J-S58045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KURTAVIUS JERMON SMITH
Appellant No. 1092 WDA 2014
Appeal from the Judgment of Sentence February 25, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001172-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 09, 2015
Appellant, Kurtavius Jermon Smith, appeals from the judgment of
sentence entered in the Fayette County Court of Common Pleas, following
his jury trial conviction of third degree murder.1 We affirm.
The trial court opinion sets forth the relevant facts of this appeal as
follows:
The incident giving rise to this case occurred during the
early morning hours of May 13, 2012 in Pershing Court
located in Uniontown, Fayette County, Pennsylvania. At
approximately 4:45 a.m., Officer Jamie Holland of the
Uniontown City Police Department was dispatched to the
housing complex for a report of a male lying on the ground
with possible gunshot wounds. Officer Delbert DeWitt,
who was also dispatched to the scene, had noticed a white
____________________________________________
1
18 Pa.C.S.A. § 2502(c).
_________________________
*Retired Senior Judge assigned to the Superior Court.
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Jeep SUV leaving Pershing Court when he was entering it.
The vehicle’s headlights were off.
When Officer Holland arrived first, he observed a non-
responsive male with a single gunshot wound to the head.
The male was identified as Marlin Crawford (street name
“Zeus”)2 [(“Victim”)] and was pronounced dead…. The
cause of death was a gunshot wound to the head, which
went through to his skull and brain. Two firearms, two
cards with envelopes, and a red rose were found on
[Victim]. The firearms were a .357 revolver with six live
rounds in it located in [Victim’s] pocket and a fully loaded
9mm Taurus semiautomatic pistol that was partially tucked
underneath his right hip.
After receiving further information on the white Jeep’s
whereabouts, officers traveled to Millview Street in
Uniontown. The Jeep was parked in an unnamed alley,
and the hood was warm. An unidentified witness told the
officers that he observed two males exit the Jeep and
enter a residence at 20 Millview Street. The officers
approached the residence and demanded that all
occupants exit with their hands up. It took between five
and ten minutes for the first occupant to exit the residence
and an additional twenty minutes for [Appellant] and the
final remaining occupant to exit.
[Appellant] was interviewed by Captain David Rutter, who
read [Appellant] his Miranda[3] warnings. [Appellant]
acknowledged his rights and waived them. When he was
asked about the shooting, [Appellant] indicated that he
had no knowledge of the shooting, the victim, or the white
Jeep SUV in question. He was then escorted into a holding
cell while other interviews were being conducted. While in
the cell, [Appellant] asked to speak with Captain Rutter
alone. After several exchanges with Captain Rutter while
in the holding cell, [Appellant] was escorted back into the
____________________________________________
2
In the transcripts of the different proceedings in this case, Victim’s street
name is also spelled “Zuss” and “Zues.”
3
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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interview room approximately five hours after his initial
interview.
[Appellant] was again read his Miranda warnings, which
he again acknowledged and waived. [Appellant] told
Captain Rutter that his girlfriend at the time, Kimberly
Johnson, had been involved with [Victim], and he went to
[Victim’s] home in Pershing Court to confront him about
the relationship the night before the shooting. [Appellant]
said he was beating and kicking the front door, and that he
and [Victim] exchanged gunfire. [Appellant] claimed [that
he] fled the scene.
The next evening, [Appellant] said he was in Pershing
Court and saw [Victim] on the street. He indicated that he
walked over to [Victim] in order to confront him again.
This time it had to do with negative remarks [Victim]
allegedly made about [Appellant]. [Appellant] claimed
that another African-American male got in between them
and punched [Appellant] in the face. When [Appellant]
jumped to his feet, he claimed that [Victim] fired shots at
him, and he saw a gun on the ground, picked it up, and
fired at [Victim] as [Appellant] ran away. [Appellant] said
that he did not know if he had hit [Victim] because
[Appellant] was running for his life. He claimed to have
thrown the gun in a very specific area, but the officers
were unable to locate it.
Meanwhile, Captain Rutter was aware of text messages
that [Appellant] sent to Ms. Johnson, which included,
“…ima kill him thats my [fucking] word,” and he mentioned
to [Appellant] these text messages would be used against
him. [Appellant] remained in the holding cell where he
was eventually charged in connection with the shooting.
On January 3, 2013, [Appellant] and his counsel
volunteered another statement, and [Appellant] was
interviewed again by Detective Donald Gmitter at the
Fayette County District Attorney’s Office. He was read his
Miranda warnings, which he acknowledged and waived.
[Appellant] said that on the evening in question a person
named Paige Fairfax was driving the rented Jeep SUV. He
had gone to a club in Morgantown, West Virginia, and then
returned to [Jason] Miller’s home on Millview Street.
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Another individual named Deaundrey Fielder (street name
“K-Dub”) was with them and carried a 9mm semiautomatic
firearm. [Appellant] and Fielder were dropped off at the
entrance of Pershing Court in order to make a drug
purchase. It was there that they had encountered [Victim]
with some unidentified African-American males.
[Appellant] and [Victim] exchanged words and a physical
altercation between all of the men occurred. [Appellant]
saw the gun fall out of one of the men’s [waistbands] and
took it. While he was leaving, he claimed to have heard
shots but did not know who was shooting. He observed
Fielder running towards [Victim] but [Appellant] admitted
to firing some shots as he ran away.
Further, according to the latest statement: Fairfax picked
up [Appellant] and Fielder, and [Appellant] claimed to
have thrown the gun in an alley on Millview Street before
purchasing drugs elsewhere and returning to Miller’s home.
Fielder then retrieved the gun and put it, the drugs, and a
scale in the floorboard at Miller’s house.
[Appellant] was ultimately charged with [c]riminal
[h]omicide and [f]irearms not to be [c]arried without a
[l]icense. On August 10, 2012, following a Preliminary
Hearing before Magisterial District Judge Michael Metros,
all charges were bound over to the Court of Common
Pleas. Following his waiver of formal arraignment,
[Appellant] filed an Omnibus Pretrial Motion, which was
denied by the Honorable Gerald R. Solomon, Senior Judge
on March 28, 2013.
(Trial Court Opinion, filed July 7, 2014, at 2-5).4
Following a full hearing on March 27, 2013, concerning Appellant’s
omnibus pre-trial petition for writ of habeas corpus and motion to suppress
____________________________________________
4
In its statement in lieu of an opinion, filed July 29, 2014, the trial court
incorporated the content of this opinion and order denying Appellant’s post-
sentence motion as well as the suppression court’s opinion, filed on July 15,
2014, in support of the order denying Appellant’s omnibus pre-trial motion.
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statements, the court denied relief. On February 10, 2014, a jury convicted
Appellant of third degree murder and acquitted him of the firearms charge.
The court sentenced Appellant on February 25, 2014, to eighteen (18) to
forty (40) years’ incarceration. On March 3, 2014, Appellant timely filed
post-sentence motions, which the court denied on July 7, 2014. Appellant
timely filed a notice of appeal on July 8, 2014. The court ordered Appellant
to file a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b); and Appellant timely complied on July 9, 2014.
Appellant raises the following issues for our review:
1. [WHETHER] THE VERDICT WAS AGAINST THE WEIGHT
OF THE EVIDENCE AND THE LAW SINCE THE
COMMONWEALTH DID NOT ESTABLISH MALICE AND
WHETHER THE EVIDENCE WAS OTHERWISE INSUFFICIENT
TO SUSTAIN THE VERDICT AS THE COMMONWEALTH
FAILED TO PROVE THE CHARGE AGAINST APPELLANT
BEYOND A REASONABLE DOUBT[?]
2. WHETHER THE VERDICT WAS AGAINST THE WEIGHT
OF THE EVIDENCE AND THE LAW SINCE THE
COMMONWEALTH DID NOT ESTABLISH THAT APPELLANT
DID NOT ACT IN JUSTIFIABLE SELF-DEFENSE; AND
WHETHER THE COMMONWEALTH’S EVIDENCE WAS
INSUFFICIENT TO PROVE OTHERWISE BEYOND A
REASONABLE DOUBT?
3. WHETHER THE VERDICT WAS AGAINST THE WEIGHT
OF THE EVIDENCE AND THE LAW SINCE THE
COMMONWEALTH DID NOT ESTABLISH THAT APPELLANT,
IF HE DID NOT ACT IN JUSTIFIABLE SELF-DEFENSE, THAT
APPELLANT ACTED UNDER SUDDEN AND INTENSE
PASSION RESULTING FROM SERIOUS PROVOCATION
FROM THE VICTIM AND THE DEGREE OF CRIMINAL
HOMICIDE ONLY ROSE TO THE LEVEL OF VOLUNTARY
MANSLAUGHTER OR INVOLUNTARY MANSLAUGHTER AND
NOT TO THE LEVEL OF THIRD DEGREE [MURDER]?
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4. DID THE COURT [ERR] IN DENYING APPELLANT’S
OMNIBUS PRE-TRIAL MOTION[?]
5. DID THE COURT [ERR] IN PERMITTING THE POLICE
OFFICER [TO TESTIFY] AS TO WHAT A CONFIDENTIAL
INFORMANT DISCLOSED?
6. DID THE COURT [ERR] IN PERMITTING THE POLICE
OFFICER [TO TESTIFY] ABOUT A BULLET HOLE THAT WAS
ADMITTEDLY NOT PART OF THIS CRIME SCENE?
(Appellant’s Brief at 8).5
In issues one through three, Appellant argues the Commonwealth
failed to prove Appellant acted with malice, a necessary element of third
degree murder. Specifically, Appellant contends the Commonwealth
presented no evidence that Appellant was “the shooter.” Appellant also
states without any developed argument that the verdict was against the
weight of the evidence because his actions were justified and/or in self-
____________________________________________
5
The body of Appellant’s brief contains a duplicate issue #5, presented as
follows: Did the court [err] in permitting the police officer [to testify] as to
what witnesses, Christopher Teets and Ms. Johnson stated in an
unsubstantiated note and through unsubstantiated texts? This duplicate
issue #5 was raised in Appellant’s post-sentence motion, and the court
addressed the claim in its July 7, 2014 opinion at page 15 (reasoning that
statements in question were not hearsay; Ms. Johnson appeared at trial as
Commonwealth’s witness and authenticated text messages taken from her
phone; Appellant authored and sent those text messages, so texts were
Appellant’s own statements; likewise, note obtained from Mr. Teets was sent
to Mr. Teets from Appellant and was in Appellant’s own handwriting). This
duplicate issue #5, however, was not raised in Appellant’s Rule 1925(b)
statement or listed in the formal “Statement of Questions Involved”
(Appellant’s Brief at 8) in violation of Pa.R.A.P. 2116(a). Therefore, this
duplicate issue #5, concerning the texts and the note, is waived; and we
give it no further attention.
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defense. Appellant submits the Commonwealth’s evidence was insufficient
to establish third degree murder, and the jury’s verdict was likewise against
the weight of the evidence. Appellant concludes he is entitled to an acquittal
or, in the alternative, a new trial. We disagree.
This Court has observed:
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying [the above]
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we
note that the facts and circumstances established by
the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be
drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of
fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
The following principles apply to our review of a weight of
the evidence claim:
The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence and to determine the credibility of
the witnesses. An appellate court cannot substitute
its judgment for that of the finder of fact. Thus, we
may only reverse the…verdict if it is so contrary to
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the evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
The Crimes Code defines murder as follows:
§ 2502. Murder.
(a) Murder of the first degree.—A criminal
homicide constitutes murder of the first degree when
it is committed by an intentional killing.
(b) Murder of the second degree.—A criminal
homicide constitutes murder of the second degree
when it is committed while defendant was engaged
as a principal or an accomplice in the perpetration of
a felony.
(c) Murder of the third degree.—All other kinds of
murder shall be murder of the third degree. Murder
of the third degree is a felony of the first degree.
* * *
18 Pa.C.S.A. § 2502(a)-(c). To establish the offense of
third degree murder, the Commonwealth need only prove
beyond a reasonable doubt that the defendant killed an
individual, with legal malice, i.e., …wickedness of
disposition, hardness of heart, wantonness, cruelty,
recklessness of consequences, or a mind lacking regard for
social duty. … Malice is established where an actor
consciously disregard[s] an unjustified and extremely high
risk that his actions might cause death or serious bodily
harm.
Commonwealth v. Devine, 26 A.3d 1139, 1145-46 (Pa.Super. 2011),
appeal denied, 615 Pa. 783, 42 A.3d 1059 (2012) (most internal citations
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and quotation marks omitted). We also observe: “A weight of the evidence
claim concedes that the evidence is sufficient to sustain the verdict, but
seeks a new trial on the ground that the evidence was so one-sided or so
weighted in favor of acquittal that a guilty verdict shocks one’s sense of
justice.” Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067
(2013), cert. denied, ___ U.S. ___, 134 S.Ct. 1792, 188 L.Ed.2d 761
(2014).
Instantly, Appellant’s conclusory argument devoted to issues one
through three is inadequately developed, although liberally seasoned with
legal citations. Therefore, we could deem issues one through three waived
on that basis alone. See generally Commonwealth v. Palo, 24 A.3d
1050, 1057-58 (Pa.Super. 2011), appeal denied, 613 Pa. 663, 34 A.3d 828
(2011) (emphasizing need for developed, reasoned, intelligent argument
appropriate for appellate review; otherwise, issue is subject to waiver).
With respect to Appellant’s second and third issues only, he makes no
argument and cites no relevant law in his brief to support self-defense,
voluntary manslaughter, or involuntary manslaughter. Thus, Appellant
waived issues two and three on this basis as well.
Moreover, the Commonwealth produced evidence at trial for each
element of third degree murder. As the trial court stated:
Third Degree Murder
* * *
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In the instant case, the Commonwealth presented a
myriad of evidence that a reasonable jury could have
properly convicted [Appellant] of Third Degree Murder.
First, the Commonwealth had the text messages sent by
[Appellant] to Ms. Johnson. [Appellant] admitted to the
police that he was upset that Ms. Johnson, who was
[Appellant’s] girlfriend at the time, was also involved with
[Victim]. One of the text messages [Appellant] sent to Ms.
Johnson said, “Lmao…then you told this nigga where im
at? Bitch yur way too much right now! Ima kill him that’s
my [fucking] word.” That message was sent on May 12,
2012 at 5:28 p.m., less than 12 hours before [Victim’s]
body was found.
Second, [Appellant] changed his version of events three
(3) different times. When Captain Rutter initially
interviewed him, [Appellant] indicated that he had no
knowledge of the shooting and had never heard the names
“Zeus” or “Marlin Crawford” in his life. [Appellant] also
gave a detailed description as to his whereabouts at the
time of the shooting.
Several hours later, [Appellant] gave Detective Rutter a
different version of events. This time, [Appellant] said
that he knew [Victim], and he was very upset that Ms.
Johnson was ‘messing with [Victim].” [Appellant] then
gave the version of the story where he went to [Victim’s]
home the night before the shooting in order to confront
him, and the two men exchanged gunfire. The two men
encountered each other the following evening, and a
physical altercation ensued with other unaffiliated parties.
The altercation ended with more gunfire, and [Appellant],
who picked up a gun off the street, returned fire as he was
running away. [Appellant] did not know if he hit [Victim],
and [Appellant] claimed to have thrown the gun in a
specific location, which the police were unable to locate.
When asked why he threw the gun, [Appellant] responded,
“Because I knew what I had done.”
Several months after the shooting, [Appellant] voluntarily
came in for questioning at the District Attorney’s Office
and gave an entirely different version of events to
Detective Gmitter. [Appellant] told the story of riding in
the white Jeep in question to Pershing Court with Fairfax
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and Fielder in order to purchase drugs. [Appellant] and
[Victim] encountered each other, and [Appellant]
attempted to “squash the bad blood between them.” A
physical altercation ensued with unaffiliated parties, and
[Appellant] picked up a gun from the ground and began
running. [Appellant] claimed to have heard shots but was
unsure of who the shooter(s) was (were) when he fired
back while still running. All [Appellant] observed was
Fielder running towards [Victim] with a gun. [Appellant]
then claimed that Fielder asked [Appellant] why he threw
the gun, and Fielder retrieved it and hid it in a floorboard
at Miller’s house. [Appellant] had no justification for not
calling the police after this had occurred.
Third, the Commonwealth presented a letter that
[Appellant] had written to a friend from prison where
[Appellant] pleaded with her to present a false account of
his whereabouts on the night of the shooting.
Commonwealth witness Diana Long had received a letter
from [Appellant] that read in relevant part:
I got my situation under control and the table is
starting to turn around now. My lawyer will be
coming to see you very soon. I need you to write
this down and remember it and tell him when he
comes. I came in your house a little bit after
two−two a.m., you let me in and went back to sleep.
You woke up at four a.m., heard the TV, came down
and turned it off. At this time, I was still on the floor
sleeping, and went back to sleep after you turned
the TV off. I will call you soon to make sure you got
this letter.
Miss you very much. Love always.
This version of events was never conveyed to police by
[Appellant] in any of the three (3) times he spoke with
them regarding this case.
Fourth, the Commonwealth presented both a conversation
between [Appellant] and Gerald Secrest and a letter
written by [Appellant] to Secrest.
Secrest described the first conversation as follows:
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[Appellant] was reading the paper after a young
male was shot here in Uniontown and he said about,
you can’t be a porch nigger, you got to be a real
nigger. His situation, as soon as he seen the guy, he
shot him…. He said about him, another fellow and
his girlfriend went that night and shot [Victim].
[Appellant] also wrote Secrest a letter from prison, which
read:
What’s up? This is Tay. I want to know what Chris
Teets tell you about my case and why is he trying to
take my life away? Whatever he said, he is lying. I
never talked to him about my case. He came to me
once on C block and asked me if I wanted him to
help with my case, and I said no, I am good because
I know he worked for the police. The only thing that
I told him was the truth, that my life was in danger
and I didn’t do it. I could have been dead right now
with my mom crying because her baby child is gone,
but God protected me. That’s why I pray to him
even right now for keeping me safe. I am thanking
him for protecting me. I am not that type of person.
The boy, Craig rug, on C block told me Chris told him
that he is going to set me up because I slapped him
when I caught him stealing out of my cell. So,
please don’t do nothing to take my life.
Finally, Secrest testified to a conversation he overheard
between [Appellant] and Teets where [Appellant] “asked
[Teets] to be an alibi for him. [Appellant] was willing to
pay [Teets].”
The decedent was killed by a gunshot to the head. There
is ample circumstantial evidence to show that [Appellant]
had motive, opportunity, and actually did fire the fatal
shot. The jury was not required to believe any of
[Appellant’s] self-serving statements.
Based on this evidence, it was reasonable that the jury
found that the Commonwealth met its burden of proof for
a Third Degree Murder conviction.
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Self-defense
Next, [Appellant] argues that the Commonwealth could not
prove that [Appellant] did not act in justifiable self-defense
when [Appellant] shot [Victim].
Under Pennsylvania law:
[§ 505. Use of force in self-protection
* * *
(b) Limitations on justifying necessity for use
of force.−
* * *]
(2) The use of deadly force is not justifiable under
this section unless the actor believes that such
force is necessary to protect himself against
death, serious bodily injury, kidnapping or sexual
intercourse compelled by force or threat; nor is it
justifiable if:
(i) the actor, with the intent of causing death
or serious bodily injury, provoked the use of
force against himself in the same encounter; or
(ii) the actor knows that he can avoid the
necessity of using such force with complete
safety by retreating, except the actor is not
obliged to retreat from his dwelling or place of
work, unless he was the initial aggressor or is
assailed in his place of work by another person
whose place of work the actor knows it to be.
* * *
18 Pa.C.S.A. § 505(b)(2)
In the instant case, the Commonwealth presented
sufficient evidence to refute that [Appellant] acted in
justifiable self-defense. First, …[Appellant] gave law
enforcement officials three (3) different versions of what
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happened on that night. Two (2) versions included
[Appellant] throwing away the gun, and one established
that [Appellant] was the initial aggressor since he claimed
to have confronted [Victim]. Second, [Appellant] sent a
text message saying that he was going to kill [Victim].
Third, [Appellant] asked different individuals to lie on his
behalf.
Based on this evidence, the jury could have found that
[Appellant] was the initial aggressor, that he was not
actually in fear, and that he failed to retreat.
Voluntary and Involuntary Manslaughter
[Appellant] argues that the Commonwealth may have been
able to establish his conduct rose to the level of Voluntary
or Involuntary Manslaughter but not Third Degree Murder.
Under the law, Voluntary Manslaughter is defined as
follows:
[§ 2503. Voluntary manslaughter
(a) General rule.―]A person who kills an individual
without lawful justification commits voluntary
manslaughter if at the time of the killing he is acting
under a sudden and intense passion resulting from
serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he
negligently or accidentally causes the death of the
individual killed.
18 Pa.C.S.A. § 2503(a).
The Pennsylvania Superior Court further analyzed the
statute:
“Passion” includes any emotions of the mind that render
it incapable of reflection, such as anger, rage, sudden
resentment or terror. Once it is found that the
defendant was confronted with sufficient provocation,
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the focus shifts to the defendant’s response: did the
defendant actually act in the heat of passion when he
committed the homicide; did the provocation directly
lead to the killing of the person responsible for the
provocation, or was the individual killed negligently or
accidently in the course of the defendant’s endeavor to
kill his provoker; and was there insufficient “cooling
time,” thus preventing a reasonable [person] from
regaining his capacity to reflect.
Commonwealth v. Galloway, 485 A.2d 776, 783
(Pa.Super. 1984) (other citations omitted).
Furthermore, a person can be guilty of Voluntary
Manslaughter for what is known as “imperfect self-
defense”:
[§ 2503. Voluntary manslaughter
* * *
(b) Unreasonable belief killing justifiable.―]A
person who intentionally or knowingly kills an individual
commits voluntary manslaughter if at the time of the
killing he believes the circumstances to be such that, if
they existed, would justify the killing under Chapter 5 of
this title (relating to general principles of justification),
but his belief is unreasonable.
18 Pa.C.S.A. § 2503(b).
Here, the jury was not persuaded by any possible
testimony regarding a killing in the heat of passion or
“imperfect self-defense.” [Appellant’s] different versions
of events, the text message, and asking others to lie for
him all refute that argument.
Furthermore, any argument that [Appellant] was angry
over an alleged affair between his girlfriend and [Victim]
also fails because even if it could be deemed adequate
provocation, [Appellant] had a more than sufficient cooling
period since the killing took place more than 24 hours after
he was made aware of the alleged affair.
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For these reasons, it was reasonable for the jury to find
[Appellant] did not commit Voluntary Manslaughter.
As to [Appellant’s] argument regarding Involuntary
Manslaughter, the [c]ourt finds this argument fails as well.
Under the law, “A person is guilty of involuntary
manslaughter when as a direct result of the doing of an
unlawful act in a reckless or grossly negligent manner, or
the doing of a lawful act in a reckless or grossly negligent
manner, he causes the death of another person.” 18
Pa.C.S.A. § 2504(a).
With the evidence that was presented to the jury, it was
reasonable for them to find that [Appellant] was much
more culpable than merely reckless or negligent when he
shot [Victim] in the head.
(Trial Court Opinion at 6-13) (most internal citations omitted). Even if
Appellant had properly preserved and presented issues one through three,
we would conclude the Commonwealth presented sufficient evidence for the
jury to find, beyond a reasonable doubt, that Appellant had fired the gun
which killed Victim, and Appellant did so with a hardness of heart or
recklessness of consequences. See 18 Pa.C.S.A. § 2502; Devine, supra.
Given the trial evidence, we would likewise see no reason to disturb the
court’s decision to deny relief on Appellant’s weight claim. See id. See
also Lyons, supra.
Appellant’s fourth issue concerns his omnibus pre-trial motion to
suppress statements he made to the police. Initially, Appellant asserts the
police arrested him without a warrant. Appellant then avers the police failed
to advise him of his Miranda rights when he was first arrested, he did not
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understand those rights when he finally received Miranda warnings, and he
was incapable of waiving those rights. Appellant claims he did not
voluntarily and understandably waive his rights or make statements to the
police. Appellant claims Captain Rutter played on Appellant’s emotions by
telling Appellant the crime scene would be tainted if Appellant did not hurry
up and give his version of the events; if it was self-defense, Appellant should
say so or the police could do nothing for Appellant. Appellant insists Captain
Rutter knew Appellant did not want to talk about the incident, but Captain
Rutter pushed Appellant for a response. Appellant concludes the court
should have suppressed Appellant’s statements under these circumstances,
and we should grant him a new trial. We disagree.
We review the denial of a suppression motion subject to the following
principles:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct.
[W]e may consider only the evidence of the
prosecution 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 record
supports the findings of the suppression court, we
are bound by those facts and may reverse only if the
court erred in reaching its legal conclusions based
upon the facts.
Commonwealth v. Hope Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008)
(en banc) (internal citations and quotation marks omitted). Further, “It is
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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) (quoting
Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)).
Additionally:
Statements made during custodial interrogation are
presumptively involuntary, unless the accused is first
advised of [his] Miranda rights. Custodial interrogation is
questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived
of his freedom of action in any significant way. The
Miranda safeguards come into play whenever a person in
custody is subjected to either express questioning or its
functional equivalent. Thus, interrogation occurs where
the police should know that their words or actions are
reasonably likely to elicit an incriminating response from
the suspect. In evaluating whether Miranda warnings
were necessary, a court must consider the totality of the
circumstances. In conducting the inquiry, we must also
keep in mind that not every statement made by an
individual during a police encounter amounts to an
interrogation. Volunteered or spontaneous utterances by
an individual are admissible even without Miranda
warnings.
Hope Williams, supra at 30 (internal citations and quotation marks
omitted).
In response to this issue, the suppression court offered the following:
FINDINGS OF FACT
1. On May 13, 2012, Officer Matthew Painter of the
Uniontown Police department responded to the scene of an
unresponsive male and observed a single gunshot wound
to the male’s forehead.
2. As Patrolman Delbert [DeWitt] arrived on the scene,
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he observed a white Jeep SUV pull out with its headlights
turned off.
3. Chief Jason Cox, who also responded to the scene,
was given information by a confidential informant that the
shooter possibly had a nickname of “Tay,” was seen in a
white Jeep, and was staying at 20 Millview Street.
4. Chief Cox patrolled the area looking for a white Jeep
and found it in an alley north of Millview Street.
5. Together with other officers, Chief Cox proceeded to
20 Millview Street and, using a [P.A.] system, had the
occupants, including Appellant, exit the home.
6. Captain David Rutter of the Uniontown Police
department responded to the crime scene and interviewed
Appellant at 9:17 [a.m.] that same morning.
7. Appellant, who did not appear to be under the
influence of drugs or alcohol, was given his Miranda rights
by Captain Rutter and acknowledged that he understood
his rights.
8. Appellant then executed a rights waiver form.
9. The waiver of his rights was made voluntarily,
knowingly and intelligently by Appellant.
10. Appellant then made a statement in which he denied
knowing the victim, Marlon Crawford, and that he had
never heard the name “Zuss” in his life.
11. On May 13, 2012, Captain Rutter, who is certified to
conduct such test, completed a gunshot residue kit on the
hands of Appellant.
12. Later that day, at 3:04 [p.m.], Appellant was again
advised of his Miranda rights and again executed a rights
waiver form.
13. No threats, promises or other improper incentives
were made to Appellant to cause him to waive his rights
and make a statement.
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14. The waiver of his rights was made voluntarily,
knowingly and intelligently by Appellant.
15. Appellant then made a second statement in which he
stated that he confronted Zuss regarding Appellant’s
girlfriend and that they exchanged gunshots before
Appellant fled.
16. Appellant further stated that the next night he again
confronted Zuss, and that Zuss pulled a gun and started
shooting at [Appellant], causing Appellant to pick up a gun
lying on the grounds and fire it at Zuss as Appellant was
running away.
17. During the interview of Appellant, Rutter advised
[Appellant] that the police had text messages from him to
Kim Johnson.
18. With regard to the text messages, Appellant stated to
Rutter that the text “looks pretty bad” and asked if there
was “any way to make them go away.”
19. Trooper Donald Lucas, of the Pennsylvania State
Police, was given a cell phone to examine regarding this
matter and downloaded the available data from the phone.
20. The telephone number for the cell phone was 724-
963-2340.
21. On May 12, 2012, the phone received a message
from “Tay” stating, “bitch, you fuckin’ Zuss, oh you nasty
bitch, you let him nut in you, then let me fuck, you a slut.”
22. Another message was received from “Tay” that day
stating, “omg bitch, I know you didn’t let him drive my car.
I fuckin’ hate you.”
23. A third message from “Tay” was received by the
same telephone that day stating, “Imao, then you told this
nigga where I’m at. Bitch you are way too much right
now. Ima kill him. That’s my fucking word.”
* * *
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The omnibus pretrial motion of Appellant…contended that
Appellant did not knowingly, intelligently and/or voluntarily
waive his right to self-incrimination. Instantly, Appellant
made two incriminating statements, both on May 13,
2012. Captain David Rutter of the Uniontown Police
Department, after he had responded to the crime scene,
interviewed Appellant at 9:17 [a.m.] that morning.
Appellant, who did not appear to be under the influence of
drugs or alcohol, was given his Miranda rights by Captain
Rutter and acknowledged that he understood his rights.
He then executed a rights waiver form and made an
incriminating statement. Later that day, at 3:04 [p.m.]
while still in custody, Appellant was again advised of his
Miranda rights, again executed a rights waiver form and
made a second incriminating statement. No threats,
promises or other improper incentives were made to
Appellant to cause him to waive his rights and make this
second statement.
The only evidence offered at the omnibus pre-trial hearing
was that the waiver of [Appellant’s] Miranda rights was
made voluntarily, knowingly and intelligently by Appellant,
and we so found.
(Suppression Court Opinion, filed July 15, 2014, at 2-5, 9) (internal citations
omitted). We see no reason to disturb the suppression court’s decision to
deny relief on this issue. See Hope Williams, supra; Clemens, supra.
In his fifth issue, Appellant asserts the Commonwealth offered, for the
truth of the matter asserted, Chief Cox’s testimony regarding information he
received from a confidential informant (“CI”) that Appellant was the shooter.
Appellant avers this testimony was the only information that supposedly
linked Appellant to the crime. Appellant claims the Commonwealth should
have disclosed the identity of Chief Cox’s CI. Appellant complains the
Commonwealth led the trial court to believe the only reason the
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Commonwealth wanted to use information obtained from the CI was to
develop how the police learned where the white Jeep seen leaving the crime
scene could be found. Appellant insists the court told the Commonwealth
before trial that it could not offer information from the CI to name Appellant
as the shooter, and nothing happened at trial to change the court’s ruling.
Appellant contends the CI was not present at trial or subject to cross-
examination, so anything the CI reported was inadmissible hearsay.
Appellant concludes the erroneous admission of Chief Cox’s testimony
warrants a new trial. We disagree.
Initially, we observe:
Regarding the disclosure of a confidential informant, the
Pennsylvania Supreme Court has stated:
[N]o fixed rule with respect to disclosure of the
confidential informant’s identity is justifiable. The
problem is one that calls for balancing the public
interest in protecting the flow of information against
the individual’s right to prepare his defense.
Whether a proper balance renders the nondisclosure
erroneous must depend on the particular
circumstances of each case, taking into consideration
the crime charged, the possible defenses, the
possible significance of the informer’s testimony and
other relevant factors.
Commonwealth v. Bing, 551 Pa. 659, 663–64, 713 A.2d
56, 58 (1998) (internal brackets and citations omitted).
Further:
This balance is initially weighted toward the
Commonwealth, which holds a qualified privilege to
maintain an informant’s confidentiality to preserve
the public’s interest in effective law enforcement.
However, the balance tips in favor of disclosure
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where guilt is found solely on police testimony from
a single observation and testimony from a
disinterested source, such as the informant, is
available.
In re R.S., 847 A.2d 685, 688 (Pa.Super. 2004), appeal
denied, 581 Pa. 679, 863 A.2d 1148 (2004) (quoting
Commonwealth v. Belenky, 777 A.2d 483, 488
(Pa.Super. 2001)).
“However, where other corroboration of the officer's
testimony exists, disclosure of the informant's identity is
not necessarily required.” Bing, supra at 664, 713 A.2d
at 58. Moreover, a defendant must meet certain
thresholds for the court to determine whether to order the
disclosure of an informant’s identity:
Before the informant’s identity may be revealed…the
accused must show the information is material to the
defense and the request is reasonable. The
defendant need not predict exactly what the
informant will say, but [the source] must
exonerate [the defendant]. More than the
mere assertion that disclosure of the
informant's identity might be helpful is
necessary. Only after this threshold showing that
the information is material and the request is
reasonable is the trial court called upon to determine
whether the information is to be revealed.
In re R.S., supra at 688 (emphasis added).
Where the confidential informant is not a witness to the
incident at issue, the defendant must show that the
Commonwealth’s disclosure of the identity of the informant
is (1) material to his defense; (2) reasonable; and (3) in
the interests of justice.
It is important to note that the Rule [Pa.R.Crim.P.
305B(2)(d)] speaks in terms of a showing by the
defendant. These conditions cannot be assumed,
and they must be supported by evidence on the
record. It is in this context that the evidence
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presented at the hearing must be examined to
determine whether the defendant met his burden.
Commonwealth v. Hritz, 663 A.2d 775, 778 ([Pa.Super.]
1995) (quoting Commonwealth v. Novasak, 606 A.2d
477, 483 ([Pa.Super.] 1992), appeal denied, 532 Pa. 662,
616 A.2d 984 (1992)) (internal citations and footnote
omitted) (emphasis in original).
Regarding the element of materiality, the defendant must
show as a threshold matter that the informant’s identity is
germane to the defense. Commonwealth v. Heater, 899
A.2d 1126, 1130 (Pa.Super. 2006), appeal denied, 592 Pa.
779, 926 A.2d 973 [] (2007). Evidence is “relevant and
material to the defense if it tends to show that a specific
crime of which a defendant stands accused was committed
by someone else.” Novasak, supra. The record must
disclose a reasonable possibility that the information
sought will materially aid the defendant in presenting his
defense and is not obtainable from another source. Hritz,
supra at 780 (emphasis in original).
Commonwealth v. King, 932 A.2d 948, 952-53 (Pa.Super. 2007).
Pennsylvania Rule of Evidence 801 defines hearsay as follows:
Rule 801. Definitions That Apply to This Article
(a) Statement. “Statement” means a person’s oral
assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made
the statement.
(c) Hearsay. “Hearsay” means a statement that
(1) the declarant does not make while testifying at the
current trial or hearing; and
(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
Pa.R.E. 801.
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The hearsay rule provides that evidence of a declarant’s
out-of-court statements is generally inadmissible because
such evidence lacks guarantees of trustworthiness
fundamental to the Anglo–American system of
jurisprudence. [T]he focus of the Confrontation Clause is
testimonial hearsay. However, when a hearsay statement
is offered for a purpose other than proving the truth of its
contents, it is not hearsay and is not excludable under the
hearsay rule. [T]he [Court in Crawford v. Washington,
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)]
makes clear that even the use of testimonial statements is
not barred by the Confrontation Clause for purposes other
than establishing the truth of the matter asserted. In any
event, it is a long standing rule of jurisprudence that an
out-of-court statement offered to explain a course of
conduct is not hearsay.
Commonwealth v. Dargan, 897 A.2d 496, 500 (Pa.Super. 2006), appeal
denied, 591 Pa. 671, 916 A.2d 1101 (2007) (most internal citation ans
quotation marks omitted). See also Commonwealth v. Johnson, 615 Pa.
354, 386, 42 A.3d 1017, 1035 (2012), cert. denied, ___ U.S. ___, 133 S.Ct.
1795, 185 L.Ed.2d 818 (2013) (quoting Commonwealth v. Rega, 593 Pa.
659, 693-94, 933 A.2d 997, 1017 (2007), cert. denied, 552 U.S. 1316, 128
S.Ct. 1879, 170 L.Ed.2d 755 (2008) (stating: “[A]ny out-of-court statement
offered not for its truth but to explain the [witness’] course of conduct is not
hearsay)); Commonwealth v. Smith, 378 A.2d 1015, 1017 (1977) (stating
trooper’s testimony in bookmaking prosecution, concerning informant’s
statement that trooper could place bets by calling specific telephone
number, was not hearsay, as it was offered to explain trooper’s subsequent
actions; statement was not offered to show it was true, but only that it was
said).
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Instantly, on the fourth day of the jury trial, the court convened an “in
camera” proceeding to determine whether to disclose the identity of Chief
Cox’s CI. Chief Cox testified that the CI had provided reliable information to
the police over the past six or seven years, that there were few CIs in
Pershing Court, and that the culture and atmosphere of the environment
would result in physical threats and physical harm to the CI, if his identity
were disclosed. The jury heard none of this testimony. In response to this
claim, the trial court said:
Appellant argues that the [c]ourt erred in allowing
testimony regarding what the [CI] disclosed to the police.
The [c]ourt is unclear of [Appellant’s] argument here
because there is no testimony presented in front of the
jury on the CI. An “in camera” proceeding was held with
Chief Jason Cox and Detective Gmitter. The [c]ourt did
not require the Commonwealth to reveal the identity of the
CI due to credible threats to [the CI’s] personal safety. …
* * *
Here, [Appellant] did not meet the threshold which
required disclosure of the CI. Chief Cox had conveyed the
CI’s statements to Detective Gmitter in the very early
stages of the investigation. That information led police to
[Appellant], but based on what additional evidence
revealed, the investigation would have led police to
[Appellant] regardless of whether a CI was involved.
The [c]ourt found that the threats against the CI were
credible since Pershing Court is one of the highest crime
areas in the county, and the [c]ourt has presided over
innumerable violent criminal cases [which] have occurred
there. The [c]ourt is also aware that police experience
great difficulty obtaining information from witnesses to
these crimes due to fear of and/or actual threats of bodily
harm or death. The Defense did not demonstrate a
genuine need for the CI’s identity, and there was a
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legitimate reason to continue to withhold that information.
(Trial Court Opinion at 13-14) (most internal citations omitted). We see no
reason to disturb the trial court’s decision to deny disclosure of the identity
of the CI.
Regarding Chief Cox’s trial testimony, nothing in the record indicates
Chief Cox was permitted to identify Appellant as the shooter based on
information obtained from the CI. At trial, the following took place away
from the jury:
SIDE-BAR CONFERENCE
DEFENSE COUNSEL: Much of Chief Cox’s testimony could
be hearsay, and I am going to ask the [c]ourt to−well, I
want to make a note that I will be objecting to hearsay
and I want to do it before the jury hears it.
COMMONWEALTH: I don’t believe that there is any
hearsay, Judge. The substance of Chief Cox’s testimony is
that once receiving information of the white Jeep, he
received information from a confidential informant that the
Jeep could be at 20 Millview Street, and he responded to
that location and in fact found the Jeep, so I think that
that is just a part of the res gestae. It is not being
offer[ed] for the truth. It is just why he went to 20
Millview.
DEFENSE COUNSEL: Your Honor, in additional to that, in
Chief Cox’s statement, he said that there was other
information that is incriminating, which…includes the fact
that the defendant was in the white Jeep, and that it was
at the scene.
COMMONWEALTH: The specific information received from
the confidential informant was that Tay and K-Dub were
involved and they left in a white Jeep and they were at 20
Millview Street.
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DEFENSE COUNSEL: And that is hearsay.
COMMONWEALTH: And it was based on that information
that he went to 20 Millview Street and found both the
white Jeep and the occupants.
THE COURT: Well, in the absence of an
identification of [the] confidential informant, you can’t use
that information at all other than to say that [the police]
learned of the location of the white Jeep and they went to
20 Millview, and anything that led up to that at this point is
hearsay unless you come up with another way to get it in.
COMMONWEALTH: Okay.
DEFENSE COUNSEL: Thank you, Your Honor.
(AT THIS TIME, THE SIDE-BAR CONFERENCE WAS
CONCLUDED)
(N.T. Trial, 2/3/14, at 63-64). The substance of Chief Cox’s testimony
before the jury was limited to his course of investigation and is, in relevant
part, as follows:
COMMONWEALTH: Chief, back on May 13, 2012, were
you on duty?
WITNESS: I was not.
COMMONWEALTH: Did you have the occasion to
investigate the matter before the [c]ourt on that date?
WITNESS: I did.
COMMONWEALTH: Can you tell us how you came
involved in that investigation?
WITNESS: At approximately five a.m., I had
received a phone call at home that there had been a
shooting in the area of Pershing Court and that a male had
a gunshot, an apparent gunshot to the head and he was in
grave condition.
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COMMONWEALTH: Upon receiving that call, did you
respond to the crime scene?
WITNESS: I did.
COMMONWEALTH: What time did you arrive?
WITNESS: At approximately 5:20.
COMMONWEALTH: And, can you tell me what you
encountered upon your arrival there?
WITNESS: Um, when I arrived, [Victim] had
already been taken from the scene, and I began to speak
with the officers to gather as much intel as possible to
determine a potential suspect.
COMMONWEALTH: In your speaking to any officers
and/or other sources, did you get any information that you
used to investigate?
WITNESS: I did. I received information that the
shooter had…
DEFENSE COUNSEL: Objection.
THE COURT: Sustained. At this point, we
discussed…
COMMONWEALTH: Let me ask…
WITNESS: Yes, sir.
COMMONWEALTH: After speaking to other officers and
other sources, you were aware that there was a white Jeep
seen at the scene, correct?
WITNESS: Yes, sir.
COMMONWEALTH: Did you go about investigating the
white Jeep?
WITNESS: I did.
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COMMONWEALTH: And, after the investigation, did you
receive any information as to where the…
DEFENSE COUNSEL: Objection.
THE COURT: Did you locate the white Jeep?
WITNESS: Yes, sir.
COMMONWEALTH: Where did you locate the white Jeep?
WITNESS: In an unnamed alley north of Millview
Street.
COMMONWEALTH: Upon locating the Jeep, what did you
do?
WITNESS: I requested the assistance of other
officers.
COMMONWEALTH: Did other officers arrive at the scene
in the unnamed alley by Millview Street?
WITNESS: Yes, sir.
COMMONWEALTH: What other officers were there?
WITNESS: I believe Officer Painter, Officer
Fidazzo, Officer Miller at some point, and I don’t remember
[in] which order they arrived.
COMMONWEALTH: Did you check to see—did you check
the hood or anything to see if it had been running
recently?
WITNESS: I did. I felt the hood and it appeared
to be warm. It felt warm.
COMMONWEALTH: Once the other officers arrived on the
scene, what steps did you take?
WITNESS: The Jeep was parked at the rear of
basically like a garage apartment, so the first step we took
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was to knock on the door of that garage apartment. I
knocked on that door, encountered a male, I asked if that
was his Jeep and he advised it was not. I then asked if he
knew whose Jeep it was and he said that he did not, but
that a short time prior to our arrival, he observed the Jeep
pull up and two individuals exited and walked…
DEFENSE COUNSEL: Objection to hearsay.
THE COURT: Yeah. There is no hearsay
[exception] that I have heard to justify the chief repeating
what he was told by a witness that is not testifying.
COMMONWEALTH: Understood, Your Honor.
COMMONWEALTH: After speaking to the guy in the
garage, what did you do at that point, Chief?
WITNESS: At that point I—myself and the
officers went to the area of 20 Millview Street.
COMMONWEALTH: What did you do—strike that. First
off, where is that in relation to the unnamed alley where
you observed the Jeep at?
WITNESS: South.
COMMONWEALTH: Not that far away?
WITNESS: Less than a block.
COMMONWEALTH: And, upon going to 20 Millview, what
did you do?
WITNESS: We arrived at 20 Millview and
stationed officers on the compass points of 20 Millview
Street. At that point, I utilized a bullhorn to order any
individuals that were inside of 20 Millview Street in the
third floor apartment out.
COMMONWEALTH: What specifically did you say?
WITNESS: At that point, I believed that my initial
verbiage towards the apartment was any occupants on the
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third floor of 20 Millview Street, please exit with your
hands up.
COMMONWEALTH: And, did you receive any response to
that command?
WITNESS: After some time, yes.
COMMONWEALTH: Approximately how long after?
WITNESS: Maybe between five and ten minutes
COMMONWEALTH: And what was the response that you
got?
WITNESS: One individual exited the residence.
COMMONWEALTH: Were you able to identify that person?
WITNESS: Yes, sir.
COMMONWEALTH: Who was it?
WITNESS: His name is Jasson Miller.
COMMONWEALTH: Was Mr. Miller secured when he came
out of the residence?
WITNESS: Yes, he was.
COMMONWEALTH: Did anybody else come out of the
residence?
WITNESS: A female and two males.
COMMONWEALTH: About how long after Mr. Miller came
out?
WITNESS: I believe the female was the second
to come out, and then probably within twenty minutes or
so, the other two males exited.
COMMONWEALTH: So, four occupants in the apartment
altogether?
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WITNESS: Yes, sir.
COMMONWEALTH: Were you able to identify the female
when she came out?
WITNESS: We were.
COMMONWEALTH: And, who was she?
WITNESS: I don’t recall the name off the top of
my head.
COMMONWEALTH: What about the two males.
WITNESS: They were identified as well.
COMMONWEALTH: Do you recall who they were?
WITNESS: Deaundrey Fielder and [Appellant],
who is seated to the left of [defense counsel].
COMMONWEALTH: Your Honor, I would ask the record to
reflect that Chief Cox had identified [Appellant].
THE COURT: The record will so reflect.
COMMONWEALTH: So, Chief, how long of a timespan is
this just to give us an idea from the time that Mr. Miller
comes out until the time Mr. Fielder and [Appellant] come
out?
WITNESS: Approximately twenty minutes.
COMMONWEALTH: And, at what point did the female
come out?
WITNESS: In between. You know, maybe five to
ten minutes into an announcing and requesting that all of
the parties [exit] the residence.
COMMONWEALTH: So, shortly after Mr. Miller?
WITNESS: Yes.
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COMMONWEALTH: In the five to ten minute span after
you gave that initial command, did you give additional
commands?
WITNESS: Yes. I gave commands throughout
the duration probably every minute to two minutes.
COMMONWEALTH: And, that was similar to commands
that you gave to all occupants before the four of them
come out?
WITNESS: Yes, sir.
COMMONWEALTH: Hands up or something to that effect?
WITNESS: Yes, sir.
COMMONWEALTH: Once Mr. Fielder and [Appellant] came
out, were they secured and taken into custody?
WITNESS: They were.
COMMONWEALTH: After the two males, that being Mr.
Fielder and [Appellant], [came] out of the apartment and
were secured, what did you observe on Millview Street?
WITNESS: If you could be a little more specific?
COMMONWEALTH: Once they were taken into custody,
were they placed into a patrol vehicle?
WITNESS: Yes, they were all placed into patrol
vehicles and transferred to the Uniontown Police
Department.
COMMONWEALTH: Thank you, Chief.
COMMONWEALTH: That’s all of the questions that I have
for Chief Cox, Judge.
CROSS EXAMINATION
DEFENSE COUNSEL: Chief, you say that there were four
occupants of the house when you told them to come out of
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the house; is that correct?
WITNESS: Yes.
DEFENSE COUNSEL: Okay. The first one was a person
named Jasson Miller?
WITNESS: Yes.
DEFENSE COUNSEL: The second person that came out was
a female?
WITNESS: Yes.
DEFENSE COUNSEL: You don’t remember [her] name?
WITNESS: No, sir.
DEFENSE COUNSEL: Was it—would you remember if it was
Ms. Fairfax?
WITNESS: Yes, it was.
DEFENSE COUNSEL: And, her first name?
WITNESS: Jessica.
DEFENSE COUNSEL: It was Ms. Fairfax?
WITNESS: Yes, sir.
DEFENSE COUNSEL: Now, after that, Mr. Fielder and
[Appellant] come out. Did [they] come out together?
WITNESS: I don’t remember.
DEFENSE COUNSEL: And, do you remember Mr. Fielder?
WITNESS: Um, I may or may not.
DEFENSE COUNSEL: Was he taken into custody?
DEFENSE COUNSEL: Do you know whether either of the
males, or any of the three males were in a relationship
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with the female?
WITNESS: I don’t.
DEFENSE COUNSEL: Who owned the Jeep?
WITNESS: I am not sure.
DEFENSE COUNSEL: Do you know who was driving the
Jeep?
WITNESS: I didn’t observe anyone driving the
Jeep.
DEFENSE COUNSEL: Okay. In your information did you
find out who had been driving?
WITNESS: I did not.
DEFENSE COUNSEL: Did you find out who had been
occupants in the car?
WITNESS: I did not.
DEFENSE COUNSEL: Okay. That’s all I have. Thank you.
COMMONWEALTH: No redirect, Your Honor.
THE COURT: You can step down Chief Cox.
WITNESS: Thank you, Your Honor.
(N.T. Trial, 2/3/14, at 64-72). As the trial transcript makes clear, there was
no testimony presented in front of the jury on the CI’s information that
would constitute inadmissible hearsay. Additionally, at no time did Chief Cox
identify Appellant as the shooter, based on information obtained from the CI.
Therefore, nothing in the record indicates the jury verdict was compromised
by inadmissible hearsay as Appellant has alleged. Thus, this issue merits no
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relief.
In his last issue, Appellant complains the court allowed evidence
concerning a bullet hole near the crime scene that did not relate to the
homicide at issue. Appellant insists the evidence was irrelevant to the
charges against him. Appellant avers the bullet hole was placed more than a
day before the homicide at issue. Appellant submits the evidence admitted
was pure speculation in an attempt to bolster the Commonwealth’s case with
“outrageous information.” Appellant concludes the court erred in admitting
this evidence, which only clouded the matter and warrants relief. We cannot
agree.
The general standard of review for admission of evidence is as follows:
Admission of evidence is within the sound discretion
of the trial court and will be reversed only upon a
showing that the trial court clearly abused its
discretion. Admissibility depends on relevance and
probative value. Evidence is relevant if it 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.
* * *
Judicial discretion requires action in conformity with
law, upon facts and circumstances judicially before
the court, after hearing and due consideration. 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, as shown by the evidence
or the record, discretion is abused.
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Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa.Super. 2006) (en
banc), appeal denied, 591 Pa. 711, 919 A.2d 955 (2007) (internal citations
omitted). Relevance is the threshold for admissibility of evidence.
Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008).
The Pennsylvania Rules of Evidence provide:
Rule 401. Definition of “relevant evidence”
“Relevant evidence” means evidence having any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence.
Pa.R.E. 401. Rule 402 states:
Rule 402. General Admissibility of Relevant
Evidence
All relevant evidence is admissible, except as otherwise
provided by law. Evidence that is not relevant is not
admissible.
Comment: Pa.R.E. 402 differs from F.R.E. 402. The
Federal Rule specifically enumerates the various sources
of federal rule-making power. Pa.R.E. 402 substitutes
the phrase “by law.”
Pa.R.E. 402 states a fundamental concept of the law of
evidence. Relevant evidence is admissible; evidence
that is not relevant is not admissible. This concept is
modified by the exceptions clause of the rule,
which states another fundamental principle of
evidentiary law—relevant evidence may be
excluded by operation of constitutional law, by
statute, by these rules, by other rules
promulgated by the Supreme Court or by rules of
evidence created by case law.
* * *
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Pa.R.E. 402 (emphasis added). In other words, evidence that is relevant to
an issue in a particular case can still be incompetent and therefore
inadmissible because one or more established rules of evidence preclude its
admission. Id. See also Commonwealth v. Paddy, 569 Pa. 47, 70–71,
800 A.2d 294, 308 (2002) (stating: “Evidence that is relevant may
nevertheless be inadmissible if it violates a rule of competency…”).
Trial judges generally enjoy broad discretion regarding the
admission of potentially misleading or confusing evidence.
Trial judges also have the authority to exclude relevant
evidence if its probative value is substantially outweighed
by the danger of unfair prejudice or confusion.
Furthermore, the function of the trial court is to balance
the alleged prejudicial effect of the evidence against its
probative value, and it is not for an appellate court to
usurp that function.
Commonwealth v. Parker, 882 A.2d 488, 492 (Pa.Super. 2005), affirmed
on other grounds, 591 Pa. 526, 919 A.2d 943 (2007) (internal citations
omitted).
Instantly, the Commonwealth offered into evidence a picture of the
crime scene that showed a bullet hole near the crime scene from the day
before the shooting. Ms. Robinson, who was Victim’s girlfriend at the time of
the homicide, testified that on the night before the shooting, she heard
gunshots and she saw men running away from the scene. She said before
that incident, she had not heard gunshots fired for as long as she could
remember. Further, in his second written statement to the police, Appellant
admitted he had exchanged gunfire with Victim the night before the
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homicide and confronted him again on the night of the shooting. As a result,
the trial court reasoned:
Ms. Robinson, [Victim’s] girlfriend, was shown photos of
the crime scene that depicted two bullet entries into her
home in Pershing Court. One of the bullet holes was from
May 13, 2012, while the other was from May 12, 2012.
Ms. Robinson testified that she heard a “loud commotion”
on May 12 that included gunshots, but she was unable to
identify any of the men involved. The [c]ourt permitted
this testimony due to the close proximity of the shootings
in this case and to demonstrate the amount of gunfire that
occurs in Pershing Court on any given day.
[Appellant] himself claimed in one of his statements that
there was a shooting in this area on May 12.
(Trial Court Opinion at 16). The evidence served to dispel any possible
argument that the bullet holes came from a firefight between Appellant and
Victim in which Appellant was acting in self-defense. Instead, the homicide
occurred during an ambush in which Appellant killed Victim. This bullet-hole
evidence was therefore relevant and met the threshold requirement of
admissibility. Moreover, the evidence was not so unduly prejudicial as to call
the jury’s verdict into question. Thus, we see no reason to disturb the
court’s decision to admit the bullet-hole evidence at trial. Based upon the
foregoing, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2015
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Com. v. Smith, K.
Combined Opinion