J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALEX OTERO

- SANCHEZ

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3583 EDA 2019

Appeal from the Judgment of Sentence Entered August 8, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP

- 51

- CR

- 0005382

- 2018

BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J. *

MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 23, 2020

Alex Otero

- Sanchez (Otero

- Sanchez) appeals from the August 8, 2019

judgment of sentence imposed by the Court of Common Pleas of Philadelphia

County (trial court) following his convictions for first

- degree murder and

possession of an instrument of crime. Otero

- Sanchez argues that the

evidence was insufficient to support his convictions and that his convictions

were against the weight of the evidence. He also challenges two of the trial

court’s evidentiary rulings. After careful review, we affirm.

I.

We glean the following facts from the trial court opinion:

Shortly before 4:00 a.m. on June 25, 2018, [Otero

- Sanchez] and

his then

- girlfriend, Rachel Rodweller, left their home on 618 East

Clementine Street in Philadelphia to buy cigarettes and drugs

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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nearby on the block. [Otero

- Sanchez] was missing his left leg,

but got around that morning using a bike. [Otero

- Sanchez] and

Rodweller headed down the street toward a drug dealer they knew

named Will. Rodweller, who was ahead of [Otero

- Sanchez], ran

into the decedent, Jamie Robinson, and began to talk with him. A

few minutes later, [Otero

- Sanchez] arrived and asked Robinson

why he was talking to [Otero

- Sanchez ’ s] wife. In response,

Robinson said, “ That ’ s not yo ur wife, ” and Rodweller stated, “ No,

I ’ m not his wife, I ’ m his girlfriend. ” This exchange prompted

Robinson to start laughing and to mock [Otero

- Sanchez]. In

response, [Otero

- Sanchez] lifted his shirt and pulled out a knife.

He then went behind Robinson and stabbed him with the knife on

the right side of his stomach, just below the rib cage. After

[Otero

- Sanchez] twisted the knife and pulled it out of Robinson ’ s

stomach, Robinson fell to the ground. Robinson was able to pic k

himself up from the ground and run down to the end of the block.

[Otero

- Sanchez] initially began to follow Robinson, but after

Rodweller started yelling at [Otero

- Sanchez], he followed

Rodweller back to their house on Clementine Street. Shortly

thereaf ter, Rodweller asked [Otero

- Sanchez] why he had stabbed

Robinson. [Otero

- Sanchez] responded, “ He disrespected me and

I'm a killer. ”

Meanwhile, Robinson made his way down Clementine Street,

turned right onto F Street, and eventually collapsed in the area of

F and Clearfield Streets. Officers, who responded to a report of a

stabbing, found Robinson laying in a pool of his own blood and

rushed him to Temple Hospital. Shortly after arrival, Robinson

was pronounced dead. The cause of death was a 5 inch deep stab

wound to the stomach.

After returning home, [Otero

- Sanchez] wrapped the knife he had

used to stab Robinson in the clothing he was wearing at the time

of the killing. He placed the clothing and knife in two plastic bags,

and dropped them in a trash can on the corner of F and Clementine

Streets. Two days later, [Otero

- Sanchez] saw a man he knew

named Angel who pushed around a cart and collected cans.

[Otero

- Sanchez] pointed to the trash can, told Angel that he had

killed someone with a knife and the knife was in a bag in the trash

can. He then asked Angel to get rid of the knife. Angel agreed

and took the bag with the knife from the trashcan. Sometime

later, [Otero

- Sanchez] saw Angel and Angel gave him a thumbs

up.J

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The day after the stabbing, Glo ria Resto, who also lived with

[Otero

- Sanchez] and Rodweller at the Clementine Street home,

overheard an argument between [Otero

- Sanchez] and Rodweller

in the home. When Resto attempted to calm [Otero

- Sanchez]

down, [Otero

- Sanchez] said to Rodweller, “ Tel l her what I did, tell

her what I did. ” When Rodweller did not respond, [Otero

Sanchez] said to Resto, “ Yeah, he disrespected [Rodweller], he

touched her ass....I fucked him up and I fucked him up real bad. ”

Within a day or two of that conversation, [Ote ro

- Sanchez] left the

home and did not return.

After Robinson ’ s death, Philadelphia police detectives conducted

an investigation of the murder. Officers located and recovered

surveillance video from around the location of the stabbing. Four

days after th e murder, on June 29, 2018, officers went to the

Clementine Street home and requested that Rodweller come with

them and give a statement about the stabbing. Rodweller agreed

and gave a statement to detectives, in which she identified [Otero

Sanchez] as th e individual who stabbed Robinson. Shortly

thereafter, [Otero

- Sanchez] was arrested. He later gave a video

statement to detectives, in which he admitted to stabbing

Robinson.

Trial Court Opinion, 2/3/2020, at 2

- 4 (citations & footnotes omitted).

Follow ing the reception of the evidence

, the jury found Otero

- Sanchez

guilty of the above

- mentioned offenses and he immediately proceeded to

sentencing. The trial court sentenced him to life in prison on the count of

first

- degree murder and a concurrent period of one to five years’ incarceration

on the count of possession of an instrument of crime. Otero

- Sanchez filed a

timely post

- sentence motion, which the trial court denied. He timely

appealed, and he and the trial court have complied with Pa.R.A.P. 1925.J

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- II.

Otero

- Sanchez first challenges the sufficiency of the evidence to support

his convictions. 1 He argues that he should have been convicted of the lesser

offense of voluntary manslaughter rather than first

- degree murder, because

he committed the killing while under serious provocation and in the “heat of

passion.” He further argues that his convi ction for possession of an instrument

of crime should be vacated because he did not intend to use the knife

criminally when he was acting under the heat of passion.

_________________ __________ ______ ____ _______

1 Our standard of review is well

- settled:

The standard we apply in reviewing the sufficiency of the evidence

is whether viewing all the evidence admitted at trial in the light

most favorable to the verdict winner, there is sufficient evidence

to enable the fact

- finder to find every element of the crime beyond

a reasonable doubt. In applying [this] test, we may not weigh the

evidence and substitute our judgment for the fa ct

- finder. In

addition, we note that the facts and circumstances established by

the Commonwealth need not preclude every possibility of

innocence. Any doubts regarding a defendant’s guilt may be

resolved by the fact

- finder unless the evidence is so weak and

inconclusive that as a matter of law no probability of fact may be

drawn from the combined circumstances. The Commonwealth

may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial

evidenc e. Moreover, in applying the above test, the entire record

must be evaluated and all evidence actually received must be

considered. Finally, the trier of fact while passing upon the

credibility of witnesses and the weight of the evidence produced,

is fre e to believe all, part or none of the evidence.

Commonwealth v. Lopez

, 57 A.3d 74, 79 (Pa. Super. 2012) (citation

omitted).J

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A person is guilty of first

- degree murder if the Commonwealth

establishes beyond a reasonab le doubt “(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. Thomas

,

54 A.3d 332, 335 (Pa. 2012); 18 Pa.C.S. 2502(a). Both fi rst

- degree murder

and voluntary manslaughter require proof of a specific intent to kill.

Commonwealth v. Towles

, 208 A.3d 988, 999

- 1000 (Pa. 2019). The heat

of

- passion defense reduces the charge of first

- degree murder to voluntary

manslaughter if the acc used committed the killing while “acting under a

sudden and intense passion resulting from serious provocation.” 18 Pa.C.S.

§ 2503(a); Commonwealth v. Williams

, 176 A.3d 298, 313 (Pa. Super.

2017).

In order to successfully argue heat of passion, a defenda nt must

prove (1) provocation on the part of the victim, (2) that a

reasonable man who was confronted with the provoking events

would become “impassioned to the extent that his mind was

incapable of cool reflection,” and (3) that the defendant did not

have sufficient cooling off time between the provocation and the

killing.

Williams, supra (citations omitted). “Emotions encompassed by the term

‘passion’ include ‘anger, rage, sudden resentment or terror which renders the

mind incapable of reason.’” Common wealth v. Hutchinson

, 25 A.3d 277,

314 (Pa. 2011) (quoting Commonwealth v. Miller

, 987 A.2d 638, 650 (Pa.

2009)). The standard for determining whether provocation was sufficient to

support the heat of passion defense is an objective one. Id.J

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Otero

- Sanch ez argues that Robinson provoked him into the heat of

passion by talking to Rodweller and mocking Otero

- Sanchez for referring to

her as his wife rather than his girlfriend. 2 He points out that he is disabled

and that the victim was intoxicated at the time of the interaction. He contends

that the victim’s “disrespect” enraged him such that he lost his temper and

acted in the heat of passion and anger when he stabbed the victim. Finally,

he argues that the single stab wound shows that he lashed out in mome ntary,

uncontrollable anger.

The brief interaction between the victim, Rodweller, and Otero

- Sanchez

does not establish the type of provocation contemplated by the voluntary

manslaughter statute that would result in a reasonable person becoming

“impassione d to the extent that his mind was incapable of cool reflection.”

Williams, supra

. Courts have previously rejected the heat

- of

- passion

defense in cases involving interpersonal conflicts when the evidence did not

establish that the conflict was so severe a s to “render[] the mind incapable of

reason.” Hutchinson

, supra (citation omitted); see also Commonwealth

v. Frederick

, 498 A.2d 1322, 1325 (Pa. 1985) (no evidence to support heat

-

_________________ __________ ______ ____ _______

2 Otero

- Sanchez also argues that Robinson “inappropriately touched”

Rodweller during the exchange, contributing to his anger and c ausing him to

lose his temper. See Otero

- Sanchez’s Brief at 40. However, Rodweller denied

that Robinson touched her during their interaction. Notes of Testimony,

8/7/19, at 82. As our standard of review requires this court to view the

evidence in the l ight most favorable to the Commonwealth, Lopez, supra

, we

accept Rodweller’s version of events in our analysis.J

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of

- passion defense when victim and defendant were engaged in a “stormy

love affair” and were seen arguing the day of the murder); Commonwealth

v. McFadden

, 559 A.2d 58, 62 (Pa. Super. 1989) (defendant failed to

establish adequate provocation when the victim, the defendant’s paramour,

told the defendant that she was hosting a part y for another man immediately

prior to the murder). The defense is more appropriate in situations where, for

example, the defendant or his or her family was threatened with bodily harm.

See Commonwealth v. Berry

, 336 A.2d 262, 264

- 65 (Pa. 1975) (voluntar y

manslaughter instruction was warranted when defendant came upon scene

where the victim had physically att acked the defendant’s mother);

Commonwealth v. Duffy

, 512 A.2d 1253, 1261 (Pa. Super. 1986)

(provocation was established for conviction for voluntary manslaughter when

the victim slammed the defendant against a wall and fired three shots at him

before the defendant shot the victim).

Here, Robinson approached Rodweller and began talking to her while

she was buying narcotics with Otero

- Sanchez. Otero

- S anchez told Robinson

to stop talking to his “wife” and Rodweller responded by saying that she was

not his wife but his girlfriend. Robinson laughed at Otero

- Sanchez and

mocked him for calling Rodweller his “wife” and Otero

- Sanchez responded in

anger by st abbing Robinson in the torso. Under the objective test for

provocation, Hutchinson, supra

, we conclude that this interaction was not

the type that would cause a reasonable man to become incapable of coolJ

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-

reflection. There is no evidence to suggest that R obinson threatened either

Otero

- Sanchez or Rodweller with bodily harm during the exchange or that

Robinson and Rodweller were engaged in a sexual relationship. The record

shows that Otero

- Sanchez’s reaction to perceived “disrespect” was

disproportionate t o Robinson’s actions, which were not the type of provocation

that would cause a reasonable person to become “incapable of cool reflection.”

Williams, supra

. This claim fails.

Otero

- Sanchez’s challenge to the sufficiency of the evidence to support

his co nviction for possession of an instrument of crime hinges on his assertion

that he acted in the heat of passion. A person may be convicted of possession

of an instrument of crime if he or she “possesses any instrument of crime with

intent to employ it crim inally.” 18 Pa.C.S. § 907(a). Otero

- Sanchez argues

that he could not intend to employ his knife criminally when he was acting

under the heat of passion as opposed to acting with malice and the specific

intent to kill. However, the record amply supports Otero

- Sanchez’s conviction

for first

- degree murder with evidence of malice and specific intent to kill.

Otero

- Sanchez used a deadly weapon, his knife, on a vital part of Robinson’s

body, his torso. It is well

- established that such actions are sufficient to

support a conviction for first

- degree murder. Commonwealth v. Cash

, 137

A.3d 1262, 1269 (Pa. 2016) (“[T]he specific intent to kill may be inferred

where

. . . the accused uses a deadly weapon on a vital part of the victim’s

body.”). As Otero

- Sanchez intentionally used the knife to commit first

- degreeJ

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murder, the evidenc e is sufficient to support his conviction for possession of

an instrument of crime.

III.

Next, Otero

- Sanchez argues that the trial court abused its discretion by

denying his motion for a new trial and holding that the verdict was not against

the weight of the evidence. 3

, 4 In essence, he argues that the jury failed to

afford appropriate weight to Robinson’s actions toward Rodweller, which

provoked him into committing the murder in the heat of passion. He argues

that based on the provocation by the victim, his own disability, the size

difference between himself and the victim, and the victim’s inappropriate

actions toward Rodweller, the weight of the evidence supported a conviction

for voluntary manslaughter rather than first

- degree murder and possession of

an instrument of crime.

_________________ __________ ______ ____ _______

3 Otero

- Sanchez preserved this claim by raising it in his post

- sentence motion.

See Motion for New Trial and Arrest of Judgment, 8/16/19, at P aragraph 4.

4 When evaluating a challenge to the weight of the evidence to support a

conviction, this court does not reweigh the evidence presented at trial, but

rather evaluates the trial court’s denial of the motion for a new trial for an

abuse of discr etion. Commonwealth v. Clay

, 64 A.3d 1049, 1054

- 55 (Pa.

2013). An abuse of discretion occurs “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.” Id. (citation

omitted). A trial court’s determination that the verdict was not against the

weight of the evidence is “[o]ne of the least assailable reasons for gran ting a

new trial.” Id. (citation omitted).J

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“An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.” Commonwealth v. Sullivan

,

820 A.2d 795, 805

- 06 (Pa. Super. 2003) (citation omitted). “Trial judges, in

revi ewing a claim that the verdict is against the weight of the evidence do not

sit as the thirteenth juror. Rather, the role of the trial judge is to determine

that notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice.” Commonwealth v. Widmer

, 744 A.2d 745, 752 (Pa. 2000)

(quotations omitted). A new trial is appropriate only when the verdict “is so

contrary to the evidence as to shock one’s sense of justice.” Commonwealth

v. Olsen

, 82 A.3d 1041, 1049 (Pa. Super. 2013) (citation omitted). “[T]he

evidence must be so tenuous, vague and uncertain that the verdict shocks the

conscience of the court.” Commonwealth v. Akhmedov

, 216 A.3d 307, 326

(Pa. S uper. 2019) ( en banc ) (citation omitted).

Here, Otero

- Sanchez contends that the trial court abused its discretion

in denying his motion for a new trial because he believes the jury should have

credited his version of events and found him guilty of the less er offense of

voluntary manslaughter. However, in evaluating a challenge to the weight of

the evidence, the trial court may not “sit as a thirteenth juror” or grant a new

trial merely because the court would have weighed the evidence differently.

Widmer

, supra. The evidence adduced at trial, including Rodweller’s

description of the murder and Otero

- Sanchez’s boasting about the crime inJ

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the days following, supported the jury’s finding that Otero

- Sanchez committed

the murder with malice and the specific in tent to kill. The only facts supporting

the theory of voluntary manslaughter were adduced from Otero

- Sanchez’s

statement to police, which the jury was entitled to conclude was self

- serving

and less reliable than Rodweller’s testimony. The facts supportin g the

voluntary manslaughter defense were not so weighty and indisputable as to

clearly outweigh the evidence in support of the first

- degree murder conviction.

No relief is due.

IV.

Finally, Otero

- Sanchez argues that the trial court abused its discretion

in two evidentiary rulings: first, by allowing the Commonwealth to introduce

a photograph of the victim’s stab wound into evidence, and second, by

allowing the medical examiner to testify outside the scope of his expert report.

We address each argument i n turn. 5

_________________ __________ ______ ____ _______

5 “The admission of evidence is solely within the discretion of the trial court,

and a trial court ’ s evidentiary rulings will be reversed on appeal only upon an

abuse of that discretion. An abuse of discretion will not be found based on a

mere error of judgment, but rather occurs where the court has reached a

conclusion that overrides or misapplies the law, or where the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice, bias

or ill

- will.” Commonwealth v. Woodard

, 129 A.3d 480, 494 (Pa. 2015)

(cleaned up).J

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- A.

Prior to trial, the Commonwealth informed the trial court and the

defense that it intended to introduce two photographs of Robinson’s body into

evidence during th e testimony of the medical examiner. The first depicted the

victim’s entire torso, including the stab wound, and the second was a close

up of the stab wound. Otero

- Sanchez objected to the admission of the second

photograph, arguing that it was inflammato ry and irrelevant, as the first

photograph would adequately show the jury the nature of the wound. The

trial court held that the second photograph was admissible, finding that it was

not inflammatory and that it was relevant to the medical examiner’s

test imony. Notes of Testimony, 8/6/19, at 46

- 50. Even though it determined

that the photograph was not inflammatory, the trial court issued the standard

cautionary jury instruction for inflammatory photographs prior to the jury’s

deliberations. Notes of Tes timony, 8/8/19, at 110

- 11.

When passing on the admissibility of photographs of a victim’s body, the

trial court must engage in a two

- step analysis:

First, the trial court must examine whether the particular

photograph is inflammatory. If the photograph is not

inflammatory, it may be admitted if it is relevant and can serve to

assist the jury in understanding the facts of the case. If the

photograph is inflammatory, the trial court must determine

whether the photograph is of such essential evidentiary value that

its need clearly outweighs the likelihood of inflaming the minds

and passions of the jurors.

Commonwealth v. Hutchison

, 164 A.3d 494, 500

- 01 (Pa. Super. 2017).J

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-

We agree with the trial court that the close

- up photograph of the victim’s

wound is not inflammatory. While it does show a close angle, the single wound

is clean, not overly gruesome and does not show bleeding or internal organs.

Compare LeGares

, 709 A.2 d 922, 925 (Pa. Super. 1998) (holding that

photograph was inflammatory when it depicted “in gory detail the destruction

wreaked upon the victim’s skull by the 20

- gauge shotgun blast”). The

photograph is not so grotesque as to inflame the jury and render i t incapable

of fairly considering the evidence and facts of the case. Moreover, even

though the photograph was not inflammatory, the trial court issued a

cautionary instruction directing the jury not to allow the photographs to

prevent it from carefully a nd impartially considering all of the evidence.

Because the photograph is not inflammatory, it is admissible if it is

relevant to the facts of the case. Hutchison, supra. Evidence is relevant if

“it has any tendency to make a fact more or less probable t han it would be

without the evidence.” Pa.R.E. 401(a). “Since a jury can infer one acted with

an intent to kill when injuring a vital area of the body, photographs showing

that vital area are relevant to showing appellant had an intent to kill.”

Commonw

ealth v. Spell

, 28 A.3d 1274, 1280 (Pa. 2011). Such photo graph s

can be relevant to the jury’s determination of intent to kill even when the

medical examiner has already described the injuries in testimony.

Commonwealth v. Robinson

, 864 A.2d 460, 502 (Pa. 2004) (quoting

Commonwealth v. Rush

, 646 A.2d 557, 560 (Pa. 1994)). “There is no needJ

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to so overextend an attempt to sanitize the evidence of the condition of the

body as to deprive the Commonwealth of opportunities of proof in support of

the onerous bu rden of proof beyond a reasonable doubt.” Id.

Here, the trial court determined that the photograph was relevant and

admissible because it would aid the medical examiner’s testimony and the

jury’s understanding of the facts. The trial court further held t hat the

photograph was “essential evidence of the defendant’s intent to kill, because

there was only a single stab wound.” Trial Court Opinion, 2/3/2020, at 11.

While Otero

- Sanchez did concede that he committed the stabbing, the crucial

question at trial was whether he did so with malice and the intent to kill. The

trial court correctly determined that the photograph of the wound would be

relevant to the jury’s determination of Otero

- Sanchez’s mindset during the

killing, as it supported the Commonwealth’ s argument that Otero

- Sanchez

inflicted the wound on a vital part of the victim’s body because he harbored

malice and the intent to kill. Spell, supra ; Robinson, supra. This court has

held that such photographs are not cumulative merely because the medic al

examiner had already testified about the victim’s injury, as they can serve as

additional essential evidence of intent. Robinson, supra. The trial court did

not abuse its discretion in admitting the photograph.

B.

Finally, Otero

- Sanchez argues that the trial court abused its discretion

by allowing the medical examiner to testify outside the scope of his autopsyJ

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report in response to a question posed by the Commonwealth. The medical

examiner testified during his dir ect examination that the stab wound could

have been inflicted by Otero

- Sanchez while he stood behind the victim and

reached around to stab him in the front of his torso. He argues that this

opinion was not in the medical examiner’s report and that he did not have

adequate notice or the opportunity to retain his own expert to refute the

opinion. Otero

- Sanchez contends that this testimony undermined his

voluntary manslaughter defense because it suggested that he had the time to

maneuver behind the victim be fore stabbing him, 6 indicating that he was not

acting in a momentary fit of rage.

We agree with the Commonwealth that this argument is waived. At

trial, Otero

- Sanchez did not provide any basis for his objection to this

testimony. Notes of Testimony, 8/8/ 19, at 31

- 32. He first raised his

argument that this testimony exceeded the scope of the medical examiner’s

report in his concise statement pursuant to Pa.R.A.P. 1925(b). A party

preserves a claim of evidentiary error for appellate review if he “makes a

timely objection” on the record and “states the specific ground, unless it was

apparent from the context.” Pa.R.E. 103(a)(1)(A)

- (B). We have previously

found waiver for failure to state the specific ground for the objection on the

_________________ __________ ______ ____ _______

6 Otero

- Sanchez has one leg and was using a bike as a scooter at the time of

the murder.J

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record when counsel mer ely said “objection” without further explanation. 7

Commonwealth v. Lopez

, 57 A.3d 74, 81

- 82 (Pa. Super. 2012) (citations

omitted). Because Otero

- Sanchez’s objection during the trial did not state a

specific ground for the trial court to consider when pas sing on the admissibility

of the medical examiner’s opinion, this argument is waived.

Even if we were to reach the merits of this claim, Otero

- Sanchez is not

entitled to relief. To the extent that testimony is beyond the fair scope of an

expert’s report, the defendant must still establish that he was prejudiced by

the admission of the testimony. Commonwealth v. Ward

, 188 A.3d 1301,

1311 (Pa. Super. 2018). Here, during direct examination, the medical

examiner testified that the path of the stab wound was consistent with the

victim being stabbed by someone standing behind him and reaching around

his torso. On cross

- examination, the medical examiner testified that the

wound was also consistent with the victim being stabbed by someone standing

in front of hi m.

In its opinion, the trial court cited to Commonwealth v. Poplawski

,

130 A.3d 697 (Pa. 2015), and concluded that Otero

- Sanchez was not

_________________ __________ ______ ____ _______

7 Conversely, we have held that a general objection is sufficient to preserve

the issue for review when a party contends that the objected

- to evidence is

inadmissible for any purpose. See Commonwealth v. Vucich

, 194 A.3d

1103, 1107 n.1 (Pa. Super. 2018) (citing Cominsky v. Donovan

, 846 A.2d

1256, 1258 n.2 (Pa. Super. 2004)). Otero

- Sanchez does not argue that the

medical examiner’s opinion is inadmissible for any purpose; in fact, his

argument concedes that the opinion could be relevant to the jury’s factual

finding of malice and intent to kill.J

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-

prejudiced by this testimony because the medical examiner opined only that

the wound was consistent with both potential avenues of attack. Trial Court

Opinion, 2/3/2020, at 12

- 13. In Poplawski

, the expert witness testified

regarding the order in which a victim sustained certain injuries, and the

defendant objected that the opinion was outside the scope of the expert’s

re port. Our Supreme Court held that the defendant was not prejudiced by

this opinion testimony when he elicited additional testimony on cross

examination that the wounds “were just as likely caused in a manner

consistent with the Commonwealth’s hypothetical as they were with the

defendant’s alternate hypothetical.” Poplawski, supra

, at 721. Similarly,

the medical examiner’s testimony here confirmed only that both the

Commonwealth and Otero

- Sanchez had presented plausible theories

regarding where Otero

- Sanc hez was standing when he stabbed the victim,

and he did not credit either theory over the other. Because Otero

- Sanchez

cannot establish that he was prejudiced by this testimony, this claim is

meritless.

Judgment of sentence affirmed.

Judge Kunselman join s the memorandum.

Judge Nichols did not participate in the consideration or decision of this

case.J

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-

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/2 3/20