J-S13024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GERALD SMITH
Appellant No. 2660 EDA 2015
Appeal from the Judgment of Sentence March 4, 2008
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0312371-2006
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 13, 2017
Gerald Smith appeals nunc pro tunc from the judgment of sentence,
entered in the Court of Common Pleas of Philadelphia County, following his
conviction for third-degree murder,1 possessing an instrument of crime
(PIC),2 and recklessly endangering another person (REAP).3 Upon review,
we affirm on the basis of the opinion authored by the Honorable Steven R.
Geroff.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(c).
2
18 Pa.C.S. § 907.
3
18 Pa.C.S. § 2705.
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The trial court summarized the relevant facts and procedural history of
this matter as follows:
On November 26, 2007, following a jury trial before Judge
Carolyn Engel Temin, [(now retired)], [Smith] was found guilty
of murder of the third degree, [PIC], and [REAP]. On March 4,
2008, [Smith] was sentenced to [9½ to 20] years[’]
incarceration for the offense of murder of the third degree and a
consecutive prison term of [1 to 2] years[’ incarceration] for the
offense of REAP. No further penalty was imposed on the [PIC]
conviction. At trial, [Smith] was represented by Brian
McMonagle, Esquire. No direct appeal was filed on [Smith’s]
behalf.
On February 17, 2009, [Smith] filed a timely pro se petition
under the Post[-]Conviction Relief Act (“PCRA”), 42 Pa.C.S. §[§]
9541 et seq., in which he alleged ineffective assistance of his
trial counsel for failure to appeal [his] convictions. Attorney
James Bruno was subsequently appointed to represent [Smith]
in the PCRA proceedings. On February 3, 2011, the trial court
gave an instruction to Mr. Bruno to obtain from [Smith] a
statement explaining whether he had requested his trial attorney
to take an appeal. On or about December 7, 2011, Mr. Bruno
filed an affidavit [] on [Smith’s] behalf[, which indicated a desire
on Smith’s part to file an appeal but did not include an indication
of a direct request for an appeal].
On December 9, 2011, the court issued [n]otice under
[Pa.R.Crim.P.] 907[,] notifying [Smith] of its intention to dismiss
his PCRA [p]etition for the reason that the issues he raised in the
[p]etition were without merit. On January 23, 2012, the court
dismissed [Smith’s] [p]etition.
[Smith] timely appealed; however, Mr. Bruno failed to comply
with the court’s February 23, 2012 order to provide the court
with a [c]oncise [s]tatement of [m]atters [c]omplained of on
[a]ppeal pursuant to Pennsylvania rule of Appellate Procedure[]
1925(b). In addition, Mr. Bruno neglected to file a brief on
[Smith’s] behalf; this neglect resulted in the matter being
remanded to the PCRA court to determine whether or not
counsel had abandoned [Smith]. The appeal was reinstated on
July 31, 2012, after counsel belatedly filed the brief. On April 5,
2012, Judge Temin issued an opinion in this matter[, denying
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the petition because the affidavit did not aver that Smith
requested counsel to file an appeal].
On March 22, 2013, following a temporary suspension
from the practice of law, Mr. Bruno requested the Superior
Court’s permission to withdraw from the case. He also
petitioned the Court to have the case remanded to the PCRA
court for the appointment of [] new counsel. The petition was
granted on April 10, 2013.
Thereafter, Janis Smarro, Esquire, was appointed as [Smith’s]
new counsel. On May 20, 2013, Attorney Smarro filed an
“Application to Vacate Briefing Order and for Remand to Trial
Court with Leave to File a Concise Statement of Errors
Complained of on Appeal and for the Trial Court’s Preparation of
a Supplemental Pa.R.A.P. 1925(a) Opinion” on [Smith’s] behalf.
On June 7, 2013, the Superior Court granted the Application to
Vacate. The Superior Court issued an [o]rder remanding the
Application to Vacate and the certified record to the PCRA court
for a period of 60 days, permitting [Smith] to file a new Rule
1925(b) statement with the PCRA court and instructing the PCRA
court to prepare a supplemental opinion pursuant to Rule
1925(a) within thirty days of the date the 1925(b) statement
was received.
On June 11, 2013, [Smith] filed a 1925(b) [c]oncise [s]tatement
of [e]rrors [c]omplained of on [a]ppeal. In the 1925(b)
[s]tatement, [Smith claimed that his trial counsel was ineffective
for failure to protect [his] appellate rights by filing a [n]otice of
[a]ppeal as requested by [Smith]. [Smith] argued that he was
entitled to post-conviction relief in the form of the grant of leave
to file a [n]otice of [a]ppeal nunc pro tunc.
On June 18, 2014, Natasha L. Lowe, Trial Division/Appeal Unit
Supervisor, sent a letter addressed to Joseph D. Seletyn,
Esq[uire], Prothonotary of the Superior Court of Pennsylvania, in
which she noted that no supplemental opinion would be filed in
this matter because Carolyn E. Temin, the trial judge who
presided over this case, was no longer sitting as a [j]udge in
Philadelphia County.
On February 9, 2015, the Superior Court issued a decision
vacating the PCRA court’s order and remanding for an
evidentiary hearing. The Superior Court concluded that the
PCRA court erred in dismissing [Smith’s] PCRA [p]etition without
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first conducting an evidentiary hearing; the Superior Court,
therefore, relinquished its jurisdiction.
On September 1, 2015, [Smith’s] motion to reinstate appellate
rights nunc pro tunc was heard and granted. On September 2,
2015, [Smith], through his counsel, filed a [n]otice of [a]ppeal
[n]unc [p]ro [t]unc. On Nobembver 3, 2015, [Smith’s] counsel
field, sua sponte, a [c]oncise [s]tatement of [e]rrors
[c]omplained of on [a]ppeal pursuant to Pa.R.A.P. 1925(b).
...
The evidence adduced at trial established . . . that on March 11,
2006, [Smith] committed murder of the third degree by firing a
bullet into the head of the decedent, Lynette (“Net”) Logan, then
six month[s’] pregnant with [Smith’s] child, at 906 North 41[st]
Street in the City of Philadelphia. The decedent was killed with a
.38 caliber Special Magnum five-shot chrome with black rubber
grips, which, by [Smith’s] own admission, was the weapon from
which the fatal shot was fired. The jury also found the evidence
to be sufficient to support the guilty verdict on the charges of
[PIC] and [REAP].4
Trial Court Opinion, 8/22/16, at 1-5 (citations omitted).
On appeal, Smith raises the following questions for our review:
1. Is [Smith] entitled to the grant of a new trial since the trial
court erred when it denied his pretrial motion to suppress his
statement[s]?
2. Is [Smith] entitled to an arrest of judgment with regard to his
convictions for third-degree murder, [REAP] and [PIC,] since
the evidence is insufficient to sustain these convictions as the
Commonwealth failed to prove [Smith’s] guilt of these crimes
beyond a reasonable doubt?
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4
The trial court’s Rule 1925(a) opinion details the specific testimony of the
individuals who testified at trial, which detail we will not recite here. See
Trial Court Opinion, 8/22/16, at 5-19.
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3. Is [Smith] entitled to a new trial as a result of the trial court’s
ruling that precluded his attempt to introduce evidence
concerning the victim’s prior suicide attempt?5
Brief for Appellant, at 4.
In his first issue, Smith asserts that the trial court erred by denying his
motion to suppress statement[s] he made in which he indicated that he fired
the .38 caliber gun and caused the victim’s death during an attempt to take
the gun from her.
In addressing a challenge to the denial of a suppression motion, our
review
is limited to determining whether the suppression court’s factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole. Where the
suppression court’s factual findings are supported by the record,
we are bound by these findings and may reverse only if the
court’s legal conclusions are erroneous.
Commonwealth v. Hoppert, 39 A.3d 358, 361 (Pa. Super. 2012) (citation
omitted).
Prosecutors may not use statements stemming from the custodial
interrogation of a defendant unless procedural safeguards are in place to
secure the defendant’s privilege against self-incrimination. Miranda v.
Arizona, 384 U.S. 436, 444 (1966). However, voluntary statements are not
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5
Smith’s claims on appeal have been renumbered for ease of disposition.
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barred from admission by Miranda in criminal prosecutions.
Commonwealth v. Wiggins, 371 A.2d 207, 211 (Pa. 1977).
In this matter, at the time Smith first made statements to police, he
was being questioned as a witness rather than a suspect. The detective
testified that she believed the incident to be a suicide6 rather than a
homicide at that point and conducted her interview of Smith accordingly.
Thus, the police did not consider Smith to be in custody and did not read
him Miranda rights. Smith was not handcuffed or otherwise restrained.
Thereafter, when asked if there was anything Smith would like to tell police,
he responded affirmatively; he was Mirandized and indicated he wished to
proceed without an attorney before making incriminating statements.
Accordingly, the court’s finding that Smith was free to leave is supported by
the record. Hoppert, supra. Moreover, Smith states in his brief that he
was Mirandized and made voluntary statements afterward. Brief for
Appellant, at 17. Judge Geroff’s opinion thoroughly analyzes this issue, and
we affirm on the basis of his well-reasoned opinion.
Next, Smith argues that the evidence was insufficient to convict him of
third-degree murder, PIC, and REAP. In considering sufficiency of the
evidence claims,
we must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in the
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6
The victim was in the bathtub, allegedly threatening to commit suicide.
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light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. . . . Where
there is sufficient evidence to enable the trier of fact to find
every element of the crime has been established beyond a
reasonable doubt, the sufficiency of the evidence claim must fail.
Of course, the evidence established at trial need not preclude
every possibility of innocence and the fact-finder is free to
believe all, part or none of the evidence presented.
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc).
The Commonwealth can satisfy its burden via wholly circumstantial
evidence. Id.
“Third[-]degree murder occurs when a person commits a killing which
is neither intentional nor committed during the perpetration of a felony, but
contains the requisite malice.” Commonwealth v. Morris, 958 A.2d 569,
576 (Pa. Super. 2008); 18 Pa.C.S. § 2502(c). Malice can be shown by
“proving that a defendant used a dangerous weapon on a vital part of
another’s body.” Commonwealth v. Clark, 411 A.2d 800, 802 (Pa. Super.
1979). A gun is clearly a dangerous weapon, and, here, it is undisputed that
the victim died from a gunshot wound to the head. Smith confessed to firing
the shot that killed the victim. As noted above, the trial court correctly
denied Smith’s motion to suppress this evidence. Accordingly, sufficient
evidence was presented to convict Smith of third-degree murder. Watley,
supra. Judge Geroff thoroughly analyzes the sufficiency of Smith’s
conviction, and we rely on his opinion in disposing of this issue.
As to PIC, a person is guilty “if he possesses any instrument of crime
with intent to employ it criminally.” 18 Pa.C.S. § 907. Criminal intent may
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be inferred from the circumstances surrounding the possession of the
instrument of crime. Commonwealth v. Andrews, 768 A.2d 309, 318 (Pa.
2001). Here, according to statements he made to police, Smith possessed a
.38 caliber handgun, which killed the victim when it fired while in his
possession. Accordingly, the requisite intent can be inferred from the
situation, id., and sufficient evidence was presented to convict Smith of PIC.
Watley, supra. Judge Geroff thoroughly analyzes this issue, and we rely on
his opinion in disposing of this sufficiency claim.
A person is guilty of REAP if he “recklessly engages in conduct which
places or may place another person in danger of death or serious bodily
injury.” 18 Pa.C.S. § 2705. Here, Smith and the victim were verbally
fighting and Smith introduced a loaded gun into the altercation and
ultimately fired it at the victim. Thus, the elements of REAP are satisfied.
See Commonwealth v. Hopkins, 747 A.2d 910 (Pa. Super. 2000)
(brandishing loaded firearm during commission of crime provides sufficient
basis for factfinder to conclude that defendant proceeded with conscious
disregard for the safety of others had present ability to inflict great bodily
harm or death). Accordingly, sufficient evidence was produced to convict
Smith of REAP, Watley, supra, and we rely upon the thorough analysis of
Judge Geroff’s opinion to affirm Smith’s conviction.
Finally, Smith asserts that the trial court erred by refusing to admit
evidence of the victim’s prior suicide attempt. We note that our standard of
review is one of deference, since “[t]he admissibility of evidence is solely
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within the discretion of the trial court and will be reversed only if the trial
court has abused its discretion.” Commonwealth v. Herb, 852 A.2d 356,
363 (Pa. Super. 2004). Instantly, the trial court permitted evidence of the
victim’s previous suicide attempt to be admitted into the trial, but held that
this would open the door to rebuttal evidence regarding the contentious
relationship between Smith and the victim that may have affected her state
of mind.7 See Pa.R.E. 404(a)(2)(B)(i) (evidence of alleged victim’s
character trait admissible in criminal case; if such evidence admitted,
prosecutor may offer rebuttal evidence). Accordingly, we do not find that
the court abused its discretion, Herb, supra, and we rely upon Judge
Geroff’s well-reasoned opinion in this regard.
For the foregoing reasons, we affirm the judgment of sentence on the
basis of the opinion of Judge Steven R. Geroff. The parties are instructed to
attach a copy of the opinion dated August 22, 2016, in the event of further
proceedings in this matter.
Judgment of sentence affirmed.
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7
Smith, however, chose not to introduce such evidence, and the
Commonwealth therefore did not have an occasion to offer rebuttal
evidence. Thus, we find no abuse of discretion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2017
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Circulated 03/21/2017 03:28 PM