Commonwealth v. Distefano

236 A.3d 93

COMMONWEALTH of Pennsylvania, Appellant

v.Brady Collin DISTEFANO

No. 1873 WDA 2019

Superior Court of Pennsylvania.

Submitted June 29, 2020

Filed July 29, 2020

Robert F. Manzi, District Attorney, Indiana, for Commonwealth, appellant.

Thomas M. Dickey, Altoona, for appellee

BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

The Commonwealth of Pennsylvania appeals the order of the Court of Common Pleas of Indiana County granting Appellee Brady Collin DiStefano's motion in limine in part by precluding the prosecution from offering evidence relevant to the causation of the death of the victim, Caleb Zweig. The Commonwealth argues that the trial court's pre-trial order will substantially handicap the prosecution of this case in a future jury trial. We reverse the trial court's order and remand for further proceedings.

This Court previously summarized the factual background of this case as follows:

At approximately 11:00 p.m. on Friday, February 3, 2017, DiStefano and two of his fraternity brothers at the Indiana University of Pennsylvania, Trevor King ("King") and Caleb Zweig ("Zweig"), left a house party, located on Wayne Avenue in Indiana, to walk back to their respective homes. See N.T. [ ], 4/16/17, at 3-6, 25-26. King's testimony at the preliminary hearing established the following. King, Zweig, and DiStefano had all consumed alcohol during the evening. Id. at 4-5, 7, 22-24. DiStefano was "pretty intoxicated at the time and [exhibited] slurred speech." Id. at 7. King stated that Zweig "was also intoxicated but ... not nearly as bad," i.e. , as DiStefano. Id. While the three young men were walking on the sidewalk, King was approximately ten feet in front of DiStefano and Zweig. Id. at 26-27. King then heard DiStefano and Zweig "bickering a little bit" and "arguing about something." Id. at 6, 27.

King described what next transpired as follows:

I heard them bickering and I turned around and they were [ ] in each other's face and like what guys do [sic], and they had their chests puffed out a little bit[,] and [ ] not really harming each other[,] [ ] just poking each other. I said to quit it and turned around and kept walking. And I watched for a few more seconds and I heard a scuffle[,] or heard something that got my attention[,] and I turned back around and I saw [that Zweig] was on his back[, i.e. , on the sidewalk,] and [DiStefano] [ ] had his back toward me and was kneeling over top of [Zweig.]

* * *

[DiStefano] was on top [of Zweig]. [DiStefano's] knees were on the pavement but his hands were on [Zweig's] chest area and I didn't really see. I didn't take time to assess the situation[,] and I ran up and separated the two. And I threw [DiStefano] off of [Zweig].

Id. at 7-8 (footnote added, questions by the prosecutor and some paragraph breaks omitted). King stated that DiStefano did not resist when King physically removed DiStefano from Zweig. Id. at 9, 32; but see also id. at 31-32 (wherein King stated that "it was pretty forceful[,] like I yanked [DiStefano] off of [Zweig]").

***

King acknowledged that, in his police report, he had stated that he saw DiStefano's "hands [ ] up around [Zweig's] neck or chest area[, but] I wasn't really sure." Id. at 9. On cross-examination, King stated that DiStefano's "hands were on [Zweig,] but I don't know if [DiStefano] was choking him or not[,] and [DiStefano's hands] were up here in this area[,]" (i.e. , King demonstratively motioned to his neck area). Id. at 28. King agreed that it was "just seconds before [King] turned around[, i.e. , upon hearing the scuffle,] that [King] went over and [ ] helped, [and] pulled [DiStefano] off[.]" Id. at 31. King stated that "the longest time that I guess [DiStefano] could have had his hands on [Zweig] was like five or six seconds tops." Id.

King testified that the following transpired after he "threw [DiStefano] off of" Zweig:

So[,] immediately there was probably like two or three people that came around. [Zweig] was on his back on the sidewalk[,] and so I knelt down and I picked him up so [that] he was sitting up[,] and made sure he was still breathing [ ] okay[.] [ ] I didn't check his pulse or anything but he was visibly breathing and his chest was rising and falling[,] and some weird noises [were] coming from his throat. So I just thought that he was okay enough[,] so I just held him up there. And then at that time[,] ... [the] three [other students who] ... came from across the street [ ] were helping me.

Id. at 9; see also id. at 36 (wherein King stated that Zweig was "groaning at the time and moaning."). King explained that although Zweig was breathing at this time, he was unconscious. Id. at 10. King and three other individuals then picked Zweig up, carried him a few feet to lay him on the grass, and positioned him on his side. Id. at 34-35. Someone called 911, and an ambulance was dispatched to the scene. Id. at 11, 35.

After the ambulance arrived, King looked around to locate DiStefano but could not find him. Id. at 11-12. Accordingly, King began to walk back to the house that was hosting the house party in an attempt to locate DiStefano, and spotted him trying to re-enter the house from the rear stairs. Id. at 12. King stated that the residents of the house would not permit DiStefano to enter because the police had been called. Id. King said that he would assist DiStefano to get back home, as he was significantly intoxicated. Id. at 13. King testified that he noticed DiStefano had sustained a scrape to the side of his head, but King did not know how this had occurred. Id. at 12, 30. King eventually got DiStefano back to DiStefano's apartment, at which time King left and walked to his own apartment. Id. at 14.

In the meantime, the ambulance rushed Zweig to the emergency room at the Indiana Regional Medical Center. Id. at 76. However, despite lifesaving efforts by medical professionals, Zweig died shortly after arriving. Id. Zweig's body was then released to the Indiana County Coroner's Office for an autopsy. Id.

The police officer who had received the initial dispatch on the night of the incident, Detective John Scherf ("Detective Scherf") of the Indiana Borough Police Department, also testified at the preliminary hearing. Detective Scherf stated that shortly after Zweig's death, he conducted interviews of potential witnesses that night. Id. at 76-77. On the morning after the incident, Detective Scherf interviewed King at the police station, and King gave a written and verbal statement. Id. at 78, 15-16.

The trial court described what transpired after Detective Scherf had conducted his interviews.

[Detective Scherf] proceeded to [DiStefano's] apartment to investigate. When Detective Scherf arrived at [DiStefano's] apartment in the early morning hours of February 4, 2017, a female answered the door, indicated [that DiStefano] was sleeping inside, and that he had been injured in a fight with someone named Caleb. Detective Scherf then applied for and was issued a search warrant for [DiStefano's] apartment and cellular phone[,] as well as a warrant for [DiStefano's] person. Shortly thereafter, [DiStefano] was transported to the Indiana Borough Police Station to be interviewed. [DiStefano] was later charged with aggravated assault and[,] after the receipt of Zweig's autopsy results, with criminal homicide.

Trial Court Opinion and Order, 11/13/17, at 1-2 (footnotes added, some capitalization omitted).

The forensic pathologist who performed the autopsy on Zweig, Ashley Zezulak, M.D. ("Dr. Zezulak"), also testified at the preliminary hearing. The trial court summarized Dr. Zezulak's testimony as follows:

When asked if she was able to render an opinion on the cause of death, she replied, "[s]omewhat of an opinion. More from an investigative standpoint[,] seeing that I didn't find any significant anatomical findings during the autopsy." ( [N.T., 4/16/17,] at 51[ ] ). Dr. Zezulak stated that[, in her autopsy report,] she indicated [Zweig's] cause of death was, "[a]sphyxiation, secondary to presumed chokehold and chest compression." ( [Id. ] at 52[; see also id. at 53-54 (wherein Dr. Zezulak explained that "[i]t is not uncommon for us to have cases where we do not have any certain anatomic findings[,] when we work with the police and the coroners and the story evolves. It is more of what we call a diagnosis of exclusion.") ] ). She stated that the only trauma she found was a scalp hemorrhage, but that it was not large enough to have caused [Zweig's] death[.]

***

When asked about how she arrived at her opinion, Dr. Zezulak indicated that she had relied on information given to her by Jerry Overman [ ("Overman") ], the Indiana County Coroner. ( [Id. ] at 66[ ] ). According to Overman, [Dr. Zezulak recounted, Zweig] had been found unresponsive after a physical assault. ( [Id. ] at 67[ ] ).

Trial Court Opinion and Order, 11/13/17, at 3-4 (footnotes and emphasis added).

Commonwealth v. DiStefano , 1785 WDA 2017, 2018 WL 5076959, at *1-3 (Pa.Super. October 18, 2018) (unpublished memorandum) (footnotes omitted). After the preliminary hearing, the magisterial district judge found the prosecution had presented a prima facie case for both criminal homicide and aggravated assault and thus, bound the charges over for court.

On September 4, 2017, DiStefano filed a habeas petition requesting that the trial court dismiss the homicide and aggravated assault charges on the basis that the prosecution did not have sufficient evidence to establish a prima facie case that DiStefano committed these crimes. After a hearing, the trial court entered an order on November 9, 2017, granting DiStefano's habeas petition and dismissing both charges. The Commonwealth appealed.

On October 18, 2018, this Court affirmed the trial court's November 9, 2017 order in part in so far as it dismissed the criminal homicide charge against DiStefano. See DiStefano , 2018 WL 5076959, at *1-3. This Court agreed with the trial court's assessment that the...