Com. v. Lee, D.

J.S45037/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : DARNELL LEE, : : Appellant : No. 2383 EDA 2013 Appeal from the Judgment of Sentence March 1, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0005987-2009 BEFORE: BOWES, WECHT, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 23, 2014 Appellant, Darnell Lee, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following his jury trial and convictions for second degree murder,1 robbery,2 carrying a firearm on a public street or public property in violation of the Uniform Firearms Act,3 and conspiracy.4 Appellant asserts that he is entitled to a new trial because the * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 2502(b). 2 18 Pa.C.S. § 3701(a)(1)(i). 3 18 Pa.C.S. § 6108. 4 18 Pa.C.S. § 903(a)(1). J. S45037/14 guilty verdicts of murder and robbery were against the weight of the evidence. We affirm the convictions but vacate the judgment of sentence for robbery because it merged with his second degree murder conviction for purposes of sentencing. The trial court summarized the facts of this case as follows:5 On June 3, 2008, at about 9:30 p.m., [the victim] at 3858 North 15th Street, Philadelphia. Around 11:20 four-door white Chevrolet Malibu parked on the 1500 block of Pike Street. While McCoy and Fields were sitting in the vehicle, [Appellant] and [his co-defendant] Daniel Johnson - and co-defendant approached Fields on the passenger side of the vehicle. [Appellant] then said, silver gun that was tucked into his waistband. McCoy said, and money. When McCoy told [Appellant] that his phone [Appellant] and co- vehicle and started fighting with [Appellant]. During this struggle, [Appellant] and McCoy moved toward the rear of the vehicle, where McCoy was shot at least twice. McCoy was shot a third time after co-defendant ran to the rear of the vehicle. This shooting occurred at or around 11:31 p.m. on June 3, 2008. 5 Appellant was tried jointly with his co-defendant, Daniel Rasheed R. Johnson. As we discuss infra, a prior panel of this Court, in the direct appeal -defendant, affirmed in part and vacated in part. Commonwealth v. Johnson, 213 EDA 2013 (unpublished memorandum) (Pa. Super. Dec. 19, 2013). -2- J. S45037/14 Afterward, [Appellant] jumped onto a bicycle and fled toward 16th and Smedley Streets. As Fields tried to exit the front passenger door, co- stuck under the vehicle. Fields made eye contact with co- defendant, who then ran in the same direction as [Appellant]. When Fields exited the vehicle, she approached McCoy and saw him lying on the ground. He had a hole in his face and was struggling to breathe. Blood was pooled behind his head and was coming from his face and hand. Fields called 911 and ran into the bar, McCoy was transported to Temple University Hospital, where he was pronounced dead at approximately 1:27 a.m. on June 4, 2008. Dr. Gary Collins, deputy chief y. While performing his examination, Dr. Collins found that McCoy sustained three gunshot wounds. Two gunshot wounds were penetrating wounds and one gunshot wound was a perforating wound. . . . Dr. Collins concluded to a reasonable degree of medical certainty that the cause of death was the penetrating gunshot wound to the head. . . . Dr. Collins further concluded to a reasonable degree of medical certainty that the manner of death was homicide. He submitted the two o the Firearms Identification Unit. * * * Detective John Cahill was assigned to investigate this homicide. At approximately 2:15 a.m., Detective Cahill responded to the crime scene with Detective Ted Hagan. On June 4, 2008, Detective [James] Dunlap assisted with the recovery of surveillance footage from the digital video recording player at the bar. He found a total of eight video cameras around the interior and exterior of the bar. . . . Camera Number 5 was an exterior camera located on the front of the property at the southwest corner of 15th and Pike Streets, and viewed the 1500 block of Pike Street westbound. Camera Number 6 was located outside the entrance door at 15th and Pike Streets and viewed the -3- J. S45037/14 southwest corner of 15th and Pike Streets. Camera Number 7 viewed the sidewalk on Pike Street. . . . Detective Dunlap checked the operability of the video recording player and determined that it was functioning properly. When he checked the time, Detective Dunlap observed that it was military time and discovered that it was nine minutes faster than the actual time determined by the U.S. Naval Observatory. Detective Dunlap downloaded all eight camera views, copied them onto a digital video disc, and gave it to the assigned detective. Detective Dunlap recovered a one-half hour block of video running on June 3, 2008 from 23:20 to 23:50 (11:20 p.m. to 11:50 p.m.). He also recovered one fifty-minute block of video from 22:30 to 23:20 (10:30 p.m. to 11:20 p.m.) from Camera Numbers 5 and 6, both exterior cameras. Camera Number 5 had the best camera view of the incident. Because multiple camera views could not be shown at once, Detective Dunlap used software to copy and compile camera views into one running video. The first video clip was recorded at 23:29:36 from Camera Number 5 and displayed a male and female entering a white Malibu several feet from the corner. The next video clip showed two men riding bicycles on Pike Street traveling toward 15th Street. The two men rode past the camera and turned southbound onto 15th Street, where they were recorded by Camera Number 6. The men Street. The subsequent video clip came from Camera Number 5 and showed bicycles crossing the street. One bicycle rode onto the curb to the driver side of the white Malibu and the other bicycle rode to the passenger side. Someone was inside the vehicle because the brake lights side of the vehicle. A man wearing a striped shirt exited the vehicle, but then went back inside the vehicle. The video then showed one of the men running away. At the scene, the passenger door was open and a person and an object were on the ground. At that time, people started to exit the bar and gather into a large crowd. Police then arrived and secured the scene. In addition to compiling these several camera views, Detective Dunlap -4- J. S45037/14 took 130 still photographs from the video. These still photographs accurately depicted the views from Camera Number 5 and Camera Number 6. After reviewing this video, Detective Hagan returned to The video displayed Capehart walking westbound on the 1500 block of Pike Street prior to the murder. During this interview, Capehart did not appear to be under the influence of drugs or alcohol. After reviewing her five- page statement, Capehart signed it. Capehart was interviewed a second time by Detective Cahill on June 6, 2008. During this interview, Detective Cahill learned that [Appellant] was her cousin and that his nickname was - Cahill learned that, on the evening of the murder, [Appellant] and co- residence, which was approximately one and one-half that [Appellant] and co-defendant were in front of her house when she left to go to the bar at 8:45 p.m. Co- defendant was wearing cargo shorts and a red or burgundy shirt. [Appellant] was wearing a white shirt, tan cargo pants[,] and a bulletproof vest. Co-defendant had a red bicycle and [Appellant] had a blue and pink bicycle. The day before giving this statement, Capehart had seen the blue and pink bicycle in front of her house, but she had not seen the red bicycle since the shooting. Capehart left the bar at about 11:30 p.m. When she ho told her that he heard gunshots. Capehart then went upstairs and called a friend who was still at the bar. been shot. When Capehart went back downstairs, she encountered [Appellant] and Durell at her front door. [Appellant] told her that he was leaving because too many police were around. Finally, Capehart stated that she had not seen [Appellant] or co-defendant since the murder. Capehart did not appear to be under the influence of drugs or alcohol during this second interview. After reviewing her eight and one-half page statement, Capehart signed it. She identified co-defendant after being shown a -5- J. S45037/14 photographic array. She also identified [Appellant] after being shown a photograph. On June 10, 2008, Detective Hagan interviewed Naja McCoy and took her statement. Ms. McCoy informed Detective Hagan that McCoy was her blood cousin, but that she considered him her brother because they were raised in the same household. Ms. McCoy also knew [Appellant] because she grew up with him in the neighborhood. She residence because she was best friends with Lekita Gilliard year, she helped Kita buy bicycles for the children. As a result, bicycles were always on the porch. However, after the murder, the bicycles were missing. Ms. McCoy also told Detective Hagan that she went to and 4:30 p.m. When she arrived, she saw [Appellant], who was wearing a dark hooded sweatshirt, white tee- shirt[,] and dark jeans. After she hugged [Appellant], he showed her that he was also wearing a bulletproof vest. She asked him why he was wearing it, and he told her that he was being careful because he took a chrome gun from leaving [Appellant] introduced Ms. McCoy to [co-defendant], who that she saw co-defendant. It was also the last time that she saw [Appellant]. At trial, Ms. McCoy confirmed that after the murder. Ms. McCoy further testified that she reviewed her four-page statement and signed it. She also signed and dated photographs of co-defendant and [Appellant], which were attached to her statement. On June 10, 2008, Detective Cahill interviewed Fields, who had been in a relationship with McCoy for two years. Detective Cahill first met Fields at the homicide unit and delayed interviewing her because she was crying and hysterical. In her statement, Fields described the two men -6- J. S45037/14 Afterward, [Appellant] jumped onto a bicycle and fled toward 16th and Smedley Streets. As Fields tried to exit the front passenger door, co- stuck under the vehicle. Fields made eye contact with co- defendant, who then ran in the same direction as [Appellant]. When Fields exited the vehicle, she approached McCoy and saw him lying on the ground. He had a hole in his face and was struggling to breathe. Blood was pooled behind his head and was coming from his face and hand. Fields called 911 and ran into the bar, McCoy was transported to Temple University Hospital, where he was pronounced dead at approximately 1:27 a.m. on June 4, 2008. Dr. Gary Collins, deputy chief y. While performing his examination, Dr. Collins found that McCoy sustained three gunshot wounds. Two gunshot wounds were penetrating wounds and one gunshot wound was a perforating wound. . . . Dr. Collins concluded to a reasonable degree of medical certainty that the cause of death was the penetrating gunshot wound to the head. . . . Dr. Collins further concluded to a reasonable degree of medical certainty that the manner of death was homicide. He submitted the two o the Firearms Identification Unit. * * * Detective John Cahill was assigned to investigate this homicide. At approximately 2:15 a.m., Detective Cahill responded to the crime scene with Detective Ted Hagan. On June 4, 2008, Detective [James] Dunlap assisted with the recovery of surveillance footage from the digital video recording player at the bar. He found a total of eight video cameras around the interior and exterior of the bar. . . . Camera Number 5 was an exterior camera located on the front of the property at the southwest corner of 15th and Pike Streets, and viewed the 1500 block of Pike Street westbound. Camera Number 6 was located outside the entrance door at 15th and Pike Streets and viewed the -3- J. S45037/14 southwest corner of 15th and Pike Streets. Camera Number 7 viewed the sidewalk on Pike Street. . . . Detective Dunlap checked the operability of the video recording player and determined that it was functioning properly. When he checked the time, Detective Dunlap observed that it was military time and discovered that it was nine minutes faster than the actual time determined by the U.S. Naval Observatory. Detective Dunlap downloaded all eight camera views, copied them onto a digital video disc, and gave it to the assigned detective. Detective Dunlap recovered a one-half hour block of video running on June 3, 2008 from 23:20 to 23:50 (11:20 p.m. to 11:50 p.m.). He also recovered one fifty-minute block of video from 22:30 to 23:20 (10:30 p.m. to 11:20 p.m.) from Camera Numbers 5 and 6, both exterior cameras. Camera Number 5 had the best camera view of the incident. Because multiple camera views could not be shown at once, Detective Dunlap used software to copy and compile camera views into one running video. The first video clip was recorded at 23:29:36 from Camera Number 5 and displayed a male and female entering a white Malibu several feet from the corner. The next video clip showed two men riding bicycles on Pike Street traveling toward 15th Street. The two men rode past the camera and turned southbound onto 15th Street, where they were recorded by Camera Number 6. The men Street. The subsequent video clip came from Camera Number 5 and showed bicycles crossing the street. One bicycle rode onto the curb to the driver side of the white Malibu and the other bicycle rode to the passenger side. Someone was inside the vehicle because the brake lights side of the vehicle. A man wearing a striped shirt exited the vehicle, but then went back inside the vehicle. The video then showed one of the men running away. At the scene, the passenger door was open and a person and an object were on the ground. At that time, people started to exit the bar and gather into a large crowd. Police then arrived and secured the scene. In addition to compiling these several camera views, Detective Dunlap -4- J. S45037/14 took 130 still photographs from the video. These still photographs accurately depicted the views from Camera Number 5 and Camera Number 6. After reviewing this video, Detective Hagan returned to The video displayed Capehart walking westbound on the 1500 block of Pike Street prior to the murder. During this interview, Capehart did not appear to be under the influence of drugs or alcohol. After reviewing her five- page statement, Capehart signed it. Capehart was interviewed a second time by Detective Cahill on June 6, 2008. During this interview, Detective Cahill learned that [Appellant] was her cousin and that his nickname was - Cahill learned that, on the evening of the murder, [Appellant] and co- residence, which was approximately one and one-half that [Appellant] and co-defendant were in front of her house when she left to go to the bar at 8:45 p.m. Co- defendant was wearing cargo shorts and a red or burgundy shirt. [Appellant] was wearing a white shirt, tan cargo pants[,] and a bulletproof vest. Co-defendant had a red bicycle and [Appellant] had a blue and pink bicycle. The day before giving this statement, Capehart had seen the blue and pink bicycle in front of her house, but she had not seen the red bicycle since the shooting. Capehart left the bar at about 11:30 p.m. When she ho told her that he heard gunshots. Capehart then went upstairs and called a friend who was still at the bar. been shot. When Capehart went back downstairs, she encountered [Appellant] and Durell at her front door. [Appellant] told her that he was leaving because too many police were around. Finally, Capehart stated that she had not seen [Appellant] or co-defendant since the murder. Capehart did not appear to be under the influence of drugs or alcohol during this second interview. After reviewing her eight and one-half page statement, Capehart signed it. She identified co-defendant after being shown a -5- J. S45037/14 photographic array. She also identified [Appellant] after being shown a photograph. On June 10, 2008, Detective Hagan interviewed Naja McCoy and took her statement. Ms. McCoy informed Detective Hagan that McCoy was her blood cousin, but that she considered him her brother because they were raised in the same household. Ms. McCoy also knew [Appellant] because she grew up with him in the neighborhood. She residence because she was best friends with Lekita Gilliard year, she helped Kita buy bicycles for the children. As a result, bicycles were always on the porch. However, after the murder, the bicycles were missing. Ms. McCoy also told Detective Hagan that she went to and 4:30 p.m. When she arrived, she saw [Appellant], who was wearing a dark hooded sweatshirt, white tee- shirt[,] and dark jeans. After she hugged [Appellant], he showed her that he was also wearing a bulletproof vest. She asked him why he was wearing it, and he told her that he was being careful because he took a chrome gun from leaving [Appellant] introduced Ms. McCoy to [co-defendant], who that she saw co-defendant. It was also the last time that she saw [Appellant]. At trial, Ms. McCoy confirmed that after the murder. Ms. McCoy further testified that she reviewed her four-page statement and signed it. She also signed and dated photographs of co-defendant and [Appellant], which were attached to her statement. On June 10, 2008, Detective Cahill interviewed Fields, who had been in a relationship with McCoy for two years. Detective Cahill first met Fields at the homicide unit and delayed interviewing her because she was crying and hysterical. In her statement, Fields described the two men -6- J. S45037/14 - skinned black male in his twenties who was approximately six feet and one inch tall. This man was wearing a black hoodie and a white tee-shirt, and she saw a tattoo on the She described the man on the passenger side of the vehicle as being between 18 to 20 years old with light brown skin and a scruffy beard. This man was wearing tan khaki pants and a gray hoodie. After the interview, she reviewed her three-page statement and signed it. After being shown a photographic array, Fields identified Johnson as the man who stood on the passenger side of the vehicle. She next identified [Appellant] as vehicle. These identifications were signed and attached to her statement. At trial, Fields stated that she was certain of her identifications. During this interview, Detective Cahill showed Fields the signed statement she provided to Detective Knecht[6] . . . at 12:52 a.m. on June 4, 2008. She reviewed this statement and corrected one minor typographical error. No other corrections were made. At trial, she stated that her ability, but that there were a few inaccurate statements in that document. Fields denied stating that did not have a gun. During her interview with Detective Knecht and at trial, Fields stated that this was incorrect because [Appellant] did possess a gun during this incident. five-feet seven inches and five-feet nine inches] tall because he was the same height as McCoy, who was about hearing. At the preliminary hearing, Fields identified Johnson as the man who was at the passenger side of the vehicle trying to pick up the red bicycle. 6 Our review of the record did not reveal t -7- J. S45037/14 On June 10, 2008, Sergeant William Britt assigned Detectives Burke and Rocks[7] to search for [Johnson and Appellant] as fugitives. On June 13, 2008, based on information received, Sergeant Britt and several officers went to 3731 North 16th Street, where they found Chandler. Chandler was subsequently transported to the homicide unit, where he was interviewed. Detective [Joseph] Bamberski testified that two warrants had been issued for Chandler to appear as a witness by the time of he has not been seen since June 13, 2008, when he provided a signed statement. members of the U.S. Marshals Fugitive Task Force went to the area of 24th and Norris Streets. During their surveillance, they observed Johnson riding a bicycle northbound on 24th Street toward Diamond Street. They pursued him, but then lost him when he fled into a public housing authority development. On June 14, 2008, Sergeant Britt and members of the U.S. Marshals Fugitive Task Force went to Apartment 905 at 4455 Holden Street based on information received. When they arrived, they found and arrested co-defendant and [Appellant]. . . . Trial Ct. Op., 12/17/13, at 2-4, 6-13 (footnotes, citations, and some Appellant was convicted following a jury trial and sentenced to life imprisonment without the possibility of parole for second degree murder and imprisonment for conspiracy to commit murder and two and one-half to five years for carrying a firearm on public streets in Philadelphia. Appellant filed 7 -8- J. S45037/14 a timely post-sentence motion, which was denied, and then the instant appeal. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal8 and the trial court filed a responsive opinion. Appellant claims that the court erred in denying his motion for a new trial based on the weight of the evidence.9 that Fields gave two different descriptions of the male who came to the side of the vehicle with respect to his height and facial hair. Id. at having been involved in the shooting. Id. He contends the verdict was against the weight of the evidence because it was based solely upon the inconclusive testimony of the lone eyewitness to the shooting. 10 Id. at 17. We find no relief is due. 8 We note that Appellant was ordered to file a Rule 1925(b) statement no later than twenty-one days from September 3, 2013, which was September 24th. Appellant filed his Rule 1925(b) statement on October 15, 2013. This Court has stated that where the trial court addresses the issues raised in an untimely 1925(b) statement, we can address the merits of the appeal without a remand. Commonwealth v. Fischere, 70 A.3d 1270, 1275 n.2 (Pa. Super. 2013), appeal denied, 83 A.3d 167 (Pa. 2013). 9 Appellant preserved this issue in his post-sentence motion. See Post Sentence Mot., 3/11/13, at 1 (unpaginated). 10 We note with displeasure that the argument section of spans three pages, consisting primarily of a recitation of the facts. The sole legal authority cited is two civil cases, without pinpoint citation, for the standard of review. We remind counsel: -9- J. S45037/14 Our Supreme Court has held that [a] motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court. An appellate court, therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence. The factfinder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court will award a new trial only standard has been met, appellate review is limited to and relief will only be granted where the facts and inferences of record disclose a palpable abuse of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings. Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations omitted). Section 2502(b) of the Crimes Code defines second degree murder: arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities. Id.; Pa.R.A.P. 2119(a), (b), (c). Citations to authorities must articulate the principles for which they are cited. Pa.R.A.P. 2119(b). This Court will not act as counsel and will not develop arguments on behalf of an appellant. Moreover, when defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived. Pa.R.A.P. 2101. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (some citations omitted). Because we are able to conduct meaningful appellate review, we decline to find the issue waived. See id. - 10 -