Commonwealth v. Winkelman

1

COMMONWEALTH OF PENNSYLVANIA v. WILLIAM ROBERT WINKELMAN Appellant

No. 608 WDA 2022

No. J-A08040-23

Superior Court of Pennsylvania

April 26, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered January 24, 2022 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000358-2021

BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

PELLEGRINI, J.

William Robert Winkelman (Winkelman) appeals from the January 24 2022 judgment of sentence imposed by the Court of Common Pleas of Clearfield County (trial court) following his convictions for sexual assault, two counts of aggravated assault, strangulation, terroristic threats, unlawful restraint, three counts of simple assault and three counts of harassment.^[1] We affirm.

I.

We glean the following facts from the certified record. In December 2020, Jennifer Winkelman (the victim) reported three instances of abuse by her husband, Winkelman, to the Pennsylvania State Police (PSP). The first incident occurred on December 25, 2018, when Winkelman grabbed the victim by her hair and dragged her around their apartment. He hit her head on the stove, a cedar chest, a love seat, the kitchen table, a garbage can and the dryer. He then punched her multiple times in the face and kicked her in the side and her stomach while she was in the fetal position. The victim provided photos of the injuries to her face and side to the PSP. One of the photos had been taken by Winkelman and the other was taken by the victim's daughter. The victim did not report the incident at the time because she was afraid.

The second incident occurred on February 10, 2019. On that occasion, Winkelman became angry after looking through the victim's cell phone. She attempted to run out of their home and he pulled her back by the hair and wrapped his arm around her throat. He began to punch her and pushed her onto the floor, facedown, and sat on top of her with his arm around her throat and knee on her back while choking her. He then choked her with the cord of their vacuum cleaner and said that he was going to kill her and then himself. The victim was struggling to breathe, and he held her hands behind her back when she tried to pull the cord off of her neck. The victim produced photos of the injuries to her neck and wrists that resulted from this incident.

The third incident occurred on the evening of December 31, 2019 through the early morning of January 1, 2020. The victim woke up to Winkelman screaming at one of her friends on the phone, saying that the victim was "dead" and that "it was his fault." N.T., 10/5/21, at 58. He pulled the victim out of bed by her hair while she attempted to calm him down. She briefly broke free and ran into the bathroom but he followed her in before she could lock the door. He began to hit her head into the mirror until it broke. During the altercation he found a knife that the victim had hid in the bathroom for protection. He pointed the knife at her and told her that if she did not clean up the mirror before he returned in the morning he would kill her. While pointing the knife at her, Winkelman then told the victim to go into the bedroom. He told her that he wanted to have sex and that if she tried to leave the room, he would kill her. He then kept the knife within reach while she had sex with him. The victim produced photos of the injuries to her shoulder and upper arm and a photo of the broken mirror. One of her friends had taken the photos of her injuries and she took the photo of the mirror herself.

The victim initially reported the abuse to PSP Trooper Craig Hooven in March 2020. She did not seek medical attention or report the incidents when they occurred because she was afraid of Winkelman, even though she moved out of their shared home for a week or two on a couple of occasions. She and Winkelman married in June 2019 after the first two incidents. The victim had abused drugs several years prior to the incidents and began using again a couple of months after the third incident, but said that she was not using illegal drugs at the time of the reported incidents. She was in treatment and taking medication for bipolar disorder.

The victim did not bring the photos of her injuries to the initial meeting and did not provide them to Trooper Hooven until approximately nine months later, in December 2020. When he took her statement in March 2020, Trooper Hooven observed that the victim appeared to be using methamphetamine, but she denied drug use at that time. He did not file charges against Winkelman until receiving the photos of the victim's injuries but he could not verify when the photos were taken. In her initial statement, the victim specifically referenced an incident in February but did not provide dates for the other incidents. Trooper Hooven said that after consulting with the Commonwealth in March 2020, he declined to file charges because he did not have any additional evidence to support the victim's statement.

At trial, the Commonwealth introduced the photos of the victim's injuries into evidence. Winkelman objected to their admission, arguing that the Commonwealth was required to call the individuals who took the photos to authenticate them. The trial court held that the photos were properly authenticated by the victim's testimony that they accurately reflected the injuries she sustained on the dates in question.

After closing arguments, Winkelman objected to allowing the jury to view the photos during deliberations on the grounds that the photos and captions were prejudicial. The Commonwealth redacted part of the captions before the exhibits were provided to the jury, but Commonwealth exhibits one and two were still labeled "December 25th 2018 attack" and "Feb 10th 2019 attack," respectively. The photos of the victim's wrists in exhibit 2 also had circles around the bruising and "marked places from vacuum on Feb 10th 2019" written next to them. The record does not reveal what phrasing was redacted from Commonwealth exhibits two and three. The trial court allowed the exhibits to be provided to the jury after the redactions were made.

The jury convicted Winkelman of the above-captioned charges.^[2] Following a presentence investigation and report, the trial court sentenced Winkelman as follows:

Sexual assault: 4 to 8 years' incarceration followed by 3 years of probation;

Aggravated assault, count 1: 3 to 6 years' incarceration, consecutive;

Aggravated assault, count 2: 3 to 6 years' incarceration, consecutive;

Strangulation: 2 to 4 years' incarceration, consecutive;

Terroristic threats: 2 years' probation, concurrent; and

Unlawful restraint: 2 years' probation, concurrent.

Sentencing Order, 1/27/22. The aggregate sentence was 12 to 24 years of incarceration followed by 3 years of probation. Winkelman filed a post- sentence motion, which was denied, and he timely appealed. He and the trial court have complied with Pa. R.A.P. 1925.

II.

On appeal, Winkelman argues that the photographs of the victim's injuries should not have been admitted because they were not properly authenticated and that they should not have been provided to the jury, with unredacted captions, during its deliberations. He contends that his convictions were not supported by sufficient evidence, or, in the alternative, that his convictions were against the weight of the evidence presented at trial.^[3]

A.

First, Winkelman argues that the photographs of the victim's injuries were inadmissible because they were not properly authenticated.^[4] He contends that the individuals who took the photos were required to testify as to their authenticity at trial. He also argues that the jury should not have been permitted to review the photos during its deliberations, as they were prejudicial and included captions that were likely to inflame the jury.

"[T]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Pa. R.E. 901(a). A witness may authenticate evidence through "[t]estimony that an item is what it is claimed to be." Pa. R.E. 901(b)(1). "When the evidence in question is a photograph, it may be authenticated by testimony from a person who has sufficient knowledge that the photograph fairly and accurately reflects what the proponent is purporting that photograph to reflect." Commonwealth v. Loughnane, 128 A.3d 806, 814 (Pa. Super. 2015), rev'd on other grounds, 173 A.3d 733 (Pa. 2017). Authentication pursuant to Pa.R.E. 901(a) "generally entails a relatively low burden of proof." Commonwealth v. Murray, 174 A.3d 1147, 1157 (Pa. Super. 2017) (citation omitted).

Here, the victim testified at trial that she took several of the photographs herself and that Winkelman, her daughter and a friend took the remainder. She confirmed that the photos accurately depicted the injuries she had sustained as of the dates they were taken and said that all the photos were taken within a couple of days of the incidents in question. This testimony was sufficient to authenticate the photos as "fairly and accurately reflect[ing]" the injuries she described. Loughnane, supra. As the trial court observed, our law does not require that the individual who took a photograph appear in court to testify as to its authenticity. See Trial Court Opinion, 4/21/22, at 3-4. Accordingly, it did not abuse its discretion in admitting the photos at trial.^[5]

Next Winkelman argues that the photos should not have been provided to the jury during its deliberations, as the captions and the photos themselves were unduly prejudicial. While Winkelman focuses much of this portion...