Com. v. Bethea, M.

J. S69016/14 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : MONTEZ BETHEA, : No. 2967 EDA 2013 : Appellant : Appeal from the Judgment of Sentence, September 11, 2013, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0009460-2011 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 23, 2014 Appellant, Montez Bethea, appeals from his judgment of sentence entered by the Court of Common Pleas of Philadelphia following a bench trial before the Honorable Glenn B. Bronson. Appellant was convicted of two counts of first degree murder and related offenses. The trial court imposed the mandatory sentence of life in prison for each murder charge to run consecutive to one another. We affirm. Preliminarily, we must address the facially untimely filing of the notice of appeal. Post-sentence motions were filed and denied on September 20, 2013. Because the 30th day to file the notice of appeal fell on Sunday, October 20, 2013, appellant had until Monday, October 21, 2013 to file his appeal. See Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A.; 1 Pa.C.S.A. § 1908. Appellant filed his notice of appeal on October 22, 2013. J. S69016/14 On December 20, 2013, this court issued a rule to show cause why the appeal should not be quashed as untimely. On January 3, 2014, appellant’s counsel filed his response in the form of a petition to show cause why notice of appeal should be deemed timely and should not be quashed. Counsel noted the following docket entry of the Philadelphia Court Criminal Electronic Filing System: “09/23/13 Order Denying Motion for New Trial.” Counsel proceeded to electronically file his notice of appeal, via the electronic filing system, on October 22, 2013. Attached to his notice of appeal was a copy of the electronic filing system sheet which indicated the order denying motion for a new trial was filed on September 23, 2013. (Certified record, document #18.) The paper docket entry in the official record lists the order denying motion for a new trial as filed on September 20, 2013. Thus, this case presents two conflicting dockets that yield different results when the timeliness of appellant’s notice of appeal is analyzed. Pursuant to the online docket, the 30th day in which to file his appeal was October 23, 2013, and appellant’s appeal is timely. Pursuant to the paper docket, the appeal period expired on October 21, 2013, and appellant’s notice of appeal is untimely. We find that this dichotomy must be resolved in appellant’s favor. See Calabrese v. Zeager, 976 A.2d 1151, 1153 (Pa.Super. 2009) (where there was a conflict between court’s internet and paper dockets and appellants relied on errors contained in flawed docket published by county, we granted -2- J. S69016/14 equitable relief through an appeal nunc pro tunc). Therefore, we may proceed to review appellant’s appeal on the merits and will not quash it for untimeliness. The trial court opinion sets forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them here. Appellant raises the following issues for our review: I. Is the Defendant entitled to an arrest of judgment on each of two Counts of First Degree Murder where the evidence is insufficient to sustain the verdict? II. Is the Defendant entitled to a new trial on each of two Counts of First Degree Murder where the verdict is not supported by the greater weight of the evidence? Appellant’s brief at 3. After a thorough review of the record, appellant’s brief, 1 the relevant law, and the well-reasoned opinion of the trial court, we hold the sufficiency and weight arguments proffered by appellant are without merit. The trial court’s opinion carefully addresses and correctly disposes of the sufficiency and weight claims raised before it by appellant. Accordingly, we dispose of appellant’s issues on the basis of that opinion. Judgment of sentence affirmed. -3- J. S69016/14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/23/2014 1 The Commonwealth filed a brief in which it relied on the trial court’s opinion. -4- ___ ___ .__ _ _ _ __ ____ •.' __ . -1_ - - ..• ..;, - -,', - --~ - --.. '~- - ,-- .. ,...11/25/2014 .... _.-':.- -,.-._.'------ Circulated ".' , .. ,',._--_ 09:30 AM -_. - ~ - -- - - rN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVAI'-IIA CRIMINAL TRIAL DIVISION CP-S1-CR-0009460-2011 v. MONTEZ BilTIffiA 1111111111111111111111 III 709370694 1 BRONSON, J. December 6. 2013 On September 11 , 2013 , following a non-jury trial before thls Court, defendant Montez Bethea was convicted of two counts of first-degree murder (18 Pa.e.S. § 2502(a)), two counts of criminal conspiracy (18 Pa.C.S. § 903), two counts of first-degree robbery (1 8 Pa.e.S. § 3701 (a)(I)(i), one ~Ounl of carrying a fueann withoul a license (18 Pa.C.S. § 6 106(a)( I)), one count of carrying a fircann on public streets ofPhilndelph.i1l (l8 Pa.C.S. § 6108), one count of , possessing a controlled substance with intent to deliver (75 Pa.C.S. § 780-1 13(a)(30)), and one count of possessing an instrument of crime (18 Pa.C.S , § 907(a» . The Coun immediately imposed the mandatory sentence of life in prison for each murder charge, to nUl consecutive to one another (18 Pa.C.S. § 1102(a)(I». Defendant filed post-sentence motions , which the Court dellied on September 20 , 2013. Defendant has now appealed from the judgment of sentence entered by tile Court on the grounds that: l) the evidence was insufficient to support the verdict; and 2) the verdict was against the weight of the evidence. Statement of Matters Complained of Pursuant to Rule of Appellate ProcedlUe 1925(b) ("Statemenl of Errors") at ~~ 1-2. For the reasons sel forth below, Defendant's claims are without merit and the judgment of sentence should tx. affirmed. Circulated 11/25/2014 09:30 AM I. FACTUAL BACKGROUND At trial, the Commonwealth presented the testimony of Shante Smith, Lester Johnson, William Whilehouso, Patricia Guy, Darryl Rigney, Philadelphia Police Officers Charles Kapusniak. Joseph McCabe, Joseph McCauley, Stephen Ratka, Lamont Fox, Reginald Forrest, Jr., and Kenneth Long, Philadelphia Police Detectives Gregory Rodden and Micah Spotwood, Philaddphia Police Corporal Gerard Mertz, Philadelphia Police Captain James Smith. and, by stipulation. the testimony of Dr. Q-,uy Lincoln Collins and Officer Ken Weitman. Co-defendant James presented the testimony of Kuzell Bivins and Tyrik Lark. Viewed in the light most fa'r'orable to th(, Commonwealth as the verdlc1 winner, their testimony established the fOllowing. On Dcc;:mhcr 8, 2010, at approximately 11 a.m., defendant Bethea called a friend, Darryl Rigney, and asked him to accompany defendant to buy marijuana. N.T. 911 0120 13 at 115-116. Mr. Rigney said yes, and defendant drove to Mr. Rigney's house in a Crown Victoria, N.T. 9110/2013 at 116. After he arrived at Mr, Rigney's house, defendant told Mr, Rigney to drive to Mr. James' s house, because Mr. James knew people who sold marijuana. N .T. 9/10/2013 at 116. Mr. Rigney dr~ve defendant to Mr. James's house in the Crown Victoria. N.T. 911012013 at 116. When they arri:-,cd at the house, defendant got out of the car, met Mr. James at the door, and went inside for a few minutes. N.T. 9i l 012013 at 1 16-117. The two men then returned to the Crown Victoria in which Mr. Rigney was wa~ting. N.T. 9/1 0/2013 at [ 17. Once in the car, Mr. James began calling his drug supplier, Jemark Daniel. N .T. 9/1012013 at 117-120. Mr. Daniel did not answer Ihe phone. N.T. 9/10/2013 al 117. Mr. James then called a friend, Robert Williams, and told him to meet Mr. James at 171h Street and Fairmount Avenue. N .T. 9/1012013 at Il7-1I9. At that point, Mr. Daniel called Mr. James back and told him that he could come by Mr. Daniel's. apartment to buy marijuana. N.T, 9110/2013 at 2 - -.... '--.-~. Circulated 11/25/2014 09:30 AM o ') '-- 119. Mr. Rigney then drove the Ultee men to 11" Street and Fairmount Avenue, where Mr. Williams was waiting. N.T. 9110/2013 at 120. Mr. Williams had a white Cadillac with him. N.T. 911012013 at 120. Mr. James, defendant, and Mr. Rigney got into the white Cadillac, while Mr. Williams took the Crown Victoria. N.T. 9110/2013 at 120. Mr. Rigney drove the white Cadillac to 3001 Redner Street, where Mr. Daniellivcd.. N.T. 9/1012013 at 120. Mr. James and defendant got out of the car and went into Mr. Daniel's apartment. N.r. 9/10/2013 at 121· 122. Upon entering the apartment, Mr. Jomes and defendant shot and killed Mr. Daniel and his girlfriend, Palranella London, and stole his marijuana and passports from the apanment. Mr. James and defendant then Oed the apartment, running back to the Cadillac with a large black garbage bag. N.T. 911012013 at 122. As Mr. Rigney drove the car away from the apartment building, Mr. James said to Mr. Rigney, "I took his shit." N.T. 911012013 at 160. Mr. Daniel's neighbor. Lester Johnson, heard the gunshots and looked out his window. N.T. 911012013 at 10. He saw the white Cadillac speed off from Mr. Daniel's apartment. N.T. 911 0/2013 at 10. Mr. Johnson "Wrote down what he could see oflhe license plate number, which was "HP 7-27." N.T. 911 012013 at 11-14. A friend who was with Mr. Johnson called 911, and the police arrived on the scene. N.T. 9/10/2013 at 12, 40, 89. Upon entering the apnrtmcnt and seeing the bodies of Mr. Daniel and Ms. London, il was immediately apparent to police officers Ihat they were both dead. N.T. 9/1012013 al40~41. The paramedics arrived and pronounced both victims. N.T. 9/1012013 at 41. Mr. Daniel had been shot ten times: twice in the chest, twice in the stomach. four times in the left arm, once in the left thigh, and once in the right thigh. N. T. 919/2013 at 160~ 161 . Ms. London had been shot thirteen times: eight times in the back, three times in the left thigh, once in the left arm, and once in the left leg. N.T. 91912013 at 161. 3 ·... .... ~- -- .....,-.--- ~."",-_ n,"" . . ~ ..... -- ._-,-----_ ...... __ .. _ . Circulated ---,'._... ... _09:30 .-. ..,._-_._11/25/2014 _- .. -, .. ..__...AM - At the same time, Philadelphia Police Officer Charles Kapusniak and his partner, . Kenneth Long, were conducting surveillance on the 1800 block of North Judson Street, pursuant to their assignment with the Narcotics Field Unit. N.T. 9/9/2013 at 94. TIlls location was near Redner Street, where the murders had j ust occurred. At approximately 2:40 p.m., Officer Kapusniak observed a white Cadillac travel southbound on Judson Street before pulling ovCr ncar 1820 North Judson Street. N.T. 91912013 at 95. Officer Kapusniak saw Darryl Rigney exit the vehicle's driver door. while Mr. James emerged from the front passenger scat and defendant got out of the rear passenger seat. N,T. 9/9/2013 at 95-96. All three men then walked to the rear afthe Cadillac, and Mr. James removed a large trash bag from the Cadillac's tnmk. N.T, 91912013 at 96. The three men then ran into 1820 North Judson Street. N. T. 91912013 at 96. Thirty seconds after the three men ran into the house on North Judson Street, Officer KaplIsniak received a call over police radio from Philadelphia Police Lieutenant James Smith. N.T. 9/912013 at 96, 123. Lieutenant Smith informed Officcr Kapusniak that there had been a shooting at 3001 Redner Street, and that a white Cadillac containing two or three black males had been seen fleeing the scene. N. T. 9/912013 at 96, 123-125; 9/1 012013 at 16-17. Officer Kapusniak radioed for backup. infonning Lleutenant Smith that he had just seen a white Cadillac and that three black malcs had emerged from the Cadillac and run into a bouse. N.T. 9/912013 at 96·97, 199. Appro~ately one minute after be radioed for backup, Officer Kapusniak observed two men, later identified as Reginald Andrews and Maurice Morris. walk past bis vehicle. N.T. 91912013 at 97·98. Mr. Andrews and Mr. Morris approached 1820 North Judson Street, knocked on the door. and entered tbe house. NT. 91912013 at 98. Mr. James then stuck his head out of the door and looked around. N. T. 91912013 at 98. A short time later. a silver Kia sped down the 4 ._.- .-.. --_._...._- _.....,"-- _... . •- _.-.- ... --_.•._ - 11/25/2014 09:30 AM Circulated o () "- block and parked in the middle of the street in front of the house. N.T. 91912013 at 98-99. Mr. James then ran out of the house, carrying a black duffle bag. NT 91912013 at 99. He jumped into the passenger seat of the Kia and threw the duffle bag into the backseat. N. T. 91912013 at 99. The driver of the Kia, later identified as Mohammed Bey, drove down Judson Street at a high rate of ::;pe'!d and turned down Montgomery Avenue, at which point Officer Kapusniak lost sight of the vehicle. N.T. 91912013 ot 99·100,120·121. After Mr. Bey turned onto Montgomery Avenue, Officer Joseph McCabe and Officer Miles, who were backing up Officer Kapusniak, pulled over the silver Kia based on Officer Kopusniak's description ofthc car and its license plate number. NT. 9/912013 at 99-100. 163- J65 . 1 As Officer McCabe approached the passenger side of the vehicle, the passenger door popped open, and Officer McCabe smelled an extremely strong odor of marijuana emanating from the car. N .T. 9/912013 at 165. Officer McCabe opened the passenger door the rest of the way, and Mr. James, who was in the p