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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JASON GARDNER
Appellant No. 196 MDA 2015
Appeal from the Judgment of Sentence September 19, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000410-2013
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED APRIL 11, 2016
Jason Gardner appeals from the judgment of sentence imposed on
September 19, 2014, in the Court of Common Pleas of Lycoming County.
On that same day, a jury convicted Gardner of second-degree murder,
robbery, conspiracy to commit robbery, and flight to avoid apprehension,
trial, or punishment.1 The court sentenced Gardner to life imprisonment
without the possibility of parole. On appeal, Gardner raises sufficiency,
weight, evidentiary, and suppression issues. For the reasons below, we
affirm on the basis of the trial court’s opinions.
Gardner’s convictions stem from the January 9, 2013, fatal shooting of
the victim, Terrell Henderson-Littles, in an alley in Williamsport,
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1
18 Pa.C.S. §§ 2502(b), 3701(a)(1)(ii), 903(a), and 5126(a), respectively.
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Pennsylvania. In its opinion, the trial court fully and correctly sets forth the
relevant facts and procedural history of this case. See Trial Court Opinion,
3/25/2015, at 1-12. Therefore, we have no reason to restate them herein.
Gardner presents the following six issues for our review:
1. Whether the trial court erred in finding that the
Commonwealth presented sufficient evidence of robbery,
conspiracy to commit robbery and murder in the second
degree when there was no evidence of a taking required for
the robbery?
2. Whether the court erred in upholding the verdicts when the
weight of the evidence was against the verdict?
3. Whether the court erred in precluding evidence of a
Commonwealth witness’s prior use and possession of a
firearm when the witness was a co-defendant in a murder
case?
4. Whether the trial court erred in permitting the Commonwealth
to play recorded telephone conversations between [Gardner]
and a third party when there was no probative value to those
calls?
5. Whether the court erred in permitting the Commonwealth to
use a visual aid during its closing that was not supported by
the evidence nor was it ever admitted as an exhibit?
6. Whether the court erred in failing to grant a motion to
suppress statements when there was no continuation of
interrogation as a result of being transported from Easton to
Williamsport, [Pennsylvania]?
Gardner’s Brief at 4-5.
After a thorough review of the record, the briefs of the parties, the
applicable law and standard of review, and the well-reasoned opinions of the
Honorable Nancy L. Butts, we conclude Gardner’s issues merit no relief.
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With respect to issues one, two, three, and four, the trial court’s Pa.R.A.P.
1925(a) opinion comprehensively discusses and properly disposes of these
questions. See Trial Court Opinion, 3/25/2015, at 13-21 (finding: (1) there
was sufficient evidence to convict Gardner of robbery, second-degree
murder, and conspiracy where the evidence established Gardner was
brought to Williamsport to rob people, he asked permission to rob the
victim, he pulled out a gun and shot the victim, the victim died as a result of
the gunshot, and he told a third-party that he took about three bags of
marijuana from the victim;2 (2) the verdict was not against the weight of the
evidence and did not shock the trial court’s conscience 3 where (a) Gardner’s
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2
We note that Gardner included in his sufficiency argument two claims
regarding the preliminary hearing. He asserts: (1) there was no evidence
of taking presented at the preliminary hearing to support the prima facie
case of robbery and (2) the Commonwealth’s use of Shabazz’s statement
violated Bruton v. United States, 391 U.S. 123 (1968). See Gardner’s
Brief at 12, 15. “[I]t is well-settled that errors at a preliminary hearing
regarding the sufficiency of the evidence are considered harmless if the
defendant is found guilty at trial.” Commonwealth v. Ricker, 120 A.3d
349, 353 (Pa. Super. 2015). Therefore, we need not address these claims
further.
Nevertheless, we note the trial court addressed Gardner’s challenge to
a prima facie case of robbery in its September 30, 2013, opinion. See Trial
Court Opinion, 9/30/2013, at 7-9. Moreover, with respect to Shabazz’s
statement, Gardner concedes there was no joint trial in the present matter
and therefore, Bruton does not apply. See Gardner’s Brief at 15.
3
With respect to weight claims, our standard of review is well-settled:
“[A]n appellate court does not substitute its judgment for the finder of fact
and consider the underlying question of whether the verdict is against the
weight of the evidence, but, rather, determines only whether the trial court
(Footnote Continued Next Page)
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cohort, Mirad Shabazz, testified that he gave Gardner permission to rob the
victim, and Gardner said it was “a go” and pulled out a gun, (b) a jailhouse
informant, Gage Michael Wood, stated that Gardner admitted he came to
Williamsport to rob people and “shot the kid in the face” after the victim did
not surrender his drugs, and (c) the jury received a corrupt and polluted
source instruction regarding Shabazz and was aware of Wood’s motive in
testifying and received a cautionary instruction regarding the matter; (3)
evidence regarding Shabazz and his prior use and possession of firearms
(including an arrest in Easton, Pennsylvania while seen carrying a rifle and
an outstanding weapons charge in New Jersey) was properly precluded
because it was offered only to show that Shabazz had a propensity for
violence and carrying weapons, which violated Pa.R.E. 404(b)(1); and (4)
evidence of Gardner’s recorded prison phone conversations regarding a
“Bishop” was properly admitted as probative because Gardner’s associate,
Isaiah Fulton, testified that they called Gardner’s gun a “Bishop,” Gardner
stated a “Bishop” was brought up with them on their trip to Williamsport,
and Gardner had denied knowledge of a gun so that evidence of him talking
about the gun would refute his lack of knowledge).
_______________________
(Footnote Continued)
abused its discretion in making its determination.” Commonwealth v.
Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, 134 S. Ct. 1792 (U.S.
2014)
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With respect to Gardner’s fifth issue, we note the following regarding
the Commonwealth’s use of a non-admitted visual aid during closing
argument:
“Visual aids may be used to assist the jury in understanding the
evidence in appropriate cases, and permission to do so is within
the sound discretion of the trial judge.” Commonwealth v.
Pelzer, 531 Pa. 235, 245, 612 A.2d 407, 412 (1992). This rule
applies equally to demonstrative aids used during the actual trial
phase and during the parties’ opening and closing arguments.
Moreover, it is well-settled that, during closing arguments, a
prosecutor must be given reasonable latitude to present the
Commonwealth’s theory of the case provided that the evidence
and the inferences derived therefrom reasonably support such a
scenario. See, e.g., Commonwealth v. Persichini, 444 Pa.
Super. 110, 125, 663 A.2d 699, 706 (1995).
Commonwealth v. Rickabaugh, 706 A.2d 826, 837 (Pa. Super. 1997),
appeal denied, 736 A.2d 603 (Pa. 1999).
Here, the prosecutor explained his use for the aid: “But I wanted to
state that Mirad Shabazz in his testimony indicates that at the time of the
shooting Gardner was standing in direct front of him in a south direction and
that the victim was to his left.” N.T., 9/18/2014, at 184.
The following exchange then occurred:
THE COURT: So [the prosecutor’s] choosing to focus on one
item of testimony rather than another.
[Defense counsel]: Fine. But, Your Honor, again, my
objection --
THE COURT: Yeah.
[Defense counsel]: You have my objection.
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THE COURT: I do. And, again, [the prosecutor’s] going to couch
this as it’s not labeled as an exhibit. It’s something that’s --
ladies and gentleman, you know, I’ve put this together based
upon my recollection of the testimony. You know, you heard the
judge ad nauseam say it’s your recollection that controls. But I
remember that when Mirad Shabazz testified this is where he
had everybody placed.
[Defense counsel]: See, my recollection is different than that.
And, again, it’s obviously the jury. But okay.
THE COURT: Yeah. And I think that’s where we’re dealing with
it, you know.
Id. at 184-185.
As pointed out by the trial court, Shabazz did testify that Gardner was
in front of him at the time the gun went off and the victim was to the left of
him. N.T., 9/15/2014, at 109.
During closing arguments, the prosecutor stated:
But we know based upon where the body fell dead standing that
there was movement and we know the way the bullet was
passing through his head from left to right, front to back, and
up, his feet where he stands left to right, front to back, and up,
that the bullet passes through Terrell Littles’ head and up
through that drip edge and up into the sky. Colton Engel[, a
friend of the victim,] doesn’t see it because he can’t see what’s
happening over here, but he does see Mirad Shabazz who is
raising his hand in this direction, raising his hands maybe
because he’s surprised at what the heck is going on over here
between these two. Maybe because things are getting out of
hand with the robbery. We don’t know, but Mirad Shabazz takes
the stand and says when that gun goes off Jason Gardner is in
front of me, Terrell Littles is to my left. And when he says that it
clicks with the Commonwealth because we say well, that’s what
our physical evidence shows. That is exactly what our physical
evidence shows.
N.T., 9/19/2014, at 29-30.
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In its opinion, the court found it did not err in permitting the
Commonwealth to use a visual aid during closing arguments because the aid
was supported by Shabazz’s testimony as to where Gardner and the victim
were standing in relation to him. See Trial Court Opinion, 3/25/2015, at 19-
20.
Given the foregoing, particularly that a prosecutor must be given
reasonable latitude to present the Commonwealth’s theory of the case
during closing arguments, and based upon our review of the record, in which
there were many individuals present at the shooting and the Commonwealth
was using the aid to show where the actors were located, we conclude the
trial court did not abuse its discretion in permitting the Commonwealth’s use
of the visual aid.
With respect to Gardner’s remaining claim, his sixth, the trial court
correctly addressed the issue in its September 30, 2013, opinion and order.4
In denying the motion to suppress, the trial court noted Gardner was
interviewed by the same officer that provided him with the earlier Miranda5
warnings, the second interview occurred approximately two and a half hours
after the warnings were initially given, and the interviews occurred in
different locations. See Trial Court Opinion, at 9/30/2013, at 5. The court
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4
The court incorporated its analysis from the September 30, 2013, opinion
in its Rule 1925(a) opinion. See Trial Court Opinion, 3/25/2015, at 13.
5
Miranda v. Arizona, 384 U.S. 436 (1966).
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found that while the different locations of the interviews supported Gardner’s
position that he should have been re-advised of his rights, that was
mitigated by fact that the officers advised Gardner prior to the trip back to
Williamsport and during the first interview that they would continue to talk in
the police vehicle. Id. The court concluded that because it was the same
officer conducting both interviews and there was a short amount of time
between the inquiries, these factors further supported the determination that
the police were not required to re-advise Gardner of his rights. Id. at 5-6.
Moreover, the court indicated that in his first statement, Gardner averred he
and Shabazz went straight to their friend’s apartment and did not see the
victim or a shooting. See Trial Court Opinion, at 9/30/2013, at 6. In the
second statement, he said that he and Shabazz were at the scene of the
shooting. Id. The court emphasized that while these statements were
different, Gardner merely acknowledged he was at the scene, but did not
admit that he was involved in the shooting in any way. Id. Therefore, the
court found that these two statements were not substantively different. Id.
As such, the court concluded that based on the facts of the case, the police
did not have to re-inform Gardner of his Miranda rights before talking to
him in the police vehicle. Id.
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We conclude that the trial court’s opinions properly dispose of the
issues in this case. Accordingly, we affirm on the basis of those opinions
with respect to Gardner’s numerous claims,6 with one additional comment.
At several points in Gardner’s brief, Gardner alleges the only credible
evidence is his own testimony, which he claims is more reliable than that of
the other witnesses. We emphasize that “the fact-finder is free to believe
all, part, or none of the evidence, and credibility determinations rest solely
within the purview of the fact-finder.” Commonwealth v. Flor, 998 A.2d
606, 626 (Pa. 2010). It follows from the above principle that the jury was
not required to believe Gardner’s testimony and that it could rely on the
testimony from the other witnesses, which implicated Gardner as the
shooter.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2016
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6
We note Gardner raised additional claims with the trial court, which it
analyzed in its opinions, that are currently not before us on direct appeal.
Accordingly, we need not address those claims further.
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