J-S01029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL E. MCNEIL
Appellant No. 2397 EDA 2014
Appeal from the Judgment of Sentence March 25, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006167-2012
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED MARCH 30, 2016
Appellant, Michael E. McNeil, appeals from the March 25, 2014
aggregate judgment of sentence of 8 to 24 years’ imprisonment, following
his convictions by a jury of voluntary manslaughter, carrying firearms on
public property in Philadelphia, and possession of an instrument of a crime
(PIC).1 Based upon our sua sponte review of the legality of Appellant’s
sentence, we are constrained to vacate and remand for resentencing.
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1
18 Pa.C.S.A. §§ 2504(a), 6108, and 907(a), respectively. The record
reveals Appellant was actually tried and convicted of carrying a firearm
without a license, not carrying firearms on public property in Philadelphia.
See generally 18 Pa.C.S.A. § 6106. It appears from the record the trial
court mistakenly sentenced Appellant on the basis of a conviction for
carrying firearms on public property in Philadelphia. N.T., 3/25/14, at 35-
36. At the time of sentencing neither party objected to this mistake. Id.
As we are vacating and remanding Appellant’s sentence based on the
(Footnote Continued Next Page)
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The trial court set forth the relevant factual history of this case as
follows.
On May 5, 2012, at approximately 3:00 p.m.,
[Appellant] was standing on his porch at 5639
Nelson Street talking with [Keenan] Gaskins, Aaron
Tucker (“Tucker”), Kenneth McTillman (“McTillman”),
and several others. A group of males walked up to
the porch and began arguing with them. A few
minutes later, two of the people present started
fighting, which escalated into a melee involving
everyone who had been on the porch and in the
group who walked up.
Approximately five minutes after the fight
began, Jahleel Johnson (“Johnson”) fired a single
shot into the air from a 0.38 revolver. After Johnson
fired into the air, [Appellant] began wildly firing a
0.380 automatic pistol in his direction. [Appellant]
fired three times until the gun jammed and couldn’t
fire anymore. Upon hearing the gunshots, everyone
involved in the fight scattered and ran away. Nyeem
Lewis (“Lewis”) ran towards Johnson firing a gun as
Johnson fled down the street. When the scene
cleared, Gaskins remained on the ground after
having been struck by one of [Appellant]’s bullets.
The Medical Examiner, Dr. Osbourne, testified that
the bullet had entered Gaskins’ back, gone through
his spinal cord, aorta, and lung, and exited his chest.
When Officer Czepiel arrived at the scene, he
found Gaskins face down on the pavement, lying in a
pool of blood. After hearing that the ambulance was
not going to arrive soon, Officer Czepiel directed
Tucker and McTillman to place Gaskins in the back of
his marked police car. Tucker remained in the car
with Gaskins, and Officer Czepiel drove them to the
_______________________
(Footnote Continued)
application of an illegal mandatory minimum sentence, we need not reach
this issue, but note that the trial court should correct the discrepancy at
resentencing.
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hospital. Gaskins was pronounced dead at Albert
Einstein Medical Center at 3:31 p.m.
Trial Court Opinion, 4/16/15, at 2-3.
Thereafter, on May 7, 2012, Appellant was arrested and charged in
connection with Gaskins’ death. On May 30, 2012, the Commonwealth filed
its notice of its intent to seek mandatory minimum sentences pursuant to
Section 9712 for offenses committed with firearms, and Section 9714 for
second and subsequent offenses. The case proceeded to trial and on
December 10, 2013, the jury found Appellant guilty of the aforementioned
charges. On March 25, 2014, the trial court imposed an aggregate sentence
of 8 to 24 years’ imprisonment.2 On April 1, 2014, Appellant filed a timely
post-sentence motion which was denied by the trial court on July 31, 2014.
On August 13, 2014, Appellant filed a timely notice of appeal.3
On appeal, Appellant raises the following issues for our review.
A. Whether Appellant is entitled to an arrest of
judgment as to the charge of voluntary
manslaughter, because the Commonwealth failed to
prove each element of the crime charged beyond a
reasonable doubt?
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2
Specifically, Appellant was sentenced to 6 to 20 years on the charge of
voluntary manslaughter, and a consecutive sentence of 2 to 4 years on the
VUFA charge. N.T., 3/25/14, at 36. No further penalty was imposed on the
PIC charge. Id. As noted, a five-year mandatory minimum was applied to
the voluntary manslaughter charge. Id. at 35.
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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B. Whether Appellant is entitled to an arrest of
judgment as to the charge of Violation of the
Uniformed [sic] Firearms Act, because the
Commonwealth failed to prove each element of the
crime charged beyond a reasonable doubt?
Appellant’s Brief at 6.
Our review is guided by the following. “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 as the verdict winner, support the [finder of fact] verdict
beyond a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55,
66 (Pa. 2014) (citation omitted), cert. denied, Patterson v. Pennsylvania,
135 S. Ct. 1400 (2015). “The Commonwealth can meet its burden by wholly
circumstantial evidence and any doubt about the defendant’s guilt is 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 from the
combined circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113
(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),
appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must
review “the entire record … and all evidence actually received[.]” Id.
(internal quotation marks and citation omitted). “Because evidentiary
sufficiency is a question of law, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119,
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126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,
135 S. Ct. 145 (2014).
In this case, Appellant first challenges the sufficiency of his conviction
for voluntary manslaughter which is codified as follows.
§ 2503. Voluntary manslaughter
(a) General rule.--A person who kills an individual
without lawful justification commits voluntary
manslaughter if at the time of the killing he is acting
under a sudden and intense passion resulting from
serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill,
but he negligently or accidentally causes the
death of the individual killed.
18 Pa.C.S.A. § 2503(a).
Appellant asserts the Commonwealth failed to present sufficient
evidence that the killing was in the heat of passion. Appellant’s Brief at 11.
Appellant’s four-page argument recounts his view of the trial testimony and
concludes that “not one witness testified live that Appellant was involved in
the shooting.” Id. at 14. Rather, Appellant claims the “Commonwealth’s
case is premised upon the written statements of witnesses who testified
under oath that the statements are untrue and the product of coercive
interrogation tactics.” Id. at 14. The Commonwealth counters,“[t]o the
extent that [Appellant] disregards his own statement and the statements of
his eyewitness cohorts as incredible, that assertion is unavailing on
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sufficiency review, where the credibility of the evidence is not at issue and
where all of the evidence is considered in the light most favorable to the
Commonwealth.” Commonwealth’s Brief at 8.
After careful review, we agree with the Commonwealth that the
credibility of the witnesses is not at issue when reviewing the sufficiency of
the Commonwealth’s evidence. See Commonwealth v. Melvin, 103 A.3d
1, 43 (Pa. Super. 2014) (stating, “[a]n argument regarding the credibility of
a witness’s testimony “goes to the weight of the evidence, not the
sufficiency of the evidence[]”). Rather, viewing the evidence in the light
most favorable to the Commonwealth as the verdict winner, we conclude the
record reveals sufficient evidence to convict Appellant of voluntary
manslaughter.
In its Rule 1925(a) opinion, the trial court noted the following.
At trial, the jury heard testimony from
numerous civilian witnesses, members of the
Philadelphia Police Department, and the Medical
Examiner, Dr. Osbourne. Johnson testified that he
was standing on the corner of Nelson and Woodlawn
streets, and that he fired a 0.38 revolver once in the
air after the fight broke out down the street. Tucker
testified that he had been standing on the porch at
5639 Nelson Street with [Appellant], his cousin.
After the group of males walked up to the house,
Tucker testified that he and the others began to fight
with them until gunshots rang out and everyone ran
away. Tucker further testified that he told
[Appellant] to give the police made-up names and
tell them that those made-up individuals were the
people carrying guns at the scene. Marquise
Graham-Budd, a friend of [Appellant]’s who was
present at the fight, testified that three guns, a
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revolver, a 0.380, and a Tek-9, were kept in a
bookbag on the porch at [Appellant]’s house.
The jury also heard testimony from numerous
members of the Philadelphia Police Department.
Detective Tolliver testified that he took [Appellant]’s
statement while he was at the police station after the
incident. He read [Appellant]’s own sworn statement
that [Appellant] had fired “wildly” towards Johnson
after hearing the first gunshot. In his statement,
[Appellant] also said that he had fired until his gun
jammed, and couldn’t fire anymore. Detective
Aitken testified that he took McTillman’s statement
after the incident with Detective Scally. In his sworn
statement, McTillman said that he saw [Appellant]
“running down the street shooting,” but didn’t see
the gun after the police arrived on the scene.
Trial Court Opinion, 4/16/15, at 5-6.
The trial court’s findings are supported by the record. At trial, the
Commonwealth called Aaron Tucker as a witness. Tucker testified that on
May 5, 2012, he was present when the fight between several people broke
out on the porch at his Aunt’s house. N.T., 12/3/13, at 123-124. Tucker
stated that five or six guys approached the porch where he was standing
with Appellant, the victim, and several other people. Id. at 125. Tucker
testified a fight broke out, he heard one shot, then seconds later
approximately eight shots, and everyone ran. Id. at 132-133. Tucker
further testified that Appellant was standing on the steps and was not
involved in the fight. Id. at 133.
On direct examination, the Commonwealth presented Tucker’s second
statement to police given days after the incident. Id. at 152. The
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Commonwealth read Tucker the questions and his answers from the
statement, asking Tucker to verify the information.
Q. “QUESTION: Were you completely honest [on
May 5, 2012] when you were first interviewed by the
detectives?” Do you recall being asked that
question?
A. Yes.
Q. “ANSWER: No. I was scared and I didn’t want to
tell them everything. [The victim] is like a brother to
me. [Appellant] is my cousin, my first cousin.” Did
you say that?
A. Yes.
Q. Is that true?
A. Yes.
Q. “QUESTION: What did you leave out the first
time?” Do you recall being asked that question?
A. Yes.
Q. “ANSWER: I was involved in a fight at the time.
I was fighting a boy named Hak. He was there with
some of his people. There was Jahleel and Gee.
During the fight, Jahleel pulled a gun out and fired it
in the air. The fight started to break up. That’s
when [Appellant] pulled out a gun and he started to
chase Jahleel. Twig was also chasing Jahleel, also.
Twig was running with [Appellant]. He was kind of
on the side of him. I was coming off a lady’s porch
when they were first running on Nelson Street
towards Woodlawn Street. I got off the porch and
that’s when I saw Twig laying on the ground. I ran
over to him and tried to help him. [Appellant] was
there also. Ken and Amir were there, also. There
was a lady there who was my neighbor’s nurse for
her kids. She was trying to get a pulse. The cops
came and we put Twig in the car. I went with Twig
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to the hospital. I stayed with him until they
pronounced him dead. The police took me there. I
didn’t know what to do so I lied. I told [Appellant] to
give all those fake names, Piece, Don, Rell and Kev.
They were just made up.” Do you recall giving that
answer to that question to the detectives?
A. No, I don’t.
Q. Well, what don’t you recall? Did you say that?
A. I don’t recall ever saying that [Appellant] pulled
out a gun or that I seen him running on the side with
Twig.
Q. But they got everything else right?
A. No.
Q. What else is wrong with that paragraph?
A. When he – when they said that I was coming off
the porch, that was right. But when they said that,
when they said that I seen Jahleel pulling out a gun,
I didn’t see Jahleel pull out a gun. And I was on the
porch. So how could I see him pull out a gun?
Q. Anything else wrong with that paragraph that you
didn’t say?
A. That’s it.
Q. So basically the detectives got everything correct
except the fact of [Appellant] having a gun and
chasing down the street with Twig and Jahleel having
a gun.
A. Right.
…
Q. “QUESTION: What kind of gun did [Appellant]
have?” Do you recall that question?
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A. No.
Q. “ANSWER: It was a handgun. I think it was
black.” Did you say that?
A. No.
…
Q. “QUESTION: When [Appellant] was running
toward Woodlawn, who was he shooting at?” Do you
recall being asked that question?
A. No.
Q. “ANSWER: Jahleel.” Do you recall saying that?
A. Huh? Jahleel?
Q. Yes.
A. No.
Q. You didn’t say that?
A. No.
Q. “QUESTION: How many shots did [Appellant]
fire?” Do you recall being asked that question?
A. No.
Q. “ANSWER: About four.” Do you recall saying
that?
A. No.
…
Q. “QUESTION: Detective Grebloski is showing you
a photo. Is this the [Appellant] you have referred to
in your interview?” Do you recall being asked that
and being shown a photograph of [Appellant]?
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A. No. He asked me if this is my cousin. That’s
what he asked me.
Q. Okay. But did I read that correctly what’s down
there?
A. Yes, you did.
Q. Was your answer, “Yes. That’s [Appellant].” Did
you say that?
A. Yes.
Id. at 152-164.
Most of the remaining questions Tucker was asked to verify from his
statement did not pertain to Appellant. See id. Tucker answered that he
recalled answering those questions as stated. See id. The jury was free to
weigh Tucker’s testimony against his written statement. See Hansley,
supra.
The Commonwealth also presented Kenneth McTillman as a witness,
who, like Tucker, testified that he was involved in the altercation on May 5,
2012, but that he did not see anyone with a gun or see who fired the
gunshots. N.T., 12/3/13, at 205-209. McTillman was also presented with
his statement to police, which read “I looked toward the street and saw Amir
and [Appellant] running down the street shooting.” Id. at 217. The
statement included the following.
Q. “QUESTION: Did you see [Appellant] with the gun
after the shooting?” Do you recall that question?
A. No.
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Q. “ANSWER: I seen him during the shooting but
not afterward. He was around us when the cops
came. I didn’t see what he did with the gun.” Do
you recall giving that answer to that question?
A. No.
Q. “QUESTION: Do you know what kind of gun it
was?” Do you recall being asked that question?
A. Yes.
Q. “ANSWER: It was some type of automatic.” Did
you say that?
A. No. I told him it was a revolver.
Id. at 219-220. Similar to Tucker, McTillman testified that he did not recall
giving many of the answers in his sworn statement, or that the answers
were inaccurate. Further, McTillman disputed signing or reviewing the
statement. At trial, Detective Ronald Aitken testified to taking McTillman’s
statement on May 6, 2012, as well as the accuracy of the statement. N.T.,
12/4/13, at 28.
Detective Edward Tolliver also testified for the Commonwealth.
Detective Tolliver took Appellant’s statement following the incident, which in
relevant part, encompassed the following.
“QUESTION: Tell us what happened.”
“ANSWER: There was a fight on the block. People
started shooting and the next thing I know, Keenan
laying on the street dead. While the fight was going
on, I hear a shot. I got scared and pulled my gun
out and then I started shooting.”
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…
“When you saw that male fire his gun into the air,
what did you do”
“ANSWER: I pulled my gun from my waistband and
started shooting.”
“QUESTION: How many times did you fire the gun
you had?”
“ANSWER: Three times. It jammed and I couldn’t
shoot no more.”
“QUESTION: What kind of gun did you have?”
“ANSWER: It was a .380 automatic. It’s black.
“QUESTION: Who were you shooting at when you
fired your gun?
“ANSWER: I was wildly shooting at the corner in the
direction of the man I saw shoot his gun.”
Id. at 86-88. The statement was signed by Appellant and dated May 6,
2012. Id. at 95.
Several other witnesses gave similar statements to police, although
each eye-witness recanted his statement at trial. Despite each of the
witnesses testifying at trial to a different recollection of the events than
those they gave in their sworn statements to police, the jury, as fact-finder,
was free to weigh all of the evidence and testimony. Watley, supra; see
also Commonwealth v. Brown, 52 A.3d 1139, 1171 (Pa. 2012) (holding
“the out-of-court statements of [Appellant and his co-defendants which were
recanted at trial] furnished legally sufficient evidence to sustain Appellant’s
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convictions[]”). Further, the evidence presented was sufficient for the jury
to find Appellant acted in the heat of passion in response to Johnson’s first
shot. Accordingly, Appellant’s first issue fails.
In his second issue, Appellant argues the evidence was insufficient to
convict him of carrying a firearm without a license. This crime is defined as
follows.
§ 6106. Firearms not to be carried without a
license
(a) Offense defined --
(1) Except as provided in paragraph (2), any person
who carries a firearm in any vehicle or any person
who carries a firearm concealed on or about his
person, except in his place of abode or fixed place of
business, without a valid and lawfully issued license
under this chapter commits a felony of the third
degree.
…
18 Pa.C.S.A. § 6106(a)(1).
Instantly, Appellant’s argument is approximately one-page long and
vacillates between arguing elements of carrying a firearm on public streets
in Philadelphia and carrying a firearm without a license. Appellant’s Brief at
14-15. As noted above, there was confusion at sentencing resulting in
Appellant being sentenced for the wrong VUFA offense. Nevertheless,
despite the confusion, the record reveals that sufficient evidence was
produced at trial for the jury to conclude Appellant carried a firearm without
a license. “The Commonwealth presented a certificate of nonlicensure,
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evidence marked Commonwealth’s Exhibit C-44. The certificate showed that
on May 5, 2012, [Appellant] did not have a valid license to carry a firearm.”
Trial Court Opinion, 4/16/15, at 6; N.T., 12/4/13, at 21-23. Additionally, as
noted in the previous issue, evidence was presented through eye-witness
statements to police that Appellant was in possession of a gun. N.T.,
12/3/13, at 156, 219. Therefore, Appellant’s second issue also fails.
Notwithstanding our disposition of Appellant’s issues on appeal, we are
constrained to address a legality of sentencing issue sua sponte. “[A]
challenge to the legality of the sentence can never be waived and may be
raised by this Court sua sponte.” Commonwealth v. Wolfe, 106 A.3d 800,
801 (Pa. Super. 2014), appeal granted 121 A.3d 433 (Pa. 2015). As noted,
Appellant was sentenced to a mandatory minimum pursuant to Pa.C.S.A. §
9712. In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en
banc), this Court held that Section 9712.1 was facially unconstitutional. Id.
at 102. In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014),
this Court, applying Newman’s rationale, concluded that Section 9712 is
also facially unconstitutional. Id. at 811-812. Thus, Appellant’s sentence is
illegal.
Based on the foregoing, we conclude the evidence was sufficient to
convict Appellant; however the trial court imposed an illegal sentence.
Accordingly, we vacate the trial court’s March 25, 2014 judgment of
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sentence, and remand for resentencing without consideration of the
mandatory minimum, in accordance with this memorandum.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2016
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