assault, including arthrosclerosis, here, the near total occlusion of three 

coronary arteries. While the victim’s medical problems were predominantly 

chronic, the autopsy discovered a fresh blood clot that had completely 
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occluded one of the arteries, causing a myocardial infarction,10 which proved 

to be the mechanism of death. 

It is also beyond dispute that the victim suffered a severe beating in 

the course of the home invasion by Chermer and co-defendant Arlott. Of 

primary import to this appeal, the victim suffered a subarachnoid 

hemorrhage – bleeding on the brain. In order to treat this potentially fatal 

injury, the doctors had to stop the Coumadin regimen the victim had been 

on to treat his severe heart condition. Coumadin is a blood thinner that 

helps prevent the formation of blood clots. Essentially, the doctors had to 

stop the bleeding on the brain and could only do so by allowing the blood to 

clot naturally at the site of the brain injury. However, this course of action 

increased the risk of the formation of other blood clots. As noted above, 

another blood clot did form, occluded an artery, and killed the victim. The 

central question of the trial was whether the formation of the fatal blood clot 

was linked to the beating or was the formation of the blood clot 21 days 

between the assault and the victim’s demise too attenuated. The resolution 

of this question rested upon the testimonial evidence of Dr. James Smith, 

the forensic pathologist who conducted the victim’s autopsy, and Dr. Cyril 

____________________________________________

10 Myocardial infarction is the technical name for a heart attack. The 

Cleveland Clinic, Center for Continuing Education, states: “Myocardial 

infarction occurs when myocardial ischemia, a diminished blood supply to 

the heart, exceeds a critical threshold and overwhelms myocardial cellular 

repair mechanisms designed to maintain normal operating function and 

homeostasis.” See www.clevelandclinicmeded.com
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Wecht, the forensic pathologist who reviewed the matter on behalf of the 

defendants. Dr. Smith testified the assault and death were linked, while Dr. 

Wecht opined the victim had essentially recovered from the beating, 

rendering the assault and myocardial infarction unrelated. 

Specifically, Chermer argues:

The Trial Court recites that its verdict was based on the opinion 

of the Commonwealth’s expert, [Dr.] Smith, that the brain 

trauma [the victim] suffered was the direct cause of his death. 

However, [Dr.] Smith never rendered that opinion.

[Dr.] Smith’s actual testimony was that [the victim] had 

recovered from the injuries caused by the beating and that the 

injuries were not the cause of, nor a contributing factor in, [the 

victim’s] death.

Chermer’s Brief, at 40.

The certified record leads to the conclusion that this argument is 

meritless. Dr. Smith’s direct testimony spans 53 pages of the notes of 

testimony. See N.T. Trial, 8/21/2015, at 127-180. Dr. Smith summed up 

his opinion in the following manner:

A: Okay. That [the victim] “died as the result of an acute 

myocardial infarct, secondary to a recent thrombosis of the 

coronary artery vein graft. The infarct was imposed in a heart 

already severely damaged from coronary artery disease and in a 

state of chronic congestive failure. The circumstances relating to 

his death were directly related to a severe beating he received 

some 20 days prior to his death.”

The manner of death is homicide.

Q: Now you’ve talked about both of those things that we’ve been 

talking about throughout your testimony –

A: Um-hum.
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Q: - the heart condition and the severe beating that he took. 

You said they are directly connected. Why do you say there in 

your opinion that they are directly connected?

A: The, well, they’re, a lot of the features we’ve already, we 

have already talked about and discussed there are the business, 

most obvious being the business about the coagulation and the 

use of the anticoagulant there. The anticoagulant therapy 

having to be discontinued and this leading to the thrombosis in 

the vein graft followed by an acute myocardial infarct and his 

death, okay.

There, of course, as we’ve mentioned or as we’ve touched upon 

in the other testimony there’s the fact that his stasis, I mean his 

being unable to move about and so forth also contributed to this.

His congestive heart failure also contributed to this.

Again I don’t like to prolong it, but there was, the incident where 

he had to be intubated was at least in part related to a condition 

from his being placed in a, the position that he was for over 12 

hours where he was bound with his hands tied behind his back. 

His legs were bound. He was, he was in one position and 

couldn’t get out of it for many, many hours.

This leads to, especially with heart failure, leads to stasis, that 

means fluids going to the lower part of the body. It causes, and 

this is a direct cause of, a direct result of this is muscle necrosis, 

and one of the, one of, the primary protein in muscles, protein 

called myoglobulin, it’s very damaging to the kidneys. That was 

secreted. His kidneys were damaged.

The kidney, because the kidneys were damaged, why he retains 

fluid, and because he retains fluid, why he goes into severe 

congestive heart failure and has to be intubated.

Probably that episode also helped to get, give him the 

pneumonia that he got on May 7th and all of those things sort of 

tie together.

He was a man who had been living with this, these coronary 

artery bypasses for 34 years. He had been doing well, and now 

with the intervention of the trauma that he suffered why this is, 
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this has, I feel, is part of, all a part and parcel of a cause, a 

cause of his death.

Q: And do you see any break in that chain from the time that he 

had the, was the victim of the assault up until the time of his 

death?

A: No, I don’t.

Q: And also from the time that you review those reports on April 

30th until the time of his death do you see any indication in those 

records or in your exams that he ever totally recovered or fully 

recovered –

A: Fully recovered?

Q: - from those injuries?

A: No, definitely not. I don’t feel he had ever fully recovered, 

no.

N.T. Trial, 8/21/2015, at 176-180.

In summary, the testimony of Dr. Smith drew an unbroken chain of 

events from the beating to death, and the judge was free to believe his 

testimony as to causation. As such, Chermer’s argument regarding 

insufficiency of the evidence fails and he is not entitled to relief on this issue.

Next, Chermer argues the verdict was against the weight of the 

evidence. Specifically, he argues Dr. Smith failed to quantify how much 

more likely it was for a blood clot to form absent the Coumadin therapy and 

did not address Dr. Wecht’s theory of changed hematological state until 

rebuttal. Also, he argues the trial court failed to properly weigh the effect of 

the “do not resuscitate” (DNR) order placed by the decedent’s family.
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Our Supreme Court has set forth detailed instructions regarding the 

review of a challenge to the weight of the testimony.

A motion for a new trial based on a claim that the verdict is 

against the weight of the evidence is addressed to the discretion

of the trial court. Commonwealth v. Widmer, 560 Pa. 308, 

319, 744 A.2d 745, 751-52 (2000); Commonwealth v. Brown, 

538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial 

should not be granted because of a mere conflict in the 

testimony or because the judge on the same facts would have 

arrived at a different conclusion. Widmer, 560 Pa. at 319-20, 

744 A.2d at 752. Rather, “the role of the trial judge is to 

determine that ‘notwithstanding all the facts, certain facts are so 

clearly of greater weight that to ignore them or to give them 

equal weight with all the facts is to deny justice.’ ” Id. at 320, 

744 A.2d at 752 (citation omitted). It has often been stated that 

“a new trial should be awarded when the jury's verdict is so 

contrary to the evidence as to shock one's sense of justice and 

the award of a new trial is imperative so that right may be given 

another opportunity to prevail.” Brown, 538 Pa. at 435, 648 

A.2d at 1189.

An appellate court's standard of review when presented with a 

weight of the evidence claim is distinct from the standard of 

review applied by the trial court:

Appellate review of a weight claim is a review of the 

exercise of discretion, not of the underlying question of 

whether the verdict is against the weight of the evidence. 

Brown, 648 A.2d at 1189. Because the trial judge has had 

the opportunity to hear and see the evidence presented, 

an appellate court will give the gravest consideration to the 

findings and reasons advanced by the trial judge when 

reviewing a trial court's determination that the verdict is 

against the weight of the evidence. Commonwealth v. 

Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One 

of the least assailable reasons for granting or denying a 

new trial is the lower court's conviction that the verdict 

was or was not against the weight of the evidence and that 

a new trial should be granted in the interest of justice.

Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). 
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Essentially, Chermer’s argument regarding his challenge to the weight 

of the evidence is to highlight the fact that Dr. Wecht disagreed with Dr. 

Smith as to certain medical issues. As Clay instructs, this is an improper 

basis to overturn a verdict. Here, the trial court determined Dr. Smith’s 

opinion was supported by the testimony of the treating physicians. 

Additionally, the trial court opined:

This Court returned a verdict of guilty for the Second 

Degree Murder charge. This Court had the opportunity during 

trial to weigh the credibility of all the witnesses and evidence 

presented at trial and determined which evidence it found most 

compelling. This Court found, and the jury in the CoDefendant’s case agreed, that the Commonwealth presented 

sufficient evidence to support a conviction for Second Degree 

Murder. Likewise, the verdict is also not against the weight of 

the evidence. The verdict shows that the Court found the 

Commonwealth’s witnesses more compelling, and that 

testimony, on its own, supports the conviction finding 

[Chermer’s] actions caused the victim’s death. 

****

Similarly, this conviction does not “shock one’s sense of justice” 

and is not against the weight of the evidence presented.

Trial Court Opinion, 2/23/2016, at 5.

Based upon the foregoing, the trial court did not abuse its discretion in 

denying Chermer’s claim the verdict was against the weight of the 

evidence.11

____________________________________________

11 As noted above, as part of his weight of the evidence claim, Chermer also 

asserts the trial court failed to adequately account for the DNR order placed 

by the victim’s family. Our review of the certified record shows there was no 

(Footnote Continued Next Page)
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Penultimately, Chermer claims the trial court erred in failing to strike 

the rebuttal testimony of Dr. James Smith.

Our standard of review in cases involving the admission of 

expert testimony is broad: “Generally speaking, the admission of 

expert testimony is a matter left largely to the discretion of the 

trial court, and its rulings thereon will not be reversed absent an 

abuse of discretion.”

Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008) (citation 

omitted). 

On rebuttal, Dr. Smith disagreed with Dr. Wecht’s conclusion that the 

fatal myocardial infarction took place too long after the beating and 

cessation of Coumadin to be related. In explaining why he disagreed, he 

enlarged his prior testimony, explaining the clotting process and how 

removal from Coumadin effects said process. Although he did not reiterate 

his opinions were made to a reasonable degree of medical certainty, the trial 

court examined the testimony as a whole and determined Dr. Smith’s 

rebuttal testimony was not rendered incompetent by that fact.

While this issue purports to challenge Dr. Smith’s rebuttal testimony, 

the first half of Chermer’s argument is a repeat of his prior argument that 

Dr. Smith’s direct testimony was insufficient. Repeating this argument has 

not compelled us to reconsider its merits.

(Footnote Continued) _______________________

medical evidence to support a claim that the DNR order had any effect upon 

the medical outcome of this matter. 
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Chermer is correct that Dr. Smith did not repeat the fact that his 

rebuttal testimony was provided within a reasonable degree of medical 

certainty. However, Dr. Smith’s testimony from the Commonwealth’s case 

in chief was given to that standard. The trial court also noted that rather 

than focusing on “magic words,” 

“the substance of the testimony presented by the expert must 

be reviewed to determine whether the opinion rendered was 

based on the requisite degree of certainty and not on mere 

speculation.” [Commonwealth v. Miller, 987 A.2d 638, 656 

(Pa. 2009)].

Trial Court Opinion, 2/23/16, at 8 (additional citations omitted).

The trial court recognized that Dr. Smith’s initial testimony had been 

explicitly rendered to a reasonable degree of medical certainty and reviewed 

the detail of his rebuttal testimony to determine the rebuttal testimony was 

proffered to the same standard and was not based on mere speculation. Our 

review of the certified record leads us to conclude the trial court did not 

abuse its discretion therein. Accordingly, Chermer is not entitled to relief on 

this claim.

In his last issue, Chermer argues he was sentenced illegally in regards 

to the conspiracy charges. The trial court has agreed with Chermer; we 

agree as well. 

Specifically, Chermer received an aggregate sentence of 19 to 50 

years’ incarceration for conspiracy to commit robbery (81⁄2 to 20 years), 
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conspiracy to commit aggravated assault (7 to 20 years), and conspiracy to 

commit burglary (31⁄2 to 10 years). However, 18 Pa.C.S. § 903 (c) states:

If a person conspired to commit a number of crimes, he is guilty 

of one conspiracy so long as such multiple crimes are the object 

of the same agreement or continuous conspiratorial relationship.

18 Pa.C.S. § 903 (c).

The trial court reasoned:

To determine if one or multiple conspiracies have been 

established, the Court should apply a totality of the 

circumstances test and consider the following factors:

The number of overt acts in common; the overlap of 

personnel; the time period during which the alleged acts 

took place; the similarity in methods of operation; the 

locations in which the alleged acts took place; the extent 

to which the purported conspiracies share a common 

objective; and, the degree to which interdependence is 

needed for the overall operation to succeed.

Com[monwealth]. v. Davis, 704 A.2d 650, 654 (Pa. Super. 

1997). This test has been consistently followed by the Superior 

Court and adopted as the proper test by the Supreme Court of 

Pennsylvania. See e.g. Com[monwealth] v. Andrews, 768 

A.2d 309, 334 (Pa. 2001); see also Com[monwealth] v. 

Barnes, 871 A.2d 812, 820 (Pa. Super. 2005).

Noting the applicable test to apply, this Court finds it would be 

proper to re-sentence [Chermer] at Case No. 1130 of 2012, and 

sentence [Chermer] for a single Conspiracy. Applying the test to 

the facts at hand, this Court agrees the evidence established one 

Conspiracy, as the crimes committed were all the object of a 

single “continuous conspiratorial relationship.” [Chermer’s] resentence should reflect as much.

Trial Court Opinion, 2/23/2016, at 11.

Our review of the certified record confirms the trial court’s analysis. 

Accordingly, Chermer is properly subject to a single sentence for these three 
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conspiracy charges. Therefore, we vacate the sentence at Docket No. 1130-

2012 and remand this matter for resentencing.

Judgment of sentence at Docket No. 1125-2015, for second-degree 

murder, is affirmed. Judgment of sentence at Docket No. 1130-2012 is 

vacated as to Chermer’s aggregate sentence on the charges of conspiracy to 

commit robbery, conspiracy to commit aggravated assault and conspiracy to 

commit burglary, and remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/14/2017