J-S31007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSEPH CEDENO,

Appellant No. 1770 MDA 2014

Appeal from the Judgment of Sentence May 15, 2014

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0002409-2012

BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 10, 2015

Appellant, Joseph Cedeno, appeals from the judgment of sentence of 

life imprisonment and a consecutive term of 20-40 years’ incarceration, 

following his conviction for first and third degree murder. After careful 

review, we conclude that Appellant’s multiple claims do not entitle him to 

relief. However, we vacate Appellant’s sentence for third degree murder, 

because we hold the crimes of first and third degree murder always merge 

for sentencing purposes when those offenses involve an individual 

defendant’s killing of the same person.

On September 23, 2012, after drinking together all day, Appellant and 

the victim arrived at the home of Louise Lambides, Appellant’s mother, on 

Hospital Street in Carbondale, Pennsylvania. The victim was a family friend 
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who had also been friends with Appellant’s then-deceased sibling, James 

Spinelli.

One of Appellant’s surviving brothers, Jonathon Sandoval, arrived at 

the home after Appellant and the victim were already there. He overheard 

Appellant repeatedly asking Lambides, “should I do it?” Initially, Sandoval 

did not know what Appellant was talking about until Appellant asked to have 

a word with him in private. Sandoval took Appellant into his room and 

asked him what he wanted. Appellant then asked Sandoval if Appellant 

should kill the victim. When Sandoval asked Appellant why he would want 

to do such a thing, Appellant told him that that he believed that the victim 

might have had something to do with James Spinelli’s death. Appellant also 

told Sandoval that he planned to kill the victim by “carv[ing] him up real 

nice and slit[ting] his throat from ear to ear.” N.T., 5/14/14, at 106. 

Sandoval begged Appellant not to do anything, told Appellant that he had no 

proof that the victim was involved in James Spinelli’s death, and made 

Appellant promise him that he would not harm the victim. 

Eventually, Appellant and the victim left, purportedly so that Appellant 

could escort the victim to his home. Appellant later returned alone and told 

his mother that he had killed the victim. He took a knife out of his pocket, 

washed it in the sink, and put it into a drawer in the kitchen. Appellant also 

told Michael Spinelli, another of his brothers, that he had just ‘caught a 

body,’ i.e., that he had killed someone. Sandoval heard Appellant say that 

he had done it for their deceased brother, James Spinelli. 
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Police found the victim’s body in a nearby parking lot. The victim died 

as a result of numerous stab wounds to his torso. Police recovered the knife 

that Appellant placed in the kitchen drawer, and subsequently discovered 

that it still had traces of the victim’s DNA on it. Additionally, tears in the 

victim’s fleece pull-over were consistent with having been caused by the 

knife. Dr. Ross, who performed the victim’s autopsy, testified that the 

victim’s wounds were consistent with having been caused by that knife or 

something similar. 

Jacob Huff, an inmate at the Lackawanna County Jail at the same time 

as Appellant following Appellant’s arrest, testified that Appellant admitted to 

him that he had stabbed the victim to death. Huff’s testimony regarding 

Appellant’s admissions revealed details of the incident that were consistent 

with the details provided by the Commonwealth’s other witnesses. 

Following a trial held on May 13-15, 2014, the jury found Appellant 

guilty of both first and third degree murder. The trial court subsequently 

sentenced Appellant to a mandatory term of life imprisonment for first 

degree murder and to a consecutive term of 20-40 years’ incarceration for 

third degree murder. Appellant filed post-trial motions, which were denied 

by the trial court on September 30, 2014. Appellant filed a timely notice of 

appeal on October 16, 2014. He filed a court-ordered Pa.R.A.P. 1925(b) 
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statement on October 29, 2014. The trial court issued its Rule 1925(a) 

opinion on December 2, 2014.1 

Appellant now presents the following questions for our review:

A. Whether the Commonwealth presented sufficient evidence 

establishing that [] Appellant is guilty beyond a reasonable doubt 

of first degree the murder and third degree murder of Dennis 

Doherty?

B. Whether the verdict was against the weight of the evidence?

C. Whether the lower court erred in denying [] Appellant’s pretrial motion to produce the testimony of Dr. Matthew Berger, a 

psychiatric expert whom the lower court appointed in this matter 

to conduct an independent psychiatric evaluation of Appellant?

D. Whether the lower court erred in denying [] Appellant’s 

request to submit evidence as to his blood alcohol level at the 

time of his incriminating statement to his family members?

E. Whether the lower court erred in allowing the Commonwealth 

to redirect Dr. Gary Ross?

Appellant’s Brief, at 4.

Sufficiency

Appellant’s first claim concerns the sufficiency of the evidence 

supporting his conviction. Specifically, Appellant believes that the evidence 

did not support his identity as the victim’s assailant—a common element to 

each of his homicide convictions. Our standard of review of sufficiency 

claims is well-settled:

____________________________________________

1 The trial court’s Rule 1925(a) opinion incorporated its September 30, 2014 

memorandum opinion addressing Appellant’s post-sentence motion claims. 
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A claim challenging the sufficiency of the evidence is a 

question of law. Evidence will be deemed sufficient to support 

the verdict when it establishes each material element of the 

crime charged and the commission thereof by the accused, 

beyond a reasonable doubt. Where the evidence offered to 

support the verdict is in contradiction to the physical facts, in 

contravention to human experience and the laws of nature, then 

the evidence is insufficient as a matter of law. When reviewing a 

sufficiency claim[,] the court is required to view the evidence in 

the light most favorable to the verdict winner giving the 

prosecution the benefit of all reasonable inferences to be drawn 

from the evidence. 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal 

citations omitted). 

Appellant “submits that the record is completely void of any physical 

evidence linking him to the murder of Dennis Doherty.” Appellant’s Brief, at 

16. Appellant’s claim is unsustainable in both fact and law. The police 

discovered the victim’s DNA on a knife that was seen in Appellant’s 

possession immediately after the homicide occurred; therefore, there was, in 

fact, physical evidence tying Appellant to the murder of the victim. 

In any event, evidence of guilt is not insufficient merely due to the 

absence of physical evidence. “It is well established in Pennsylvania that 

circumstantial evidence alone may be sufficient to determine commission of 

a crime and convict the accused of it.” Commonwealth v. Cox, 333 A.2d 

917, 918 (Pa. 1975); see also Commonwealth v. Wentzel, 61 A.2d 309, 

312 (Pa. 1948) (“Circumstantial evidence is, in the abstract, nearly, though 

perhaps not altogether, as strong as positive evidence; in the concrete, it 

may be infinitely stronger.”) (quoting Commonwealth v. Harman, 4 Pa. 
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269, 271 (1846)). Thus, even if there were a lack of physical evidence in 

this case, Appellant’s sufficiency claim lacks any legal foundation, as the 

absence of physical evidence cannot, by itself, render alternative forms of 

evidence insufficient to sustain a conviction. 

To the extent that Appellant presents inconsistencies between the 

testimony of the Commonwealth’s witnesses and other evidence as a 

challenge to the sufficiency of the evidence, we note that such arguments go 

to the weight, and not the sufficiency, of the evidence. “A mere conflict in 

the testimony does not render the evidence insufficient ... because it is 

within the province of the fact finder to determine the weight to be given to 

the testimony and to believe all, part, or none of the evidence.” 

Commonwealth v. Mechalski, 707 A.2d 528, 530-31 (Pa. Super. 1998) 

(internal citations omitted). For these reasons, we conclude that Appellant’s 

sufficiency claim lacks merit. 

Weight

Next, Appellant challenges the trial court’s denial of his claim that the 

verdict was against the weight of the evidence. Specifically, Appellant 

contends that the weight of the evidence “pointed to someone other than 

him as Doherty’s attacker.” Appellant’s Brief, at 28. 

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. 
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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. 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.

This does not mean that the exercise of discretion by the trial 

court in granting or denying a motion for a new trial based on a 

challenge to the weight of the evidence is unfettered. In 

describing the limits of a trial court's discretion, we have 

explained:

The term “discretion” imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate conclusion 

within the framework of the law, and is not exercised for 

the purpose of giving effect to the will of the judge. 

Discretion must be exercised on the foundation of reason, 

as opposed to prejudice, personal motivations, caprice or 

arbitrary actions. Discretion is abused where the course 

pursued represents not merely an error of judgment, but 

where the judgment is manifestly unreasonable or where 

the law is not applied or where the record shows that the 

action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations 

omitted). 

The trial court determined that the verdict was not against the weight 

of the evidence. To the contrary, the trial court found that “the amount of 

evidence implicating [Appellant] is so overwhelming that the failure to 

convict would shock any reasonable person’s sense of justice.” Trial Court 

Opinion (TCO), 9/30/14, at 7. We agree. 
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Appellant asserts that the absence of certain evidence supports his 

weight-of-the-evidence claim, an argument that is as illogical as it is 

unconvincing, as it purposefully overlooks the ample evidence supporting his 

conviction. Appellant foreshadowed his crime by asking his brother if he 

should kill the victim just before the killing occurred. Appellant returned to 

his mother’s home shortly after departing with the victim, and immediately 

admitted to his mother that he killed the victim. DNA samples taken from 

the knife that Appellant cleaned and put away in his mother’s kitchen while 

admitting to killing the victim revealed the presence of the victim’s DNA. 

These facts overwhelming outweigh minor inconsistencies in an eyewitness’s 

testimony regarding the murderer’s description.2 Accordingly, the trial court 

clearly did not abuse its discretion in denying Appellant’s post-sentence 

weight-of-the-evidence motion. Thus, Appellant’s weight-of-the-evidence 

claim is meritless. 

____________________________________________

2 Georgia Strackbein, who witnessed the killing from her home, told police 

that the perpetrator was about 5 feet, 9 inches tall, and wore a dark hoodie. 

She did not observe the assailant using a knife. Appellant is 6 feet, 2 inches 

tall, and the jacket purportedly worn by him that evening was not hooded. 

However, the specific details of Strackbein’s testimony were questionable in 

light of her vantage point. Strackbein claimed to have observed the killing 

from a distance of 70 feet; however, other evidence revealed that her home 

was at least 75 yards away from the scene of the crime. Given that her 

observations were made in the evening and from such a considerable 

distance, a five inch discrepancy between her description and Appellant’s 

height appears trivial, as does her description of the assailant’s clothing. It 

also explains her failure to observe a knife, and the evidence clearly 

established that the victim was stabbed to death. 
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Psychiatric Testimony

Next, Appellant claims that the trial court erred when it denied his pretrial motion to produce the testimony of a psychiatrist, Dr. Matthew Berger.3

 

Appellant contends that Dr. Berger would have testified that Appellant 

suffers from schizoaffective disorder with psychotic features, a mental illness 

that can cause hallucinations. Appellant contends that he was suffering an 

acute manifestation of this disorder, complicated by his intoxication, when 

he stated to his family members that he had killed the victim. Appellant 

believes that this evidence was relevant to demonstrate that Appellant was 

“not in the proper frame of mind to be able to make a knowing, voluntary, 

and intelligent confession.” Appellant’s Brief, at 30. He argues that “[t]he 

purpose of this testimony would be to provide the jury with evidence as to 

Appellant’s state of mind at the time he made the statements so that the 

jury could determine what weight, if any, to give to the alleged 

confessions[.]” Id. 

We apply the following standard in our review of claims that a trial 

court erred in the admission or exclusion of evidence:

The admission of evidence is solely within the province of the 

trial court, and a decision thereto will not be disturbed absent a 

showing of an abuse of discretion. “An abuse of discretion is not 

merely an error of judgment, but if in reaching a conclusion the 

law is overridden or misapplied, or the judgment exercised is 

____________________________________________

3 Appellant similarly challenges the trial court’s granting of the 

Commonwealth’s motion to preclude Dr. Berger’s testimony. 
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manifestly unreasonable, or the result of partiality, prejudice, 

bias[,] or ill-will discretion ... is abused.” 

Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (internal 

citations omitted).

The trial court provides important context for this claim as follows:

The defense team had two psychiatric experts examine 

[Appellant] in anticipation of raising various defenses in the 

case. After the evaluations were completed, at a January 10, 

2014 status conference, [Appellant]’s attorneys indicated that 

[Appellant] would not raise the defense of voluntary intoxication. 

On January 24, 2014, [Appellant] filed a notice of expert 

evidence of mental condition, and attached a report by Dr. 

Matthew Berger. He indicated that the testimony was necessary 

to show his state of mind when he made the inculpatory 

statements to his family members. On May 8, 2014, the 

Commonwealth filed a motion in limine to preclude the 

testimony of Dr. Berger. Prior to trial, the court granted this 

motion and [Appellant] filed a motion for reconsideration. On 

the morning of trial, argument was heard on the motion for 

reconsideration and the motion was denied. 

TCO, at 8-9.

In refusing to permit his testimony at trial, the trial court determined 

that Dr. Berger’s report “did not discuss whether [Appellant’s diagnoses of 

schizoaffective disorder and substance abuse] prevented [Appellant] from 

forming specific intent, or whether it affected the statements he made to his 

family members on the night of the murder.” TCO, at 9. Therefore, as Dr. 

Berger did not address an insanity or guilty but mentally ill defense, or 

otherwise offer facts that could negate the specific intent element of first 
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degree murder, the trial court precluded his testimony based on several 

authorities,4 which collectively set forth the following standards of law: 

A diminished capacity defense does not exculpate the 

defendant from criminal liability entirely, but instead negates the 

element of specific intent. For a defendant who proves a 

diminished capacity defense, first-degree murder is mitigated to 

third-degree murder. To establish a diminished capacity 

defense, a defendant must prove that his cognitive abilities of 

deliberation and premeditation were so compromised, by mental 

defect or voluntary intoxication, that he was unable to formulate 

the specific intent to kill. The mere fact of intoxication does not 

give rise to a diminished capacity defense. Evidence that the 

defendant lacked the ability to control his or her actions or acted 

impulsively is irrelevant to specific intent to kill, and thus is not 

admissible to support a diminished capacity defense. 

Furthermore, diagnosis with a personality disorder does not 

suffice to establish diminished capacity.

Hutchinson, 25 A.3d at 312 (quotation marks and citations omitted). 

Appellant does not challenge the trial court’s rejection of Dr. Berger’s 

testimony based upon a theory that it could have provided a diminished 

capacity defense to negate the specific intent element of first-degree 

murder. Instead, Appellant claims an alternative basis for admitting Dr. 

Berger’s testimony: that it was relevant to the question of whether 

____________________________________________

4

In its opinion, the trial court cites the following authorities in support of its 

ruling: Commonwealth v. King, 57 A.3d 607 (Pa. 2012); Commonwealth 

v. Vandivner, 962 A.2d 1170 (Pa. 2009); Commonwealth v. Sheppard, 

648 A.2d 563 (Pa. Super. 1994); and Commonwealth v. Faulkner, 595 

A.2d 28 (Pa. 1991). The principles of law set forth in those authorities are 

aptly summarized by Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 

2011). 
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Appellant’s “confession” to family members was knowing, voluntary, and 

intelligent, citing Commonwealth v. Jones, 327 A.2d 10 (Pa. 1974).

In Jones, the defendant purportedly participated in a violent assault 

and robbery at a subway station in downtown Philadelphia that led to the 

death of the victim. Jones was arrested less than two hours later, after he 

was caught snatching a purse from a different victim. The next morning, 

Jones signed a nine page confession in which he admitted to beating and 

robbing the first victim and then throwing him onto the subway tracks. 

Jones unsuccessfully contested the voluntariness of his confession in a 

suppression motion. However, “[a]t trial, [Jones] renewed his attack on the 

confession by offering the testimony of a psychiatrist concerning his ... subnormal mental capacity and lack of verbal facility, and his consequent 

inability to have given the confession which the Commonwealth attributed to 

him.” Id. at 12. The trial court refused to allow that evidence. Our 

Supreme Court granted Jones a new trial based on that refusal, holding that 

“psychiatric testimony concerning a defendant's mental capacity and 

condition at the time of giving an alleged confession is admissible on the 

issue of his ability to give the confession.” Id. at 13. 

Appellant maintains that Jones is binding in this matter. The trial 

court rejected this argument, finding significant factual differences upon 

which to distinguish this case from Jones. For instance, in Jones, the 

defendant’s counsel 
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indicated that the purpose of the offer of proof was an attempt 

to ‘minimize the impact of the defendant's confession.’ The gist 

of the psychiatrist's testimony, he said, would be that, in light of 

the defendant's mental capacity, his I.Q. and lack of verbal 

facility, defendant would have been incapable of giving a 

statement of the length and continuity of the one allegedly given 

by the defendant to the police. Counsel indicated that the 

psychiatrist would testify that in his opinion the interrogating 

detective had interjected questions which were not reflected in 

the statement. He further stated that the purpose of the 

psychiatrist's testimony would be to show that the defendant 

had an I.Q. of 71 and was a mild mental defective, and that 

‘these points would be important to the jury's evaluation of the 

defendant's statement.’

Id. at 12.

Here, however, Appellant’s statement was neither made to police, nor 

did it occur in a potentially coercive setting. Another crucial difference is 

that Appellant’s inculpatory statements to family members were relatively 

simple and uncomplicated. As the trial court recognized:

Here [Appellant] made admissions to his mother and two of his 

brothers that he was going to murder the victim and that he had 

murdered the victim. Unlike the nine-page written confessions 

in Jones, these statements were more in the nature of excited 

utterances. [Appellant] does not assert that he was incapable of 

making the utterances, but rather than the jury should have 

heard psychiatric testimony as to his “state of mind” when he 

made them. However, Dr. Berger’s report does not discuss the 

effect that [Appellant]’s drug and alcohol use or schizoaffective 

disorder had on his ability to make statements about what he 

had done. Thus, Jones does not apply here, and Dr. Berger’s 

psychiatric testimony was properly excluded.

TCO, at 11. 

We agree with the trial court’s analysis. Additionally, Appellant has 

not offered, and our own research has not uncovered, any case law that 

explicitly or implicitly extends Jones’ holding beyond the factual context of a 
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formal confession where the confessor’s capacity to author an extensive 

written confession is plausibly at issue. Here, Appellant’s inculpatory 

statements were spontaneous, self-originating, unadorned, and not made to 

police in an inherently coercive setting. Accordingly, we conclude that trial 

court did not abuse its discretion when it refused to admit Dr. Berger’s 

testimony for the purpose of providing state-of-mind context to Appellant’s 

inculpatory statements. 

Blood-Alcohol Content

Next, Appellant claims the trial court erred when it denied his request 

to present evidence of his blood-alcohol level at the time he made the 

incriminating statements to his family members. Appellant admits that he 

did not seek to admit this evidence in order to negate specific intent as part 

of a voluntary intoxication defense. Instead, as with the precluded 

testimony of Dr. Berger, Appellant intended to offer evidence of his 

intoxication in order to demonstrate his state of mind when he made the atissue inculpatory statements. 

The trial court determined that “[b]ecause [Appellant] decided not to 

raise a voluntary intoxication defense, the court precluded expert testimony 

concerning his blood alcohol level.” TCO, at 12. Additionally, the 

Commonwealth contends that any error in the preclusion of expert testimony 

concerning Appellant’s degree of intoxication was harmless. Because we 

agree that any resulting error was harmless, we need not consider whether 

the trial court’s decision was erroneous. 
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Harmless error exists if the record demonstrates either: (1) the 

error did not prejudice the defendant or the prejudice was de 

minimis; or (2) the erroneously admitted [or precluded] 

evidence was merely cumulative of other untainted evidence 

which was substantially similar to the erroneously admitted [or 

precluded] evidence; or (3) the properly admitted and 

uncontradicted evidence of guilt was so overwhelming and the 

prejudicial effect of the error was so insignificant by comparison 

that the error could not have contributed to the verdict.

Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997).

Here, there was “a great deal of testimony at trial from eye witnesses 

concerning the amount of alcohol consumed by [Appellant] on the night of 

the murder, and his level of intoxication.” TCO, at 12. For instance, 

Appellant’s mother testified that Appellant and the victim were drinking beer 

and vodka before the killing, N.T., 5/13/14, at 170; that they “were 

drinking all day[,]” id. at 179, and that between them, Appellant and the 

victim consumed a considerable portion of a half-gallon bottle of vodka, id.

at 180.

5

 She also testified that Appellant appeared intoxicated, slurred his 

words and bumped into things as he walked through her home. Id. at 182. 

Michael Spinelli also observed Appellant drinking on the night of the 

killing. Id. at 148. He stated that Appellant was speaking loudly that 

evening, a typical behavior for Appellant when intoxicated. Id. at 151-52. 

Spinelli also testified that Appellant was “say[ing] things that he normally 

[would] say if he was drinking.” Id. at 156. Spinelli also agreed during 

____________________________________________

5 The bottle of vodka was half-full when the two arrived, and nearly empty 

at the time of the killing. Appellant’s mother stated that she was unsure 

how much the pair had consumed before arriving at her home. 
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cross-examination that, when drinking, Appellant “makes statements that 

don’t make much sense.” Id. at 157. Jonathan Sandoval also testified that 

Appellant was intoxicated. N.T., 5/14/14, at 114. 

During closing argument, defense counsel focused extensively on 

Appellant’s level of intoxication and erratic behavior. In addition to the 

aforementioned testimony, he suggested to the jury that they could infer 

Appellant’s level or degree of intoxication at the time he made his 

inculpatory statements to his family from the victim’s blood alcohol 

concentration that evening—a staggering .42. The trial court overruled the 

Commonwealth’s objection to this suggestion, explaining, “The testimony 

was that they were drinking together. So it is fair argument.” Id. at 210. 

Additionally, the trial court instructed the jury that, “Evidence regarding 

[Appellant’s] drinking can be used by you when evaluating [his] statements 

made to any individuals on the night of the alleged crime.” N.T., 5/15/14, at 

22. Thus, we agree with the trial court that the “jury was aware of 

[Appellant]’s high level of intoxication on the night of the murder, and [that] 

the court instructed them that they could consider it when determining his 

state of mind in admitting the murder to his family members.” Id.

As such, we concur with the Commonwealth that the preclusion of 

evidence of Appellant’s specific blood alcohol level was “merely cumulative” 

of the other evidence produced at trial. Hawkins, supra. Appellant was 

permitted to cross-examine the Commonwealth’s witnesses in order to 

extract substantial evidence of his intoxication when he made the 
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inculpatory statements to those witnesses. See Soda v. Baird, 600 A.2d 

1274, 1277 (Pa. Super. 1991) (“The exclusion of evidence is not grounds for 

the granting of a new trial if evidence of the same fact or facts was 

introduced by the party applying for a new trial. There is no basis for a 

reversal, and a new trial, if the excluded evidence was cumulative in 

nature.”) (citation omitted). Accordingly, we conclude that even if the trial 

court erroneously excluded evidence of Appellant’s blood-alcohol content at 

the time he made his incriminating statements, such error was harmless. 

Re-direct of Dr. Ross

Finally, Appellant asserts that the trial court erred when it permitted 

the Commonwealth to question Dr. Gary Ross on re-direct. Dr. Ross, a 

forensic pathologist, testified regarding the autopsy and toxicology report. 

He spoke to both the cause and mechanism of the victim’s death. During 

direct examination, Dr. Ross was questioned about the knife that Appellant 

pulled out of his pocket and placed in his mother’s kitchen drawer. He 

stated, over Appellant’s overruled objection that it went beyond the scope of 

his report, that “[a] knife just like this could have caused all the injuries that 

this decedent had sustained.” N.T., 5/14/14, at 162. Appellant’s claim, 

however, does not arise directly from his objection to this testimony. 

During cross-examination, defense counsel questioned whether Dr. 

Ross could testify with any degree of certainty whether that specific knife 

had been used to kill the victim, as opposed to a similar knife, and Dr. Ross 

stated that he could not from the information that he had at that moment. 
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Id. at 171. During re-direct, the Commonwealth asked Dr. Ross, “If you 

had information that the decedent’s DNA was on that knife, what would your 

opinion be?” Defense counsel objected, essentially arguing that the question 

went beyond the scope of his cross-examination of Dr. Ross. The 

Commonwealth responded that Appellant had opened the door to that line of 

inquiry. The trial court agreed, and overruled the objection. Dr. Ross then 

stated that if he knew that the decedent’s DNA was found on the knife, he 

“would be very comfortable in saying that this knife is the knife that killed 

[the vicitm].” Id. at 172-73. 

Appellant argues that the trial court erred by permitted the 

Commonwealth’s solicitation of Dr. Ross’s opinion regarding a fact not 

contained in his report. We disagree. Initially, we note that Appellant fails 

to provide citation(s) to any authority that would suggest that the 

Commonwealth’s question on re-direct was improper. In any event, we view 

the Commonwealth’s question on re-direct to be a natural and fair response 

to the focus of Appellant’s questions during cross-examination. By focusing 

the jury’s attention on Dr. Ross’s inability to identify the knife as the actual 

or specific cause of the victim’s stab wounds, it was fair response for the 

Commonwealth to highlight what facts, if any, would bridge the gap between 

the actual and the definite. Moreover, the question did not involve mere 

speculation that would mislead the jury—DNA samples taken from the blood 

found on the knife in question were, in fact, positively matched to the victim 

in this case. N.T., 5/14/14, at 91-93. Accordingly, we conclude that the 
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trial court did not err when it permitted the Commonwealth to pursue its line 

of questioning during the re-direct examination of Dr. Ross. 

Merger/Illegal Sentence

Having addressed each of Appellant’s claims, we now turn to an 

obvious error that is apparent from the record. Specifically, Appellant was 

illegally sentenced when the court issued consecutive sentences for first and 

third degree murder. There is no dispute in this case that Appellant’s 

convictions for these crimes were based on his killing of one victim: Dennis 

Doherty. Appellant was not charged with killing separate individuals, nor did 

the Commonwealth present evidence of multiple homicides. Therefore, his 

convictions for first and third degree murder should have merged for 

sentencing purposes, rendering his current sentence illegal. 

“A challenge to the legality of the sentence may be raised as a 

matter of right, is non-waivable, and may be entertained so long 

as the reviewing court has jurisdiction.” Commonwealth v. 

Robinson, 931 A.2d 15, 19–20 (Pa. Super. 2007) (en banc). 

The phrase ‘illegal sentence’ is a term of art in Pennsylvania 

Courts that is applied to three narrow categories of cases. Id. at 

21. Those categories are: “(1) claims that the sentence fell 

‘outside of the legal parameters prescribed by the applicable 

statute’; (2) claims involving merger/double jeopardy; and (3) 

claims implicating the rule in Apprendi v. New Jersey, 530 

U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).”

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013). 

Moreover, “[t]he issue [of merger] is a pure question of law, allowing for 

plenary review.” Commonwealth v. Pettersen, 49 A.3d 903, 911 (Pa. 

Super. 2012).
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Despite Appellant’s failure to raise this claim below or in his appellate 

brief, the issue of whether the trial court failed to merge Appellant’s 

sentences for first and third degree murder cannot be waived, and this Court 

may address it sua sponte. Munday. The merger statute dictates as 

follows:

No crimes shall merge for sentencing purposes unless the crimes 

arise from a single criminal act and all of the statutory elements 

of one offense are included in the statutory elements of the 

other offense. Where crimes merge for sentencing purposes, the 

court may sentence the defendant only on the higher graded 

offense.

42 Pa.C.S. § 9765.

Here, it is beyond question that Appellant’s convictions for first and 

third degree murder arise from the same criminal act—the killing of Dennis 

Doherty. One may be assaulted multiple times, or be the victim of multiple 

thefts; but once completed, a killing can never be repeated against the same 

victim (although multiple persons may be held legally culpable for a single 

killing). Thus, we have no reservation in concluding that Appellant’s 

sentences for first and third degree murder “arise from a single criminal act.” 

Id.

We must next determine whether “all of the statutory elements of one 

offense are included in the statutory elements of the other offense.” Id. 

First-degree murder occurs when “(1) a human being was unlawfully killed; 

(2) the defendant was responsible for the killing; and (3) the defendant 

acted with malice and a specific intent to kill.” Commonwealth v. Martin, 
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101 A.3d 706, 718 (Pa. 2014). For purposes of this analysis, these elements 

can be rearranged as such: a defendant is guilty of first-degree murder if he 

(1) unlawfully kills another human being; (2) with malice aforethought; and 

(3) with the specific intent to kill. 

Recently, our Supreme Court approved of the following definition of 

third-degree murder: “[T]o convict a defendant of the offense of third[ 

]degree murder, the Commonwealth need only prove that the defendant 

killed another person with malice aforethought.” Commonwealth v. 

Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (quoting Commonwealth v. 

Santos, 876 A.2d 360, 363 (Pa. 2005)), cert. denied sub nom. Best v. 

Pennsylvania, 134 S.Ct. 2314 (2014). Again, rearranging this definition 

for our analysis, a defendant is guilty of third degree murder if he (1) 

unlawfully kills another human being; (2) with malice aforethought.

As is clear from these rearranged (but substantively unaltered) 

definitions, “all of the statutory elements of” third degree murder “are 

included in the statutory elements of” first degree murder. 42 Pa.C.S. § 

9765. Furthermore, as discussed supra, we have determined that 

Appellant’s first and third degree murder convictions both arose from the 

same criminal act. Thus, Appellant’s first and third degree murder 

convictions must merge for sentencing purposes. Indeed, these offenses will 

always merge for sentencing purposes when they both pertain to an 

individual defendant’s killing of single person.
J-S31007-15

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Consequently, we hereby vacate Appellant’s sentence for third degree 

murder. Because the Commonwealth never sought imposition of the death 

penalty in this case, the only possible sentence for Appellant’s first degree 

murder conviction is life imprisonment without the possibly of parole, a 

sentence already imposed and left untouched by this decision. Thus, it is 

unnecessary to remand for re-sentencing, and Appellant is not entitled to 

any other form of relief. 

Judgement of sentence affirmed in part, vacated in part. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015