Commonwealth v. Konias

• Citation: 2016 PA Super 68,136 A.3d 1014
• Decision Date: 18 March 2016
• Docket Number: No. 881 WDA 2014,881 WDA 2014
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth John KONIAS, Jr., Appellant.
• Court: Superior Court of Pennsylvania

136 A.3d 1014

2016 PA Super 68

COMMONWEALTH of Pennsylvania, Appellee

v.Kenneth John KONIAS, Jr., Appellant.

No. 881 WDA 2014

Superior Court of Pennsylvania.

Submitted Jan. 4, 2016.

Filed March 18, 2016.

Carrie L. Allman, Public Defender, Pittsburgh, for appellant.

Karen T. Edwards, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, OLSON, and STRASSBURGER,^* JJ.

OPINION BY BOWES

, J.:

Kenneth John Konias, Jr. appeals from the judgment of sentence of life imprisonment for first-degree murder, and a consecutive sentence of ten to twenty years imprisonment for robbery, imposed on February 18, 2014, after a nonjury trial. We affirm.

Appellant's convictions arose from an incident on February 28, 2012, when Michael Haines died as a result of a gunshot wound

to the back of the head. Appellant admitted to shooting Mr. Haines, but maintained he acted in self-defense. The Commonwealth's evidence in support of Appellant's convictions was as follows. In February 2012, Appellant was employed as an armored truck driver for Garda Cash Logistics (“Garda”). On February 28, 2012, Appellant was assigned to work with the victim, Michael Haines, an individual with whom he had never worked prior to that day. The two men were assigned to Truck 5678, and responsible for a route that included stops at Rivers Casino, the Ross Park Mall Home Depot, and JC Penney, among other locations.

Truck 5678 was separated into three compartments. Located at the front of the truck was a driver's area. This area was accessible only from the exterior driver-side door. The driver's area was composed of one seat and a waist-high flat area extending to the right-hand side of the truck, so there was no passenger seat. Directly behind the driver's seat, a sliding door separated the driver's area from the hopper, the intermediate area of the truck. A portion of the door, which slid open to rest behind the driver, extended approximately four inches into the doorway.

The hopper area, where the victim was seated, contained one chair located on the right-hand side of the vehicle. Adjacent to the hopper chair, another waist-high flat area extended to the left side of the truck. Numerous United States postal bins, which Garda utilized to separate various items within the truck, were upright and neatly organized on top of this flat area. The hopper area was accessible only from the exterior via a door on the right side of the vehicle. The final truck compartment, which was the storage area, was separated from the hopper area by a metal fence. That area could only be accessed from the rear doors on the truck.

On the day in question, Appellant and Mr. Haines arrived early at each stop along their assigned route. Appellant and the victim collected and scanned bags of money, printing out a receipt for each customer directly from the scanner. The hand-held scanner employed by Appellant and the victim hung in a charger located on the wall of the hopper area of the truck. On this particular day, after scanning each bag, Appellant placed the bags of money in the hopper area of the truck rather than in the rear storage area, as was customary.

Following the pick-up at the Ross Park Mall Home Depot, Appellant's truck pulled to a stop and parked in the lot for approximately three minutes. During this time, Appellant shot the victim in the back of the head at close range with a .9 millimeter handgun. Shortly thereafter, the truck exited the parking lot, traveling toward McKnight Road. Surveillance cameras stationed along McKnight Road recorded Appellant's truck driving towards downtown Pittsburgh.

Appellant drove the truck toward Garda's headquarters, parking it under the Thirty–First Street Bridge with the victim's body still facing the rear of the truck in the step-down portion of the hopper area. Appellant traveled by foot to the Garda parking lot, retrieved his personal vehicle, and returned to the truck. Upon returning, Appellant loaded his personal vehicle with $2,323,252 from the hopper area of the truck. He placed paper towels in the step-down area of the hopper to soak up the victim's blood, activated the vehicle's four-way flashers, left the engine running, and locked the truck before fleeing the scene. The truck was eventually located by a Garda employee around 4:30 p.m., and thereafter, Pittsburgh Police Detective Ryan Rable arrived at the scene.

Upon his arrival, Detective Rable met with several Garda employees. He and Detective Margaret Sherwood, together with several other officers, inspected the vehicle. Mr. Haines was deceased by the time the truck was discovered by Garda employees. Furthermore, U.S. postal bins situated inside the hopper area were upright, exhibiting no signs of damage.¹ In addition, the victim was found with his uniform shirt tucked in and buttoned. Finally, his identification badge was still in its plastic holder, clipped to his left pocket, and attached to a breakaway cloth lanyard.

An examination by the forensic biologist found no tears or separations on the victim's shirt. The victim's pants also showed no signs of tearing

or separation. An examination by the forensic pathologist noted the cause of the victim's death was a single gunshot wound to the back of the head. The victim sustained no further injuries, abrasions, bruises, or scratches. No signs of a struggle were observed inside the truck.

Following his flight from the truck, Appellant returned home, removed his blood-stained, Garda-issued jacket containing a .9 millimeter shell casing, showered, and stashed portions of the money stolen from the truck at various locations in and around the Pittsburgh area for his friends and family to recover. Specifically, Appellant left $24,000 in a bag at his grandmother's gravesite, $252,000 in a bag under his father's vehicle, and $10,000 in a work boot located on the porch of a friend's residence.² Appellant then stole a license plate to replace the plate on his personal vehicle, and discarded his cellular telephone along Route 51. Appellant absconded to Florida with the remaining money stolen from the Garda truck.

Appellant was apprehended in Florida on April 24, 2013. At the time of his arrest, Appellant possessed four forms of fraudulent identification, and a stolen credit card. A search of his Florida residence revealed a loaded .9 millimeter firearm, as well as the victim's firearm, which was taken at the time of his death. Subsequent investigation revealed that Appellant sought aid in attempting to flee to Haiti.

Appellant retained private counsel. On August 15 and October 9, 2013, he filed motions seeking funding for a forensic expert, clothing analysis, and a forensic psychologist. The August 15, 2013 motion asserts, “Although [Appellant]'s family members have retained within counsel for the purposes of representation at trial, [Appellant] is now indigent and cannot afford the costs of retaining a privately retained forensic expert for the areas of ballistic fire arms, clothing analysis, and forensic psychology.” Motion To Appoint Forensic Experts in Ballistic Firearms, Clothing Analysis and Mental Health Behavioral Forensic Psychologist, 8/15/13, ¶ 11.

On October 9, 2013, Appellant again requested funding, stating, “Although [Appellant]'s family members have retained within counsel for the purposes of representation at trial, [Appellant] is now indigent, and so is his family, and cannot afford the costs of retaining a privately retained psychological expert.” Motion to Approve the Payment of Expert Fees for a Behavioral Forensic Psychologist By Allegheny County, 10/9/13, ¶ 5. Neither motion contained information regarding Appellant's income, expenses, liabilities, or other financial information necessary to aid the court's determination of his financial status. In addition, the motions were not accompanied by any affidavits averring Appellant's inability to pay for the requested experts. The motions were denied by orders dated August 20 and October 10, 2013, respectively.

A nonjury trial commenced on November 6, 2013 and concluded in a conviction. The trial court rejected Appellant's position that he acted in self-defense during a struggle with the victim. Following his conviction, Appellant's counsel sought to withdraw. The court granted this motion, and a public defender was appointed by court order on December 18, 2013. On February 18, 2014, the court imposed the mandatory sentence of life imprisonment without parole for first-degree murder, as well as, a consecutive term of ten to twenty years for robbery. Timely post-sentence motions were denied. This appeal followed. Appellant raises the following issues for this Court's consideration:

I. Did the Court err in failing to provide expert funding, or even to conduct a hearing on the need for funding, where the defense made two separate requests for experts to counter Commonwealth evidence and each request was supported by allegations of indigency?

II. Did the Court err in permitting a Detective to testify to the ultimate issue, namely whether a struggle had ensued before the shooting, where her testimony was speculative and based on facts outside her personal knowledge?

III. Was the verdict rendered contrary to the weight of the evidence where, when viewed in its entirety, the evidence was not consistent with first degree murder?

Appellant's brief at 4.

Appellant first contends that the trial court erred in denying without a hearing his request for public funds to hire experts to assist in his defense. It is well-established that indigent defendants have a right to access the same resources as non-indigent defendants in criminal proceedings. Commonwealth v. Curnutte, 871 A.2d 839, 842 (Pa.Super.2005)

. The state has an “affirmative duty to furnish indigent defendants the same protections accorded those financially able to obtain them.” Commonwealth v. Sweeney, 368 Pa.Super. 33, 533 A.2d 473, 480 (1987). Procedural due process guarantees that a defendant has the right...