Com. v. Epps, K.

J. S27004/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KEITH EPPS, : No. 1223 EDA 2014
:
Appellant :

Appeal from the Judgment of Sentence, December 1, 2011,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0012195-2009,
CP-51-CR-0012200-2009, CP-51-CR-0012204-2009

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 24, 2015

Keith Epps appeals from the judgment of sentence of December 1,

2011, following his conviction of two counts of second-degree murder and

robbery, one count of burglary, and three counts of criminal conspiracy. 1

After careful review, we vacate two of his convictions for criminal conspiracy,

but affirm in all other respects.

The trial court has summarized the facts of this case as follows:

This matter arises out of the shooting deaths
of Rian Thal and Timothy Gilmore, the victims herein
on June 27, 2009, during a robbery inside of the
Piazza Navona apartments located in the Northern
Liberties section of Philadelphia. The evidence

* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(b), 3701, 3502, and 903, respectively.
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demonstrated [t]hat defendant orchestrated the plan
to rob the victims herein.

Rian Thal was a party promoter [and] also was
involved in the selling of powder cocaine. She was
specifically targeted because word had gotten out
that she was to receive a shipment of approximately
one half million dollars’ worth of powder cocaine,
which amounted to eleven or twelve kilos of powder
cocaine, which was being transported from Texas to
Philadelphia.[Footnote 2] The two drug couriers,
Timothy Gilmore and Edward Emerson,[Footnote 3]
transported the drugs by way of a tractor-trailer to
Philadelphia.

[Footnote 2] Rian Thal’s business
partner, Leon Woodard, was responsible
for setting up the deal with a Texas
dealer, Kevin Harks, a/k/a Big Bank
Hank, who was interested in breaking
into the Philadelphia market to sell
Mexican cocaine. Mr. Woodard is
currently serving 262 months in federal
prison for drug trafficking.

[Footnote 3] Mr. Emerson received
thirty-six months in federal prison for the
charge of drug trafficking.

On the Friday before the murders,
Leon Woodard moved the cocaine into Ms. Thal’s
apartment on the seventh floor of the Piazza
Navona. Accompanying Mr. Woodard was a man
named Vernon Williams, who Ms. Thal did not permit
into her apartment because she did not trust
him.[Footnote 4] At trial, Mr. Woodard testified at
trial [sic] that Mr. Williams left his cell phone in
Mr. Woodard’s vehicle. After the murders occurred,
Mr. Woodard saw text messages between
Mr. Williams and Antonio Wright that indicated
Mr. Woodard was being set up.[Footnote 5]
Unbeknownst to Ms. Thal or Mr. Woodard,
Mr. Williams contacted defendant about the shipment

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of cocaine and the drug money tied to its purchase
and a plan was hatched to steal it.

[Footnote 4] Mr. Williams died in a car
accident a month after the murders
occurred.

[Footnote 5] Cell phone records
confirmed that Wright sent a text
message to Mr. Williams saying,
“Yo, dawg, we need this. This is a big
one. We can’t let this one get by us.”

Defendant thereafter contacted a friend named
Katoya Jones, who lived in the building, and asked
her to help him enter the apartment in exchange for
a cut of the profits should the robbery scheme
succeed.[Footnote 6] Approximately 3:30 a.m., that
Saturday, the 27th, the day of the murders,
defendant called Ms. Jones to let him and his friend,
Robert Keith, into the building. After they entered
the building, their attempt to steal the drugs and
money failed because they broke into the wrong
apartment.

[Footnote 6] The building required both a
key and security code to enter.

Instead of taking that as a sign that the
scheme would go awry, the next afternoon, at about
2:00 p.m., defendant called Ms. Jones again to tell
her to allow a friend of his into the building within
the next hour. Defendant conspired with three men,
Donnell Murchison, Langdon Scott[Footnote 7], and
Edward Daniels to carry out the robbery. Around
3:00 p.m., that same day, Ms. Jones opened the
locked front door to the apartment building to allow
Murchison to enter. Mr. Murchison then opened the
door for Daniels and Mr. Scott. Mr. Scott was under
the impression that he was buying $4,500 worth of
powder cocaine.

[Footnote 7] Mr. Scott was permitted to
enter an open guilty [plea] to the

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charges of robbery, conspiracy, and
burglary in exchange for his testimony.

According to [Mr.] Scott’s testimony, once all
three men were in the elevator,[Footnote 8]
Murchison informed Mr. Scott that when he went to
buy the drugs from Mr. Gilmore and Ms. Thal, he and
Daniels were going to rob them. At that point,
Mr. Scott decided not to go through with the buy and
all three of them left the apartment building to
report back to defendant, who was sitting in a white
van outside of the apartment building. While
Murchison waited outside of the van, Mr. Scott and
Mr. Daniels entered the van to talk with defendant.

[Footnote 8] The three men entered the
building once before to carry out the
plan, but after Murchison learned that
Scott did not have the purchase money
on him all three men left the building so
that Scott could retrieve the money.

After Scott stated that he wanted no part of
the robbery, a friend of defendant’s,
Caesar Holloway, told him that he would take Scott
home and get a replacement, who turned out to be
Antonio Wright. Around 5:00 p.m., Daniels,
Mr. Murchison, and Wright entered the Piazza
Navona and proceeded to the seventh floor to wait
for Ms. Thal and Mr. Gilmore to return. Wright and
Daniels went to one end of the hallway while
Murchison went to the other in order to box in the
victims. Defendant called Mr. Murchison as the two
entered the apartment building.

When Ms. Thal and Mr. Gilmore exited the
elevator, Wright and his co-defendants pulled out
guns and announced a robbery. When Mr. Gilmore
resisted, Wright shot him. Murchison then shot
Ms. Thal behind the head killing her instantly. As the
three men exited the building, Murchison noticed
that Gilmore was still alive and shot him twice in the
head killing him. All of the men then entered
defendant’s van and then fled the scene without the

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money or the drugs. Police later discovered four
kilos of cocaine and over $100,000 in Ms. Thal’s
apartment.

Later that evening police identified Ms. Jones
as a person of interest because she was observed on
a surveillance video twice opening the front door of
the apartment building for Murchison. Initially,
Ms. Jones lied to police about being involved in the
incident and was freed. However, police picked her
up again once police reviewed another surveillance
video, which showed her letting Robert Keith into the
building. Upon being taken into custody, Ms. Jones
gave a statement to the detectives and later pleaded
guilty to two counts of third-degree murder, one
count of conspiracy, two counts of robbery in the
first-degree, and one count of burglary.

Police used Ms. Jones’ cell phone records and
learned that she and defendant had been in contact
with one another. After police obtained defendant’s
cell phone records, the detectives found numerous
phone calls to the individuals involved: defendant,
Scott, Murchison, Holloway, and Ms. Jones.
According to Detective Ron Dove of the Homicide
Unit, on the day of the murders, June 27th of 2009,
Holloway and defendant communicated with each
other 53 times, Williams and defendant 34 times,
Robert Keith and defendant 52 times, Ms. Jones and
defendant 29 times, Scott and defendant 11 times,
Daniels and defendant 4 times, and Murchison and
defendant thirty-six times.[Footnote 9]

[Footnote 9] The phone calls mentioned
above were obtained from Mr. Epps’
phone number, (215) 207-4472. Special
Agent William Shute of the FBI was able
to determine using cell tower sites and
video surveillance tapes, that Mr. Epps
made and received 57 phone calls while
in the Piazza Navona on the day of the
murders.

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Ballistic tests revealed that the bullets
recovered from Mr. Gilmore and Ms. Thal belonged to
the weapon used by Murchison. After police arrested
Daniels he confessed to being involved in the
incident. He also admitted shooting Gilmore multiple
times. He did not mention anyone else involved in
the murders.

During trial, surveillance tapes shown to Scott
allowed him to identify Murchison and Daniels as the
men with whom he entered the building. After
giving testimony at a preliminary hearing, Mr. Scott
was stabbed numerous times in prison.[Footnote 10]

[Footnote 10] Mr. Scott’s stabbing
occurred the day he was moved to the
cell block holding Mr. Daniels.

In addition thereto, at trial Mr. Woodard and
Ms. Jones identified defendant in a surveillance
video. Testimony from Mr. Murchison was stricken
from the record after he refused to undergo cross-
examination.[Footnote 11]

[Footnote 11] Mr. Murchison pled guilty
to two counts of first-degree murder, two
counts of robbery, and one count of
conspiracy. In return for his plea, the
Commonwealth agreed to place him in
federal custody for his safety. During his
direct testimony, the Commonwealth
read in statements he gave to detectives,
which implicated the defendant and
co-defendants as those men that took
part in the robbery-turned-murder.
(N.T. 11/18/2011, 32[,] 37-45, 47, 53,
56-57.)

Trial court opinion, 7/30/12 at 2-5.

On December 1, 2011, following a jury trial, appellant was found guilty

of two counts each of second-degree murder and robbery. Appellant was

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also found guilty of one count of burglary and three counts of criminal

conspiracy relating to the murders, robberies, and burglary. On

December 1, 2011, appellant was sentenced to consecutive life terms for

second-degree murder. Appellant received concurrent sentences on the

burglary and conspiracy charges; the robbery charges merged for sentencing

purposes. (Notes of testimony, 12/1/11 at 18-20.) This timely appeal

followed. Appellant filed a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. Rule 1925(b), 42 Pa.C.S.A., and the trial court

has filed an opinion.

Appellant has raised the following issues for our review:

I. After prosecution witness Donnell Murchison
refused to undergo full and complete cross
examination, did the Trial Court err in denying
Appellant’s motion for mistrial, and in
concluding that Appellant’s Sixth Amendment
rights were sufficiently vindicated by striking
the witness’ testimony and issuing a curative
instruction?

II. In light of Mr. Murchison’s obviously
anticipated reluctance to testify, was it error to
fail to first question the witness outside the
presence of the jury?

III. Did the Trial Court err in overruling objection
to the prosecution’s repetitive and leading
questions of Donnell Murchison to the effect
that he and his family had been threatened,
where no such threats had been connected to
Appellant?

IV. Did the Trial Court err by denying Appellant’s
motion for mistrial following prosecutorial
misconduct during the Commonwealth’s

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summation, including (a) repeated references
to the stabbing of Langdon Scott which had
been ruled inadmissible; (b) blatant
mischaracterization of the testimony of
Officer Vincent DeMayo, and (c) statements
dehors the record concerning what was
allegedly done by police with the phone
allegedly belonging to Vernon Williams?

V. Did the Trial Court err in permitting
Detective John Cummings to testify as to the
hearsay statement of Antoine Thomas, when
defense counsel had not attacked the
adequacy of the investigation by the police?

VI. Did the Trial Court violate double jeopardy
principles by sentencing Appellant on three
separate counts of criminal conspiracy, where
the Commonwealth’s proofs alleged only a
single, overarching conspiratorial agreement to
steal certain money and drugs?

Appellant’s brief at 3-4.

In his first issue for our review, appellant claims that the trial court

erred by not declaring a mistrial after Donnell Murchison refused to undergo

cross-examination. In exchange for his testimony at trial, Murchison

negotiated a plea with the Commonwealth. (Notes of testimony, 11/18/11

at 3-4.) However, Murchison was clearly a reluctant witness. While he

agreed that his prior statement to police was true, he repeatedly expressed

his reluctance to testify. Eventually, Murchison shut down and basically

refused to answer any more questions on cross-examination. (Id. at 121-

122.)

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The trial court denied appellant’s motion for mistrial but gave the jury

a curative instruction and struck Murchison’s testimony in its entirety:

A couple things, first of all, the delay was we had a
witness on the witness stand Friday and we had
difficulty getting him in today which is logistics and
we finally did get him in and you observed on Friday
the fact that he did not answer questions, the
majority of the questions. He had some difficulty
with the Commonwealth’s questions and he did not
answer a majority of Mr. Warren’s questions and as
such, he did not sit for cross-examination, so I am
striking his testimony. Now, what that means is you
have to strike him from your memory bank as if this
witness didn’t testify. The fact that he testified to
giving a statement, you strike that out. The fact that
he testified to certain portions of that statement or
the majority of the statement or the whole
statement, you strike it out. You are not to consider
that when you go back to deliberate. You are not to
consider anything about him. The witness’ testimony
has been stricken and I can’t emphasize that
enough. It is something that under the law,
someone has to sit for cross-examination and I have
made the determination this witness will not sit for
cross-examination and as such, the testimony, it is
as if it never happened. Just put it right out of your
minds and we will move on from there.

Notes of testimony, 11/21/11 at 24-26.

With regard to the denial of mistrials, the following
standards govern our review:

In criminal trials, the declaration of a
mistrial serves to eliminate the negative
effect wrought upon a defendant when
prejudicial elements are injected into the
case or otherwise discovered at trial. By
nullifying the tainted process of the
former trial and allowing a new trial to
convene, declaration of a mistrial serves
not only the defendant’s interests but,

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equally important, the public’s interest in
fair trials designed to end in just
judgments. Accordingly, the trial court is
vested with discretion to grant a mistrial
whenever the alleged prejudicial event
may reasonably be said to deprive the
defendant of a fair and impartial trial. In
making its determination, the court must
discern whether misconduct or
prejudicial error actually occurred, and if
so, . . . assess the degree of any
resulting prejudice. Our review of the
resulting order is constrained to
determining whether the court abused its
discretion.

Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super. 2012),

appeal denied, 69 A.3d 600 (Pa. 2013) (citations omitted). “The remedy

of a mistrial is an extreme remedy required ‘only when an incident is of such

a nature that its unavoidable effect is to deprive the appellant of a fair and

impartial tribunal.’” Id. at 878 (citations omitted).

“In conducting a criminal trial, the court must protect the rights of the

accused under the Sixth Amendment, including the right ‘to be confronted

with witnesses against him.’” United States v. Morgan, 757 F.2d 1074,

1076 (10th Cir. 1985). “[T]he defendant must be provided with an adequate

opportunity to fully and fairly cross-examine the witnesses against him.”

Id., citing California v. Green, 399 U.S. 149 (1970). “[T]he right of

confrontation includes the right of the accused to use cross-examination to

present a defense to the charges against him.” Morgan, 757 F.2d at 1076

(citation omitted).

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In this case, Murchison refused to be cross-examined so the trial court

struck his testimony, in its entirety, and cautioned the jury. This was well

within the trial court’s discretion. See id. at 1077, citing United States v.

Nunez, 668 F.2d 1116, 1121 (10th Cir. 1981) (“The usual remedy when a

government witness invokes the Fifth Amendment on cross-examination on

matters to which the witness testifies on direct examination is to strike the

witness’ direct testimony.”). See also United States v. McGlory, 968 F.2d

309, 344 (3d Cir. 1992), cert. denied, 507 U.S. 962 (1993) (“Courts often

prevent an emasculation of the confrontation right by striking the testimony

of a non-respondent witness. Use of this remedy lies within the district

court’s discretion.”) (citations omitted). When the trial court provides

cautionary instructions to the jury in the event the defense raises a motion

for mistrial, “[t]he law presumes that the jury will follow the instructions of

the court.” Commonwealth v. Brown, 786 A.2d 961, 971 (Pa. 2001)

(citation omitted), cert. denied, 537 U.S. 1187 (2003).

Furthermore, we agree with the trial court that there was ample

evidence introduced by the Commonwealth, apart from Murchison’s stricken

testimony, that established appellant’s participation in the crimes, including

evidence of numerous telephone calls between appellant and other members

of the conspiracy. (Trial court opinion, 7/30/12 at 9.) Therefore, the trial

court did not abuse its discretion in denying appellant’s motion for mistrial

and instead striking Murchison’s testimony and giving a curative instruction

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to the jury. McGlory, 968 F.2d at 344 (“Prejudicial testimony will not

mandate a mistrial when there is other significant evidence of guilt which

reduces the likelihood that the otherwise improper testimony had a

substantial impact upon the verdict of the jury.”), quoting United States v.

Rodriquez-Arevalo, 734 F.2d 612, 615 (11th Cir. 1984).

We also note that Murchison was not a co-defendant. Therefore,

Bruton v. United States, 391 U.S. 123 (1968), upon which appellant

relies, is inapposite. Bruton involved the admission of a co-defendant’s

confession that also implicated the non-testifying defendant.

In his second issue on appeal, appellant claims that the trial court

erred when it did not conduct an in camera examination of Murchison prior

to his taking the stand and subsequent refusal to testify. The

Commonwealth called Murchison to testify against appellant and his two

co-defendants, Wright and Daniels. (Notes of testimony, 11/18/11 at 2.)

Throughout direct examination and even more so through

cross-examination, Murchison indicated that he refused to testify, invoking

his Fifth Amendment privileges against self-incrimination. During

cross-examination, the trial court excused Murchison from the witness stand,

and provided a curative instruction to the jury. (See notes of testimony,

11/21/11 at 24-26.)

Our supreme court has stated that “it is prejudicial error for a

prosecutor to summon a witness to the stand in a criminal trial with

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foreknowledge that the witness intends to invoke a privilege against

self-incrimination.” Commonwealth v. DuVal, 307 A.2d 229, 231-232 (Pa.

1973) (emphasis added). When a court is determining whether or not

prosecutorial misconduct took place, the credibility determinations of the

fact-finder are binding on an appellate court. Commonwealth v. White,

734 A.2d 374, 381 (Pa. 1999) (stating that in the past, our supreme court

has held that there is no justification for appellate courts to review a fact

finder’s first-hand credibility determination relying “solely upon a cold

record”).

In the instant case, the trial court held a hearing to determine if the

Commonwealth called Murchison to the stand with the prior knowledge that

he was intending to invoke his Fifth Amendment privileges. At the

conclusion of the hearing, the trial court made the following determination

as to the Commonwealth’s credibility:

As to credibility, I believe Mr. Vega[2] when he
says he did not put the witness up knowing that he
was going to clam up on cross-examination and be
the reluctant witness which he was on the witness
stand.

Based on the argument I heard, based on my
observation of Mr. Murchison and the agreement
between the Commonwealth and the witness,
Mr. Murchison, the motion for mistrial is denied.

Notes of testimony, 11/23/11 at 164.

2
Philadelphia County Assistant District Attorney Carlos Vega, Esq.

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In his third issue for our review, appellant claims that the trial court

erred by failing to sustain defense counsel’s objections to the

Commonwealth’s leading questions during Murchison’s direct examination.

As we just discussed, Murchison’s testimony was stricken in its entirety and

the jury is presumed to follow the instructions of the court. Moreover, as we

also just noted, the remaining evidence against appellant was overwhelming.

We see no prejudice to appellant on this issue, and we find no error by the

trial court.

For his fourth issue, appellant claims that the trial court erred when it

denied appellant’s motion for a mistrial for prosecutorial misconduct during

the Commonwealth’s summation. When reviewing a claim of prosecutorial

misconduct, we use the following standard of review:

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
prosecutor’s statements to a jury do not occur in a
vacuum, and we must view them in context. Even if
the prosecutor’s arguments are improper, they
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); appeal denied, 57 A.3d 65 (Pa. 2012) (citations omitted). See

also Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005)

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(prosecutorial misconduct does not occur unless the jurors form a fixed bias

and hostility toward the defendant based on the prosecutor’s comments).

When specifically considering a prosecutor’s comments to a jury during

closing arguments, this court has stated, “It is well settled that a prosecutor

has considerable latitude during closing arguments and his arguments are

fair if they are supported by the evidence or use inferences that can

reasonably be derived from the evidence.” Commonwealth v. Caldwell,

117 A.3d 763, 774 (Pa.Super. 2015) (en banc) (citations omitted). This

court further stated that any taint from a prosecutor’s improper statements

may be cured by a curative instruction to the jury, and that courts are

compelled to consider “all surrounding circumstances before finding that

curative instructions [are] insufficient and the extreme remedy of a mistrial

is required.” Id. (citations omitted). A jury is presumed to have followed

any instructions provided by the trial court. Commonwealth v. Elliott, 80

A.3d 415, 445 (Pa. 2013), citing Commonwealth v. DeJesus, 860 A.2d

102, 111 (Pa. 2004).

Appellant alleges that the Commonwealth engaged in misconduct on

three occasions during closing arguments: referencing the stabbing of

Langdon Scott, mischaracterization of Officer DeMayo’s testimony, and

statements about the handling of the cell phone allegedly belonging to

Vernon Williams. (See appellant’s brief at 48-52.) Specifically, on all three

occasions defense counsel objected, indicating that the Commonwealth had

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alluded to facts that were either “not testified to,” or facts for which “there

was no evidence.” (Notes of testimony, 11/29/11 at 158-159, 169, 176-

177.) The trial court overruled all three objections, stating that the jury’s

recollection controls. (Id.) For the purposes of our review, we shall address

the allegations separately.

First, defense counsel objected during the Commonwealth’s closing

argument when the prosecutor made references to the stabbing of Langdon

Scott. (Id. at 174.) Specifically, the Commonwealth alluded to “courage”

shown by Scott through his testimony after allegedly being stabbed. (Id. at

174.) After considering defense counsel’s objection, the trial court offered a

curative instruction to the jury clarifying that “[t]here was no evidence

presented that any of these three Defendants had any involvement at all in

that stabbing and [the jury] must not draw an inference from the argument

that they did.” (Id. at 181.)

We find that this statement did not have any prejudicial effect on the

jury that would warrant granting defense counsel’s motion for a mistrial.

During closing arguments, the Commonwealth only made reference to the

allegation that Scott was stabbed,3 but at no point did the prosecutor, either

directly or indirectly, intimate that appellant was responsible. Moreover, the

trial court provided the jury with a curative instruction, telling them to

3
The trial court refused to allow testimony regarding Scott being the victim
of a stabbing due to lack of evidence. (Notes of testimony, 11/16/11 at
105.)

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disregard any references to Scott’s stabbing. Since the jury is presumed to

have followed the trial court’s instruction, appellant has not demonstrated

how he was prejudiced by the Commonwealth’s reference to Scott’s stabbing

during closing arguments.

Second, appellant objected to the Commonwealth’s references to

Officer DeMayo’s testimony. Specifically, appellant alleges that the

Commonwealth blatantly misstated Officer DeMayo’s testimony in regards to

where keys to Thal’s apartment were located. (Appellant’s brief at 50.) At

the time Officer DeMayo’s testimony was referenced during closing

arguments, defense counsel’s objection was overruled by the trial court.

(Notes of testimony, 11/29/11 at 159.) Third, defense counsel raised an

objection during closing arguments to the Commonwealth’s statements

regarding the police’s processing of the cell phone that was brought to police

by Woodward’s wife, which was overruled by the trial court. (Appellant’s

brief at 51; notes of testimony, 11/29/11 at 169.) The trial court reiterated

its rulings on defense counsel’s objections the following day prior to final

jury instructions, stating that while defense counsel had made an objection

for the record, the Commonwealth’s statements were a matter of argument

and not evidence, therefore the jury’s recollection is “what counts.” (Notes

of testimony, 11/30/11 at 12.)

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We therefore find that appellant does not demonstrate that the jury

formed a fixed bias or prejudice toward him as contemplated by our

supreme court in Robinson.

In his fifth issue for our review, appellant claims that the trial court

erred by allowing Detective John Cummings to testify as to hearsay

statements from Antoine Thomas.4 Specifically, Detective Cummings

testified regarding an interview that the police conducted with Thomas on

July 17, 2009.

Hearsay is defined as an out-of-court statement made for the truth of

the matter asserted. Pa.R.E. 801(c). Our supreme court has stated that

certain statements, which would otherwise be subject to the rule against

hearsay,5 are admissible if the statements are not offered for the truth of the

matter asserted, but rather are admitted to explain a course of police

conduct. Commonwealth v. Jones, 658 A.2d 746, 751 (Pa. 1995)

(citations omitted), see also Commonwealth v. Chmiel, 889 A.2d 501,

532-533 (Pa. 2005) (requiring the trial court to balance the

Commonwealth’s need for the statements and any prejudice arising from the

statements while exercising discretion regarding their admission),

cert denied, 549 U.S. 848 (2006). Our supreme court cautions, however,

4
Antoine Thomas was the person who appeared on the surveillance tape at
the Piazza Navona that defense counsel referenced during opening
statements. (See Notes of testimony, 11/15/11 at 198.)
5
See Pa.R.E. 802.

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that not every out-of-court statement describing police conduct is

admissible; statements that could be considered by a jury to be substantive

evidence of a defendant’s guilt could be inadmissible. Commonwealth v.

Palsa, 555 A.2d 808, 810 (Pa. 1989); see also Commonwealth v.

Mosley, 114 A.3d 1072, 1078-1079 (Pa.Super. 2015).

Appellant claims that as a result of the trial court allowing

Detective Cummings to testify regarding statements made by Thomas,

appellant’s cross-examination rights were “destroyed,” and that the

statements were highly prejudicial. (Appellant’s brief at 56.) These claims

are without merit because defense counsel, in his opening statement at trial,

called police investigative tactics into question, claiming that the police had

failed to fully investigate everyone who appeared on surveillance tapes at

the time of the incident. (Notes of testimony, 11/14/11 at 66-67.)

This assertion opened the door for Detective Cummings’s testimony

regarding the police’s investigation. Specifically, Detective Cummings

testified that Thomas, the man in the blue hoodie to whom defense counsel

had alluded in opening statements, had been interviewed by the police, and

the police determined that he was not involved in the deaths of Thal and

Gilmore. (Notes of testimony, 11/15/11 at 198, 202.) Therefore, we find

that Detective Cummings’s testimony regarding Thomas’ statements were

not introduced for the truth of the matter asserted; rather, they were

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introduced to establish police conduct, which is not subject to the rule

against hearsay.

Finally, in his sixth issue, appellant argues that he could not be

convicted and sentenced on three separate counts of criminal conspiracy

where the Commonwealth only proved a single, overarching conspiratorial

agreement. The Commonwealth concedes the point and agrees that two of

the convictions for criminal conspiracy must be vacated. (Commonwealth’s

brief at 34-35.)

“A claim that the trial court imposed an illegal sentence by failing to

merge sentences is a question of law. Accordingly, our standard of review is

plenary.” Commonwealth v. Snyder, 870 A.2d 336, 349 (Pa.Super.

2005), quoting Duffy, 832 A.2d 1132, 1137 (Pa.Super. 2003).

Our Courts have long held that where a defendant
commits multiple distinct criminal acts, concepts of
merger do not apply. Commonwealth v.
Anderson, 650 A.2d 20 (Pa. 1994);
[Commonwealth v. Johnson, 874 A.2d 66, 70
(Pa.Super 2005), appeal denied, 899 A.2d 1122
(Pa. 2006)]; see also 42 Pa.C.S.A. § 9765 (“no
crimes shall merge for sentencing purposes unless
the crimes arise from a single criminal act and all
of the statutory elements of one offense are included
in the statutory elements of the other offense.”)

Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa.Super. 2007)

(en banc) (emphasis in original). See also Commonwealth v. Gatling,

807 A.2d 890, 899 (Pa. 2002) (plurality) (“The preliminary consideration is

whether the facts on which both offenses are charged constitute one solitary

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criminal act. If the offenses stem from two different criminal acts, merger

analysis is not required. If, however, the event constitutes a single criminal

act, a court must then determine whether or not the two convictions should

merge.”).

In determining whether a single conspiracy or
multiple conspiracies have been established, we
must consider several relevant factors: The factors
most commonly considered in a totality of the
circumstances analysis of the single vs. multiple
conspiracies issue . . . are: the number of overt acts
in common; the overlap of personnel; the time
period during which the alleged acts took place; the
similarity in methods of operation; the locations in
which the alleged acts took place; the extent to
which the purported conspiracies share a common
objective; and, the degree to which interdependence
is needed for the overall operation to succeed.

Commonwealth v. Barnes, 871 A.2d 812, 820 (Pa.Super. 2005),

affirmed, 924 A.2d 1202 (Pa. 2007) (citations omitted).

Appellant was convicted of three counts of conspiracy: one for his

attempted robbery at 3:30 a.m. on May 27 in which appellant and Keith

broke in to the wrong apartment, and two separate conspiracies for robbing

Thal and Gilmore of drugs and money during which both victims were shot

and killed. The Commonwealth concedes that all three acts were part of one

overarching conspiracy, therefore, based on this concession, we vacate two

of the conspiracy convictions.6 Since appellant received concurrent

6
The Commonwealth made this same concession as to co-defendants
Daniels and Wright. In resolving those appeals, we also vacated one of the
conspiracy convictions related to the Thal and Gilmore killings.

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sentences for the conspiracy convictions, the trial court’s overall sentencing

scheme remains intact and we will not remand for re-sentencing. Appellant

is serving two consecutive life sentences for murder.

Appellant’s convictions of criminal conspiracy at Nos. CR-0012200-

2009 and CR-0012195-2009 are vacated. Judgment of sentence affirmed on

all other counts. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/24/2015

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