J-A18001-19
NON-PR2ECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZACHERY LAMAR THREATS :
:
Appellant : No. 256 WDA 2017
Appeal from the Judgment of Sentence January 17, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012686-2014
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 29, 2020
Zachary Lamar Threats appeals from his January 17, 2017 judgment of
sentence after a jury found him guilty of first-degree murder, burglary, and
carrying a firearm without a license, which is a violation of the Pennsylvania
Uniform Firearms Act (“VUFA”). We affirm.
The trial court offered the following summary of the facts of this case:
On July 4, 2014, Dionna Palmer (“Ms. Palmer”) was at her
residence at 7710 Tioga Street in the Homewood section of the
City of Pittsburgh at approximately 3:00 p.m. She had just
returned home from work and was about to enjoy the Fourth of
July holiday with her fiancé and family. Ms. Palmer lived at the
residence with her fiancé, Kamill Arnold [(“Mr. Arnold” or the
“victim”)], her brother, David Palmer (“Mr. Palmer”), her
daughter, mother and her stepfather. Mr. Arnold was in the back
yard of the residence cooking on the grill. . . . Mr. Arnold
completed grilling some meat and took a tray of grilled meat into
the house. Ms. Palmer followed him inside . . . . As she put [a]
pot on the stove, she turned to her left to speak with Mr. Arnold.
At that point, she observed [Appellant] storm through the back
door of the residence, wielding a firearm. [Appellant] faced Mr.
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Arnold and shot [him] one time. After Mr. Arnold fell to the floor,
[Appellant] stood over [him] and shot him again. [Appellant] then
pulled his t-shirt up and tried to cover his face. [Appellant] then
ran through the house and fled out the front door. Ms. Palmer
attended to Mr. Arnold who was bleeding very badly.
[Contemporaneously,] Mr. Palmer [also] observed [Appellant]
rush through the rear door of the residence, raise a firearm and
shoot Mr. Arnold. Instinctively, Mr. Palmer dropped to the floor.
A few seconds later, he heard another shot. He then observed
[Appellant] run through the house and flee. Mr. Palmer then
called the police.
On July 5, 2014, the day after the shooting, Ms. Palmer and her
brother met with detectives. Ms. Palmer told detectives she had
never seen the shooter before the shooting. Ms. Palmer and Mr.
Palmer were each shown a photo array in an effort to identify the
shooter. [Appellant’s] photo was not in the photo array and
neither Ms. Palmer nor Mr. Palmer could identify anyone in the
photo array. After viewing the photo array, Ms. Palmer advised
detectives that her brother had heard that a person with the
nickname “Ouga” may have been responsible for the shooting.1
Detectives accessed a Bureau of Police database and searched
that nickname. The search returned a result for [Appellant].
[Appellant’s] photo was placed in a second photo array. Ms.
Palmer and Mr. Palmer were separately shown the second photo
array and they each independently identified [Appellant] as the
shooter.
1 Mr. Palmer testified that he believed he first heard the
name “Ouga” after [Appellant’s] photograph appeared on
the news a few days after the shooting. The defense
claimed that references to “Ouga” should not have been
permitted at trial because Ms. Palmer said her brother told
her about that nickname on July 5, 2014[,] but her brother
testified that he only learned of that nickname after that
date. . . .
During the investigation, detectives learned that a few days before
the shooting, Ms. Palmer went to a public housing complex in the
City of Pittsburgh, (which she believed was “Northview Heights”),
with the victim. Ms. Palmer knew the victim was a “street” person
and she was concerned about his activities. Despite her concerns,
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she went with the victim to Northview Heights. When they arrived
at Northview Heights, the victim parked the car. Ms. Palmer sat
in the rear passenger seat of their vehicle due to her concern
about the reasons for the trip. She watched the victim exit the
vehicle and climb a set of stairs to meet with [Appellant]. It was
the first time she had ever seen [Appellant]. She testified that
she was clearly able to see [Appellant’s] face. After a brief
meeting, the victim returned to the vehicle. Ms. Palmer and the
victim left Northview Heights and traveled to a Wine & Spirits
store. As the victim got out of the vehicle, the victim said aloud
to Ms. Palmer, “Fuck that nigga, I’m keeping his money.” The
victim went into the store and returned with liquor and he had
some money in his hand. Ms. Palmer initially did not inform the
police officers about this incident due to fear of retribution. At
pretrial hearings, Ms. Palmer even testified falsely under oath that
she had never seen [Appellant] prior to the day of the shooting.
At trial, she recanted her false testimony and testified about the
Northview Heights incident and testified that she saw [Appellant]
on that date with the victim. She was vigorously cross-examined
at trial by the defense over the fact that was an admitted perjurer.
...
Christina Jackson testified that [Appellant] had stayed with her at
her residence during July of 2014. She testified that she had a
conversation with [Appellant] during this time in which [Appellant]
told her that someone had robbed him and he was going to get
his money back on the Fourth of July.
Robert Best testified that he was with [Appellant] on one day in
July of 2014. On that day, he and [Appellant] were watching
television and [Appellant’s] photograph appeared during a story
on the local news. When Mr. Best asked [Appellant] what had
happened, [Appellant] told him that he went to a cookout on the
Fourth of July. [Appellant] claimed that someone tried to rob him
and they “tussled.” [Appellant] also told Mr. Best that a gun fell
to the floor while the two men fought and [Appellant] picked up
the gun and shot the other person.
Detective Judd Emery testified that he interviewed [Appellant]
after providing him Miranda warnings. [Appellant] told Detective
Emery that he went to the victim’s residence to purchase drugs
along with an acquaintance, “Gangster Blizz,” to consummate a
drug deal. He explained that when he arrived at the victim’s
residence, a large black male put a gun to his head and tried to
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rob him. At that point, Gangster Blizz wielded a gun and shot the
victim. The two men then fled the residence. . . .
Trial Court Opinion, 1/22/18, at 1-5.
After a jury trial, Appellant was found guilty of first-degree murder,
burglary, and VUFA. On January 17, 2017, the trial court sentenced Appellant
to a mandatory term of life imprisonment with respect to his first-degree
murder conviction, a consecutive term of ten to twenty years of imprisonment
with respect to burglary, and no further punishment relative to Appellant’s
VUFA conviction. Appellant filed a post-sentence motion seeking a new trial
claiming, inter alia, that the jury’s verdict was against the weight of evidence.
The trial court denied it on January 23, 2017.
Appellant filed a timely, counseled notice of appeal. On February 21,
2017, Appellant was directed to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Despite being given a significant
extension, it appears from the certified record that Appellant’s initial appellate
counsel filed Appellant’s Rule 1925(b) statement more than two months late.1
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1 Although Appellant’s first Rule 1925(b) statement was untimely filed,
Appellant was represented by counsel. Such an oversight is per se ineffective
assistance of counsel. See Commonwealth v. Burton, 973 A.2d 428, 433
(Pa.Super. 2009) (“[W]e treat the late filing of the 1925 concise statement as
the equivalent of the failure to file such a statement.”). The Rules of Appellate
Procedure would typically call for remand in such a situation. See Pa.R.A.P.
1925(c)(3). However, remand is not necessary in this case because Appellant
ultimately was given an opportunity to file an amended Rule 1925(b)
statement in this case, and the trial court filed its Rule 1925(a) opinion. As
such, we will address the merits of Appellant’s case. See Burton, supra at
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The trial court filed an initial Rule 1925(a) opinion. While still represented by
counsel, Appellant filed a pro se application styled as a “Motion to Waive
Counsel and Request to Represent Himself.” A copy of this filing was
forwarded to Appellant’s counsel pursuant to Commonwealth v. Jette, 23
A.3d 1032, 1044 (Pa. 2011), who supported the basis for Appellant’s request,
and this Court remanded the case to the trial court for a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
Ultimately, the trial court appointed new appellate counsel,2 and the
case was returned to this Court. However, Appellant’s newly appointed
counsel requested a second remand to the trial court in order to amend the
issues raised in Appellant’s first Rule 1925(b) concise statement. This Court
granted the request and permitted Appellant to file an amended Rule 1925(b)
statement and the trial court filed an updated Rule 1925(a) opinion. Appellant
has raised the following issues for our consideration, which we have re-
ordered for ease of disposition:
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433 (“[I]f there has been an untimely filing, this Court may decide the appeal
on the merits if the trial court had adequate opportunity to prepare an opinion
addressing the issues being raised on appeal.”).
2 While the case was on remand for a Grazier hearing, Appellant sent a letter
to appellate counsel threatening him and his family with significant violence if
he remained on the case. See “Exhibit A,” Petition to Withdraw as Counsel,
3/20/18. In open court, Appellant repeated these threats. See N.T. Hearing,
3/21/18, at 10-11 (“I am not intimidating, I just said if you don’t get off the
case I am going to have somebody shoot him or his family.”). The trial court
granted appellate counsel’s request to withdraw and appointed the Office of
Conflict Counsel to represent Appellant.
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1. Whether the Trial Court erred when it failed to exclude [Ms.
Palmer’s] testimony regarding the alleged drug deal that occurred
prior to the shooting?
2. Whether the Trial Court erred when it denied [Appellant’s]
pretrial motion to suppress his statement to the police, the motion
for reconsideration, and the motion to amend, when the
Commonwealth failed to demonstrate that [Appellant’s] Fifth and
Sixth Amendment rights were not violated?
3. Whether the Trial Court erred when it denied [Appellant’s]
petitions for additional discovery and motion in limine, as a
violation of Brady v. Maryland[, 373 U.S. 83 (1963)] and the
Best Evidence Rule?
4. Whether the Trial Court erred when it denied [Appellant’s]
request for a mistrial after Detective Shaw’s testimony?
5. Whether the verdict was against the weight of the evidence to
convict [Appellant] of First Degree Murder?
Appellant’s brief at 3.
Appellant’s first issue asserts that the trial court erred in failing to
suppress Ms. Palmer’s testimony concerning the financial transaction between
Appellant and the victim that transpired before the shooting. In particular,
Appellant objects to Ms. Palmer’s testimony recounting that the victim said he
was “keeping” Appellant’s money. Appellant contends that the trial court
should have excluded this testimony as unfairly prejudicial pursuant to Pa.R.E.
403 (“The court may exclude relevant evidence if its probative value is
outweighed by a danger of . . . unfair prejudice . . . .”) and as inadmissible
hearsay. See Pa.R.E. 802 (“Hearsay is not admissible except as provided by
[the Pennsylvania Rules of Evidence], by other rules prescribed by the
Pennsylvania Supreme Court, or by statute.”). Although presented as a single
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issue, this claim essentially involves two separate allegations, namely: (1)
that Ms. Palmer’s testimony regarding this financial transaction was unduly
prejudicial because, according to Appellant, it “heavily indicates that
[Appellant and the victim] were involved in some type of illegal activity;” and
(2) that Ms. Palmer’s recitation of the victim’s statement regarding Appellant’s
money was inadmissible hearsay that allegedly “was entered into evidence to
show that some illegal activity occurred between [the victim and Appellant]
prior to [the victim’s] death.” Appellant’s brief at 19. In our view, neither
claim entitles Appellant to relief.
Appellant is challenging the trial court’s evidentiary rulings.3 As a
general matter, “[a]ppellate courts review evidentiary decisions for an abuse
of discretion.” Commonwealth v. Jacoby, 170 A.3d 1065, 1090 (Pa.Super.
2017). In this context, “[a]n abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is overridden or misapplied,
or the judgment exercised is manifestly unreasonable, or the result of
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3 The Commonwealth argues that Appellant has waived these claims by failing
to include citations to the record enumerating where in the record Appellant’s
objection to the inclusion of this evidence was noted in conformity with
Pa.R.A.P. 2117(c). However, this oversight by Appellant has not hampered or
precluded meaningful appellate review and, thus, we decline to find that
Appellant has waived these claims. See Roseberry Life Ins. Co. v. Zoning
Hearing Bd. of City of McKeesport, 664 A.2d 688, 693 n.7 (Pa.Cmwlth.
1995); see also Petow v. Warehime, 996 A.2d 1083, 1088 n.1 (Pa.Super.
2010) (holding that the decisions of the Commonwealth Court “provide
persuasive authority” and providing that this Court “may turn to our
colleagues on the Commonwealth Court for guidance when appropriate”).
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partiality, prejudice, bias or ill-will, as shown by the evidence or the record,
discretion is abused.” Id. With respect to the specific issue raised by
Appellant, we note that Pennsylvania courts are not “required to sanitize the
trial to eliminate all unpleasant facts from the jury’s consideration where those
facts are relevant to the issues at hand and form part of the history and natural
development of the events and offenses for which the defendant is charged.”
Commonwealth v. Lark, 543 A.2d 491, 501 (Pa. 1988).
As an initial matter, Appellant is mistaken in claiming that this evidence
was offered by the Commonwealth to establish additional criminal behavior on
the part of either Appellant or the victim. Our review of Ms. Palmer’s
testimony indicates that she made no such explicit statement to that effect.4
See N.T. Trial, 1/11/17, at 247-52. To the contrary, her testimony indicated
that she was not aware of the ultimate object of the transaction. Id. Even
assuming, arguendo, that Ms. Palmer had stated that the at-issue transaction
concerned an illegal purpose, the admission of Ms. Palmer’s testimony directly
spoke to Appellant’s motive and intent in killing the victim. See Pa.R.E.
404(b)(1)-(2) (stating that evidence of “a crime, wrong, or other act . . . may
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4 Although Ms. Palmer did not insinuate that Appellant and the victim had
been engaged in a narcotics transaction, other testimony from the
Commonwealth’s witnesses did so attest. In particular, one of the Pittsburgh
Police Department detectives who interviewed Appellant on August 12, 2014,
testified that Appellant freely admitted during his interrogation that he had
conducted a “drug deal” with the victim “a couple of days prior to the
homicide.” See N.T. Trial, 1/12/17, at 371-72.
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be admissible” for the purposes of proving motive or intent”). In this instance,
the probative value of this evidence concerning Appellant’s financial activities
that were allegedly related to narcotics outweighed any potential prejudicial
effect. See Commonwealth v. Malloy, 856 A.2d 767, 776 (Pa. 2004)
(holding evidence of prior “drug-related activity” was admissible under Rule
404(b)(2) to demonstrate motive and “to show that this killing did not occur
in a vacuum”); see also Commonwealth v. Hall, 565 A.2d 144, 149 (Pa.
1989) (same).
Furthermore, Appellant’s arguments regarding hearsay are similarly
meritless. Instantly, the trial court permitted this testimony pursuant to a
well-recognized exception to the rule against hearsay codified at Pa.R.E.
803(3) (permitting the admission of hearsay evidence where it is “[a]
statement of the declarant’s then-existing state of mine (such as motive,
intent or plan)”). See Trial Court Opinion, 1/22/18, at 9-10. As discussed
above, the victim’s statement was indicative of Appellant’s motive in shooting
the victim and, therefore, was properly admitted under Rule 803(3). See
Commonwealth v. Puskar, 740 A.2d 219, 225 (Pa. 1999) (holding that out-
of-court statement of victim that he would not pay defendant back for a model
train set was admissible to establish motive for murder).
Overall, we discern no abuse of discretion or error of law in the trial
court’s rulings and no relief is due.
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Appellant’s second issue concerns the trial court’s denial of his motion
wherein to suppress various incriminating statements that he made to
Pittsburgh Police Department detectives while he was being interrogated on
August 12, 2014, and after he signed a Miranda waiver.5 Appellant made
three separate attempts to exclude these statements by filing: (1) a motion
to suppress arguing that he was too intoxicated to knowingly and voluntarily
waive his Miranda rights, see Motion to Suppress, 1/11/16, at 1; (2) a motion
for reconsideration of his motion to suppress on the grounds that the
detectives had ignored Appellant’s request for legal representation during the
interrogation, see Motion for Reconsideration, 7/22/16, at 1-5; and (3) an
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5 No audio or video transcript of Appellant’s August 12, 2014 interrogation
was created. The precise contours of these incriminating statements are
disputed by the parties and Appellant has not specifically identified which
statements he wishes to exclude from the record. Looking to the certified
record, it appears that trial testimony from one of the Pittsburgh Police
Department detectives who interviewed Appellant is the best exemplar. See
N.T. Trial, 1/12/17, at 371-77. In pertinent part, this testimony established
that Appellant: (1) admitted he knew the victim and had engaged in a “drug
deal” with the victim a few days prior to the shooting; (2) described the
shooting in great detail prior to being provided with any salient details of the
crime; and (3) was aware of the warrant for his arrest in relation to the instant
homicide prior to being arrested. Id. at 371-72, 375-76. Additionally, the
detective testified that Appellant stated that the victim’s July 4, 2014 murder
was actually the result of a failed drug deal, and that an individual named
“Gangster Bizz” had killed the victim. Id. at 374-75. Following this initial
interview, Appellant was interrogated by a second detective. This
interrogation was recorded and was played for the trial court while it was
considering Appellant’s arguments regarding suppression prior to trial. See
N.T. Hearing, 1/10/17, at 55, 104-05 (noting Appellant’s “very calm voluntary
demeanor answering incriminating questions with incriminating answers” and
that he never definitively requested to speak with his attorney).
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amended motion to suppress arguing that the detectives were fully aware that
Appellant was represented by an attorney at the time of the interrogation, and
that the detectives had ignored his request to speak with counsel. See
Amended Motion to Suppress, 12/21/16, at 1-2. Before this Court, Appellant
has focused his arguments6 upon the denial of his alleged requests to speak
with his then-attorney, Casey White, Esquire. Appellant asserts that his rights
to counsel and against self-incrimination under the Fifth and Sixth
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6 To the extent that Appellant relies upon his alleged intoxication in support
of this argument, we conclude that he has not sufficiently demonstrated that
he was so intoxicated that he was unable to comprehend the Miranda
warnings provided by the officers. See Commonwealth v. Ventura, 975
A.2d 1128, 1137-38 (Pa.Super. 2009) (“The fact that an accused [is
intoxicated] does not automatically invalidate his subsequent incriminating
statements. The test is whether he had sufficient mental capacity at the time
of giving his statement to know what he was saying and to have voluntarily
intended to say it.”). Appellant’s relevant discussion of this issue is confined
to a single sentence without citation to any authoritative legal sources. See
Appellant’s brief at 26 (“Per [Appellant’s] own testimony, he was ‘rolling,’
indicating he was under the influence of drugs at the time of the interrogation,
which also indicates that the waiver was not knowing, intelligent, or
voluntary.”). As such, Appellant is essentially arguing that the mere fact that
he alleges intoxication is sufficient, in and of itself, to invalidate his Miranda
waiver. However, our case law is clear that mere intoxication does not render
such a waiver involuntary without a demonstration that Appellant’s cognitive
awareness was significantly impacted. See Commonwealth v. Manning,
435 A.2d 1207, 1210 (Pa. 1981) (“[I]ntoxication is a factor to be considered,
but is not sufficient, in and of itself to render the confession involuntary.”).
No such evidence is present in the certified record, and Appellant cites no
support beyond his own testimony. See N.T. Hearing, 1/12/16, at 56, 63, 66,
68-69, 71 (testimony from detective indicating Appellant did not appears to
be intoxicated at the time of his interview). Even assuming, arguendo, that
Appellant was intoxicated at the time of interrogation, his argument is without
merit due to his failure to provide competent argument concerning his
allegedly diminished mental capacity at the time of his interrogation.
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Amendments of the U.S. Constitution and Article I, § 9 of the Pennsylvania
Constitution have been violated as a result. We disagree.
We consider Appellant’s arguments mindful of the following principles:
Our standard of review in addressing a challenge to the denial of
a suppression motion 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. . . . [T]he suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012)
(emphasis added, internal quotation marks omitted). We also note that “[i]t
is within the suppression court’s sole province as factfinder to pass on the
credibility of witnesses and the weight to be given their testimony.”
Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.Super. 2013).
As a general matter, Miranda protects a suspect’s “desire to deal with
the police only through counsel.” McNeil v. Wisconsin, 501 U.S. 171, 178
(1991). This right attaches upon custodial interrogation and, once invoked, it
prohibits any further questioning of a suspect until counsel is present. See
Arizona v. Roberson, 486 U.S. 675, 686-87 (1988). Indeed, the United
States Supreme Court has stated that once an accused has invoked his right
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to counsel, he “is not subject to further interrogation by the authorities until
counsel has been made available to him . . . .” Edwards v. Arizona, 451
U.S. 477, 484 (1981). However, the right to counsel must be specifically and
unambiguously invoked by the suspect in order to enter into force. See Davis
v. U.S., 512 U.S. 452, 459 (1994). The Supreme Court held in Davis that a
suspect “must articulate his desire to have counsel present sufficiently clearly
that a reasonable police officer in the circumstances would understand the
statement to be a request for an attorney. If the statement fails to meet the
requisite level of clarity, Edwards does not require that the officers stop
questioning the suspect.” Id.
Appellant’s argument concedes that he understood and signed the
Miranda waiver form provided by the Pittsburgh detectives, but claims that
he did so only to be able to speak with Attorney White. In his version of
events, Appellant characterizes his Miranda waiver as a kind of quid pro quo
that was necessary in order to gain access to his chosen counsel. See
Appellant’s brief at 26 (“[O]ne cannot waive his right to an attorney by signing
a form in order to speak with his attorney.”). In pertinent part, Appellant
maintained before the trial court that he repeatedly requested the opportunity
to speak with someone that he referred to only as “Casey” during the
interrogation. See N.T. Hearing, 1/10/17, at 86 (“I said let me call Casey
White. I didn’t say White, I said let me call Casey.”). Appellant also stated
that he never explicitly identified “Casey” as his attorney to the detectives.
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Id. at 87, 90 (“I said let me call Casey. I never said lawyer.”). Yet, Appellant
maintains that at least one of the detectives should have realized that he was
referring to Attorney White as a result of his prior interactions with Appellant.
Id. at 87-89. Appellant made general references to his past interactions with
the police to establish this alleged prior knowledge. Id. at 86-89.
When pressed, Appellant’s only specific factual argument was an
unsupported averment that one of the interviewing detectives was “in the
hallway” outside of a prior proceeding in the Allegheny County Court of
Common Pleas wherein Appellant was represented by Attorney White. Id. at
89. The same interrogating detective testified at the suppression hearing, and
stated that: (1) Appellant had never requested an attorney during the
interrogation; and (2) he had no prior knowledge of Appellant’s alleged
representation by Attorney White. Id. at 39-46. Based upon this evidence,
the trial court concluded that Appellant’s account of events was not credible
and that he had not sufficiently articulated his request for an attorney. Id. at
104-06 (“I can’t accept your testimony as reliable on matters we are here for
today for the reasons I’ve indicated.”).
We discern no abuse of discretion or error of law in the trial court’s
assessment. Its factual findings are supported in the certified record, and we
are accordingly bound by those findings. Accord Clemens, supra at 378.
Furthermore, we find no abuse of discretion or error of law in the trial court’s
conclusion that Appellant’s ambiguous references to an individual named
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“Casey,” without more, were insufficient to apprise the interrogating officers
that Appellant was requesting the assistance of counsel. Accord Davis,
supra at 461 (“[W]e decline to adopt a rule requiring officers to ask clarifying
questions. If the suspect’s statement is not an unambiguous or unequivocal
request for counsel, the officers have no obligation to stop questioning him.”).
No relief is due on this claim.
Appellant’s third issue implicates a potential violation under Brady v.
Maryland, 373 U.S. 83 (1963), which provides 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.” Id. at 87.
During discovery, Appellant made two separate requests for all “handwritten”
notes prepared by the investigating detectives. See Petition for Additional
Discovery, 1/27/15, at ¶ 1; see also Petition for Additional Discovery,
12/1/16, at ¶ 1.7 The Commonwealth disclaimed that such notes existed.
See Response to Discovery Motion, 2/6/15, at ¶ 1 (“There are no handwritten
notes available to turn over to defense.”). However, at trial, one of the
testifying detectives represented that he had created handwritten notes
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7 The December 1, 2016 petition bears all of the hallmarks of being a pro se
submission, and was denied as such by the trial court. See N.T. Hearing,
1/10/17, at 106 (“Petition for additional discovery is denied as filed by
[Appellant], not endorse[d] by [trial counsel].”). Appellant’s trial counsel later
orally adopted the motions and the trial court denied them. Id. at 109-10.
Consequently, there are no concerns as to hybrid representation.
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documenting Appellant’s interrogation that may still exist, and which were not
disclosed to Appellant during discovery. See N.T. Trial, 1/12/17, at 384-85.
Appellant claims that this alleged error requires a new trial. We disagree.
The legal principles that guide our review in this context have been
articulated by our Supreme Court:
“There are three components of a true Brady violation: [t]he
evidence must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.” Strickler v. Greene, 527 U.S.
263, 281-82 (1999)
Pursuant to Brady and its progeny, the prosecutor “has a duty to
learn of any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.” Kyles v.
Whitley, 514 U.S. 419, 437 (1995). However, there is “no
constitutional requirement that the prosecution make a complete
and detailed accounting to the defense of all police investigatory
work on a case.” Moore v. Illinois, 408 U.S. 786, 795 (1972).
“The mere possibility that an item of undisclosed information
might have helped the defense, or might have affected the
outcome of the trial, does not establish ‘materiality’ in the
constitutional sense.” U.S. v. Agurs, 427 U.S. 97, 109-10
(1976).
Commonwealth v. Natividad, 200 A.3d 11, 25-26 (Pa. 2019).
Appellant’s arguments concerning the alleged Brady violation in this
case are substantially threadbare and overly conclusory regarding the nature
of these handwritten notes. As an initial matter, the at-issue testimony from
the detective indicates a mere possibility that these notes still exist. Even
assuming, arguendo, that the Commonwealth can be fairly construed as
having “suppressed” this evidence, Appellant has failed to demonstrate that
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these notes are actually favorable to his case. In totality, Appellant’s
argument regarding the alleged favorability of these handwritten notes is
nothing more than an unsupported allegation that these notes might differ in
some material way from the official reports prepared by the Pittsburgh Police
Department detectives, citing testimony from the trial. See Appellant’s brief
at 29-30. However, the detective who prepared these handwritten notes
testified that there were no such substantive differences between the
handwritten notes and the official reports. See N.T. Trial, 1/12/17, at 386
(detective testifying that his handwritten notes “correspond” with the official
reports). Although not adjudicated under the precise framework of Brady,
this Court has previously held that even the outright destruction of
handwritten notes by police is not “material” to the underlying prosecution
where the content of the notes have been “substantively incorporated” into
the official report and is merely “cumulative evidence.” Commonwealth v.
Pickering, 533 A.2d 735, 736-37 (Pa.Super. 1987).
Moreover, Appellant has not identified (or even speculated as to) what
exculpatory or impeachment information might appear in these handwritten
notes. “Brady does not require the disclosure of information that is not
exculpatory but might merely form the groundwork for possible arguments or
defenses.” Commonwealth v. Paddy, 15 A.3d 431, 450-51 (Pa. 2011). The
gravamen of Appellant’s argument is simply that these handwritten notes may
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have yielded the basis for potential arguments in his defense. Without more,
we must conclude that Appellant’s third claim also fails.8 Id.
Appellant’s fourth claim concerns the trial court’s refusal to grant a
mistrial following a statement from one of the testifying detectives opining
that Appellant is “not allowed to have a gun.” See, N.T. Trial, 1/12/17, at
401. At the time that he made this statement, the detective was establishing
that Appellant was not licensed to carry a concealed firearm. Id. Immediately
afterward, Appellant requested a mistrial, arguing that this statement created
an inference that he had previously been convicted of a felony. Id. at 402.
The trial court ultimately denied the request, stating that the detective’s
comment did not explicitly state that Appellant had previously been convicted
of a felony. Id. at 402-03 (“I don’t think it crosses the line. I think it was
dangerously close but without any context one could infer that he is not
licensed to carry a gun, one could interpret that. The detective didn’t add
anything to it.”). Appellant now alleges that the trial court erred in denying
his mistrial motion. See Pa.R.Crim.P. 605(b). We disagree.
____________________________________________
8 Appellant has also included an argument that the Commonwealth has
violated the “best evidence rule” pursuant to Pa.R.E. 1002 by not producing
these handwritten notes. However, Appellant did not raise this issue before
the trial court, nor did he seek suppression on these grounds. As such, it has
been waived. See Commonwealth v. Johnson, 33 A.3d 122, 126
(Pa.Super. 2011) (holding in the context of suppression and discovery that
“[i]t is axiomatic that claims not raised in the trial court may not be raised for
the first time on appeal.”); see also Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the time on appeal.”).
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The legal principles undergirding this issue are as follows:
It is well-settled that the review of a trial court’s denial of a motion
for a mistrial is limited to determining whether the trial court
abused its discretion. An abuse of discretion is not merely an error
of judgment, but if in reaching a conclusion the law is overridden
or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will
. . . discretion is abused. A trial court may grant a mistrial only
where the incident upon which the motion is based is of such a
nature that its unavoidable effect is to deprive the defendant of a
fair trial by preventing the jury from weighing and rendering a
true verdict.
Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011) (internal
citation and quotation marks omitted). With specific reference to testimony
from witnesses, we note that “[e]very unwise or irrelevant remark made by a
witness during a trial does not compel the granting of a mistrial,” which is only
necessary “when the remark is so prejudicial that it deprived the defendant of
a fair and impartial trial.” Commonwealth v. Rebovich, 406 A.2d 791, 794
(Pa.Super. 1979).
Here, Appellant’s claim is that the testimony could have led the jury to
infer that Appellant had previously been convicted of a felony. See
Commonwealth v. Padilla, 923 A.2d 1189, 1194 (Pa.Super. 2007) (holding
that evidence of prior crimes or bad acts may not be presented at trial to
establish the defendant’s criminal character or proclivities). However, this
Court has previously held that “a mere passing reference to . . . prior criminal
activity” is not prejudicial such that it requires the granting of a mistrial.
Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.Super. 2008) (holding
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that testimony suggesting that defendant was visiting his probation officer
was not prejudicial following a curative instruction).9 Even assuming,
arguendo, that the detective’s testimony was objectionable, it was not of an
ilk that required the granting of a mistrial. See id. No relief is due.
Finally, with respect to Appellant’s challenge to the weight of the
Commonwealth’s evidence, Appellant rests his entire argument upon the
conflicting testimony of Ms. Palmer and Mr. Palmer and claims that the
inconsistencies in their respective testimony, alone, should compel a new trial.
See Appellant’s brief at 12-13 (“The key witness for the Commonwealth,
Dionna Palmer, was an admitted perjurer whose testimony was so tenuous,
vague and uncertain that the verdict should shock the conscience of this
Court.”). After reviewing the relevant evidence and testimony, we disagree.
Our Supreme Court has clearly delineated the basic standards that guide
our review of this claim:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Commonwealth v.
Brown, 648 A.2d 1177, 1189 (Pa. 1994). Because the trial judge
has had the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing
a trial court’s determination that the verdict is against the weight
____________________________________________
9 In Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.Super. 2008),
the trial court issued a curative instruction regarding the objectionable
testimony. Instantly, the trial court offered to issue a curative instruction
regarding the detective’s testimony discussed above. However, Appellant
declined the trial court’s offer. See N.T. Trial, 1/12/2017, at 403.
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of the evidence. Commonwealth v. Farquharson, 467 Pa. 50,
354 A.2d 545 (Pa.1976). One of the least assailable reasons for
granting or denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). Furthermore, “[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 (citing Commonwealth v. Widmer, 744 A.2d 745,
752 (Pa. 2000)). Rather, a new trial should only be awarded by the trial court
when the jury’s verdict is so contrary to the evidence as to shock one’s sense
of justice and where the awarding of a new trial is imperative so that right
may be given another opportunity to prevail. Id. at 1055 (citing Brown,
supra at 1189).
Instantly, Appellant’s claim implicates various portions of Ms. Palmer’s
and Mr. Palmer’s testimony, as well as others, including: (1) the differences
in Ms. Palmer’s testimony between the preliminary hearing (when she testified
that she had never seen Appellant before the Fourth of July incident) and her
testimony at trial (when she testified that the victim and Appellant had
engaged in a financial transaction a few days prior to the Fourth of July
incident; (2) minor conflicts in Mr. Palmer’s and Mrs. Palmer’s testimony
concerning the color of Appellant’s t-shirt on the day of the incident; (3) minor
inconsistencies in Ms. Palmer’s testimony regarding how Appellant exited the
residence after the shooting; (4) allegations that neither Ms. Palmer nor Mr.
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Palmer could have learned Appellant’s nickname “Ouga” prior to speaking with
law enforcement on July 5, 2014; and (5) testimony from the defense witness
Tony Banks indicating that the aforementioned individual “Gangster Bizz” was
seen fleeing from the scene of the shooting. See Appellant’s brief at 12-17.
In sum, Appellant’s claims all implicate conflicts in the testimony of the
various witnesses presented by Appellant and the Commonwealth, and
highlights the opposing narratives presented by the parties at trial. However,
“[o]ur law is crystal clear that the trier of fact, in passing upon the credibility
of witnesses and the weight of the evidence, is free to believe all, part, or
none of the evidence presented.” Commonwealth v. Hopkins, 747 A.2d
910, 914 (Pa.Super. 2000). “The Superior Court may not reweigh the
evidence and substitute our judgment for that of the finder of fact.” Id. Both
Mr. Palmer and Ms. Palmer were subjected to withering cross-examination
concerning the above-noted discrepancies, and the jury still chose to credit
their version of events above that of Appellant and the defense witnesses.
See N.T. Trial, 1/11/17, at 260-77, 289-95.
The trial court applied the proper legal standard in evaluating Appellant’s
claim concerning the weight of the evidence and concluded as follows:
[The trial court] believes that the jury was free to consider Ms.
Palmer’s credibility as an admitted perjurer. It obviously did so
and accepted her trial testimony as true. Her testimony
established the necessary elements that identified [Appellant] as
the person who shot and killed [the victim] and she described the
circumstances of the shooting. . . . Mr. Palmer’s testimony was
also probative as he provided information that established that
[Appellant] was involved in the offenses of conviction. [The trial
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court] has reviewed the trial court record and concludes that there
is nothing about this verdict that shocks any sense of justice.
Trial Court Opinion, 11/20/18, at 7-8. Mere conflicts in the testimony of the
Commonwealth’s witnesses do not undermine the weight of the evidence
against Appellant, particularly where the jury has been provided with ample
opportunity to assess those inconsistencies and reach its own determination.
See Commonwealth v. Stiles, 143 A.3d 968, 980-81 (Pa.Super. 2016)
(rejecting arguments that a verdict is against the weight of the evidence based
solely upon “various inconsistencies in the testimony and pretrial statements”
of Commonwealth witnesses); see also Commonwealth v. Home, 89 A.3d
277, 285-86 (Pa.Super. 2014) (same). Our review reveals no abuse of
discretion by the trial court. Accordingly, Appellant’s final claim also fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/2020
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Com. v. Threats, Z.
Combined Opinion