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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDRE TREMAINE CARRINGTON,
Appellant No. 507 WDA 2013
Appeal from the Judgment of Sentence October 11, 2012
in the Court of Common Pleas of Allegheny County
Criminal Division at Nos.: CP-02-CR-0002922-2011;
CP-02-CR-0009696-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 14, 2014
Appellant, Andre Tremaine Carrington, appeals from the judgment of
sentence entered on October 11, 2012, following his jury conviction of
murder in the first degree1 and his nolo contendere plea to person not to
possess firearms.2 For the reasons discussed below, we affirm.
At trial, Cheri Bracey testified that, on October 13, 2008, her husband,
Daniel Bracey, left home after midnight to sell CDs in the neighborhood.
(See N.T. Trial, 7/26/12, at 183-84). Approximately five minutes later, she
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2502(a).
2
18 Pa.C.S.A. § 6105(a)(1).
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heard gunshots and went outside; she saw an acquaintance, Eugene Wright,
run by her coming from the direction of the shooting. (See id. at 187-90).
She saw other people running, and two of them told her that her husband
was dead. (See id. at 188, 190-91).
Eugene Wright, a.k.a Beans, testified that he and Zack Moore were
sitting outside when Appellant, whom Wright knew as “Drizzy” approached
them, holding a gun. (Id. at 209; see id. at 207, 209-11). The victim
came up to them a few minutes later and said to Appellant that he
“look[ed]. . . ready for war.” (Id. at 213; see id. at 212-14). Appellant
then shot and killed the victim. (See id.). Appellant then looked at Wright
and said, “[a]re you cool?” (Id. at 214). Wright replied that he was cool
and left the scene. (See id.). Wright testified that he did not tell the police
about the incident until his own arrest by the FBI on an unrelated drug
matter, one year later, because he was afraid of retaliation. (See id. at
215-17). Wright stated that he had not received a lighter sentence on his
federal case and that no one had promised him anything in exchange for his
testimony against Appellant.3 (See id. at 220-21).
____________________________________________
3
We note, however, that both parties stipulated that the sentencing court in
the federal case considered Wright’s cooperation in this case, or the federal
case, or both, and the trial court here noted that the jury could consider the
stipulation as if there had been testimony to that effect. (See id. at 481-
82).
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Over the objection of defense counsel, Wright testified that, while in
Allegheny County Jail, an inmate he knew as “Baby” passed him a note that
read, “Yo, homie, this Drizzy. Man, I know you not gonna’ let these people
make you sink me. Make this shit right for me. They’re trying to give me
life. Get at me. My lawyer want to come see you. Give me the green light
if you’re cool. Respect.” (Id. at 226-27).
A little more than two weeks after the shooting, Police Officer James
Caterino observed a roof shingle sitting in a vacant lot; Officer Caterino
moved the shingle and discovered two .40 caliber Glock pistols, one
contained a magazine, the other did not. (See N.T. Trial, 7/27/12, at 268-
71). Officer Caterino turned over the weapon to Detective Patrick Kinavey,
who sent them to the Allegheny County Crime Lab for analysis. (See id. at
282-83). Firearms Expert, Thomas Morgan, testified that bullets recovered
from the victim’s body had been discharged from the Glock pistol that was
missing a magazine. (See id. at 319-20).
Allegheny County Sheriff’s Deputies located Appellant in an apartment
owned by a female resident; the apartment was a short distance from the
empty lot where Officer Caterino found the guns. (See id. at 280-81, 284-
86). The deputies searched the apartment and discovered a .40 caliber ten-
round magazine containing ten live rounds and a .40 caliber Smith & Wesson
Winchester box containing three live rounds. (See id. at 281, 286). The
recovered magazine fit the murder weapon. (See id. at 324).
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Thomas Meyers, a DNA scientist with the Allegheny County Office of
the Medical Examiner, testified that there was a “very strong association”
between Appellant’s DNA and DNA found on the murder weapon. (Id. at
386; see id. at 361-62). Meyers further testified that Appellant’s DNA
profile was consistent with the DNA found in the sample from the gun and
that the probability that another African American could be the donor was
one in one million. (See id. at 385-86).
On July 31, 2012, the jury found Appellant guilty of murder in the first
degree. On October 11, 2012, Appellant pleaded nolo contendere to persons
not to possess firearms. That same day, the court sentenced Appellant to
life in prison for murder of the first degree, and a concurrent sentence of not
less than five nor more than ten years’ incarceration for persons not to
possess firearms. Appellant filed a timely post-sentence motion on October
18, 2012, challenging the weight of the evidence. (See Post-Sentence
Motion, 10/18/12, at unnumbered page 1). The trial court denied the
motion on February 19, 2013. The instant, timely appeal followed.
On April 3, 2013, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Following the grant of several extensions of time to file the Pa.R.A.P.
1925(b) statement, Appellant filed a timely statement on January 13, 2014.
On January 30, 2014, the trial court issued an opinion. See Pa.R.A.P.
1925(a).
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On appeal, Appellant raises the following questions for our review:
I. Did the trial court abuse its discretion by admitting an
unauthenticated and highly prejudicial handwritten note to
a witness?
II. Did the trial court abuse its discretion by finding that a
guilty verdict was not against the weight of the evidence
when the unreliable testimony of the eyewitness and the
questionable DNA evidence were so untrustworthy that to
base a verdict on this evidence was manifestly
unreasonable?
(Appellant’s Brief, at 6).
Appellant first claims that the trial court erred in admitting into
evidence the handwritten note purportedly written by Appellant and sent to
Eugene Wright. (See Appellant’s Brief, at 20). Appellant argues that the
note was not properly authenticated, was irrelevant, and was highly
prejudicial. (See id. at 20-23). This Court has held that:
[w]ith regard to evidentiary challenges, it is well
established that [t]he admissibility of evidence is at the
discretion of the trial court and only a showing of an abuse of
that discretion, and resulting prejudice, constitutes reversible
error. An abuse of discretion is not merely an error of judgment,
but is rather the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown by the
evidence of record. Furthermore, if in reaching a conclusion the
trial court overrides or misapplies the law, discretion is then
abused and it is the duty of the appellate court to correct the
error.
Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citation
and internal quotation marks omitted). For a document to be admissible, it
must be authenticated and it must be relevant. See Commonwealth v.
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Brooks, 508 A.2d 316, 318 (Pa. Super. 1986). With respect to
authentication, Pennsylvania Rule of Evidence 901 provides in relevant part,
as follows:
Rule 901. Authenticating or Identifying Evidence
(a) In General. To 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.
(b) Examples. The following are examples only--not a complete
list--of evidence that satisfies the requirement:
* * *
(4) Distinctive Characteristics and the Like. The appearance,
contents, substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the
circumstances.
Pa.R.E. 901(a) and (b)(4). Further, it is long settled that a document may
be authenticated by circumstantial evidence including “information in the
contents of the writing that is known by the purported sender and the
recipient . . . [and] the appearance of the purported sender’s name or
letterhead on a document.” Brooks, supra at 320; see also
Commonwealth v. Zook, 615 A.2d 1, 10 (Pa. 1992) (citing Brooks for the
proposition that “[a] document may be authenticated by circumstantial
evidence”). Further, “[w]e note that the ultimate determination of
authenticity is for the jury. A proponent of a document need only present a
prima facie case of some evidence of genuineness in order to put the issue
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of authenticity before the factfinders.” Brooks, supra at 320 (emphasis in
original).
In the instant matter, the record reflects that both Wright and Adam
Carter, whom Wright testified gave him a handwritten note, were
incarcerated in Pod 3 of the Allegheny County Jail. (See N.T. Trial, 7/26/12,
at 223; N.T. Trial, 7/30/12, at 463-64). The note claimed to be from
“Drizzy” and both Wright and Detective Kinavey testified that this was
Appellant’s nickname. (N.T. Trial, 7/26/12, at 13-14, 209-10). Wright’s
given name was written on the outside of the note along with “Beans” which
Wright testified was his nickname. (Id. at 226-27). The note indicated that
the author was facing a possible life sentence, as was Appellant, and sought
Wright’s aid in avoiding that fate. (See id. at 227). Wright testified that he
took the note to mean Appellant was telling him not to testify. (See id.).
In Commonwealth v. Collins, 957 A.2d 237 (Pa. 2008), our
Supreme Court held that a letter authored by a prisoner was properly
authenticated where the letter was mailed from the prison where the
prisoner was incarcerated, contained the prisoner’s prison identification
number, and contained subject matter—including addressing the recipient by
his nickname—clearly indicating that the prisoner was the author. See id. at
265. We see no meaningful difference between Collins and the instant
matter. Thus, the trial court did not abuse its discretion in holding that the
Commonwealth properly authenticated the note.
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Appellant also complains that the note was irrelevant and thus should
not have been admitted. (See Appellant’s Brief, at 27-28). We disagree. It
is settled that the Commonwealth may introduce evidence of threats made
to a witness or attempts to interfere with a witness’s testimony to
demonstrate the defendant’s consciousness of guilt. See Commonwealth
v. Johnson, 838 A.2d 663, 680 (Pa. 2003), cert. denied, 543 U.S. 1008
(2004). While Appellant contends that the note neither threatened Wright
nor attempted to interfere with his testimony, (see Appellant’s Brief, at 28),
we disagree. The note clearly stated that Appellant wanted Wright to
“[m]ake this shit right for me[,]” so that he could avoid a life sentence.
(N.T. Trial, 7/26/12, at 227). This is sufficient to demonstrate the relevance
of the testimony. See Johnson, supra at 680.
Appellant also avers that the note was unduly prejudicial. (See
Appellant’s Brief, at 29-30). We disagree. As discussed above, Wright
testified that he saw Appellant shoot the victim. (See N.T. Trial, 7/26/12, at
212-14). The police found the murder weapon, and DNA evidence linked
Appellant to that weapon. (See N.T. Trial, 7/30/12, at 361-62, 385-86).
Given this, the trial court did not abuse its discretion in finding that the note
was more probative than prejudicial. See Commonwealth v. Reese, 31
A.3d 708, 727 (Pa. Super. 2011) (finding evidence of threats made to a
witness were properly admitted despite their potential prejudice).
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In his second issue, Appellant argues that the verdict was against the
weight of the evidence because Eugene Wright’s testimony was “tenuous,
self-serving, and incredible[.]” (Appellant’s Brief, at 31). Our scope and
standard of review of a weight of the evidence claim is as follows:
The finder of fact is the exclusive judge of the weight of
the evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when the figure of Justice totters on her
pedestal, or when the jury’s verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes
him to almost fall from the bench, then it is truly shocking to the
judicial conscience.
Furthermore, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on the
weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation and internal quotation marks omitted). “Thus, the trial
court’s denial of a motion for a new trial based on a weight of the evidence
claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949
A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation
omitted).
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In its Rule 1925(a) opinion, the trial court explained why it rejected
Appellant’s weight of the evidence claim. (See Trial Ct. Op., at 2-3). We
have thoroughly reviewed both the trial court’s opinion and the record in this
matter and conclude that the trial court did not commit a palpable abuse of
discretion in rejecting Appellant’s claim. Therefore, Appellant’s weight of the
evidence claim fails.
Because Appellant’s claims are lacking in merit, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2014
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