J-A01042-16
2016 PA Super 144
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ZACHARY T. WILSON
Appellant No. 2314 EDA 2014
Appeal from the Judgment of Sentence April 1, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0929501-1986
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
OPINION BY LAZARUS, J.: FILED JULY 06, 2016
Zachary T. Wilson appeals from the judgment of sentence entered in
the Court of Common Pleas of Philadelphia County after a jury convicted him
of first-degree murder1 and possession of an instrument of crime (PIC).2
Upon careful review, we affirm.
This case arises out of the 1978 murder of Wilson’s adopted brother,
Ronnie Williams, also known as “Jock.”3 Wilson believed that the victim in
this case, Jamie Lamb, was responsible for Williams’ death and, according to
a witness named Michael Patterson, vowed that he would “get with Jamie,”
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1
18 Pa.C.S.A. § 2502.
2
18 Pa.C.S.A. § 907.
3
Williams is at times referred to as Wilson’s cousin.
*Former Justice specially assigned to the Superior Court.
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regardless of how long it took. The trial court set forth the facts of Lamb’s
murder as follows:
On August 3, 1981, at approximately 1:00 p[.]m[.], Patterson
went to Gainer’s Tire Shop located at Fox Street and Lippincott
Street in North Philadelphia. There, outside the shop, were
[Wilson], Rodney Wells, and Ford Howard. While this group was
together, Lamb, Kenny Mozelle, Jeffrey Rahming, “Peanut,”
[whose name was never revealed,] and Carl Rowland walked
past. Lamb was heading to Sweet Joy Lounge, where his
younger sister worked, at the corner of 24th Street and Allegheny
Street in North Philadelphia. As he passed, Lamb smiled at
[Wilson], who appeared angry in response. Shortly after Lamb
left, [Wilson], Howard and Wells all left the Tire Shop, walking in
the same direction that Lamb had gone. [Wilson] was wearing a
dark “apple jack” style hat.
Minutes later, Lamb was in the back of the Sweet Joy Lounge.
[Wilson] entered the lounge, walked into the rear section, and
shot Lamb five times. [Wilson] then attempted to flee the
lounge, but tripped over Edward Jackson, one of the patrons who
had fallen to the floor when the shooting started. Jackson was
able to view [Wilson’s] face before [Wilson] stood up and ran out
of the building. Upon exiting, [Wilson] ran into a Cadillac, which
sped away from the scene and failed to stop at a red light. Wells
owned a Cadillac Eldorado at the time of the shooting.
At approximately 1:15 p.m., Patterson saw Rowland running
down the street, yelling “[c]ome on, y’all, come on, come on,”
and that “[t]he little short guy just killed Jamie, they just passed
us down there by the car.” Rowland further stated that “the
little short guy” had just been with Howard and Wells.
A few days after Lamb’s death, Patterson was on the phone with
[Wilson] when Patterson stated, “Turtle says you killed Jamie.”
[Wilson] replied that “Turtle needed to keep his name out of my
mouth . . . before he get plucked.”
On March 31, 1982, Jackson attended a line-up and purposefully
misidentified the shooter, selecting someone other than
[Wilson]. Jackson did this because he had been visited by two
men with a gun, approximately five months earlier, who told him
to “mind [his] own business and don’t say nothing to the cops
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about nothing.” Jackson informed homicide detectives that
same day that he purposefully selected the wrong person.
Trial Court Opinion, 11/26/14, at 3-4 (footnotes and citations to the record
omitted).
Wilson was originally tried and convicted of first-degree murder on
January 7, 1988; he was sentenced to death. His judgment of sentence was
affirmed by our Supreme Court; subsequent proceedings under the Post
Conviction Relief Act likewise garnered him no relief. On June 6, 2005,
Wilson filed a federal petition for writ of habeas corpus in which he alleged
numerous Brady4 violations by the prosecution. By order dated August 9,
2006, the U.S. District Court for the Eastern District of Pennsylvania granted
relief and that order was affirmed by the U.S Court of Appeals for the Third
Circuit. Wilson was retried in April 2013; this trial resulted in a hung jury.
The matter was reassigned to the Honorable Glenn B. Bronson and, on
April 1, 2014, a jury again convicted Wilson of first-degree murder and PIC.
Judge Bronson immediately imposed the mandatory sentence of life in prison
for the murder conviction, with no further penalty on the PIC charge. The
trial court denied Wilson’s post-sentence motions on July 24, 2014.
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4
Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the U.S. Supreme
Court “held that ‘the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.’” Banks v. Dretke, 540 U.S. 668, 691 (2004), quoting
Brady, 373 U.S. at 87.
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This timely appeal follows, in which Wilson raises the following issues
for our review:
1. Did the [trial] court err in denying [Wilson’s] pre-trial
motions to bar re-prosecution on double jeopardy grounds or,
alternately, to conduct a hearing on whether the prosecutor
intentionally withheld Brady evidence?
2. Did the [trial] court err and violate [Wilson’s] right to due
process when it excluded defense witnesses who would have
placed an inculpatory statement in proper context, thus
challenging the [C]ommonwealth’s theory that the statement
showed consciousness of guilt?
3. Did the [trial] court err when it admitted Michael Patterson’s
testimony that “Turtle” told him that [Wilson] was the shooter,
and other testimony suggesting that Turtle was an eyewitness?
Did this error allow the Commonwealth to benefit from its earlier
Brady violations? Did this error violate due process of law and
the right to confrontation?
4. Did the [trial] court err when it [a]dmitted [p]rior
[s]tatements of Edward Jackson that [i]mproperly [b]olstered
[h]is [i]n-[c]ourt [t]estimony?
5. Did the [trial] court err and abuse its discretion when it
admitted a portion of [Wilson’s] 1988 penalty phase testimony?
Did admission of this testimony also violate [Wilson’s] right to
due process of law, because it was the product of earlier Brady
violations?
6. Did the trial court err when it denied motions, made during
and after trial, for discovery of the medical reason(s) for the
five-day delay of Edward Jackson’s testimony?
Brief of Appellant, at 2.
Wilson first alleges that the trial court should have granted his motions
to bar re-prosecution on double jeopardy grounds because the Brady
violations by the Commonwealth during the course of his 1988 trial were
intentional and done in order to deprive him of a fair trial. In the
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alternative, Wilson argues that the trial court, minimally, should have held a
hearing to determine whether the prosecutor in his 1988 trial intentionally
withheld Brady evidence. Wilson is entitled to no relief.
In 2006, Wilson was granted federal habeas corpus relief on multiple
Brady claims. Wilson alleged, and the federal court found, that the
Commonwealth failed to provide him with exculpatory information which
would have allowed his counsel to impeach the testimony of Edward
Jackson, Jeffrey Rahming and Lawrence Gainer, key witnesses in the 1988
trial. Specifically, the federal court found that the Commonwealth failed to
turn over: (1) evidence of Jackson’s prior criminal history, including crimen
falsi convictions and a psychiatric evaluation performed in conjunction with a
pre-sentence investigation related to one of those convictions; (2)
Rahming’s psychiatric history; and (3) evidence relating to Gainer’s status as
a long-time informant for Philadelphia Police Officer John Fleming and the
fact that Officer Fleming made interest-free loans to Gainer.
In declining to grant Wilson relief on double jeopardy grounds, the trial
court reviewed the testimony of the prosecutor in Wilson’s 1988 trial, Arlene
Fisk, Esquire, at two PCRA hearings held before the Honorable John
Poserina, Jr., in 1997 and 1998. The court concluded that Attorney Fisk’s
testimony “establishe[d] that she did not intentionally withhold information
in order to provoke defendant into a mistrial or to subvert the truth-
determining process and deny defendant a fair trial[.]” Trial Court Opinion,
11/26/14, at 6. Accordingly, the court found that Wilson was not entitled to
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relief. Moreover, the court declined to grant Wilson a hearing on the matter,
because Attorney Fisk testified extensively during the PCRA proceedings, at
which time Wilson was represented by current counsel. The court noted that
Attorney Fisk had little specific recollection of events at the time of the PCRA
hearings and no purpose would have been served by holding additional
hearings 16 years later on essentially the same issue.
The double jeopardy clause of the Pennsylvania Constitution prohibits
retrial of a defendant when the conduct of the prosecutor is intentionally
undertaken to prejudice the defendant to the point of denying him a fair
trial. Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992). However,
because of the compelling societal interest in prosecuting criminal
defendants to conclusion, our Supreme Court has recognized that dismissal
of charges is an extreme sanction that should be imposed sparingly and only
in cases of blatant prosecutorial misconduct. Commonwealth v. Burke,
781 A.2d 1136, 1144 (Pa. 2001). A mere finding of willful prosecutorial
misconduct will not necessarily warrant dismissal of charges. Id. at 1145;
Commonwealth v. Moose, 602 A.2d 1265 (Pa. 1992) (although
prosecutor’s failure to inform defense counsel of witness statement
containing incriminating admissions allegedly made by defendant amounted
to willful discovery violation and raised significant ethical concerns, court did
not dismiss charges, but rather remanded for new trial).
Here, Attorney Fisk testified extensively at the hearings on Wilson’s
PCRA petition. Although the intentions of the prosecutor were not relevant
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to the Brady claims before the court at the time, it is clear from the PCRA
hearing transcripts that there is no reasonable probability that additional
testimony from Attorney Fisk would support Wilson’s claims.
Wilson first asserts that the prosecution intentionally withheld evidence
regarding Edward Jackson’s prior crimen falsi convictions. At the PCRA
hearing, Wilson’s counsel vigorously questioned Attorney Fisk about her
standard practice regarding Commonwealth witnesses with crimen falsi
convictions. The following exchange occurred between Wilson’s counsel and
Attorney Fisk:
Q: Now, is your purpose in bringing out crimen falsi convictions
under direct examination to blunt whatever impact they might
have if you left them be and defense counsel brought them out
on cross?
A: Well, if I know about them and I know that they are
admissible, I may as well disclose them.
Q: So would it be fair to say then that if you do not bring it out
on direct that there’s a crimen falsi -- withdrawn. If you don’t
bring out any crimen falsi on direct, would we be correct in
assuming that you did not disclose any crimen falsi to the
defense?
A: Well, it would be correct to assume that I was unaware of
crimen falsi.
N.T. PCRA Hearing, 12/1/97, at 96. During the course of questioning by
Wilson’s counsel, Attorney Fisk had little independent recollection of the
specifics of Jackson’s criminal record, but repeatedly reiterated that, had she
been aware of his prior crimen falsi convictions, she would have disclosed
them. Similarly, she testified that she would have disclosed the information
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contained in Jackson’s prior pre-sentence investigation report regarding his
“psychological need to want to assist police and to identify with police.” Id.
at 101. Counsel for Wilson strenuously and thoroughly examined Attorney
Fisk regarding all aspects of her case preparation relating to the criminal
backgrounds of Commonwealth witnesses; however, none of her responses
raises even a suggestion that information was intentionally withheld from
the defense. Even assuming that the prosecution was in possession of
Jackson’s crimen falsi history, there is nothing in the record to suggest that
any failure to disclose the information was intentional rather than simply
inadvertent. In any event, information contained in a witness’ criminal
record is not within the Commonwealth’s exclusive control and, thus, not
Brady material. Commonwealth v. Spotz, 896 A.2d 1191, 1248 (Pa.
2006) (no Brady violation occurs where parties had equal access to
information or if defendant knew or could have uncovered such evidence
with reasonable diligence).
Wilson also asserts that the prosecution intentionally suppressed
evidence that: (1) a detective associated with the district attorney’s office
took Jeffrey Rahming to a psychiatric emergency room after his testimony at
Wilson’s trial while Rahming was in the midst of a psychotic breakdown; and
(2) Lawrence Gainer received interest-free loans from Philadelphia Police
Officer John Fleming. However, Wilson fails to develop these specific claims
in his brief and, as such, they are waived. Commonwealth v. Akbar, 91
A.3d 227, 235 (Pa. Super. 2014) (appellant waives issue on appeal if he fails
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to present claim with citations to relevant authority or develop issue in
meaningful fashion capable of review).
In his next claim, Wilson asserts that his due process rights were
violated when the trial court excluded the testimony of defense witnesses
who would have placed a seemingly inculpatory statement in proper context,
thus countering the Commonwealth’s theory that the statement
demonstrated a consciousness of guilt. Specifically, Michael Patterson
testified at trial that he had told Wilson that an individual named “Turtle”
had said that Wilson had killed the victim. Patterson testified that Wilson
responded: “Turtle need to keep his name out my mouth before he get
plucked,” or killed. The Commonwealth argued that Wilson’s statement – a
threat to kill “Turtle” if he did not stop accusing Wilson of the murder –
manifested a consciousness of guilt. Wilson contends that the statement
actually demonstrated that he was afraid of the gang to which the victim
belonged and did not want “Turtle” spreading rumors that might place
Wilson in danger of retaliation by that gang. In support of this
interpretation, Wilson sought to present four witnesses who allegedly would
have testified that they and the victim, but not Wilson, were all members of
the Valley gang, “a violent, notorious gang in the neighborhood near where
the crime occurred.” Brief of Appellant, at 26.
The trial court precluded this testimony on the basis that there was no
evidentiary support for Wilson’s assertion that any member of the Valley
gang had ever threatened him and that Wilson only sought to introduce this
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evidence of the victim’s gang membership to impugn his character. The
court concluded that the probative value of the gang evidence was
outweighed by its potential for unfair prejudice and confusion of the issues,
and was properly excluded pursuant to Pa.R.E. 403.5 The court also noted
that Wilson was not asserting self-defense, in which case he would have
been entitled to introduce evidence to prove the victim’s propensity for
violence.
We begin by noting:
In general, relevant evidence, i.e., evidence that logically tends
to establish a material fact in the case, tends to make a fact at
issue more or less probable, or supports a reasonable inference
or presumption regarding a material fact, is admissible.
However, relevant evidence may be excluded if its probative
value is outweighed by the likelihood of unfair prejudice.
Admission of evidence rests within the sound discretion of the
trial court, which must balance evidentiary value against the
potential dangers of unfairly prejudicing the accused, inflaming
the passions of the jury, or confusing the jury.
Commonwealth v. Jordan, 65 A.3d 318, 324-25 (Pa. 2013) (internal
citations, quotation marks and brackets omitted). A trial court’s ruling
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5
Pennsylvania Rule of Evidence 403 provides as follows:
The court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.
Pa.R.E. 403.
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regarding the admission of evidence will not be disturbed on appeal unless
that ruling reflects manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support to be clearly erroneous. Commonwealth
v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010) (citations omitted).
We begin by noting that Wilson’s brief contains no citation to case law
which might support his contention that evidence of the victim’s criminal
gang activity should have been admitted to counter the Commonwealth’s
consciousness-of-guilt evidence. Where an appellant offers no citation to
pertinent case law or other authority in support of an argument, the claim is
waived. Commonwealth v. Hernandez, 39 A.3d 406, 412 (Pa. Super.
2012).
Even if the claim were not waived, we can discern no abuse of
discretion on the part of the trial court in concluding that the gang testimony
was nothing more than an attempt by the defense to impugn the victim’s
character and that its effect would have been more prejudicial than
probative and may have confused the jury. Wilson proffered no evidence
that members of the victim’s gang had made any threats against him or had
engaged in any efforts to retaliate against him for shooting the victim.
Absent such evidence, testimony regarding the victim’s gang involvement
would only have led to speculation on the part of the jury. In any event,
evidence of the victim’s gang membership was, in fact, presented to the jury
through the admission of Wilson’s penalty phase testimony from the 1988
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trial, in which he stated that the victim “ran the whole gang of theirs.” See
N.T. Trial, 3/27/14, at 127. Accordingly, this claim garners Wilson no relief.
In a related claim, Wilson asserts that the trial court erred by
admitting Patterson’s testimony regarding the accusation made by “Turtle,”
as well as other testimony suggesting that “Turtle” was an eyewitness to the
shooting. Wilson alleges that these errors allowed the Commonwealth to
benefit from its earlier Brady violations and violated due process of law and
the right to confrontation.
Initially, Wilson asserts that, although Turtle’s statement was
ostensibly not admitted for the truth of the matter asserted, i.e., that Wilson
had killed the victim, “there was little possibility that the jury would not
consider [the] statement for [its] truth[.]” Brief of Appellant, at 31. Wilson
argues that the admission of Turtle’s statement “effectively injected a
second eyewitness into the case” in violation of his right to confrontation
because Turtle has since died. The trial court found that Turtle’s statement
was admissible because of Wilson’s reaction to it, which was “highly
probative” of his guilt. Trial Court Opinion, 11/26/14, at 10.
A statement is inadmissible hearsay if it is one that the declarant does
not make while testifying and a party offers the statement in evidence to
prove the truth of the matter asserted. Pa.R.E. 801(c). However, in this
case, Patterson’s testimony regarding Turtle’s statement was not presented
for its truth, but rather to demonstrate Wilson’s consciousness of guilt based
on his response to the statement. As such, Wilson’s Sixth Amendment right
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to confront Turtle was not implicated. Crawford v. Washington, 5541 U.S.
36 (2004) (“The Clause also does not bar the use of testimonial statements
for purposes other than establishing the truth of the matter asserted.”)
Moreover, Wilson did not request a limiting instruction on the issue and the
claim is, accordingly waived.6 See Commonwealth v. Wholaver, 989 A.2d
883, 892 (Pa. 2010) (where trial counsel objected to the admission of
evidence but did not request a limiting instruction, the issue of trial court
error for not giving such instruction is waived).
Wilson also asserts that the trial court erred in admitting other
testimony and argument suggesting that Turtle was at the bar at the time of
the shooting and was not called to testify at trial only because he was dead.
Wilson specifically objects to three exchanges that occurred during trial.
First, Patterson testified that Turtle was among a group of people walking
with the victim to the bar where he was shot and that he (Patterson)
subsequently had a conversation with Turtle about the incident. Second,
Harold Higgins testified that he was present in the bar during the shooting
and was asked to name specific people he saw in the bar. When Higgins
failed to name Turtle, the prosecutor asked him if he would have recognized
Turtle. Higgins denied that he would have, at which time the prosecution
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6
In its Rule 1925(a) opinion, the trial court noted that, had a limiting
instruction been requested, it would have given one “both when the
statement was admitted and during the final charge.” Trial Court Opinion,
11/26/14, at 11 n.7.
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introduced Higgins’ prior inconsistent police statement, in which he stated
that he had seen Turtle in the bar. During closing arguments, the
prosecutor reiterated that Higgins had seen Turtle in the bar. Finally, also
during closing arguments, the prosecutor
tied together all the references to Turtle, his presence in the bar,
and his naming [Wilson] as the shooter, arguing, “You’ve heard
that there are witnesses and names that can’t be presented to
you because they’ve died, but justice will not be outlived.
[Wilson] can’t hide behind the fact that other people may have
died.”
Brief of Appellant, at 33.
Wilson argues that the above testimony and argument, combined with
Turtle’s statement to Patterson that Wilson had shot the victim, implied to
the jury that Turtle witnessed the shooting and would have testified, but for
the fact that he had died. Wilson also alleges that it “allowed the
Commonwealth to present Jeffrey Rahming [(Turtle)] as a witness without
exposing him to significant impeachment evidence which formed the basis of
serious Brady violations from the 1988 trial.” Id. at 35. These claims are
meritless.
Placed in its proper context, the testimony and argument of which
Wilson complains does not have the effect of implying to the jury that Turtle
witnessed the shooting. The following is the testimony of Michael Patterson
cited by Wilson:
Q: And what, if anything, happened when you were on Fox
Street in front of the tire shop?
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A: I observed Jamie, Kenny Mozelle, Turtle, and Peanut coming
down the street.
Q: Was anyone with them other than Jamie, Kenny, and Turtle?
A: It was Jamie – Jamie, Kenny, Turtle, and Peanut was right
there coming down the street. Now, that’s what you asked me,
who was coming down the street with them?
Q: Yes, Did you know a guy named Carl Rowland?
A: And Carl Rowland. I’m sorry.
Q: Let me ask you this question. Do you know a guy named
Carl Rowland?
A: Yes.
Q: And at the time that you saw Jamie, Kenny, and Turtle, did
you see Carl Rowland as well?
A: Yes. He was walking down the street with them when they
came.
Q: Now, when you were at the tire shop, were you on the same
side of the street as the tire shop or on the opposite side of the
tire shop?
A: I was on the opposite side.
Q: Okay. And what, if anything, did you see happen?
A: Well, I seen Jamie, Turtle, Carl Rowland, Kenny Mozelle
coming down the street and they had walked past us, was
walking up, you know, towards us, and Jamie smiled at [Wilson]
and then [Wilson] looked back at him, you know, with not a
smile, and –
Q: Let me stop you there for one moment. What was the
expression that Jamie did when he walked past [Wilson]?
A: He gave him a big smile.
N.T. Trial, 3/25/14, at 193-94.
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Nothing in this testimony – in which Patterson simply listed the names
of the individuals who accompanied the victim as he walked down the street
prior to entering the bar – suggested that Turtle was an eyewitness to the
crime.
Wilson also complains of the following testimony by Harold Higgins:
Q: Okay. Now, back on August 3rd of 1981 at around 1:19
p.m., so in the afternoon, were you inside the Sweet Joy
Lounge?
A: Yes, I was.
Q: Now, when you came into the bar did you have occasion to
see Jamie Lamb?
A: Yes.
Q: Was Jamie Lamb already in the bar when you got there?
A: Yes, I think he was, yes.
Q: Okay. Now, what part of the bar did you go to?
A: I was in the back of the bar.
Q: And specifically what was around you?
A: At the time it was a pool table, a music – a jukebox was
there, and the stage was there.
Q: Okay. Now, when you were back by the pool table, did you
hear anything?
A: Well, yes, I did.
Q: What did you hear?
A: Gunshots.
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Q: And how many gunshots did you hear?
A: The most I heard between five and six at the time.
...
Q: And now, other than Mr. Lamb being on the floor, were there
other people in the bar at the time?
A: Yes, at the time, yes it was.
Q: And now, as you sit here today do you know how many
people total were in that bar?
A: I can’t really give you a number, but it was a few people in
there.
Q: Okay. And some of the people in the bar, did you know
them?
A: Not – the ones that was in the bar?
Q: Yes.
A: No, I haven’t.
Q: When you came from the pool room to see Mr. Lamb on the
ground, did you see anyone in the bar at that time that you
recognized?
A: The ones that was in the bar with us?
Q: Yes.
A: Yes, it was a few guys from the neighborhood was in there.
Q: And the guys from the neighborhood that you knew, who
were they guys that were in the neighborhood that you saw in
there?
A: You want their names?
Q: Yes.
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A: Kenny Mozelle was in there.
Q: Okay.
A: To my knowledge. And it was myself.
Q: Anybody else you recognized?
A: Not offhand.
Q: Now, do you know a guy named Carl Rowland?
A: Carl Rowland?
Q: Yes. Did you know a Carl?
A: Yes.
Q: And did you see Carl in the bar?
A: At the time, no, I haven’t.
Q: Okay. And did you know a guy named Turtle?
A: I know him, but I didn’t know him.
Q: So when you say –
A: No.
Q: Did you know him to see him?
A: What?
Q: Did you know him to see him?
A: No.
Q: Turtle? Okay. Now, Mr. Higgins at some point two days
after Jamie died did you talk to the police?
A: Yes, I have.
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Id. at 285-86; 288-89. The Commonwealth proceeded to introduce Higgins’
statement to police in which he stated that Turtle was in the bar at the time
of the shooting. Subsequently, during closing arguments, the
Commonwealth referred to Higgins’ testimony as follows:
MS. KIRN: . . . Harold Higgins. He said he lived in that
neighborhood his whole life and he never saw [Wilson]. You
want to be told that, oh, [Wilson], he’s from the neighborhood.
No. He lives on 35th Street. This happened at 24th and
Allegheny. So by my math, that’s at least 11 blocks away. And
we all know from living in Philadelphia that 11 blocks away is not
considered the same neighborhood.
Harold Higgins saw a number of people in the bar, including
Jamie’s friends that Michael Patterson described as having been
with him and walking to the bar. He saw Carl, he saw Kenny,
and he saw Turtle.
He says the bar was bright. You link that with Carnell Biggins.
Carnell Biggins said that [Wilson] had on a Kool cap, he was
five-eight in height, he sees him running from the direction of
the bar. Let’s not confuse ourselves here. Carnell Biggins saw
one and only one person run from that bar. So he’s seeing as
[Wilson] runs out.
N.T. Trial, 4/1/14, at 98-99.
Higgins’ testimony – and the Commonwealth’s use of his prior
inconsistent statement to demonstrate that Higgins had seen Turtle with the
victim – was clearly introduced to corroborate the testimony of Michael
Patterson, who also identified those individuals as having been with the
victim as he walked to the bar. Likewise, the Commonwealth’s closing
reference to Higgins’ identification of Carl Rowland, Kenny Mozelle and Turtle
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was used to highlight the corroboration between Higgins’ testimony and that
of Patterson.
Finally, Wilson asserts that a portion of the Commonwealth’s closing
argument improperly implied that Turtle witnessed the shooting. The
Commonwealth began its closing statement as follows:
MS. KIRN: You know, as we’re growing up, there are certain
things that our mothers tell us every time to get us through the
hard times. They tell us every cloud has a silver lining. They
tell us tomorrow is another day. But this case has disproven one
of the things that my mom used to always tell me because when
I was sad and I would cry, my mom would lean down and kiss
my head and she would tell me time heals all wounds.
Ladies and gentlemen, time did not heal the wound that struck
Jamie Lamb’s arm. Time didn’t heal the bullet that flew across
his back. Time couldn’t heal the third injury when Jamie who
couldn’t be Superman put his arm up to stop the bullets that
were coming. Time couldn’t heal the injury that went into his
side. And time couldn’t stop that fifth bullet that lodged in him.
Time couldn’t change that. Time couldn’t heal that. And those
wounds shot and inflicted by Zachary Wilson buried Jamie Lamb.
The other wound that didn’t heal, you saw Cathy Lamb, a proud
old[er] sister, and she came into this stand and she said Jamie
Lamb was my younger brother. And when we started out, you
may have thought, well, it’s from 1981, who cares. You saw
that the wounds that were inflicted are just as raw and just as
strong today when she sat up here and she opened herself up to
you and cried, because people can have memories. And time
didn’t heal Cathy Lamb.
In fact, even with all these years, Officer Andrejczak told you
that this bullet that was recovered from the floor, this bullet, it’s
mangled, came from a nine millimeter gun. This bullet still when
you look at it under a microscope bore blood, tissue, from the
torn skin that it went through. And so I say to you, ladies and
gentlemen, that this case cries out for justice.
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You’ve heard that there are witnesses and names that can’t be
presented to you because they’ve died, but justice will not be
outlived. [Wilson] can’t hide behind the fact that other people
may have died.
MR. WISEMAN: Objection, Your Honor.
THE COURT: All right. The jury shouldn’t draw any inference
about what anybody who may have died would or would not
have said. This is argument.
N.T. Trial, 4/1/14, at 69-71.
This portion of the Commonwealth’s argument did not imply that
Turtle had witnessed the shooting, but was an emotional appeal,
emphasizing to the jury the importance of obtaining justice for the victim
despite the passage of time. Moreover, upon objection by defense counsel,
the trial court gave an instruction to the jury, cautioning the panel not to
draw improper inferences from the prosecution’s argument.
In sum, taken in their proper context, none of the testimony and
argument highlighted by Wilson could reasonably be viewed to have
deprived Wilson of his due process or confrontation rights. Accordingly,
these claims are meritless.
Wilson next asserts that the trial court erred in admitting prior
consistent statements of Edward Jackson because they improperly bolstered
his in-court testimony. Wilson argues that the court’s ruling violated Pa.R.E.
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613(c)(1) and (2),7 as some of the statements either were made after the
alleged defect arose or failed to suggest that Jackson never made the
inconsistent statement or explain why he did so. In allowing the prosecutor
“free reign to bring in every statement ever made by Jackson . . . the trial
court blunted the effect of impeachment which would have been clear in a
properly conducted trial.” Brief of Appellant, at 42.
The trial court concluded in its opinion that all of the prior consistent
statements admitted at trial “in some manner supported Jackson’s
explanations of his inconsistent statements and were therefore admissible
under Rule 613.” Trial Court Opinion, 11/26/14, at 15. We agree with the
trial court.
____________________________________________
7
Rule 613(c) provides, in relevant part, as follows:
(c) Witness’s Prior Consistent Statement to Rehabilitate.
Evidence of a witness’s prior consistent statement is admissible
to rehabilitate the witness’s credibility if the opposing party is
given an opportunity to cross-examine the witness about the
statement and the statement is offered to rebut an express or
implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty
memory and the statement was made before that which has
been charged existed or arose; or
(2) having made a prior inconsistent statement, which the
witness has denied or explained, and the consistent statement
supports the witness’s denial or explanation.
Pa.R.E. 613(c).
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Evidence of a prior consistent statement by a witness is
admissible for rehabilitation purposes under the Pennsylvania
Rules of Evidence in two instances. First, it is admissible if “the
opposing party is given an opportunity to cross-examine the
witness about the statement, and the statement is offered to
rebut an express or implied charge of fabrication, bias, improper
influence or motive, or faulty memory and the statement was
made before that which has been charged existed or arose.”
Pa.R.E. 613(c)(1). Second, it is admissible if “the opposing
party is given an opportunity to cross-examine the witness about
the statement, and the statement is offered to rebut an express
or implied charge of having made a prior inconsistent statement,
which the witness has denied or explained, and the consistent
statement supports the witness’ denial or explanation.” Pa.R.E.
613(c)(2).
Commonwealth v. Harris, 852 A.2d 1168, 1175 (Pa. 2004).
Here, Wilson cites to several instances in which the trial court allowed
the Commonwealth to introduce prior consistent statements to rebut prior
inconsistent statements introduced for impeachment purposes on cross-
examination. Wilson argues that such statements should only have been
admitted if they explained or pre-dated his inconsistent statements. This is
an inaccurate statement of the law.
Rule 613(c)(2) provides that prior consistent statements are
admissible to rebut a charge of having made a prior inconsistent statement,
regardless of the timing of the prior consistent statements. Harris, 852
A.2d at 1176.
As the Official Comment to Rule 613 explains: Pa.R.E. 613(c)(2)
is arguably an extension of Pennsylvania law, but is based on the
premise that when an attempt has been made to impeach a
witness with an alleged prior inconsistent statement, a
statement consistent with the witness’ testimony should be
admissible to rehabilitate the witness if it supports the witness’
denial or explanation of the alleged inconsistent statement.
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Where there has been a denial of the alleged inconsistent
statement, the consistent statement should almost invariably be
admitted, regardless of its timing.
Id. “[E]vidence of prior consistent statements[,] made after an
acknowledged prior inconsistent statement[,] has been admitted into
evidence when evidence of the prior consistent statements was relevant to
support an explanation given for the acknowledged inconsistent statement.”
Commonwealth v. Willis, 552 A.2d 682, 693 (Pa. Super. 1988).
Wilson complains of the admission of several prior consistent
statements. First, under direct examination, Jackson testified that, at the
time of the shooting, there was bright sunshine coming in through the glass
door of the bar. On cross-examination, defense counsel confronted Jackson
with a statement he had given on the day of the shooting in which he stated
“It was a red light all the way down the bar. The light wasn’t that good, but
[Wilson] was close enough for me to see him good.” N.T. Trial, 3/31/14, at
68. Jackson responded by clarifying that “[t]hat’s when I was on the floor”
after the shots were fired. Id. On re-direct, the prosecutor introduced
Jackson’s 1988 trial testimony, in which he had stated that it was light
where he had been sitting in the bar, although the lights were dimmed in the
back of the bar. We conclude that the 1988 prior consistent statement was
admissible to rebut the defense claim that his 2014 trial testimony was the
product of faulty memory, as it was consistent with his 2014 testimony that
the front of the bar, where Jackson was sitting prior to the shooting, was
light.
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Jackson also testified on direct examination that he was sitting in the
middle of the bar, or about the fourth seat in, at the time the shooting
occurred. On cross-examination, defense counsel impeached Jackson with
his testimony from the 1988 trial, in which he stated that he sat in the first
seat at the bar. Jackson denied remembering giving that answer:
Q: Do you recall giving that answer?
A: No.
Q: Is it a fair reading of what’s in the transcript?
A: No.
Q: I didn’t read that accurately?
A: I imagine you did, but I wasn’t at the first seat in the bar.
Q: So what you said in 1988 wasn’t correct?
A: If I said the first seat, I wasn’t in the first seat at the bar.
N.T. Trial, 3/31/14, at 73.
Subsequently, on re-direct examination, the Commonwealth
introduced Jackson’s testimony on cross-examination from the 1988 trial in
which he agreed with defense counsel’s statement that he had been sitting
in seat number three. This prior statement, which was consistent with
Jackson’s testimony on direct examination that he was sitting in the middle
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of the bar, was admissible to rebut the defense’s claim of faulty memory and
clarify his 2014 testimony.8
Wilson also challenges the introduction of Jackson’s entire description
of the shooting from the police statement he gave in 1981 on the day of the
shooting. Wilson’s entire claim as to the 1981 police statement is as follows:
During re-direct examination, the prosecutor read the entire
description of the shooting from Jackson’s police statement
made on the day of the shooting.
Brief of Appellant, at 40.
Wilson fails to provide any argument on this claim or to specify the
manner in which the admission of that statement violated Rule 613. It is not
the obligation of this Court to formulate an appellant’s arguments for him.
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citation
omitted). “[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.” Id.
Because this claim is presented in a conclusory fashion without argument or
citation to authority, it is waived.
____________________________________________
8
Wilson asserts that the prior consistent statement was the product of the
1988 defense counsel’s misstatement “that Jackson had testified during
direct [in 1988] that he sat in the third seat and Jackson – quizzically –
assented.” Brief of Appellant, at 40. While the 1988 transcript states that
Jackson did testify on direct that he had been sitting in the first seat, 1988
defense counsel failed to raise this discrepancy on re-cross examination.
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Jackson also testified on direct examination at trial that, immediately
after the shots were fired, he and the shooter were face-to-face together on
the floor of the bar. On cross-examination, Jackson testified that the
shooter’s head was “a little bit above [Jackson’s] head.” N.T. Trial, 3/31/14,
at 82. Defense counsel thereafter impeached Jackson with his testimony
from Wilson’s 2013 trial that he was “sideways” while the shooter was
“straight up and down,” as well as his 1988 trial testimony that Jackson’s
head was at the shooter’s waist. Id. at 83, 85. On re-direct examination,
the prosecution introduced Jackson’s 1981 police statement in which Jackson
stated that he “was right up on [the shooter] about a foot away. He was
right next to me. I saw his whole face at different times.” Id. at 130. Once
again, this statement was admissible because it rebutted the defense’s claim
of faulty memory.
Finally, Jackson testified at trial that, when presented with a lineup in
March 1982, he recognized Wilson, but identified the wrong person to police
because he was scared and did not want to get involved. Defense counsel
impeached Jackson on cross-examination using his 1982 statement, given
the night of the lineup, in which he told police that the reason he did not
identify the actual shooter in the lineup was because he “got nervous and
[he] didn’t really remember what the guy looked like.” Id. at 106. The
defense further impeached Jackson with his 1997 PCRA hearing testimony in
which the following exchange transpired between Jackson and defense
counsel:
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Q: In 1987 you told the officers that, in fact, Mr. Wilson was in
the lineup but you indicated he wasn’t at that time because you
had been threatened?
A: Yes.
THE COURT: Had you been threatened?
A: Yes, sir, I was. It was – I was threatened as far as being a
witness.
THE COURT: But you did recognize him in the lineup in 1981?
THE WITNESS: No, sir.
MR. WISEMAN: ’82, Your Honor.
THE WITNESS: And I explained that to the policeman I wasn’t
sure that was him in the lineup.
THE COURT: When did you become sure?
THE WITNESS: When they showed me the photos, showed me
photos and asked me look at it hard, did I recognize him.
N.T. PCRA Hearing, 11/24/97, at 21-22.
During re-direct examination, the prosecution introduced a police
statement9 from July 3, 1997 in which Jackson stated that he recognized the
shooter in the original lineup. See N.T. Trial, 3/31/14, at 135. As with the
previous prior consistent statements introduced by the Commonwealth, this
statement, which was consistent with Jackson’s testimony on direct
examination that he recognized Wilson in the lineup but identified the wrong
person because he was scared, was admissible to rebut the defense’s claim
of faulty memory and clarify his testimony on direct.
____________________________________________
9
In his brief, Wilson mischaracterizes the 1997 police statement as
testimony from the PCRA hearing.
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Wilson next asserts that the trial court abused its discretion when it
admitted a portion of his 1988 penalty phase testimony. Specifically, Wilson
objects to the portion of his testimony in which he stated that he did not kill
the victim but wished he had because the victim had killed his brother.
Wilson claims that the admission of this testimony violated his due process
rights because his conviction was a product of earlier Brady violations by
the Commonwealth, and the penalty phase testimony was the fruit of those
violations. In support of his claim, Wilson cites Harrison v. United States,
392 U.S. 219 (1968). In Harrison, an appeals court determined that the
police had illegally obtained the murder defendant’s confession and the
confession was, therefore, inadmissible. On remand for a new trial, the
prosecution introduced the defendant’s testimony from the first trial, in
which he admitted to being at the scene of the murder with a shotgun in his
hand. The defendant was convicted and the appellate court affirmed. The
Supreme Court granted certiorari to determine whether the defendant’s trial
testimony was the inadmissible fruit of the illegally procured confessions and
concluded that it was. The Court held that the defendant’s testimony was
inadmissible because he had testified only after the government had illegally
introduced into evidence wrongfully obtained confessions. Because
defendant’s testimony was impelled by a desire to overcome the impact of
the illegally obtained confessions, his testimony was “tainted by the same
illegality that rendered the confessions themselves inadmissible.” Id. at
223.
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Wilson argues that the same rationale should apply in the instant
matter. Because his 1988 conviction was obtained as a result of
constitutional violations by the Commonwealth, Wilson asserts, the penalty
phase testimony should be declared inadmissible as the fruit of the
poisonous tree. We disagree.
“It has long been recognized that testimony from an earlier trial may
be introduced in the prosecution’s case against a defendant regardless of
whether that defendant takes the stand or not in the second proceeding.”
Commonwealth v. Boyle, 447 A.2d 250, 256 (Pa. 1982). In Harrison,
supra, the Supreme Court carved out a narrow exception to that general
rule, holding that a defendant’s testimony impelled by the introduction of
illegally obtained confessions is the barred from use in a subsequent trial as
the fruit of the poisonous tree. However, the Court specifically emphasized
that its holding was limited only to cases “in which the prosecution illegally
introduced the defendant’s confession in evidence against him at trial in its
case in chief.” Harrison, 392 U.S. at 223 n.9. Accordingly, Harrison does
not control here.
In any event, the testimony of which Wilson complains was merely
cumulative to other evidence introduced at trial. The Commonwealth
introduced Wilson’s 1981 testimony as evidence of Wilson’s motive for killing
the victim, i.e., that the victim had killed Wilson’s brother. This motive
evidence was also introduced through the testimony of Michael Patterson,
who testified that Wilson told him he was going to “get with” the victim
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because the victim had killed his brother. Accordingly, any error in
admitting Wilson’s testimony from the penalty phase of his earlier trial was
harmless. See Commonwealth v. Young, 748 A.2d 166, 176 (Pa. 1999)
(improperly admitted evidence merely cumulative of other evidence and had
no effect on verdict; therefore, any error in admitting testimony harmless).
Finally, Wilson claims that the trial court erred in denying his motions
seeking discovery pertaining to the medical reasons for the five-day delay in
the testimony of Commonwealth witness Edward Jackson. Jackson was
slated to testify on March 26, 2014. However, on that morning, the
prosecutor informed the court that Jackson had been sick. Jackson
appeared later in the day, at which time the trial judge questioned him from
the bench regarding his condition. Jackson stated that he “d[id]n’t feel good
at all,” had just vomited and felt warm. N.T. Trial, 3/26/14, at 46-47. The
court postponed Jackson’s testimony until the following day. However,
Jackson remained ill the next day and the prosecution presented a physician
assistant’s note indicating he was suffering from the flu. Defense counsel
requested discovery relating to the nature of Jackson’s illness, suggesting it
may actually be related to “alcohol, drugs, some other illness that may
impact on credibility, his ability to recall[.]” N.T. Trial, 3/27/14, at 8. The
court denied the request, stating that it believed Jackson was ill and would
not order his doctor to turn over his medical records. Ultimately, Jackson
testified on March 31, 2014. The defense again requested discovery on the
issue in its post-sentence motions, which the trial court denied. Wilson
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asserts that, given the Commonwealth’s “history of Brady violations,
including multiple ones related to Jackson impeachment material,” the court
should have allowed him to further pursue the requested discovery “and
potentially reveal[] another cover-up scheme.” Brief of Appellant, at 53.
In its opinion, the trial court framed this issue as implicating the
court’s authority to “reasonably control the mode and order of examining
witness[es] and the presentation of evidence.” Trial Court Opinion,
11/26/14, at 18, citing Pa.R.E. 611(a) (Mode and Order of Examining
Witnesses and Presenting Evidence). The court concluded that Jackson was
“demonstrably ill” and had presented a note from his doctor. Accordingly,
the court was within its discretion to postpone Jackson’s testimony for a few
days.
In his brief, Wilson frames the issue as one of discovery and cites
Pa.R.Crim.P. 573(B)(2)(a)(iv), which provides, in relevant part, as follows:
(a) In all court cases, . . . if the defendant files a motion for
pretrial discovery, the court may order the Commonwealth to
allow the defendant’s attorney to inspect and copy or
photograph any of the following requested items, upon a
showing that they are material to the preparation of the defense,
and that the request is reasonable:
...
(iv) any other evidence specifically identified by the defendant,
provided the defendant can additionally establish that its
disclosure would be in the interests of justice.
Pa.R.Crim.P. 573(B)(2)(a)(iv).
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Questions involving discovery in criminal cases lie within the discretion
of the trial court and that court’s decision will not be reversed unless such
discretion was abused. Commonwealth v. Rucci, 670 A.2d 1129, 1140
(Pa. 1996).
Here, we can discern no abuse of discretion on the part of the trial
court in refusing to allow Wilson to access Jackson’s medical records. The
record is devoid of any evidence that Jackson ever suffered from a drug or
alcohol problem, and Wilson points to none in his brief. Wilson’s requests
appear to have been based on nothing more than mere speculation and
suspicion of the Commonwealth. Moreover, defense counsel was free to
cross-examine Jackson regarding any factor that may have impacted his
ability to testify truthfully or recall the events in question. Accordingly,
Wilson is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
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