J-S61018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD WALLACE :
:
Appellant : No. 283 EDA 2019
Appeal from the Judgment of Sentence Entered July 27, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012597-2013
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JANUARY 09, 2020
Appellant, Edward Wallace, appeals from the judgment of sentence
entered on July 27, 2018, as made final by the denial of a post-sentence
motion on December 17, 2018, following his jury trial convictions for
conspiracy to commit murder1 and first-degree murder.2 We affirm.
The trial court accurately summarized the relevant factual background
of this case as follows:
On June 1, 2008, Ronald King was serving as a drug lookout on
the corner of Fifth and Carpenter Streets in Philadelphia[,
Pennsylvania]. At approximately 9:00 [p.m.] that evening, King
saw the victim, Najee Gilliard, riding his bike along Fifth Street,
towards King. King was not happy to see Gilliard, [as] Gilliard had
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 903 and 2502(a).
2 18 Pa.C.S.A. § 2502(a).
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a reputation for causing trouble. Soon after, King heard the sound
of a gun being fired and immediately noticed that Gilliard was on
the ground. He also noticed that a green minivan was next to
Gilliard, and saw [Appellant] in the minivan, attempting to close
the rear passenger-side door of the van. The van then fled,
turning onto Carpenter Street.
Although Philadelphia police soon arrived on the scene, King did
not inform them that he witnessed the shooting. The officers
observed that Gilliard was suffering from a gunshot wound on his
left temple and therefore transported him in a police wagon to
Jefferson Hospital, where he was later pronounced dead.
Gilliard’s murder went without an arrest for approximately five
years. In early 2013, Detective William Kelhower, the assigned
investigator to Gilliard’s case, became aware that King was a
witness to the murder. Accordingly, the detective located King
and transported him to the Homicide Unit for an interview. During
the interview, King admitted that he had witnessed the shooting
and told detectives what he had seen. In addition, King informed
detectives that Sharon Jacobs and Lisa Thomas also [] witnessed
the shooting. Therefore, detectives located and interviewed the
two women, who both recounted hearing the sound of gunshots
and seeing a green van flee the scene. In addition, Thomas told
detectives that the green van belonged to her cousin, [Appellant].
Trial Court Opinion, 4/10/19, at 3-4.
Appellant’s first trial began December 10, 2014, but ultimately resulted
in a mistrial “due to the late turnover of discovery.” Id. at 1. Appellant’s
second trial began in August 2016, but also resulted in a mistrial due to a
hung jury. Id. Appellant’s third and final trial began on July 23, 2018. On
July 27, 2018, the jury convicted Appellant of the aforementioned crimes. “On
[that] same day[,] the [trial court] imposed the mandatory sentence of life in
prison for the first-degree murder charge[,] with a concurrent sentence of 17
to 34 years in prison for the conspiracy charge, for an aggregate sentence of
life in prison.” Id. Appellant filed a post-sentence motion on August 3, 2018,
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and a supplemental post-sentence motion with leave of court on October 29,
2018. The trial court denied both motions on December 17, 2018. Trial Court
Order, 12/17/18, at 1. This timely appeal followed.3
Appellant raises the following issues on appeal:4
I. [Whether Appellant’s right to a fair trial was violated
because the Commonwealth failed to prevent Ronald King
from testifying falsely and took no affirmative steps to
mitigate the effects of the false testimony?]
II. Did the trial court err in denying [Appellant’s] objection to
the admission of the stipulation of [Shantae] Coppock’s
witness statement under the Sixth Amendment[‘s] ban
[against] testimonial hearsay?
III. Whether the trial court erred in denying [] Appellant’s
motion for judgment of acquittal?
IV. Whether the trial court erred in denying [] Appellant’s
motion for a new trial?
Appellant’s Brief at 8-9 (superfluous capitalization omitted).
Preliminarily, we note that appellate briefs must conform in all material
respect to the briefing requirements set forth in the Pennsylvania Rules of
Appellate Procedure. Pa.R.A.P. 2101; see also Pa.R.A.P. 2114-2119. This
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3 Appellant filed a notice of appeal on January 15, 2019. On January 17, 2019,
the trial court filed an order directing Appellant to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). Appellant
timely complied. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on April 10, 2019.
4 We have altered the order of Appellant’s issues for clarity and ease of
discussion. See Appellant’s Brief at 8-9.
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Court “will not become the counsel for an appellant, ‘and will not, therefore,
consider issues . . . which are not fully developed in his brief.’”
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006). Thus,
“when defects in a brief impede our ability to conduct meaningful appellate
review, we may dismiss the appeal entirely or find certain issues to be
waived.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007);
see also Pa.R.A.P. 2101. With these principles in mind, we will address each
of Appellant’s claims in turn.
In Appellant’s first issue, he argues that the Commonwealth violated his
right to a fair trial by permitting its witness, Ronald King, to provide “false
testimony.” Appellant’s Brief at 24-25. Per Appellant, Ronald King “made a
series of misstatements and lies” regarding “the timing and nature of the
Commonwealth’s assistance,” particularly, the Commonwealth’s alleged
provision of “rent money” which King testified was provided to him for a hotel
stay.5 Id. at 30, 32. This issue, however, is waived. In his appellate brief,
Appellant fails to direct this Court’s attention to the specific false statements
made by King in the certified record. See Commonwealth v. Fransen, 42
A.3d 1100, 1116 n.14 (Pa. Super. 2012) (explaining that an appellant’s claim
may be deemed waived for failure to direct this Court's attention to that part
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5 Per Appellant, King falsely testified about the timing of a hotel stay provided
by the Commonwealth. He argues that the Commonwealth paid for King to
stay at a hotel prior to a preliminary hearing in 2014, but King testified that
he did not stay at the hotel until after the preliminary hearing. See Appellant’s
Brief at 35 and 47-48.
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of the record substantiating his claim); see also Commonwealth v.
Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (holding that the failure to
properly develop an argument in an appellate brief, including proper citation
to the record, results in waiver; this Court will not “scour the record to find
evidence to support an argument”); see also Pa.R.A.P. 2119(c). Instead,
Appellant makes bald assertions of King’s falsity and general references to
King’s entire testimony. See Appellant’s Brief at 24-51. Accordingly,
Appellant’s first issue is waived.
Even if Appellant’s first issue were not waived for failure to cite to the
certified record, it is waived for failure to object at the time of trial. As the
trial court noted:
When defense counsel is aware that the testimony from a
Commonwealth’s witness is false and fails to object, a due process
claim is not available on appeal. Here, defense counsel was aware
of the circumstances surrounding King’s relocation because at
[Appellant’s] first trial, the Commonwealth stated on the record
that prior to [Appellant’s] preliminary hearing, King had been
placed in a hotel through the assistance of the Commonwealth.
Although King testified at the instant trial that the relocation did
not occur until after the hearing, defense counsel did not object
to King’s testimony. Accordingly, [Appellant’s] claim is waived.
Trial Court Opinion, 4/10/19, at 21 (internal citations omitted).
Moreover, even if Appellant’s first issue were not waived, it merits no
relief. As the trial court noted, there were “minor discrepancies” in King’s
testimony regarding his hotel stay. Id. at 17. However, “the remainder of
King’s testimony, especially that pertaining to the night of the murder, was
largely consistent with his police statement and prior testimony.” Id.
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Additionally, the Commonwealth provided other information that corroborated
King’s testimony regarding the incident in question. Id. at 18-19. Thus, said
discrepancies regarding King’s hotel stay did not deprive Appellant of a fair
trial.
Second, Appellant argues that the trial court’s admission of Shantae
Coppock’s witness statement violated his Sixth Amendment right to
confrontation. Appellant’s Brief at 61. This argument is also waived. Our
review of the certified record indicates that Appellant failed to place a timely
objection to such evidence on the record. See Pa.R.E. 103(a)(1) (explaining
that a claim of error “may not be predicated upon a ruling that admits or
excludes evidence unless … a timely objection … appears of record”). To the
contrary, Appellant stipulated to its admission.6 Accordingly, this issue is
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6 The following exchange occurred upon the admission of Coppock’s statement
to the jury.
[Commonwealth]: There are a few stipulations by and between
counsel. The first stipulation, ladies and gentlemen, is from a
witness by the name of Shantae Coppock. If Ms. Coppock was
called to testify, she would testify that she was the wife of Len
Coppock, also known as “Coo.” She would further testify that Len
Coppock was murdered on May 24, 2008. After her husband’s
death, Ms. Coppock was told by a person named Shane Ladson,
who was told by “D[,]” that her husband, Len Coppock, was killed
by Najee and Cali. Shane also told Ms. Coppock that “D” told her
that Najee and Cali killed an Asian guy in South Philly that night.
Ms. Coppock would also say that Len Coppock’s best friend was
[Appellant] and that she would not remember whether --
[Defense Counsel]: Could not remember
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waived.7 See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).
Third, Appellant argues that the trial court erred by denying his motion
for judgment of acquittal. Appellant’s Brief at 9. Not only does Appellant’s
statement of the question presented violate Pa.R.A.P. 2116(a) (explaining that
if the “statement of the question [does not] state concisely the issue to be
resolved, expressed in the terms and circumstances of the case” it will not “be
considered”), but Appellant utterly fails to develop this argument on appeal.
Indeed, the entire section devoted to this issue is left blank. See Appellant’s
Brief at 68. Accordingly, Appellant’s third issue is waived. See
Commonwealth v. Luktisch, 680 A.2d 877, 879 n.1 (Pa. 1996) (holding
that an issue is waived where the defendant failed to develop an argument in
his appellate brief and cited no authority).
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[Commonwealth]: Excuse me. And she could not remember
whether [Appellant] was present when Shane was giving her this
information about Len Coppock’s death. So stipulated, Counsel?
[Defense Counsel]: That is so stipulated. Thank you.
N.T. Trial (Jury) Volume 3, 7/26/18, at 243-244. Thus, a reading of this
exchange further demonstrates Appellant’s failure to timely object to the
admission of Coppock’s statement as a violation of Appellant’s Sixth
Amendment right to confront adverse witnesses.
7 Appellant was required to set forth in his brief the place in the record where
the issue was preserved. See Pa.R.A.P. 2117(c). He failed to do so. Such
failure also results in waiver of that issue. See Pa.R.A.P. 2101.
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Lastly, Appellant argues that the trial court abused its discretion when
it denied his motion for a new trial. Appellant’s Brief at 51. Specifically,
Appellant contends that, because the “Commonwealth’s case-in-chief reveals
that the primary and central witnesses’ testimonies are . . . internally
inconsistent,” the jury’s verdict was contrary to the weight of the evidence.
Id. at 57. Again, Appellant does not identify the place in the record where
such testimony was admitted. See Pa.R.A.P. 2119(c). Thus, we could find
this issue waived. Nonetheless, because we conclude that the jury’s verdict
was not against the weight of the evidence, we decline to do so.
When considering a challenge to the weight of the evidence offered in
support of a criminal conviction, our standard of review is well settled.
“A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court.” Commonwealth v. Clay, 64 A.3d 1049,
1054–55 (Pa. 2013). “A new trial should not be granted because
of a mere conflict in the testimony or because the judge on the
same facts would have arrived at a different conclusion.” Id. at
1055. When a trial court considers a motion for a new trial based
upon a weight of the evidence claim, the trial court may award
relief only “when the jury's verdict is so contrary to the evidence
as to shock one's sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.” Id. The inquiry is not the same for an appellate court.
Rather, when an appellate court reviews a weight claim, the court
is reviewing the exercise of discretion by the trial court, not the
underlying question of whether the verdict was against the weight
of the evidence. Id. at 1054. The appellate court reviews a
weight claim using an abuse of discretion standard. Id. at 1057.
At trial, the jury was the ultimate fact-finder and the sole arbiter
of the credibility of each of the witnesses. “Issues of witness
credibility include questions of inconsistent testimony and
improper motive.” Commonwealth v. Sanchez, 36 A.3d 24, 27
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(Pa. 2011) (citation omitted). A jury is entitled to resolve any
inconsistencies in the Commonwealth's evidence in the manner
that it sees fit. See Commonwealth v. Rivera, 983 A.2d 1211,
1220 (Pa. 2009) (stating that “the trier of fact, in passing upon
the credibility of witnesses, is free to believe all, part, or none of
the evidence”) (citation omitted).
As noted, inconsistencies in eyewitness testimony are not
sufficient to warrant a new trial on grounds that the verdict was
against the weight of the evidence. Clay, 64 A.3d at 1055.
Commonwealth v. Jacoby, 170 A.3d 1065, 1080-1081 (Pa. 2017) (parallel
citations omitted).
In rejecting Appellant's challenge to the weight of the evidence, the trial
court reasoned as follows.
Here, [Appellant’s] weight claim is premised upon the contention
that the Commonwealth’s eyewitnesses, particularly Ronald King,
were not credible. In his post-sentence motion, [Appellant]
argued that the testimony of Ronald King, Sharon Jacobs, and Lisa
Thomas was not credible because: (1) they were inconsistent; (2)
Jacobs and Thomas were drug addicts at the time they witnessed
the murder; and (3) Thomas and King received benefits from the
government for their testimony.
***
As to Ronald King’s testimony, [Appellant] points out that King
testified that he had been placed in a hotel prior to [Appellant’s]
preliminary hearing, but later testified that he was not staying in
a hotel before the preliminary hearing. At [Appellant’s] first trial,
the Commonwealth informed the [trial court] that [King] had
indeed been placed in a hotel prior to the first preliminary hearing.
In addition, King also testified that he and [Appellant’s] brother
had gotten into an altercation prior to [Appellant’s] preliminary
hearing, but after being questioned by the prosecutor on that
response, changed the timeline of the altercation to after the
preliminary hearing.
While it is true that the above line of questioning does reveal minor
discrepancies in King’s testimony, the remainder of King’s
testimony, especially pertaining to the night of the murder, was
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largely consistent with his police statement and prior testimony.
[Specifically,] King testified that he was near Fifth and Carpenter
Streets when he saw Gilliard riding toward him on his bicycle. He
then heard the sound of gunshots and saw smoke and a green van
near Gilliard. King denied ever seeing the actual shot being fired
or a gun, but did testify that he made eye contact with [Appellant],
who was sitting alone in the rear passenger side of the van and
closing the van’s door before it sped away. King told police the
same version of events in his statement that was taken in May
2013. Moreover, in [Appellant’s] second trial, King testified that
he was standing alone on the corner of Fifth and Carpenter when
he saw Gilliard, heard the gunshots, saw smoke, and then noticed
[Appellant] closing the door of the green van. Again, King denied
ever seeing the shot being fired or the gun. Finally, at
[Appellant’s] first trial, although King initially denied seeing
anything other than a person’s arm in the van when the shooting
occurred, after reviewing the video recording of his police
interview, as well as his police statement, King recalled that he
did see [Appellant’s] face.
Furthermore, Lisa Thomas’s testimony and Sharon Jacob’s police
statement largely corroborated King’s testimony. King testified
that he saw Thomas and Jacobs that evening, and both witnesses
admitted that they were at the scene at the time of the murder.
Thomas testified that she did not see the shooting, but that she
heard the sound of gunshots and then saw a green van and heard
its tires [squealing] as it fled the scene. She recognized the van
as belonging to her cousin, [Appellant]. While Thomas initially
told police, on the day after the shooting, that she did not see any
vehicle at the scene, she explained at trial that she gave that
response because she was scared. In addition, Sharon Jacobs told
detectives that she was standing on Fifth Street when she heard
the sound of gunshots and saw a green van drive by. She also
told detectives that she recalled seeing [Appellant] drive that van
on prior occasions.
While it is true that Jacobs denied providing the above information
to detectives and testified that she saw a burgundy, not a green,
van, her statement to police was admitted for its truth during her
testimony, as a prior inconsistent statement that was signed and
adopted by the declarant. See Pa.R.E. 803.1(1)(b). It is well
established that where a witness at trial recants a statement that
[she] made to police, the fact-finder is “free to evaluate both the
[witness’s] statement to police as well as [her] testimony at trial
recanting that statement, and [is] free to believe all, part, or none
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of the evidence.” Commonwealth v. Hanible, 836 A.2d 36, 39
(Pa. 2003). Such recantations are “notoriously unreliable.”
Commonwealth v. Johnson, 966 A.2d 523, 541 (Pa. 2009)
(internal citations omitted).
The Commonwealth also presented additional evidence that
corroborated [the testimony of King and Thomas] and Jacobs’s
statement. At trial, Officer Klineburger testified that she
responded to the scene after the shooting and saw Gilliard on the
ground, with his body “intertwined in a bicycle.” King testified
that after Gilliard was shot, “his bike was sandwiched with his
legs.” Moreover, Thomas recalled seeing Gilliard bleeding from
his head after being shot. The medical examiner testified that
Gilliard suffered from a single gunshot wound to his head. In
addition, Detective Kelhower testified that he located a traffic
citation from February 2010 that was issued to [Appellant] and
that the description of the vehicle was a “green SW.” The
detective explained that SW indicated that the vehicle was either
a station wagon or a van. While traffic records also indicated that
this vehicle was purchased by [Appellant’s] mother in 2009, which
was after the murder, the detective explained that [Appellant’s]
mother had purchased the vehicle at a Parking Authority Auction
after the vehicle [was] impounded. While there is no record of
the vehicle[’]s previous owner, the detective agreed that an owner
could avoid multiple fees that the Parking Authority imposes after
it impounds a vehicle by instead buying the vehicle back at
auction.
Accordingly, the evidence fully supported the jury’s verdict, and
therefore, the [trial court] did not abuse its discretion in denying
[Appellant’s] motion for a new trial.
Trial Court Opinion, 4/10/19, at 16-19 (internal citations to the record
omitted).
Our review of the certified record reveals that the trial court's
assessment enjoys record support. For this reason, we conclude that the trial
court properly exercised its discretion in denying Appellant's motion for a new
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trial based on the weight of the evidence. Accordingly, we affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/20
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