J-A20020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALONZO ELLISON
Appellant No. 2564 EDA 2012
Appeal from the Judgment of Sentence July 25, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006872-2009
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 23, 2014
Appellant, Alonzo Ellison, appeals from the July 25, 2012 judgment of
sentence of life without the possibility of parole after a jury found him and
his co-defendants, Mikechel Brooker and Ferock Smith1, guilty of murder in
the first degree, criminal conspiracy, firearms not to be carried without a
license, and possession of an instrument of a crime (PIC).2 After careful
review, we affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows.
____________________________________________
1
currently pending in this Court at 188 EDA 2013.
2
18 Pa.C.S.A. §§ 2502(a), 903(a)(1), 6106(a)(1), and 907(a), respectively.
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was shot and killed on the 8700 Block of Glenoch
Place in Philadelphia, by [Appellant], Ferock Smith
an
apparent dispute over drug territory after Antoniette
[Appellant]. When Gray[,] shortly thereafter[,]
purchased drugs from Jacobs, [Appellant], Smith,
and Brooker shot Jacobs multiple times. At trial,
Gray testified that she did not remember the
shooting and her July 20, 2008[] statement to police
was admitted. In her statement, Gray identified
[Appellant], Smith, and Brooker as the three people
who shot Jacobs. Gray also saw [Appellant], Smith,
and Brooker the next day and heard them laughing
about shooting Jacob[s]. Another eyewitness,
someone standing over Jacobs and shoot him in the
head. Gould had identified that person as
[Appellant] in a July 18, 2008 statement to police,
which was introduced at trial.
testified that she did not remember the events after
the shooting and her July 19, 2008 statement to
police was admitted. In her statement, Sampson
stated that [Appellant], Smith, and Brooker came to
her apartment on the night of July 18, 2008.
Sampson stated that she let [Appellant], Smith, and
Brooker use her apartment because they gave her
drugs. [Appellant], Smith and Brooker had a
apartment that night,
during which she heard Smith say he shot Jacobs.
Smith and Brooker had handguns with them which
asked [Appellant] to remove the guns from her
apartment and [Appellant] took a 9 millimeter
handgun from Smith. Brooker and Smith left
time, [Appellant] gave the 9 millimeter handgun
back to Smith. [Appellant] stayed and slept at
the rear of the apartment when the police were
knocking at the front door. A .32 caliber handgun
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Trial Court Opinion, 12/26/12, at 2-3.
On June 1, 2009, the Commonwealth filed an information charging
Appellant with the above-mentioned offenses, as well as one count each of
persons not to use a firearm and carrying firearms in public in Philadelphia.3
On July 10, 2012, Appellant proceeded to a jury trial. At the conclusion of
said trial, on July 16, 2012, the jury found Appellant guilty of first-degree
murder, criminal conspiracy, firearms not to be possessed without a license,
and PIC. The Commonwealth nolle prossed the remaining two charges. On
July 25, 2012, the trial court imposed a sentence of life imprisonment
without the possibility of parole as to first-degree murder. The trial court did
not impose any further penalty on the remaining charges. On July 31, 2012,
Appellant filed a timely post- verdict
was against the weight of the evidence. See generally Pa.R.Crim.P.
607(A)(3). The trial court entered an order on August 6, 2012, denying
-sentence motion. On August 23, 2012, Appellant filed a
timely notice of appeal.4
On appeal, Appellant raises four issues for our review.
____________________________________________
3
18 Pa.C.S.A. §§ 6105(a.1)(1) and 6108, respectively.
4
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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I. Is [Appellant] entitled to an arrest of judgment
on all charges as the verdict is not supported
by sufficient evidence?
II. Is [Appellant] entitled to a new trial as the
verdict is not supported by the greater weight
of the evidence?
III. Is [Appellant] entitled to a new trial as the
result of [trial c]ourt error where the [trial
c]ourt denied a mistrial request, even though
the [Commonwealth] branded [Appellant] as a
drug dealer, all to his untold and unfair
prejudice?
IV. Is [Appellant] entitled to a new trial as the
result of prosecutorial misconduct during
closing argument where the [Commonwealth]
made a knowing and material
misrepresentation as to the possession of a
firearm allegedly used in this case?
provide sufficient evidence that Appellant was a principal, conspirator, or
accomplice regarding first-degree murder. Id. at 14-15. Regarding his
conspiracy conviction, Appellant also argues
Id. at 17.5
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5
We note that Appellant placed this argument in his second argument point
pertaining to the weight of the evidence. Nevertheless, as he did raise this
element in his Rule 1925(b) statement on sufficiency grounds, we will
address it with the balance of his sufficiency argument.
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Our standard of review regarding challenges to the sufficiency of the
In reviewing the sufficiency of the
evidence, we consider whether the evidence presented at trial, and all
reasonable inferences drawn therefrom, viewed in a light most favorable to
the Commonwealth
Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.
wholly circumstantial evidence and any doubt about the defend
to be resolved by the fact finder unless the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact can be drawn
Commonwealth v. Watley, 81 A.3d
108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and citation
omitted) , appeal denied, --- A.3d ---, 1033 MAL 2013 (Pa. 2014). As an
Id. the
credibility of witnesses and the weight of the evidence produced is free to
Commonwealth v. Kearney, 92
sufficiency is a question of law, our standard of review is de novo and our
Commonwealth v. Diamond, 83 A.3d 119,
126 (Pa. 2013) (citation omitted).
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regarding his conviction for murder in the first degree. The relevant statute
provides as follows.
§ 2502. Murder
(a) Murder of the first degree.--A criminal
homicide constitutes murder of the first degree when
it is committed by an intentional killing.
(d) Definitions.--As used in this section the
following words and phrases shall have the meanings
given to them in this subsection:
Killing by means of poison, or
by lying in wait, or by any other kind of willful,
deliberate and premeditated killing.
A person who is the actor or
perpetrator of the crime.
18 Pa.C.S.A. § 2502. Furthermore, our Supreme Court has consistently
stated when proving the sufficiency of the evidence for first degree murder,
as follows.
In order to sustain a conviction for first-degree
murder, the Commonwealth must prove that: (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. Specific intent and malice may be established
through circumstantial evidence, such as the use of a
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Commonwealth v. Arrington, 86 A.3d 831, 840 (Pa. 2014) (internal
citation omitted).
Additionally, Appellant challenges the sufficiency of the
§ 903. Criminal conspiracy
(a) Definition of conspiracy.--A person is guilty
of conspiracy with another person or persons to
commit a crime if with the intent of promoting or
facilitating its commission he:
(1) agrees with such other person or persons that
they or one or more of them will engage in conduct
which constitutes such crime or an attempt or
solicitation to commit such crime; or
(2) agrees to aid such other person or persons in
the planning or commission of such crime or of an
attempt or solicitation to commit such crime.
(e) Overt act.--No person may be convicted of
conspiracy to commit a crime unless an overt act in
pursuance of such conspiracy is alleged and proved
to have been done by him or by a person with
whom he conspired.
18 Pa.C.S.A. § 903. To sustain a criminal conspiracy conv the
agreement with another to commit or aid in the commission of a crime; 2)
he shared the criminal intent with that other person; and 3) an overt act was
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committed in furtherance Commonwealth v. Nypaver,
69 A.3d 708, 715 (Pa. Super. 2013) (citation omitted).
After careful review of the certified record, we conclude that the
Commonwealth presented sufficient evidence to sustain the convictions. In
the case sub judice, the Commonwealth presented the testimony of Gray.
Gray testified that she could not recall the events that transpired on the
night of the shooting. N.T., 7/10/12, at 112-113. As a result, the
ent to the police
statement, Gray told the police that she was only a few feet away from
Jacobs when he was killed, and that she knew who killed him. Id. at 122.
Recalling the events of July 18, 2008, Gray told the police that prior to the
Id. at 123.6 Gray
Id. at
123, 124-125. She further testified that after Jacobs fell to the ground, two
other men named Butter and Doughnut each shot Jacobs in the head and in
the chest while he was on the ground. Id. at 123-125. Gray was shown a
photo array and picked out photographs of Appellant and his co-defendants
as those who shot Jacobs. Id. at 148.
____________________________________________
6
123.
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In addition
Eleanore Sampson, who was an
N.T.,
7/11/12, at 213. Gould, who viewed the murder from his living room
window, also identified Appellant as the man who shot Jacobs. Id. at 162.
sufficiency arguments. The Commonwealth presented substantive evidence
that identified Appellant as one of the three men who shot Jacobs in the
head and in the chest, as an eyewitness was only a few feet away at the
time of the shooting. Pennsylvania courts have consistently held that this is
sufficient for a first-degree murder conviction. See Commonwealth v.
Mattison, 82 A.3d 386, 392 (Pa. 2013) (concluding sufficient evidence
eye witness testimony demonstrate[d] that [the defendant]
range while the victim was lying
between Appellant and his cohorts to kill Jacobs. See Commonwealth v.
Collins, 70 A.3d 1245, 1250 (Pa. Super. 2013) (concluding that a jury can
infer an agreement for conspiracy purposes where the defendant and a
cohort arrive and leave the crime scene together), appeal denied, 80 A.3d
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774 (Pa. 2013). As a result, Appellant is not entitled to relief on this issue.
See Diamond, supra.
weight of the evidence does not establi
- Id.
w
Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation
omitted).
evidence concedes that the evidence was sufficient to sustain the
convictions. Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013),
cert. denied, Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014). Our
granted because of a mere conflict in the testimony or because the judge on
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).
all the facts,
certain facts are so clearly of greater weight that to ignore them or to give
Id. (internal
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Id.
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).
Id. inferences disclose a
palpable abuse of discretion will the denial of a motion for a new trial based
Id. (citation omitted;
emphasis in original).
ented by the
eyewitness testimony identifying [A]ppellant as being involved in the
shooting death of [Jacobs], and the civilian witnesses that did testify before
the jury all denied inculpating [A]ppellant in any out-of-
-18.
To the extent these arguments speak to the weight of the evidence, as
opposed to its sufficiency, we conclude Appellant is not entitled to relief. As
noted above, through the use of her prior inconsistent statement to police,
evidence was admitted that Gray witnessed Appellant and his co-defendants
shoot Jacobs in the head and in the chest at close range. N.T., 7/10/12, at
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123-125. In addition, the Commonwealth presented Go
he witnessed the shooting from the view of his living room window.
Specifically, Gould stated he heard gunshots outside and went to his
person standing over [Jaco Id. at
144. In his statement to the police, Gould identified that shooter as
Id. at 144-145. Gould identified Appellant at trial as that Alonzo.
Id. at 145.
It is axiomatic that the jury is the ultimate finder of fact at trial.
[T]he veracity of a particular witness is a
question which must be answered in reliance on the
ordinary experiences of life, common knowledge of
the natural tendencies of human nature, and
observations of the character and demeanor of the
witness. As the phenomenon of lying is within the
ordinary capacity of jurors to assess, the question of
jury.
Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted).
L
and the weight of the evidence produced, is free to believe all, part or none
Commonwealth v. Feese, 79 A.3d 1101, 1122 (Pa.
Super. 2013), appeal denied, --- A.3d ---, 1035 MAL 2013 (Pa. 2014). This
includes when a witness recants a prior statement. See Commonwealth v.
Hanible
imony at
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trial recanting that statement, and free to believe all, part, or none of the
cert. denied, Hanible v. Pennsylvania, 133
S. Ct. 835 (2013). Therefore, the jury was free to believe or disbelieve Gray
cantation of their prior statements to police and credit those
original statements. See id. As an appellate court we will not reweigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation
omitted). Based on these considerations, we conclude the trial court did not
-
sentence motion arguing that the verdict was against the weight of the
evidence. See Morales, supra.
In his third issue, Appellant avers that the trial court erred when it
refused to grant a mistrial when the Commonwealth insinuated that
previous issues, we begin by stating our standard of review.
It is well-
denial of a motion for a mistrial is limited to
determining whether the trial court abused its
discretion. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the
law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-
abused. A trial court may grant a mistrial only
where the incident upon which the motion is based is
of such a nature that its unavoidable effect is to
deprive the defendant of a fair trial by preventing the
jury from weighing and rendering a true verdict. A
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mistrial is not necessary where cautionary
instructions are adequate to overcome prejudice.
Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (citation
omitted); see also Commonwealth v. Culver, 51 A.3d 866, 871 (Pa.
trial was warranted due to prosecutorial misconduct for abuse of
redirect examination of Detective
Thomas Gaul.
[Commonwealth]: Based on the information you
received -- and [defense counsel] has asked about
[Jacobs], and the information that he was actively
dealing in that same area; correct?
[Commonwealth]: Based on the information
that you received from the witnesses -- were these
three defendants also actively dealing in that area?
[Defense Counsel]: Objection.
[Trial Court]: Sustained. The jury will absolutely
disregard that last question.
direct.
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Members of the jury, you will totally disregard
the last question. It insinuated things that are not
relevant to this case. That should not be considered
by you. That should have no part in any
consideration or discussions that you have during
your deliberations.
[Defense Counsel]: Just for the record,
notwithstanding the admonition, for the record, I
question.
[Trial Court]: Denied.
N.T., 7/12/12, at 131-132, 134.
Assuming arguendo
error may be considered harmless only when the Commonwealth proves
beyond a reasonable doubt that the error could not have contributed to the
Commonwealth v. Luster, 71 A.3d 1029, 1046 (Pa. Super.
2013) (en banc) (citation omitted), appeal denied, 83 A.3d 414 (Pa. 2013).
The Commonwealth bears the burden of establishing
the harmlessness of the error. This burden is
satisfied when the Commonwealth is able to show
that: (1) the error did not prejudice the defendant or
the prejudice was de minimis; or (2) the erroneously
admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to
the erroneously admitted evidence; or (3) the
properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial
[e]ffect of the error so insignificant by comparison
that the error could not have contributed to the
verdict.
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Commonwealth v. Green, 76 A.3d 575, 582 (Pa. Super. 2013) (citation
omitted; italics added), appeal denied, 87 A.3d 318 (Pa. 2014).
In this case, the Commonwealth presented additional evidence that
Appellant sold drugs. Gray told the police in her original statement that
Appellant attempted to sell her drugs but she rejected that offer. N.T.,
7/10/12, at 122. Gould also testified via his original statement to the police
that Appellant sold drugs in the neighborhood. N.T., 7/11/12, at 163.
Furthermore, the
examination with the Commonwealth.
[Commonwealth]: Do you see Butter in the
courtroom today?
[Sampson]:
is Butter I think.
[Commonwealth]: Okay. Your Honor, for the
record identifying Alonzo Ellison by point of finger
and also by location in relation to the other
[Sampson]: Through drug activity.
[Commonwealth]: What do you mean?
[Sampson]: I would get drugs from him.
[Commonwealth]: And would you also get drugs
from him inside the projects?
[Sampson]: No. Mostly I would have him come
to my house.
Id. at 213-214.
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Based on this testimony, at a minimum, we conclude that any error
was harmless in this instance. At no point did Appellant object to the
testimony of Gray, Gould or Sampson indicating that Appellant sold drugs.
Therefore, the reference in question by the Commonwealth during Detective
ng that Appellant sold drugs was harmless because it
was de minimis
Green, supra. As a result, Appellant is not entitled to relief on this issue.
In his fourth issue, Appellant avers that the trial court erred in
overruling an objection to a factual misstatement made during the
Our standard of review for a claim of
prosecutorial misconduct is limited to whether the
trial court abused its discretion. In considering this
claim, our attention is focused on whether the
defendant was deprived of a fair trial, not a perfect
one. Not every inappropriate remark by a
prosecutor constitutes reversible error. A
ccur in a
vacuum, and we must view them in context. Even if
generally will not form the basis for a new trial
unless the comments unavoidably prejudiced the
jury and prevented a true verdict.
Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa. Super. 2012) (en
banc) (internal quotation marks and citations omitted), appeal denied, 57
A.3d 65 (Pa. 2012).
In the case sub judice, Appellant objected to the following remark by
the Commonwealth during its closing argument.
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[Commonwealth]: Also, that Worm and
[Appellant] had conversations about 9[-]millimeters.
There was a 9-millimeter there. Butter asked Worm
for his 9-millimeter. I mean these people have guns
[Defense Counsel]: Objection.
[Trial Court]: Overruled.
N.T., 7/13/12, at 96-
actually was that Worm asked him for his 9-millimeter, not the other way
around. Id.
accurate. See N.T., 7/11/12, at 231. Appellant argues that this was a
After careful review, we conclude Appellant is not entitled to relief on
this
nicknames was backwards, Appellant has not pointed to anywhere in the
record to support the notion that this singular reference was a deliberate
Id. Without
argument cannot succeed. See, e.g., Commonwealth v. Simmons, 662
A.2d 621, 639 (Pa. 1995) (concluding a new trial was not warranted where,
misquotation
cert. denied, Simmons v. Pennsylvania, 516 U.S. 1128 (1996);
Commonwealth v. Mollett, 5 A.3d 291, 311 (Pa. Super. 2010) (stating,
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g statement
constitutes reversible error only if the prosecutor deliberately attempts to
appeal denied, 14
A.3d 826 (Pa. 2011).
In addition, the trial court also carefully instructed the jury regarding
closing arguments as follows.
You should keep in mind, however, that you
evidence and yours alone that has to guide you when
you deliberate.
If there is a discrepancy between how the
lawyers remember something and how you
remember it, you should be guided by your own
recollection.
N.T., 7/13/12, at 11-12.
Commonwealth v. Roney, 79 A.3d 595, 640 (Pa. 2013)
(citation omitted). Furthermore, our Supreme Court has held that courts
may deem a prosecutorial misstatement cured by the trial court giving the
above-quoted instruction to the jury. Commonwealth v. Smith, 995 A.2d
1143, 1164 (Pa. 2010) (citation omitted), cert. denied, Smith v.
Pennsylvania, 131 S. Ct. 518 (2010). As the trial court gave such an
instruction in this case, we conclude the trial court did not abuse its
ction. See Bedford, supra.
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sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
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