J-S66017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ERIN NICOLE EVERETT

Appellant No. 2046 WDA 2014

Appeal from the Judgment of Sentence Entered November 14, 2014

In the Court of Common Pleas of Somerset County

Criminal Division at No: CP-56-CR-0000249-2011

BEFORE: OLSON, STABILE, and STRASSBURGER,*JJ. 

MEMORANDUM BY STABILE, J.: FILED APRIL 21, 2016

Appellant Erin Nicole Everett appeals from the November 14, 2014 

judgment of sentence entered in the Court of Common Pleas of Somerset 

County (“trial court”) following Appellant’s bench conviction for, inter alia, 

first-degree murder under Section 2502(a) of the Crimes Code, 18 Pa.C.S.A. 

§ 2502(a). Upon review, we affirm.

The facts and procedural history underlying this case are undisputed, 

and recounted in detail on pages 1 through 17 of the trial court’s March 7, 

2016 Pa.R.A.P. 1925(a) opinion. Briefly, Appellant was charged with, inter 

alia, first-degree murder for the shooting death of her girlfriend, Tory 

Elizabeth Minnick (“victim”). Prior to trial, the Commonwealth filed a motion 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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in limine, seeking to exclude the testimony of Antoinette Petrazzi Woods, 

Ph.D, LPC, whom Appellant sought to present as an expert on Battered 

Woman Syndrome (“BWS”) and Post-Traumatic Stress Disorder (“PTSD”). 

The Commonwealth argued that Petrazzi Woods did not have specialized 

knowledge to qualify as an expert witness on these issues. The 

Commonwealth argued that even if Petrazzi Woods did qualify as an expert, 

her evaluation of Appellant indicated that Appellant did not meet the full 

criteria for either PTSD or BWS. Moreover, the Commonwealth argued that 

BWS was relevant only in cases where a defendant alleges self-defense. The 

Commonwealth pointed out that Appellant could not make out a theory for 

self-defense because the victim was asleep when Appellant murdered her. 

Over Appellant’s objection, the trial court granted the Commonwealth’s 

motion.

The case eventually proceeded to a bench trial, at which various 

witnesses, including Appellant and William Nair, testified. Mr. Nair testified 

that he exchanged text messages with Appellant, who is the cousin of his 

then-fiancée, prior to the killing and advised Appellant on how to use her 

father’s gun, and where to purchase ammunition for the gun. Mr. Nair also 

testified that he did not think Appellant was serious about killing the victim. 

On cross-examination, when asked about whether he texted a picture of his 

penis to Appellant, Mr. Nair indicated that he did not. Mr. Nair testified that 

the picture was sent by his roommate, whom he tried to set up with 

Appellant. Also, when asked whether he had told anyone prior to trial that 
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someone else had used his phone, Mr. Nair indicated that he had. He 

specifically stated that he had told the Commonwealth about it during his 

last conversation with the district attorney. Upon hearing this, Appellant 

moved for a mistrial, arguing that the Commonwealth committed a Brady1

violation by failing to disclose to Appellant the identity of the other individual 

prior to trial. The court disagreed, denying Appellant’s motion for a mistrial. 

In so doing, the trial court concluded that Appellant failed to establish that 

the picture of the penis would have led to exculpatory or impeaching 

evidence or that Appellant was prejudiced by its nondisclosure.2 Sometime 

thereafter, Appellant took the stand and admitted to murdering the victim 

while the victim slept. The trial court ultimately convicted Appellant of, inter 

alia, first-degree murder and sentenced her to life imprisonment without the 

possibility of parole. At the trial court’s direction, Appellant filed a Pa.R.A.P. 

1925(b) statement of errors complained of on appeal, raising the following 

assertions of error:

[1.] Whether the trial court erred in granting the 

[Commonwealth’s] Motion in Limine precluding the testimony of 

[Appellant’s] Expert, Dr. Antoinette Petrazzi-Woods as to 

Battered Woman Syndrome, Spousal Abuse Syndrome, PostTraumatic Stress Disorder, and other disorders, thereby 

prejudicing [Appellant] to an extent that it constitutes reversible 

error?

____________________________________________

1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

2 The Commonwealth opined that Mr. Nair pinned the penis picture on the 

other individual because “he was covering his ass with his fiancée.” N.T. 

Trial, 11/12/14, at 1.127.
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[2.] Whether the trial court erred by prohibiting [Appellant] from 

presenting any evidence or experts regarding [Appellant’s] 

mental health, state of mind or mental conditions and disorders, 

by erroneously relying upon improper evidence including the 

affidavit of probable cause and police reports severely 

prejudicing [Appellant]?

[3.] Whether the District Attorney committed prosecutorial 

misconduct by having ex parte communications with the court 

during the bench trial proceedings by informing the judge in 

Chambers immediately prior to [Appellant’s] mother’s testimony, 

that she had attempted to smuggle handcuff keys into jail in 

[Appellant’s] court clothing thereby prejudicing the [c]ourt as to 

the witness?

[4.] Whether the trial court erred in failing to grant a mistrial 

when during testimony it was discovered that there was an 

alleged third witness who may have provided exculpatory 

evidence and whose name and identity were known by the 

District Attorney who never disclosed the information to the 

Defense, yet admitted to having knowledge of the witness during 

the bench trial?

[5.] Whether the trial court erred in failing to mitigate 

[Appellant’s] level of guilt by failing to take into consideration 

the level and magnitude of aid provided by William Nair, who 

encouraged, advised, counseled, and otherwise enticed 

[Appellant] to carry out the crime in her distraught state of mind 

instead of calling for assistance or help?

[6.] Whether the verdict was against the weight of the evidence?

Appellant’s Pa.R.A.P 1925(b) Statement. In response, the trial court 

prepared a detailed 1925(a) opinion, addressing Appellant’s assertions of 

error seriatim. Addressing Appellant’s first issue, the trial court concluded 

that the Commonwealth’s motion in limine excluding Petrazzi Woods’ 

testimony was timely and that it did not abuse its discretion in granting the 

motion. In support of its grant of the Commonwealth’s motion in limine, 

trial court reasoned that, because Appellant could not establish a claim for 

self-defense as the victim was asleep when Appellant killed her, Petrazzi 

Woods’ testimony on BWS and PTSD was irrelevant. Additionally, the trial 
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court noted that Petrazzi Woods was not qualified to be an expert on BWS or 

PTSD because “there is no indication whatsoever that she possesses any 

knowledge, skill, experience, training or education to afford her ‘specialized 

knowledge’ in the field of BWS and/or PTSD.” Trial Court Opinion, 3/7/16, at 

24. Alternatively, the trial court concluded that even if Petrazzi Woods were 

qualified, her testimony would not have helped the trier of fact on these 

issues, because Petrazzi Woods “ultimately found that [Appellant] suffers 

from neither BWS nor PTSD.” Id. at 25. The trial court next addressed 

Appellant’s second assertion of error, namely that the court had erred in 

relying on the affidavit of probable cause and police reports in concluding 

that Appellant could not establish a claim for self-defense. The trial court 

reasoned that under Pa.R.E. 104, it was not bound by the rigors of the 

evidentiary rules to determine preliminary questions on the admissibility of 

evidence or the qualifications of an expert.3 With respect to Appellant’s third 

assertion of error, relating to prosecutorial misconduct, the trial court 

concluded that Appellant waived the issue by failing to make a timely 

____________________________________________

3 Even if the trial court had improperly relied on the affidavit of probable 

cause or the police reports to conclude that Appellant could not establish 

self-defense because the victim was asleep at the time of the killing, the 

error was harmless. As noted earlier, Appellant admitted at trial to the fact 

that the victim was asleep. In Commonwealth v. Grove, 526 A.2d 369 

(Pa. Super. 1987), we noted that “[a]s a matter of law, any imminence to 

[the] appellant’s perceived risk of death or serious bodily injury ended, as 

did the conflict on the ‘present occasion,’ when the victim went to bed and 

fell asleep.” Grove, 526 A.2d at 375.
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objection. Additionally, the trial court found that “no ex parte

communications occurred between the District Attorney and the court.” Trial 

Court Opinion, 3/7/16, at 27. The trial court next addressed Appellant’s 

fourth issue relating to a Brady violation.4 The trial court rejected 

Appellant’s argument that a Brady violation occurred because the 

Commonwealth failed to disclose to Appellant Mr. Nair’s roommate’s use of 

Mr. Nair’s cellphone and the roommate’s texting of sexually explicit images 

to Appellant. The trial court concluded that “Appellant had failed to 

demonstrate that the undisclosed evidence was favorable to her and that 

she had been prejudiced by its nondisclosure.” Id. at 29. With respect to 

Appellant’s fifth assertion of error, the trial court noted that it fully 

____________________________________________

4 Under Brady, “a prosecutor has an obligation to disclose all exculpatory 

information material to the guilt or punishment of an accused, including 

evidence of an impeachment nature.” Commonwealth v. Spotz, 18 A.3d 

244, 275–276 (Pa. 2011) (citation omitted). To prove a Brady violation, the 

defendant bears the burden of demonstrating that: “(1) the prosecutor has

suppressed evidence; (2) the evidence, whether exculpatory or impeaching, 

is helpful to the defendant, and (3) the suppression prejudiced the 

defendant.” Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa. 2012) 

(citation omitted). To establish prejudice, the defendant must prove that 

“there is a reasonable probability that, had the evidence been disclosed to 

the defense, the result of the proceeding would have been different.” 

Commonwealth v. Appel, 689 A.2d 891, 905 (Pa. 1997) (citation 

omitted), abrogated on other grounds, Commonwealth v. Fears, 86 

A.3d 795 (Pa. 2014); see also Commonwealth v. Bomar, 104 A.3d 1179, 

1189 (Pa. 2014) (“Stated differently, the undisclosed evidence must be 

‘material to guilt or punishment.’”) (citation omitted). “A reasonable 

probability is a probability sufficient to undermine confidence in the 

outcome.” Commonwealth v. Chmiel, 30 A.3d 1111, 1130 (Pa. 2011) 

(citation omitted).
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considered Mr. Nair’s involvement and concluded, based on the evidence 

presented, that it did not rise to the level of conspiracy. The trial court 

found that Mr. Nair did not plant in Appellant’s mind the idea to kill the 

victim. Id. at 32. On the contrary, the idea to kill was Appellant’s, and it 

was Appellant who, after much deliberation, killed the victim as the victim 

slept. Finally, addressing Appellant’s sixth assertion of error, the trial court 

concluded that it did not abuse its discretion in denying Appellant’s weight of 

the evidence challenge. 

On appeal, Appellant repeats the same assertions of error.5,6 After 

careful review of the parties’ briefs, the record on appeal, and the relevant 

____________________________________________

5 Appellant withdraws the issue of prosecutorial misconduct, acknowledging 

that she “did not formally place [an] objection on the record in open court,” 

and therefore rendering the issue “moot and waived.” Appellant’s Brief at 

28. 

6 We note that Appellant’s weight of the evidence challenge is waived, 

because she failed to properly preserve this issue for our review. A 

challenge to the weight of the evidence must be raised with the trial judge or 

it will be waived. Pennsylvania Rule of Criminal Procedure 607 requires that 

a “claim that the verdict is against the weight of the evidence shall be raised 

with the trial judge in a motion for a new trial: (1) orally, on the record, at 

any time before sentencing; (2) by written motion at any time before 

sentencing; or (3) in a post-sentence motion.” Pa.R.Crim.P. 607. This claim 

must be presented to the trial court while it exercises jurisdiction over a 

matter since “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.” Commonwealth v. Burkett, 830 A.2d 1034, 

1037 (2003) (citation omitted), appeal denied, 927 A.2d 648 (Pa. 2007). 

Instantly, Appellant failed to raise the weight of the evidence claim orally or 

in writing prior to or after sentencing. In fact, Appellant raised it for the first 

time in her Rule 1925(b) statement. Even if Appellant had preserved this 

(Footnote Continued Next Page)
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case law, we conclude that the trial court’s Rule 1925(a) opinion, authored 

by President Judge D. Gregory Geary, cogently disposes of Appellant’s issues 

on appeal. See Trial Court Opinion, 3/7/16, at 17-37. We, therefore, affirm 

the trial court’s November 14, 2014 judgment of sentence. We direct that a 

copy of the trial court’s March 7, 2016 Rule 1925(a) opinion be attached to 

any future filings in this case.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2016

(Footnote Continued) _______________________

issue, we still would have concluded that she is not due any relief based on 

the reasons outlined in the trial court Rule 1925(a) opinion. 
instruments of crime. On June 14, 2011, we heard the Commonwealth's motion to amend the 

On May 27, 2011, the Commonwealth withdrew the charge of possession of 

preliminary hearing as to all charges. 

legal co-counsel to represent Defendant. On April 8, 201 1, Defendant waived her right to a 

Assignment of Counsel pursuant to Pa. R. Crim. P. 122, we appointed Steven Miller, Esq. as 

of the Office of Public Defender. On March 28, 2011, upon Defendant's Application for 

crime, 18 Pa.C.S.A. § 907(b ). Defendant obtained representation by William R. Carroll, Esq. 

2503(a)(J); aggravated assault, 18 Pa.C.S.A. § 2702(a)(4); and possessing instruments of 

third-degree murder, 18 Pa.C.S.A. § 2502(c); voluntary manslaughter, 18 Pa.C.S.A. § 

criminal homicide, 18 Pa.C.S.A. § 2501 (a); first-degree murder, 18 Pa.C.S.A. § 2502(a); 

referred to as "Tory" or "the victim"). The criminal complaint charged Defendant with 

issued for the shooting, and bludgeoning death of Tory Elizabeth Minnick (hereinafter 

On March 25, 2011, a warrant for the arrest of Defendant, Erin Nicole Everett, was 

I. PROCEDURAL HISTORY. 

and in compliance with the Superior Court's December 10, 2015 order. 

This opinion is issued pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) 

OPINION PURSUANT TO Pa.R.A.P. 1925(a} 

;· l ··. ''.< .F ~C'.J:·, 1 S 

~: vtit r<SE T. P/i 

COMMONWEAL TH ) lN THE COURT OF COMMON PLEAS 

201& tli,R - 7 PM 3.)57 OF SOMERSET COUNTY, 

v. ~ J2/I PENNSYLVANIA 

FILED FOf{ i~ECOrW~- 

ERIN NICOLE EVERETT, ) 

) 

Defendant. ) NO. 249 CRIMINAL 2011 

) 

• Circulated 03/31/2016 10:47 AM
2 

1 We granted the following continuances: to Commonwealth on July 28, 2011, because evidence was undergoing 

testing at the crime laboratory; to Defendant on September 19, 2011 for "[a]dditional time to prepare for trial"; to 

Defendant on December 13, 2011 for "[a]dditional time to prepare for trial"; to Defendant on February 14, 2012 

because she "[n]eed[s) more time to prepare"; to Defendant on April 17, 2012 for the "[p]urpose of obtaining 

Mental Health Evaluation"; to Defendant on July I 0, 20 I 0, over the objection of the Commonwealth, because 

Attorney Brent Eric Peck "was recently retained on entered [hisJ appearance on June 18, 2012"; to Defendant on 

September 18, 2012, because "counsel requires additional time for trial preparation"; to Defendant on December 

18, 2012, over the Commonwealth's objection, because "counsel need[s] additional time for trial preparation"; to 

Defendant on February 12, 2013, again over the Commonwealth's objection, because "counsel requires 

additional time to prepare for trial"-however, we directed that there were to be no further continuances of this 

case granted at Defendant's request. 

We conducted a hearing on Defendant's motion in limine on April 2, 2013, after which, we 

preclude "any and all references to text messages as [h]earsay at the trial in this matter. ... " 

precluded." Defendant filed a pre-trial motion in limine on March 1, 2013, seeking to 

pretrial issues or motions be filed on or before 4:00 p.m. on Friday, March 1, 2013, or be 

12, 2013. During the hearing conducted on that date, we also directed that "any remaining 

As indicated in supra note 1, we granted a final continuance to Defendant on February 

otherwise able to employ counsel.. .. " 

having noted that "it appears that [D]efendant is not without financial resources and is 

permitted Attorneys Carroll and Miller to withdraw their appearance on behalf of Defendant, 

Brent Eric Peck, Esq. entered his appearance on behalf of Defendant. On June 21, 2012, we 

granted several continuances to both Commonwealth and Defendant.' On June 18, 2012, 

On July 12, 2011, Defendant entered a plea of not guilty to all charges. Thereafter, we 

Commonwealth's petition on June 16, 2011. 

testify against her alleged co-conspirator, William Stanley Nair, Jr. We granted the 

Defendant, pursuant to 42 Pa.C.S.A. § 5947, so the Commonwealth could call Defendant to 

On June 16, 2011, the Commonwealth petitioned for a grant of use immunity for 

903(a)(l). We granted the motion. 

information to add a charge of conspiracy to commit criminal homicide, 18 Pa.C.S.A. § 
3 

Defendant filed a notice of appeal on August 21, 2013, challenging our July 23 order 

precluding testimony by her expert. We heard argument on September 5, 2013 on the 

question of whether Defendant should be granted permission to proceed with an interlocutory 

appeal of this issue. On September 9, 2013, we granted Defendant permission to proceed. On 

September 25, 2013, pursuant to Pa. R.A.P. 1925(b), we ordered Defendant to file a concise 

statement of matters complained of on appeal. We issued a 1925(a) opinion on October 18, 

2013 wherein we advised that the reasons for our order were contained in the July 23, 2013 

memorandum of law. 

On November 22, 2013, Defendant filed with the Pennsylvania Supreme Court a 

took the matter under advisement. We denied Defendant's motion on May 9, 2013. 

On April 1, 2013, the Commonwealth submitted its Brief in Support of Motion in 

Limine to Preclude Expert Testimony Regarding Battered Woman Syndrome and/or PostTraumatic Stress Disorder. However, as Defendant noted in her reply brief dated May 31, 

2013, the Commonwealth had up to that point failed to file the actual motion in limine. The 

Commonwealth remedied this oversight by filing the motion in limine on June 11, 2013. On 

April 1, 2013, the Commonwealth also submitted a motion for a court-ordered mental health 

examination of Defendant pursuant to Pa. R. Crim. P. 569. The Commonwealth requested the 

mental health examination in the event that we were to deny the motion in limine to preclude 

testimony by Defendant's expert on the issue of Battered Woman Syndrome and PostTraumatic Stress Disorder. After hearing argument on June 27, 2013, we took the matter 

under advisement. On July 23, 2013, we issued a memorandum and order granting the 

Commonwealth's motion in limine. 
4 

2 We believe that the Superior Court must have declined hearing Defendant's appeal; we, however, have nothing 

in our records to confirm this belief. 

Jerome, Pennsylvania. Trial Tr. 1.19, Nov. 12, 2014. The home at 141 5th Street belonged to 

Department contacted the Pennsylvania State Police regarding a homicide at 141 5th Street, 

At approximately 1 :00 p.m. on March 25, 2011, Conemaugh Township Police 

II. FACTUAL HISTORY. 

raised in Appellant's Pa.R.A.P. 1925(b) statement." 

opinion ... detailing the factual and procedural history and addressing all assertions of error 

"prepare and file within ninety days of the date of this Order a Pa.R.A.P. 1925(a) 

March 5, 2015. On December 10, 2015, we received an Order from the Superior Court to 

Defendant filed on January 6, 2015. We submitted our first 1925(a) opinion in this appeal on 

we ordered Defendant to file a concise statement of matters complained of on appeal, which 

On December 11, 2014, Defendant filed a Notice of Appeal. On December 16, 2014, 

into the sentence for first-degree murder. 

for life without the possibility of parole. The sentences on the remaining offenses merged 

the D.N.A. Detection Fund fee of $250, and incarceration in a State Correctional Institution 

offense of first-degree murder. We sentenced Defendant to pay the costs of prosecution and 

aggravated assault. At Defendant's request, we immediately proceeded to sentencing on the 

murder, guilty of third-degree murder, guilty of voluntary manslaughter, and guilty of 

conspiracy to commit criminal homicide, guilty of criminal homicide, guilty of first-degree 

on November 12 through 14, 2014. On November 14, we found Defendant: not guilty of 

On October 31, 2014, Defendant waived her right to jury trial. A bench trial was held 

Petition. 

Petition for Allowance of Appeal.' On May 28, 2014, our Supreme Court denied Defendant's 
5 

Jeffrey Everett, Defendant's father, who resided there with his wife, Patricia Everett, and 

Defendant. Id. at 1.30. Trooper Joseph Drzal of the Pennsylvania State Police, along with 

Corporal Link and Corporal Thomas, arrived on the scene at 1 :29 p.m. Patricia Everett had 

called 911. Id. at 1.19-1.20. The information Trooper Drzal possessed as he responded to the 

scene was that "there was an intruder at the residence of 141 Fifth Street ... Two people were 

assaulted, both female, and one of them was deceased." Id. at 1.20. 

Trooper Drzal described his first impressions of the scene: "It was a two-story gray 

house. Initially, right off the bat, you could see the front door was smashed down ... [the] 

majority of the glass was on the porch and the sidewalk. So the preliminary things that came 

in about an intruder breaking into the house didn't seem right because you can tell ... the glass 

is broken from the inside out." Id. at 1.20-1.21; see also, Com.'s Ex. C. Trooper Drzal did 

not immediately enter the residence after observing the porch and door; rather, the officers set 

up a perimeter to prohibit people from entering or leaving the residence until a search warrant 

could be obtained. Trial Tr. 1.22. At the time Trooper Drzal arrived on the scene, Defendant 

was not present, as she was being transported to Memorial Medical Center in Johnstown, 

Pennsylvania, based on her report that she had been assaulted (i.e., struck in the back) by the 

intruder. Id. at l.23. 

Trooper Drzal eventually obtained a warrant from Magistrate District Judge Susan 

Mankamyer at 5:00 p.m. to search for "[a]ny weapons, cell phones, computers, any and all 

media devices, body fluids, hair, cigarettes, tobacco, vehicles, outbuildings, storage units, and 

all physical evidence in support of the commission of a crime." Id. at 1.24; Com. 's Ex. D. 

Trooper Drzal testified that Trooper Kendiga, of the Pennsylvania State Police Greensburg 

Forensic Services Unit, was in charge of processing the scene and collecting the evidence. 
6 

Trial Tr. 1.24. 

Even prior to the officers entering the home, Trooper Drzal could see through an open 

door at the rear of the house that the victim's body was lying at the foot of the steps leading 

up from the basement. Id. at 1.28. Officers also discovered the victim's GMC Envoy SUV, 

license plate number HNW5410, parked near the back door. Id. at 1.28-29; Com.' s Ex. G. 

Trooper Drzal testified that Commonwealth's Exhibit H accurately depicts what he observed 

as he peered down the basement steps from outside the house: there are "[ c ]ement steps 

leading down into the basement. There's a large pool of blood, looks like on the first two 

steps, and Tory Minnick is ... covered up with a white sheet. There's also some blood on 

the ... brick walls leading down into the basement." Id. at 1.31. The sheet had not been placed 

over the body when Trooper Drzal arrived; his understanding was that the first responding 

medical personnel placed it there. Id. 

Somerset County Coroner Wallace Miller completed the victim's death certificate; he 

listed her time of death as 9: 15 p.m. on March 25, 2011 and concluded that the cause of death 

was "traumatic shock" and "gunshot wound to the head." Com.'s Ex. I. Medical Examiner 

Karl E. Williams, M.D., M.P.H., and Ashley Zezulak, M.D., conducted an autopsy on the 

victim and concluded, "Tory Minnick, a 21 year old white female, died as a result of a 

gunshot wound to the head. A second gunshot wound injury to the head cannot be determined 

due to absence of facial bones and tissue secondary to postmortem animal activity." Com. 's 

Ex. J, pg. 3. The "animal activity" in the Medical Examiner's report refers to the fact that one 

of the two dogs which had been confined to cages in the basement had gotten out of the cage 

and had begun to eat at the victim's neck and face. Trial Tr. 1.35-1.36. 

Tory's father, Robert Minnick, testified that in March, 2011, he, his wife, his sister-in- 
7 

law, and his mother-in-law lived at the 405 Cherry Street residence in Meyersdale, 

Pennsylvania. Id. at 1.42. During that period, while Tory was welcome home at any time, 

and still had her bedroom furnished for her, and she "would stay [at 405 Cherry Street on] 

weekends from time to time and go back and forth ... at that point in time, she was living with 

Erin." Id. at 1.43. 

Prior to Tory's relationship with Defendant, Tory had dated a man, Kody Donaldson, 

during high school and also for a time while they attended Allegheny Community College. 

Id. at 1.45. Mr. Donaldson left Allegheny Community College after his first year, and Tory 

left in the middle of her second year. Id. at 1.45-1.46. Tory's relationship with Mr. 

Donaldson had been serious enough that the Minnicks allowed Mr. Donaldson to live in their 

home for a year, and they considered him a part of the household. Mr. Donaldson had even 

asked for the Minnicks' consent to marry Tory, which they gave. Id. at 1.46. Mr. Donaldson 

had also bought Tory a dog, a German Shepard mix, which lived with the Minnicks (and 

which was not one of the dogs at the Everett residence on the night of the homicide). Id. at 

1.47. However, Tory's relationship with Mr. Donaldson was also a tumultuous one; they 

would argue frequently, Tory would break into tears, and eventually Mr. Minnick told Tory 

that Mr. Donaldson was no longer welcome at their home. Id. at 1.48-1.49. 

Defendant, twenty-five years old at the time of the homicide, met Tory in 2009 while 

the two were working as Certified Nursing Assistants at a nursing home. Trial Tr. 2.304- 

2.306, Nov. 13, 2014. In June or July of that year, Defendant asked Tory via text if she would 

be interested in pursuing a same-sex relationship. Tory agreed, and the two began a 

relationship that included getting together and eating, going for drives, texting each other, and 

physical intimacy. Id. at 2.306-2.307. 
8 

On March 25, 2011, while Tory slept at the Everett residence, Defendant waited for 

her parents to leave the residence, and in Defendant's words, "I went up and I got the gun out 

of my dad's gun cabinet .. .I loaded it, took it back downstairs and I shot her in the head .. .I 

went back up the stairs and removed the bullets and put the bullets in another room and put 

the gun back in the cabinet. . .I went back downstairs and she was still making noises, so I 

went and I got the hammer and I hit her in the head." Id. at 2.337. Defendant stated that she 

Because Defendant's mother was disapproving of Defendant's same-sex relationship, 

when Defendant and Tory decided to move in together, they began living not at the Everett 

residence, but with Defendant's cousin, Beth Ferguson, and her then-fiance Billy Nair. Id. at 

2.308. Defendant and Tory eventually acquired two dogs, which were not allowed at Beth's 

and Billy's house, so Defendant and Tory moved from that house into the Everett residence. 

Id. at 2.309. Defendant testified that she proposed to Tory and Tory accepted; and that there 

was an engagement ring. Id. at 2.310; Def.'s Ex. 2. As late as fall of 2010, Tory had written a 

note to Defendant stating, "Will you be Erin Minnick forever? I love you alot and get that 

smile off your face! Love, Tory." Def.'s Ex. 5. 

Defendant testified that she and Tory worked opposing weekends at the nursing home. 

Trial Tr. 2.315, Nov. 13, 2014. Because Defendant's parents disapproved of the relationship, 

the atmosphere was tense at the Everett residence, and Tory indicated she did not feel 

comfortable staying there without Defendant present. Id. at 2.317. So on the weekends, when 

Defendant was working, Tory would purportedly spend that time at the Minnick residence; 

Defendant later found out, however, that this was untrue. Id. After Christmas of 2010, Tory 

began returning to Meyersdale more frequently, even on days when she had to work. Id. at 

2.319. 
9 

I got back in bed with Tory and fell back asleep. Then all of a 

sudden I heard someone coming down the basement steps .. .It 

was a black figure dressed all in black. I said, "You need to get 

out of my house." And he just looked at me. Then he said, "I 

came for her." As soon as he said that Tory woke up. He said, 

"If you don't come with me, you will face the consequences." 

Tory said I don't want to be with you. Then he said it again. I 

said "you need to get out of here." He ... started grabbing her 

wrists ... he threw me back down on the bed ... and hit me with 

something. Tory said, "Lave her alone," and he hit her in the 

face with something ... He kept on beating her. .. I got back up 

again and he ... tried to tie black zip ties around my ankles. I 

narrative, states in relevant part: 

March 25, 2011. That first written statement, which contains the false home invasion 

Shortly thereafter, Defendant provided a written statement, authored at 5:22 p.m. on 

at2.219. 

an interview from Miss Everett and allow her to give her version of the events that day." Id. 

information from the scene coming back and forth and we decided to go in and attempt to get 

Id. at 2.218. As Trooper Penatzer stated, "We already had some preliminary facts and 

speak more in depth with Erin ... and [he] was summoned to the barracks to interview her." 

received some information from the hospital which led them "to believe that [they] needed to 

State Police, arrived at the scene. Id. at 2.215. Trooper Penatzer testified that the officers had 

hospital. Thereafter, Trooper Joel Penatzer, from the Ebensburg Barracks of the Pennsylvania 

After reporting her fabricated home invasion story, Defendant was transported to the 

called her mother and concocted a story about an intruder. Id. at 2.339-2.40. 

and I went upstairs and I broke the window out of the front door." Id. at 2.338. She then 

door and went in and I drug her off the bed over to the basement steps .. .I left her lay there 

then "went upstairs and I pulled her vehicle around to the ... back basement door. I opened the 

used a hammer because it was the first thing she saw, and she "panicked." Id. Defendant 
10 

Trooper Bernard: How did ... the whole thing start? Was she awake 

[ ... ] 

Um, that I found out that, that she was talking to 

Cody ... And that she was still sleeping with Cody. 

Erin Everett: 

Trooper Penatzer: At what point did it get so bad that you had to shoot 

her? 

[ ... ] 

Erin Everett: It was upstairs. 

Trooper Penatzer: [ ... ] [N]ow is your chance to put this in your light, in 

the best light. Like I said, neither one of us think 

you meant to kill her ... I think now that you need to 

tell us how this happened. Where did you get the 

gun from? 

confession from the interview: 

far. Com. 's Ex. Y, pgs. 56-63. We reproduce infra some of the salient parts of Defendant's 

her with the inconsistencies between her story and the evidence that had been gathered thus 

invasion. Trial Tr. 2.224. Toward the end of Defendant's account, the troopers confronted 

In the interview, Defendant again related to the police her story about the home 

statement and verbal statement." Trial Tr. 2.229, Nov. 13, 2014. 

that day as they happened and then [we] noted various discrepancies between her written 

interview; and then we went in and asked Erin ... to again tell us her recollection of the events 

the statement, they decided "Trooper Bernard, being a female officer, would initiate the 

given Miranda warnings. Com. 's Ex. Y, pgs. 4-6. After Troopers Penatzer and Bernard read 

Com.'s Ex. X, pg. 2. This written statement was made after Defendant had been properly 

kicked him away and he rolled me off the bed on the floor ... and 

I heard two shots. Then he wrapped her in the blanket and 

started pulling her off the bed ... and started dragging her 

towards the cellar steps. 
11 

Trooper Bernard: Beside her - [ ... ] - while she was sleeping? 

Erin Everett: On the bed. 

Trooper Bernard: Where were you sitting? 

Erin Everett: I was just sitting downstairs. Thinking. 

Trooper Bernard: What did you do between the time your parents left 

and you went to get the gun? 

Um, maybe, I don't know, 20 minutes maybe; 15, 20 

minutes. 

Erin Everett: 

Trooper Bernard: How soon after your parents left did you go and get 

the gun? 

Erin Everett: Mm-hmm. 

Trooper Bernard: Okay. Was she sleeping at that point? 

Erin Everett: After my parents left. 

Trooper Bernard: Okay. At what point today did you decide to go 

upstairs and get the gun? 

[ ... J 

When he texted her the other day and asked if she 

was coming to Meyersdale this weekend and staying 

with him. 

Erin Everett: 

Trooper Bernard: And, and what made you make the decision to go 

upstairs and get the gun? 

[ ... J 

Erin Everett: Yeah. 

Trooper Bernard: And she was sleeping right? 

Erin Everett: She was laying in bed. 

when you shot her or was she .. .laying in bed 

sleeping? 
12 

Trooper Penatzer: How many times did you hit her with a hammer? 

I hit her and that, and then she stopped. 

[ ... ] 

Erin Everett: 

Trooper Penatzer: So while she's gurgling ... 

Erin Everett: Right. 

Trooper Penatzer: She was gurgling. 

Erin Everett: No, she was gurgling. 

Trooper Penatzer: I have to ask. If you've already shot her twice ... is 

she still moaning or is she gone? 

Yeah, a hammer. 

[ ... ] 

Erin Everett: 

Trooper Bernard: You hit her in the head with something? 

And then she was moaning and everything, and, and 

I felt bad ... And, and I panicked. I should have just 

called 911 right there. But obviously I 

panicked ... Then, then I shot her again ... Then I drug 

her off [sic] the bed and tried to drag her up the 

steps. Then that's when I called my mom. 

[ ... ] 

Erin Everett: 

Trooper Bernard: [ ... ] And then what did you do? 

Erin Everett: Um, in the head. 

Trooper Bernard: And where did you shoot her the first time? 

Thinking about how much I wanted to be with her 

and all that. 

[ ... ] 

Erin Everett: 

Trooper Bernard: And what were you thinking about? 

Erin Everett: Mm-hmm ... Yeah, she slept the whole time. 
13 

to go do it." Id. at 87. Defendant stated she had text-messaged Billy Nair for "advice" and, 

[Kody] said [to Tory] about sleeping with her and stuff. And then, and then Billy told me just 

was "a catalyst. .. that finally brought it to a head," Defendant replied, "Just whenever he 

rather, it came and went. Com. 's Ex. Y, pg. 85-86. When Trooper Penatzer asked if there 

committing this crime for "like a week or two," and that it was not a constant thought but, 

Defendant admitted during her police interview that she had been thinking of 

profile. Com. 's Ex. Q, pg. 2. 

the grip of the Ruger revolver" is consistent with a mixture matching Defendant's DNA 

profile obtained from the swab of the trigger, cylinder release, hammer, and front and back of 

from Erin Everett," and on "the claw end of the hammer" matched victim; and that "the DNA 

DNA Division, revealed, inter alia, that blood on the "left knee area of the gray sweatpants 

analysis, conducted by the Pennsylvania State Police Bureau of Forensic Services, Forensic 

EVERETT, w/n/f, d.o.b. 12/22/1985." Trial Tr. 1.26, Nov. 12, 2014; Com.'s Ex. F. DNA 

saliva along with clothing, fingernail scrapings, hair, fibers, on the person of Erin Nicole 

warrant for the search and seizure of "[a]ny and all flesh, body fluids including blood and 

Based on Defendant's initial fabricated report, Trooper Drzal applied for an additional 

in which she again confessed. Trial Tr. 2.237, Nov. 13, 2014; Com.'s Ex. Z. 

Com.'s Ex. Y, pgs. 64-71, 109-11. Defendant afterward produced a second written statement 

Because, because she was gurgling. And honestly, 

she was suffering. 

Erin Everett: 

Trooper Bernard: Why'd you hit her with the hammer? 

Erin Everett: Mm, like in the face area. 

Trooper Penatzer: And where did you hit her at? 

Erin Everett: I, I think twice. 
14 

Defendant to Mr. Nair: She is sleeping there tom morning. That's Y I gotta figure 

this gun out 

[ ... ] 

Defendant to Mr. Nair: Yep 

Mr. Nair to Defendant: Where at in the basement 

[ ... ] 

Defendant to Mr. Nair: In the morn 

Mr. Nair to Defendant: Well send me a pie of it and I'll explain how 2 when RU 

shooting her 

[ ... ] 

Defendant to Mr. Nair: I just gotta figure out how to use my dads gun. 

[ ... ] 

Defendant to Mr. Nair: That's what the shells R for 

Mr. Nair to Defendant: 0 did U kill Tory yetDefendant to Mr. Nair: JW 

Mr. Nair to Defendant: Yea Y 

Defendant to Mr. Nair: Can I buy shells for a gun? Even though I don't own one 

preceding the murder: 

excerpts from the text exchange between Defendant and Mr. Nair which occurred on the night 

Defendant was serious about committing the murder. Id. at 89. We reproduce below, in part, 

victim's body in an "inferno." Id. Defendant expressed her belief that Mr. Nair believed 

Defendant in getting rid of the victim's body and that he was thinking about putting the 

body whenever I did it." Id. Defendant also told police that Mr. Nair said he would aid 

per Defendant, "He said just kill her and, and then he told me to send him a picture of the 
15 

else had been using his phone. Id. at l.123-24. According to Mr. Nair, the identity of the 

testified that he had told the District Attorney the "[l]ast time her and I spoke" that someone 

l.122. He testified that someone else was also using his phone at this time. Id. Mr. Nair 

phone to Defendant's phone. Id. at l.122-23. Mr. Nair denied that the penis was his. Id. at 

However, during the text exchange at issue, a photograph of a penis was sent from Mr. Nair's 

Mr. Nair denied that he had made sexual advances toward Defendant. Id. at 1.121. 

was serious about shooting Tory. Id. at 1.113. 

1.112-13. Mr. Nair denied that he thought, at the time of the text exchange, that Defendant 

could have her, and she was going to take care of that. And ... [ n ]othing was said after that up 

until the 241h whenever she asked me ab.out buying shells and how to load a gun." Id. at 

Id. at 1.112. According to Mr. Nair, "[Defendant] said that she ... wanted Tory and no one else 

indicated to Mr. Nair that she knew that Kody wanted to re-establish a relationship with Tory. 

1.111, Nov. 12, 2014. "A couple [of] weeks" prior to the text exchange, Defendant had 

Mr. Nair admitted that he had engaged in this text exchange with Defendant. Trial Tr. 

[sic]. Com.'s Ex. M. 

[ .... ] 

Mr. Nair to Defendant: Shouldn't Band a pie of the bdoy and I'd like to see one of 

U fully nude 2 nite 

Defendant to Mr. Nair: There should be no reason YI can't buy shells right 

[ ... ] 

Mr. Nair to Defendant: And go to Gander 

[ ... ] 

Defendant to Mr. Nair: Should I go to Wal-Mart or Gander Mt to get shells 

[ ... ] 
16 

person who sent the photo and message was Mr. Nair's co-worker and roommate, Matt Hays. 

Id. at 1.128. Mr. Nair allowed this to occur, purportedly because he knew Defendant was 

homosexual, but believed homosexuality is morally wrong, and wanted to facilitate 

Defendant's transition to heterosexuality by promoting a relationship between Defendant and 

Mr. Hays. Id. at 1.133. 

Defense counsel stated, "This particular piece of testimony is news to me. If this was 

information provided to the District Attorney ... this ... tends to be a grave violation ... under the 

circumstances." Id. at 1.124. Defendant thus moved for a mistrial "for lack of disclosure of 

evidence," which we denied. Id. at 1.128. The motion was renewed and again denied. Id. at 

1.142-43. 

Mr. Nair indicated that when Defendant had asked whether she would have a problem 

buying the ammunition, he responded with the message "Shouldn't B and a picture of the 

[body]. According to Mr. Nair, he then, mid-text, handed the phone to Mr. Hays, who texted, 

"and I'd like to see one of U fully nude 2 nite[.]" Id. at 1.146-47. At one point, Defendant 

asked Mr. Nair if he was sleeping, and Mr. Nair responded, "No, ma'am, I ain't. I have a 

migraine like crazy," to which Defendant replied, "When you see my naked body, you won't 

have a migraine." Id. at 1.150. When asked how Defendant would know who was using the 

phone on the other end, Mr. Nair responded, "Beats me." Id. at 1.152. 

After the text exchange, Defendant went to Gander Mountain; bought ammunition for 

the gun; went home; sent Mr. Nair a picture of a gun to find out how to load and use it; went 

to work, and ended her shift at 7:00 a.m., the same time as the victim. Trial Tr. 2.335, Nov. 

13, 2014. Defendant and the victim ate breakfast together at Eat 'n Park; the victim went to 

Defendant's family's house, set her alarm for 11 :00 a.m., and went to sleep. Id. at 2.336. The 
17 

A. Our Preclusion of Defense Expert's Testimony. 

Defendant's first allegation of error is that we improperly granted the 

Commonwealth's motion in limine to exclude the testimony of defense expert, Dr. Antoinette 

Petrazzi Woods. Concise Statement of Errors Complained of on Appeal, 1 (hereinafter 

"Def. 's Statement"). We stated the reasons for granting the Commonwealth's motion in a 

Memorandum dated July 23, 2013 (Cascio, P.J.). 

As noted, supra, on February 12, 2013 we directed that "any remaining pretrial issues 

or motions be filed on or before 4:00 p.m. on Friday, March 1, 2013, or be precluded." On 

April 1, 2013, the Commonwealth filed a brief in support of its motion in limine, but as of 

that date, it had overlooked filing the motion in limine itself. We held that the 

Commonwealth was not precluded from filing a motion in limine after our March 1 deadline 

because, while a motion in limine may be filed pre-trial, it is also a motion which may be filed 

during the occurrence of a trial. Therefore, because our order did not specify that motions in 

limine were specifically included, but rather only addressed by its own wording pre-trial 

motions, we found that the Commonwealth's motion in limine was not untimely. 

Further, Battered Women's Syndrome ("BWS") and Post-Traumatic Stress Disorder 

("PTSD") are relevant, and evidence of such is admissible, only when a claim of self-defense 

has been raised. In this case, because the facts did not support a claim of self-defense, no 

testimony regarding BWS or PTSD was permissible under Pennsylvania law. Consequently, 

III. ANALYSIS. 

victim's phone alarm went off at 11 :00 a.m., and she set the alarm to "snooze". Id. at 2.337. 

Defendant waited for her parents to leave the house; she then retrieved the gun; and, while the 

victim slept, committed this murder in the manner described supra. 
18 

3 Rule 578 of the Pennsylvania Rules of Criminal Procedure, relating to Omnibus Pretrial Motions for Relief, 

states: 

At the outset, we will address Defendant's averment in 

his Reply to the Commonwealth's Motion In Limine that this 

Court cannot properly consider the Commonwealth's Motion as 

it is time barred. Reply ~~ 6-8. By Order dated February 12, 

2013, this Court directed that "all pretrial issues or motions be 

filed by 4:00 P.M. on Friday, March 1, 2013 or be precluded." 

The Commonwealth filed its Brief in Support of Motion In 

Limine to Preclude Expert Testimony Regarding BWS and/or 

PTSD on April 1, 2013 and, though attached to the Brief, the 

Motion In Limine itself was not filed separately until June 11, 

2013. 

The Superior Court of Pennsylvania has held that a 

"motion in limine is a procedure for obtaining a ruling on the 

admissibility of evidence prior to or during trial, but before the 

evidence has been offered." Commonwealth v. Johnson, 582 

A.2d 336, 337 (Pa. Super. 1990), affd, 626 A.2d 514 (1993) 

(emphasis added). Because a motion in limine may be filed 

prior to or during trial, it is not solely a "pretrial motion." 

Accordingly, motions in limine including the 

Commonwealth's Motion in Limine to Preclude Expert 

Testimony Regarding BWS and/or PTSD - were not 

encompassed by this Court's February 12, 2013 Order3. 

Timeliness of the Commonwealth's Motion 

This case comes before us on the Commonwealth's 

Motion In Limine to preclude expert testimony regarding 

Battered Woman Syndrome (BWS) and/or Post-Traumatic 

Stress Disorder (PTSD). For the reasons that follow, the 

Commonwealth's Motion is granted. [ ... ] 

below: 

We reproduce our Memorandum, inclusive of footnotes and nearly in its entirety, 

all of the criteria for BWS or PTSD. 

to testify to such; and moreover, Defendant's expert had not even found that Defendant met 

even if BWS or PTSD testimony were permissible here, Defendant's expert was not qualified 

Defendant's expert testimony was not permitted to testify. We also found, alternatively, that 
19 

Pa. R. Crim. P. 578. 

The omnibus pretrial motion rule is not intended to limit other types of 

motions, oral or written, made pretrial or during trial, including those 

traditionally called motions in limine, which may affect the admissibility of 

evidence or the resolution of other matters. The earliest feasible submissions 

and rulings on such motions are encouraged. 

Commonwealth v. Miller, 634 A.2d 614, 621-22 (Pa. Super. Ct. 

1993) (citing Commonwealth v. Stonehouse, 555 A.2d 772 (Pa. 

[BWS) does not represent a defense to homicide 

in and of itself, but rather, is a type of evidence 

which may be introduced on the question of the 

reasonable belief requirement of self-defense in 

cases which involve a history of abuse between 

the victim and the defendant. . . . [E]xpert 

testimony regarding a "battered person 

syndrome" [is] relevant to the [defendant's] state 

of mind and [is] not introduced to bolster the 

credibility of the defendant, but rather, to aid the 

jury in evaluating the defendant's state of mind 

given the abusive environment which existed. 

In Pennsylvania, the seminal case concerning the 

admissibility of evidence of Battered Woman's Syndrome 

(BWS) and the use of expert testimony regarding BWS is 

Commonwealth v. Miller, 634 A.2d 614 (Pa. Super. Ct. 1993). 

In Miller, the Superior Court recognized that BWS had not been 

adopted as a separate defense to homicide in Pennsylvania and 

that the use and acceptability of BWS evidence was unclear. Id. 

at 620. Ultimately, after reviewing two appellate court cases, 

the Superior Court held the following: 

A. Testimony concerning BWS and/or PTDS 

The Commonwealth's Motion in Limine presents two 

(2) separate issues: (1) whether testimony relating to Battered 

Woman Syndrome (BWS) and/or Post-Traumatic Stress 

Disorder (PTSD) should be prohibited, and (2) whether 

Defendant's proposed expert is unqualified as an expert in 

BWS .... 

Commonwealth's Motion in Limine 

Therefore, the Commonwealth's June 11, 2013 Motion In 

Limine is not time-barred and may properly be considered by 

this Court. 
20 

18 Pa.C.S.A. § 505(a). 

(3) The slayer must not have violated any duty to retreat or avoid the 

danger. 

(2) The slayer must have reasonably believed that he was in imminent 

danger of death or great bodily harm, and that there was a necessity to 

kill in order to save himself therefrom; 

(1) The slayer must have been free from fault in provoking or continuing 

the difficulty which resulted in the killing; 

4 The use of force upon or toward another person is justifiable when the actor believes that such force 

is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other 

person on the present occasion. Additionally a claim of self-defense is further proscribed by the following 

conditions: 

1989) and Commonwealth v. Dillon, 598 A.2d 963 (Pa. 1991 )). 

In other words, where a defendant has properly raised a selfdefense claim, the defendant may introduce evidence of BWS to 

prove the reasonable belief requirement of a self-defense claim. 

However. .. before a claim of self-defense" is "properly 

in issue at trial, there must be some evidence, from whatever 

source, to justify such a finding." Commonwealth v. Black, 376 

A.2d 627, 631 (Pa. 1977). It is true that the Commonwealth 

bears the burden to prove beyond a reasonable doubt that the 

defendant was not in fact acting in self-defense, but the defense 

itself must first be properly raised. Commonwealth v. Mouzon, 

53 A.3d 738, 742 (Pa. 2012) (stating that a claim of self-defense 

requires evidence establishing three elements: "(a) [that the 

defendant] reasonably believed that he was in an imminent 

danger of death or serious bodily injury and that it was 

necessary to use deadly force against the victim to prevent such 

harm; (b) that the defendant was free from fault in provoking 

the difficulty which culminated in the slaying; and ( c) that the 

[ defendant] did not violate any duty to retreat."). 

[In] Commonwealth v. Grove, 526 A.2d 369 (Pa. Super. 

Ct. 1987) ... [the Superior] Court determined that "self-defense 

was not properly at issue because there was no evidence 

presented to establish that [ defendant] reasonably believed that 

she or any other person was in imminent danger of death or 

serious bodily injury on the present occasion when the deadly 

force was used." Id. at 372 (emphasis added). Accordingly, 

although a history of spousal/partner abuse may be present and 

is "certainly a factor to be considered in determining whether an 

accused's alleged fear of imminent death or serious bodily 

injury is genuine and reasonable, it does not alter the 

requirement that the threat of death or serious bodily injury be 

imminent on the present occasion." Id. at 373. 
Commonwealth v. Grove, 526 A.2d 369, 373 (Pa. Super. 1987) 

( emphasis original). 

Although the facts of the present case are not as clear 

regarding whether the victim was asleep at the time of the 

incident, we have found no evidence in the record - from 

whatever source - to justify allowing a claim of self-defense to 

reach the jury. We note our review of Defendant's purported 

expert report. While this report does list approximately five (5) 

[T]he [defendant] in the instant case offered no 

evidence whatsoever to establish that she or any 

other person was in imminent danger of death or 

serious bodily injury on the present occasion 

when the deadly force was used. The victim was 

not threatening in any manner; rather, it is 

undisputed that he was drunk and asleep. While a 

history of spousal abuse is certainly a factor to be 

considered in determining whether an accused's 

alleged fear of imminent death or serious bodily 

injury is genuine and reasonable, it does not alter 

the requirement that the threat of death or serious 

bodily injury be imminent on the present 

occasion. Assuming that [ defendant J was 

genuinely and reasonably afraid of her husband, 

the fact remains that whatever danger he 

presented was not imminent on the present 

occasion as he lay sleeping. 

Most importantly, the facts and analysis in Grove are 

similar to the present case. In Grove, the defendant and victim 

had been married as husband and wife for twenty-two years. Id. 

at 371. The facts were undisputed that the victim-husband was 

asleep and drunk at the time the defendant-wife shot and set fire 

to the victim-husband. Id. The defendant-wife contended that 

she acted in self-defense, based upon the "allegation that 

throughout her twenty-two year marriage, she and her children 

were physically abused by the [victim-husband]" and that "her 

perception of danger on the day of [the] incident was directly 

affected by the cumulative years of abuse." Id. On appeal, 

defendant-wife argued that the trial court improperly prohibited 

her from presenting a self-defense claim, and the Superior Court 

of Pennsylvania disagreed. Id. 

Because there was no evidence, from whatever source, 

to justify a finding of self-defense, the Superior Court agreed 

with the trial court's ruling that a self-defense claim was not 

properly in issue. Id. at 372 (citing Commonwealth v. Brown, 

421 A.2d 660, 662 (Pa. 1980)). In fact, the court stated: 

21 
22 

5 However, we note this assumption is illogical given Defendant's admission during her evaluation with 

Defendant's purported expert that she "wasn't scared [of the victim] because [they] didn't fight all the time .... " 

6 Our analysis regarding the admissibility of expert testimony as to PTSD is essentially the same. Evidence 

pertaining to PTSD may be introduced on the question of the reasonable belief requirement of self-defense 

claim. Commonwealth v. Pitts, 740 A.2d 726, 733-34 (Pa. Super. Ct. 1999). Like BWS, Pennsylvania courts do 

not recognize PTSD as a separate defense to homicide. Id. Accordingly, in order for evidence of PTSD to be 

admitted, the threat of danger or death must be imminent on the present occasion when Defendant responds with 

deadly force. Id. 

Even if this Court were to allow testimony concerning 

Battered Woman's Syndrome (BWS) and/or Post-Traumatic 

Stress Disorder (PTSD), the Commonwealth's Motion In 

Limine seeks to prohibit Defendant's purported expert, Dr. 

Antoinette Petrazzi- Woods, from being qualified as an expert in 

the areas of BWS and/or PTSD. 

B. Qualification of Defendant's Expert 

episodes of alleged "battering" by the victim on the Defendant, 

the report is devoid of any indication that, even assuming 

arguendo that the Defendant was "genuinely and reasonably 

afraid" of the victim5, the danger presented by the victim was 

imminent on the present occasion. See, Grove, supra. 

Moreover, our review of the Affidavit of Probable Cause 

provides no evidence and/or indication that the victim presented 

any imminent danger of death or serious bodily injury to the 

Defendant or anyone else when the Defendant used deadly force 

on the present occasion. As such, because the victim presented 

"neither an immediate nor an imminent threat of death or 

serious bodily injury on the present occasion when the deadly 

force was used", a self-defense claim is not properly in issue in 

the instant case. Id. at 375 ( emphasis original). 

Accordingly, despite the alleged incidents of partner 

violence between the victim and the Defendant contained in 

Defendant's purported expert report, it is bereft of any 

suggestion that the defendant was in fear of imminent death or 

bodily harm on the day in question. Because there is no 

evidence from any source supporting the contention that the 

Defendant was in fear of imminent death or serious bodily 

injury on the particular occasion in question, a claim a selfdefense would be improperly placed before the jury and, 

therefore, any evidence of BWS relating to Defendants state of 

mind would be improperly admitted as well. Therefore, we 

must grant the Commonwealth's Motion In Limine to preclude 

any testimony - expert or otherwise - regarding Battered 

Woman Syndrome (BWS) and/or Post-Traumatic Stress 

Disorder (PTSD). 6 
Pa.R.E. 702. 

According to the Supreme Court of Pennsylvania, Rule 

702 involves "two distinct inquiries that must be raised and 

developed separately by the parties, and rule upon separately by 

the trial courts." Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 

(Pa. 2003) (citing Commonwealth v. Arroyo, 723 A.2d 162, 170 

(Pa. 1999)). The two distinct inquiries are: (1) whether a 

witness is qualified to render opinions; and (2) whether his or 

her testimony passes the Frye test. Id. The proponent of the 

evidence bears the burden of proving all requirements under 

Rule 702, including both of the aforementioned inquires. Id. 

Regarding the first inquiry, the Pennsylvania Supreme 

Court has developed the following rule for qualifying a witness 

to testify as an expert: "[W]hether the witness has any 

reasonable pretension to specialized knowledge on the subject 

under investigation. If he does, he may testify and the weight to 

be given to such testimony is for the trier of fact to determine." 

Miller v. Brass Rail Tavern, 664 A.2d 525, 528 (Pa. 1995). 

Rule 702 further directs that a witness be qualified as an expert 

based upon "knowledge, skill, experience, training, or 

education." Pa.R.E. 702. Thus, we must determine whether Dr. 

(c) the expert's methodology is generally 

accepted in the relevant field. 

(b) the expert's scientific, technical, or 

other specialized knowledge will help the 

trier of fact to understand the evidence or 

to determine a fact in issue; and 

(a) the expert's scientific, technical, or 

other specialized knowledge is beyond 

that possessed by the average layperson; 

A witness who is qualified as an expert by 

knowledge, skill, experience, training, or 

education may testify in the form of an opinion 

or otherwise if: 

"The decision to admit or refuse expert testimony lies 

within the sound discretion of the trial court," whose decision 

will not be reversed absent a clear abuse of that discretion. 

Commonwealth v. Johnson, 582 A.2d 336, 337-38 (Pa. Super. 

1990) afj'd, 626 A.2d 514 (Pa. 1993). Pennsylvania Rule of 

Evidence 702, pertaining to testimony by expert witnesses, 

states the following: 

23 
24 

7 We note that Defendant argued both in her brief and during argument before this Court that Dr. Petrazzi-Woods 

had been qualified in the field of BWS and/PTSD "by other Honorable Courts in the Commonwealth of 

Pennsylvania." See, Reply j 15. Despite this allegation, Defendant has not provided this Court with any cases 

before the Court of this Commonwealth in which Dr. Petrazzi-Woods was qualified as an expert in the 

aforementioned fields. 

Antoinette Petrazzi - Woods is qualified as an expert in the field 

ofBWS and/or PTSD. 

Upon thorough review of Dr. Petrazzi-Woods' 

curriculum vitae (CV), it is clear she has Ph.D. in Philosophy, 

having majored in Executive Counselor Education and 

Supervision in her graduate program after majoring in 

Psychology as an undergraduate and states a specialty in Crisis 

Intervention and Management. Further, she has served as a 

Forensic Evaluator in both civil and criminal proceedings and 

has provided testimony as an "expert in the field of psychology 

and/or counseling." 

However, there is no indication whatsoever that she 

possesses any knowledge, skill, experience, training or 

education to afford her "specialized knowledge" in the field of 

BWS and/or PTSD. See, Miller, supra. Despite her extensive 

counseling background, we were unable to locate any training, 

education or experience that would allow use to conclude that 

Dr. Petrazzi-Woods has "specialized knowledge on the subject 

under investigation," i.e., BWS and/or PTSD. 

In addition, aside from allegations in Defendant's Brief 

that Dr. Petrazzi-Woods has been qualified and permitted to 

testify as an expert in these matters in other courts in the 

Commonwealth, no detail has been provided in the record or her 

CV to support these statements. As such, this Court finds that 

she is prohibited from being q,ualified as an expert witness in 

the field of BWS and/or PTSD. 

As to the second inquiry, the Pennsylvania Supreme 

Court has held that "in applying the Frye rule, ... the proponent 

of the evidence [ must] prove that the methodology an expert 

used is generally accepted by scientists in the relevant field as a 

method for arriving at the conclusion the expert will testify to at 

trial." Grady, supra at 1046. Although the Commonwealth and 

Defendant allocated much time in their briefs as to the 

methodology employed by Dr. Petrazzi-Woods, we find this 

analysis is a moot point for two reasons: (1) as discussed supra, 

Dr. Petrazzi-Woods is unable to be qualified as an expert in 

either the field of BWS or PTSD, and (2) she concluded that 

Defendant could not be diagnosed with either BWS or PTSD. 

Even assuming arguendo that this Court found Dr. 

Petrazzi- Woods was qualified as an expert in the field of B WS 

and/or PTSD, she concluded that Defendant "does not appear to 
25 

account of there being no viable claim of self-defense in this case. Defendant asserts that this 

error. As explained above, we found that evidence of BWS/PTSD was inadmissible on 

This allegation of error appears to be an extension of Defendant's first allegation of 

B. Our Reliance Upon "Improper Evidence" in Precluding Defendant's 

Evidence and/or Experts Relating to Her Mental Health, State of Mind, Etc. 

Memorandum and Order, July 23, 2013 (Cascio, P.J.). 

meet the full criteria for either [PTSD] or [BWS]." Allowing 

her to testify regarding these opinions and conclusions would 

violate Pennsylvania Rule of Evidence 702(b), which requires 

that "the expert's scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the evidence 

or to determine a fact in issue." Pa.R.E. 702(b) (emphasis 

added). We find that allowing Dr. Petrazzi-Woods to testify 

concerning BWS and/or PTSD as it relates to Defendant would 

not help that trier of fact understand the evidence or determine a 

fact in issue, because she ultimately found that Defendant 

suffers from neither BWS nor PTSD. 

Moreover, it is within this Court's discretion to exclude 

otherwise relevant evidence "if its probative value is 

substantially outweighed by the danger of unfair prejudice or 

confusion." Sprague v. Walter, 656 A.2d 890, 909 (Pa. Super. 

1995). Allowing testimony regarding BWS and/or PTSD in the 

present case would unfairly confuse or mislead the jury to 

believe that Defendant suffers from either diagnosis when, in 

fact, Defendant's own expert found that Defendant did not meet 

the criteria to be diagnosed with either. 

Accordingly, we find that Dr. Petrazzi-Woods is 

prohibited from being qualified as an expert in the field of either 

BWS or PTSD, because she lacks any specialized knowledge, 

training, education or experience in the subjects under 

investigation. Further, as to the methodology she employed in 

evaluating Defendant, we find the analysis unnecessary given 

that (1) Dr. Petrazzi-Woods is not qualified as an expert in 

BWS and/or PTSD, and (2) she concluded that Defendant did 

not suffer from BWS and/or PTSD. In conclusion, we must 

grant the Commonwealth's Motion In Limine to prohibit Dr. 

Petrazzi-Woods from being qualified as an expert in the field of 

BWS and/or PTSD. 
26 

8 We note that the affidavits of probable cause we relied upon were subsequently admitted at trial without 

objection. Trial Tr. 1.32, Nov. 12, 2014. Further, the facts we relied on, in finding that self-defense was 

unavailable as a matter of law, were undisputed at every point in these proceedings (i.e., the fact that the victim 

had been sleeping at the time Defendant shot and bludgeoned her). 

which were at our disposal via affidavits of probable cause, which we were authorized to use 

conclusion that self-defense was unavailable to Defendant was based on the facts of this case, 

of law, thereby precluding admission of Defendant's evidence as to BWS and PTSD. Our 

and in part A supra, we concluded that self-defense was unavailable to Defendant as a matter 

For the reasons discussed in our Memorandum and Order, July 23, 2013 (Cascio, P.J.), 

entitled to use the relevant "evidence" at our disposal, notwithstanding the rules of evidence. 8 

expert opinion on these issues). And in answering these preliminary questions, we were also 

Dr. Petrazzi-Woods' testimony was admissible (and also whether she was qualified to give an 

BWS/PTSD, and we were authorized under Rule 104(a) to preliminarily determine whether 

Defendant had intended to offer Dr. Petrazzi-Woods as an expert to testify as to 

Super. Ct. 2005). 

Cmt. to Pa.R.E. 104; see also, Harris v. Toys "R" Us-Penn, Inc., 880 A.2d 1270, 1278 (Pa. 

[t]he second sentence [permitting the court to step outside of the 

rules of evidence to preliminarily determine admissibility of 

evidence] ... is based on the premise that, by and large, the law 

of evidence is a "child of the jury system" and that the rules of 

evidence need not be applied when the judge is the fact finder. 

The theory is that the judge should be empowered to hear any 

relevant evidence to resolve questions of admissibility. 

not bound by evidence rules, except those on privilege." As the comment to the rule stresses, 

a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is 

Pa.R.E. 104(a) states, "The court must decide any preliminary question about whether 

of probable cause and police reports. Def. 's Statement, 2. 

conclusion was based on an erroneous reliance on improper evidence including the affidavit 
27 

aspect of this issue with us afterward, we sent for defense counsel. 

District Attorney and the court, because as soon as the District Attorney sought to discuss any 

2015 (Geary, J.). We also clarify that no ex parte communications occurred between the 

Statement Pursuant to Rule 1925 of the Pennsylvania Rules of Appellate Procedure, March 5, 

I suggest that this issue has been waived because no objection 

was made at the time of trial. See, Commonwealth v. Smith, 606 

A.2d 939, 942 (Pa. Super. 1992) ("To preserve an issue for 

review, a party must make a timely and specific objection at 

trial. .. "). Further, I wish to clarify that it was a sheriffs deputy, 

and later the warden of the county jail, who informed me of the 

key being found in the shoe. After informing me of the 

incident, the warden inquired whether I would continue to 

permit the Defendant to appear in court in dress clothes. I 

answered in the affirmative. The District Attorney was not 

involved in the process in any manner. In any event, the 

incident did not at all prejudice me against the Defendant's 

mother. 

reproduce below: 

we addressed this issue in our prior 1925(a) Opinion, dated March 5, 2015, which we 

trial; it is also our understanding that Defendant has withdrawn this allegation of error. Still: 

We believe this issue has been waived because no objection was made at the time of 

prejudicing the Court as to the witness[.]" Def.'s Statement, 2. 

attempted to smuggle handcuff keys into the jail in the Defendant's court clothing thereby 

the Judge in Chambers immediately prior to Defendant's mother's testimony, that she had 

having ex parte communications with the court during bench trial proceedings by informing 

Defendant next claims the District Attorney "committed prosecutorial misconduct by 

C. Prosecutorial Misconduct. 

and Pennsylvania case law. 

in answering preliminary questions of admissibility of evidence, pursuant to Pa.RE. 104(a) 
28 

Defense counsel requested a sidebar at which he complained 

that the Commonwealth had not disclosed to the defense that 

another person may have been with Nair at the time of the text 

conversation. The District Attorney stated that she first learned 

of Nair's claim about two weeks before trial. She went on to 

explain that she did not believe Nair's story, figuring it to be 

nothing more than Nair attempting to explain-for the benefit 

of his fiancee=.how a picture of a penis was sent from his 

phone to the Defendant. The District Attorney said that she did 

not follow up on the matter because she did not believe Hays 

even existed. When defense counsel was asked to explain how 

the failure to disclose the information prejudiced the Defendant, 

counsel argued that the Defendant was denied an opportunity to 

I denied the Defendant's motion for mistrial because no 

manifest reason existed to grant the motion. Pa.R.Crim.P. 605. 

During the testimony of William Nair, it came to light that 

another person may have been with Nair at the time that he was 

texting the Defendant on the night before the murder. See Trial 

Transcript pp. 1.123-1.128. According to Nair, he was texting 

the Defendant concerning her plan to kill Tory Minnick. 

Present with Nair at that time was his roommate, Matt Hays, 

who allegedly was sexually interested in the Defendant. Again, 

according to Nair, Hays used Nair's cell phone to take a photo 

of his penis and text the photo to the Defendant. Nair stated 

that he first told the District Attorney about the existence of 

Hays during his last conversation with her before the trial. 

5, 2015, which we quote verbatim below: 

impending murder. We addressed this contention in our prior 1925(a) Opinion, dated March 

the time when Mr. Nair was exchanging text messages with Defendant relating to the 

Def. 's Statement, 2. Defendant here refers to Matt Hays who was supposedly present during 

information to the [d]efense, yet admitted to [said] knowledge during the bench trial[.]" 

exculpatory evidence [ and who was J known [to J the District Attorney who never disclosed the 

testimony it was discovered that there was an alleged third witness who may have provided 

Defendant next contends that it was error for us to not grant a mistrial "when during 

D. Denial of a Mistrial Based on an Alleged "Third Witness". 
29 

allegedly attributable to Mr. Hays (e.g., when Mr. Hays asked for a picture of her naked body, 

person. This is made evident by the fact that she clearly attributed to Mr. Nair remarks 

when Defendant received these messages, she clearly believed she was speaking to one 

text messaged Defendant-we also question its relevance. As we noted supra, pages 15-16, 

sent to Defendant-nor about the fact that Matt Hays had also been present while Mr. Nair 

nothing exculpatory about the identity of the owner of the penis pictured in the text message 

While we have suggested, both at trial and in our prior 1925(a) Opinion, that there is 

2015 (Geary, J.). 

Statement Pursuant to Rule 1925 of the Pennsylvania Rules of Appellate Procedure, March 5, 

In this case, I concluded the Defendant had failed to 

demonstrate that the undisclosed evidence was favorable to her 

and that she had been prejudiced by its nondisclosure. 

Therefore, I denied her motion for a mistrial. 

The Pennsylvania Supreme Court has stated that "there are three 

necessary components that demonstrate a violation of the Brady 

strictures: the evidence was favorable to the accused, either 

because it is exculpatory or it impeaches; the evidence was 

suppressed by the prosecution, either willfully or inadvertently; 

and prejudice ensued." Commonwealth v. Lambert, 884 A.2d 

848, 854 (Pa. 2005). "Brady does not require the disclosure of 

information 'that is not exculpatory but might merely form the 

groundwork for possible arguments or defenses."' 

Commonwealth v. Paddy, 15 A.3d 431, 450 (Pa. 20ll)(quoting 

Lambert, supra at 856). "Similarly, Brady does not require the 

prosecution to disclose 'every fruitless lead' considered during 

the investigation of a crime." Paddy, at 450 (quoting Lambert, 

supra at 875). 

investigate the Hays matter herself. Defense counsel was 

understandably at a loss to articulate how being able to identify 

the true owner of the penis would have been favorable to the 

Defendant. Defense counsel then moved for a mistrial "for lack 

of disclosure of evidence," which we interpreted as a claimed 

due process violation under Brady v. Maryland, 83 S.Ct. 1194 

(1963). 
30 

and Mr. Nair subsequently indicated he had a migraine, Defendant remarked that the picture 

of her body would resolve Mr. Nair's migraine). 

There is no issue as to whether the text messages were sent from Mr. Nair's phone; 

nor as to whether Defendant received them and used the information in those text messages to 

assist her in committing the murder. Therefore, we fail to see how the alleged presence of 

another person on Mr. Nair's end of the communications could exculpate Defendant. The 

facts of this case, including the steps Defendant took prior to the murder, as well as the text 

messages she received, and how those informed her actions, are unchanged regardless of 

whom she was communicating with-and, further, the alleged communications from Mr. 

Hays related not to the crime, but to Mr. Hays' alleged sexual interest in Defendant. 

E. Our "Fail[ure] to Mitigate ... Defendant's Level of Guilt .... ". 

Defendant also asserts that we committed error in "failing to mitigate ... [her] level of 

guilt by failing to take into consideration the level and magnitude of aide [sic] provided by 

William Nair, who encouraged, advised, counseled, and otherwise enticed Defendant to carry 

out the crime in her distraught state of mind .... " Def.'s Statement, 2-3. 

We understand Defendant to be arguing that not only did we fail to take into 

consideration "the level and magnitude of aide provided by William Nair," but that if we had 

taken such aid into account, we would have found Mr. Nair to be a conspirator to Defendant's 

crimes, and we therefore would have convicted Defendant of conspiracy. Because we 

declined to convict Defendant of conspiracy, the argument apparently goes, we must have 

failed to adequately consider Mr. Nair's involvement in the crime. We address the conspiracy 

argument first. 

Conspiracy occurs when a person: 
31 

that he "told her that spending her life in prison was not worth doing that." Id. at 1.129. He 

would have been saved right now." Trial Tr. 1.119., Nov. 12, 2014. Mr. Nair also testified 

I thought she was serious about it, I'd have called the State Police and maybe that girl's life 

stated he would "use my head a little bit better. Not told her how to load that firearm; and ... if 

act. If, looking back on it, he were able to do something different on March 24, 2011, he 

information to Defendant, he did not think that she was seriously going to go through with the 

commit the murder. However, Mr. Nair testified at trial that while he provided said 

question that Mr. Nair provided information to Defendant via text message which she used to 

there was an agreement between Mr. Nair and Defendant to commit murder. There is no 

Here, we did not find that the evidence established beyond a reasonable doubt that 

conspiratorial agreement." Commonwealth v. Dolfi, 396 A.2d 635, 637 (Pa. 1979). 

evidence sufficient to support a conspiracy conviction is proof beyond a reasonable doubt of a 

conspirators in order to find a corrupt confederation." Id. Still, the "necessary ingredient of 

looked to the relation, conduct, and circumstances of the parties and the overt acts of the coSuper. Ct. 1982). To ascertain whether an agreement has occurred, "courts have traditionally 

usually by circumstantial evidence." Commonwealth v. Davenport, 452 A.2d 1058, 1060 (Pa. 

necessary .. .Indeed, the very nature of the crime of conspiracy makes it susceptible to proof 

commit a crime. However, "[i]n proving conspiracy, direct and positive testimony is not 

18 Pa. Cons. Stat. § 903(a). Conspiracy thus requires an agreement between persons to 

(2) agrees to aid such other person or persons in the planning or 

commission of such crime or of an attempt or solicitation to 

commit such crime. 

(1) agrees with such other person or persons that they or one or 

more of them will engage in conduct which constitutes such 

crime or an attempt or solicitation to commit such crime; or 
32 

We did not find convincing Defendant's argument that Mr. Nair enticed her to commit 

the murder or that he planted in her mind the idea to commit the murder. To begin with, the 

evidence shows that Defendant sought Mr. Nair out for information concerning whether she 

could buy shells, how to use the gun, and where to buy ammunition. The evidence further 

shows that Defendant formed the idea to murder the victim in the morning while she lay 

explained that he sent this message to Defendant discouraging her from going through with 

committing the murder because "half of me was hopin' that she wouldn't do it; and the other 

half thought: Well, maybe she's just crazy enough to do it." Id. at 1.158. Mr. Nair stated, "If 

I could go back and redo it all, I would have called the state cops regardless if I was in 

Somerset or 70-something miles away in Bentleyville [ which is where he was located at the 

time]." Id. at 1.159. 

We note that "[i]n criminal proceedings, the credibility of witnesses and weight of 

evidence are determinations that lie solely with the trier of fact, [which] is free to believe all, 

part, or none of the evidence." Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. Ct. 

2006). We found credible Mr. Nair's testimony that he was at least partially in doubt as to 

whether Defendant was going to follow through with commission of the murder. And 

between Mr. Nair's testimony, and the ambiguity inherent in text messages (wherein one must 

judge another person's true meaning without the aid of vocal tones, facial gestures, body 

language, etc.), we found that there was not enough evidence to prove beyond a reasonable 

doubt that there was an agreement between Mr. Nair and Defendant (particularly on Mr. 

Nair's end) to murder Tory Minnick. However, the fact that we did not find a conspiracy 

between Defendant and Mr. Nair does not logically preclude us from considering mitigating 

circumstances. 
33 

convincing her to go get the ammunition. Com. 's Ex. M. 

Defendant approached Mr. Nair asking if she could buy the ammunition, rather than Mr. Nair 

talked me into going and getting the shells," id. at 80, when the text exchange shows that 

couple hours." Com.'s Ex. Y, pgs. 115-16. Defendant also stated that Mr. Nair "actually 

days ago," or "last week[;] I didn't take any for awhile," and the effect lasting for "usually a 

stated the dosage as "one or two at a time ... once a day," with the last dose being "a couple 

when the last time she took a sleeping pill was and how long the effect usually lasted, she 

pills and they were making me think weird thoughts or disturbing thoughts," yet when asked 

Defendant stated, "I was not in my right state of mind cause I was taking Unisom sleeping 

Defendant initially fabricated a story about an intruder. In her second written confession, 

We further found Defendant's attempts to avoid responsibility incredible; for example: 

Id. at 3.370. 

Mercy, after all, is what should have been granted Miss 

Minnick as she lay sleeping those last 20 minutes of her life. 

Yet, the defendant's mercy was not then forthcoming. Mercy 

holds a proper place in our system of justice to be sure; but 

sadly, the time for granting mercy in this case has long [passed]. 

3.370. We continued, 

murder "as powerful as they may have been, cannot serve as the basis for mercy now." Id. at 

Before announcing the verdict, we stated that the emotions Defendant was feeling prior to the 

girl should be shown mercy." Trial Tr. 2.356, Nov. 13, 2014. See also, id. at 2.354-55. 

near the conclusion of the trial, stated, "We are asking [the court] to recognize that this young 

Defense counsel, in presenting mitigating circumstances to the court during argument 

bed next to the victim as she slept, deliberating whether to go through with the murder. 

sleeping; even after all of her communications with Mr. Nair, it was Defendant who sat on the 
34 

The Defendant asserts that the verdict was against the weight of 

the evidence. However, she does not specify how or why the 

verdict is against the weight of the evidence and I am at a loss 

to identify the evidence that she believes is a counterweight to a 

verdict of first degree murder. The Commonwealth produced 

evidence of the Defendant's confession; a death certificate; an 

autopsy report to include the manner and cause of death; a 

ballistics report; and the handgun used to commit the murder. 

Moreover, the Defendant herself testified that she loaded the 

handgun and shot the victim in the head while she slept. Trial 

this matter in our prior 1925(a) Opinion, which we reproduce below: 

opposes the verdict.. .. " Id. at 1056 (internal quotations and citation omitted). We addressed 

omitted). In other words, we must determine "whether the preponderance of the evidence 

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal quotations and citation 

that to ignore them or to give them equal weight with all the facts is to deny justice." 

to determine that notwithstanding all the facts, certain facts are so clearly of greater weight 

When there is a claim that a verdict is against the weight of the evidence, our role "is 

Statement, 3. 

Lastly, Defendant claims our verdict was against the weight of the evidence. Def.'s 

F. Verdict Against the Weight of the Evidence. 

intent to kill. 

that any aid and encouragement she received does not mitigate her formation of that specific 

murder, most saliently in the fifteen to twenty minutes prior to completing the act. We found 

information. Defendant formed the specific intent to kill at many points along the way to this 

poor exercise of judgment, that Defendant is any less culpable for having received useful 

occur; nor are we convinced that, even considering the aid Mr. Nair provided Defendant in a 

reasonable doubt that Mr. Nair and Defendant reached an agreement that the murder should 

Based on the evidence, and our credibility determinations, we could not find beyond a 
35 

No. 3: During the evening of March 24th, 201 I , the defendant 

informed Billy Nair by way of text message that she intended to 

kill Miss Minnick the following morning. 

No. 4: During the evening of March 24th, 2011, the defendant 

drove to Gander Mountain Sporting Goods Store and purchased 

No. 2: The defendant first contemplated killing Miss Minnick 

about one week before March 251h, 2011. 

No. 1: On March 251h, 2011, at Jerome, Somerset County, 

Pennsylvania, the defendant intentionally caused the death of 

Tory Minnick by twice shooting her in the head with a .357 

caliber handgun. The defendant shot Miss Minnick while Miss 

Minnick slept. 

After having fully considered the testimony of the witnesses and 

the exhibits placed into evidence by the Commonwealth and the 

defendant, I find that the Commonwealth has proven the 

following pertinent facts beyond a reasonable doubt: 

the verdict: 

deliberate and premeditated killing." 18 Pa.C.S.A. § 2502. As we stated when announcing 

killing is "[k]illing by means of poison, or by lying in wait, or by any other kind of willful, 

negligently causing the death of another human being. 18 Pa.C.S.A. § 2501. An intentional 

Pa.C.S.A.§ 2502(a). Criminal homicide is defined as intentionally, knowingly, recklessly, or 

constitutes murder of the first degree when it is committed by an intentional killing." 18 

The offense of first-degree murder is defined as follows: "A criminal homicide 

2015 (Geary, J.). 

Statement Pursuant to Rule 1925 of the Pennsylvania Rules of Appellate Procedure, March 5, 

"A verdict is against the weight of the evidence only when the 

jury's verdict is so contrary to the evidence as to shock one's 

sense of justice." Commonwealth v. Vandivner, 962 A.2d 1170, 

1177 (Pa. 2009). I suggest the verdict here was consistent with 

the weight of the evidence. 

transcript p. 2.337. 
36 

on the bed beside the sleeping victim, when Defendant, by her own admission, deliberated 

Defendant formed the specific intent to kill in the fifteen to twenty minutes she spent sitting 

purchased the cartridges; when she retrieved the gun, etc.), we believe without a doubt that 

said to have arisen at multiple times (e.g., when she text messaged Mr. Nair; when she 

Trial Tr. 3.369-70, Nov. 14, 2014. While Defendant's specific intent to kill can properly be 

Here, I find that the defendant's text message to Billy Nair 

indicating that she intended to kill Miss Minnick and the 

preliminary steps taken by the defendant to bring about the 

killing and the manner in which the defendant killed Miss 

Minnick, taken together, clearly demonstrate that the defendant 

possessed the specific intent to kill with malice. 

[T]hird: The defendant did so with the specific intent to 

kill and with malice. 

Second: The defendant killed that person; 

First: A person is dead; 

The elements of the offense of murder of the first degree are as 

follows: 

No. 7: When Miss Minnick did not immediately expire as a 

result of the gunshots, the defendant struck Miss Minnick in the 

head twice with a hammer causing her to finally expire. 

No. 6: Immediately prior to shooting Miss Minnick, the 

defendant sat on the bed beside Miss Minnick while she slept; 

and for about 15 to 20 minutes, contemplated whether she 

should kill Miss Minnick. Ultimately, the defendant made the 

conscious decision to go to another floor of the house, retrieve 

the handgun, load it, return to the basement where Miss 

Minnick slept and shoot Miss Minnick twice. 

with cash a box of 50 cartridges for a .357 handgun. 

No. 5: During the evening of March 241h, 2011, the defendant 

texted a photo of the .357 caliber handgun to Mr. Nair and 

requested that Mr. Nair explain to her how to load and fire the 

handgun. Mr. Nair supplied the defendant with the information 

that she had requested. 
37 

Dated: March 7, 2016 

RESPECTFULLY SUBMITTED: 

over whether to murder the victim while she slept. 

No evidence was adduced which, if believed, would counterbalance these facts. 

Therefore, we submit that the verdict here was consistent with the weight of the evidence.