J-S02035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAYMOND HOWARD
Appellant No. 346 EDA 2016
Appeal from the Judgment of Sentence December 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010746-2011
CP-51-CR-001745-2011
BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.
MEMORANDUM BY MOULTON, J.: FILED JUNE 16, 2017
Raymond Howard appeals from the December 18, 2015 judgment of
sentence entered in the Philadelphia County Court of Common Pleas
following his jury trial convictions for two counts of criminal attempt to
commit murder, two counts of aggravated assault, two counts of persons not
to possess or use firearms, and one count each of conspiracy to commit
aggravated assault, conspiracy to commit murder, carrying firearms on
public streets or public property in Philadelphia, and possession of
instrument of crime (“PIC”).1 We affirm.
The trial court set forth the following factual history:
____________________________________________
1
18 Pa.C.S. §§ 901(a), 2702(a), 6105(a)(1), 903, 6108, and 907(a),
respectively. The charges stemmed from two criminal docket numbers.
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On July 11, 2011, at approximately 11:00 p.m.,
Leonora Cusick was walking to her house from the Chinese
store when she saw Latisha Dudley (herein “Complainant”)
sitting on the steps of 4533 Hurley Street with two friends,
Omar Green and William Ingram. As Ms. Cusick continued
past the Complainant to her house . . . , [Howard] and
“another character”, later identified as Troy Taylor, came
out of the house across the street with a shotgun and shot
the Complainant in the stomach. The Complainant
testified that Mr. Taylor said, “there the bitch go right
there,” and gave [Howard] the shotgun before shooting
the Complainant. When [Howard] pulled the shotgun up
towards the Complainant he said, “bitch, you thought it
was a joke. Shit going to get real.” The Complainant then
yelled to Ms. Cusick, “Cookie, Cookie, he shot me. Call
911.” [Howard] then ran back inside the house at 4526
Hurley Street. Ms. Cusick saw blood coming out of the
Complainant’s stomach and then went inside to call 911.2
Ms. Cusick stated that [Howard] was wearing a “wife-
beater and shorts.” She later saw [Howard] come back
outside, sit next door, and “acted like he was one of the
people that was around.”
2
Counsel[] stipulated to the following: The
Complainant was admitted to Temple University
Hospital on July 12, 2011 with a shotgun wound to
her stomach. She was immediately admitted to the
ICU and underwent several surgeries, which included
the repair of her small stomach, her small bowel, her
sacral, and the repair of her colon. Complainant also
underwent tracheotomy for ventilator-dependent
respiratory failure, as she could no longer breathe on
her own. She also had an exploratory surgery of her
lung, upper half intestinal surgery, skin graft, and
other surgeries. Complainant was not discharged
until September 2, 2011.
Officers Jason Hernandez and Officer Carl Diaz both
responded to a radio call at around 11:30 p.m. for a
shooting that occurred on the 4500 block of Hurley Street.
They were first waved over to 4527 Hurley Street where
they saw the Complainant on the sofa. At that time,
people were pointing across the street to the house at
4526 Hurley Street. After their conversation with the
people on the porch of 4526 Hurley Street, they received a
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radio call giving them flash information about a black male
with a blue hat, white tank top, and dark colored jeans or
capris. Officer Hernandez testified that there were only a
few people outside, one of which was [Howard]. He saw
that [Howard] met the flash information and approached
him. The officers asked him if he had seen the shooting
and he responded that he did not. The officers then asked
what brought him to the block and he stated that he was
going to visit a friend at 4526 Hurley Street. The officers
received additional information over the radio that
indicated that the male the officers were talking to,
[Howard], shot the Complainant. At that point [Howard]
was apprehended and transported to East Detectives.
Officer Diaz testified that he later saw three shotgun shells
on the sidewalk and one in the street in front of 4528
Hurley Street.
Officer Jose Carta[]gena received a radio call for a
person with a gun on the 4500 block of Hurley Street.
Once on scene, he received a separate call for 4500 Tampa
Street. When he arrived, he encountered Omar Green
lying on the ground suffering from gunshot wounds.[2] He
described a pellet wound to the right side of his face,
bleeding from his back, and a serious wound to his inner
thigh. Mr. Green was then transported to Temple Hospital.
Detective [Glenn] MacClain of Special Investigations
arrived to the 4500 block of Hurley Street at about 12:00
midnight on July 12, 2011, with Detective Rash.[3] He
drew the crime scene sketch and interviewed Ms. Cusick to
identify the shooter in the photo array. She placed her
hand over the top of the hair of [Howard] and identified
him as the one who shot the Complainant. A search
warrant was later conducted on 4526 Hurley Street where
no weapon or ballistic evidence was recovered. However,
there was an ID/paperwork present that had the name
Lionel Tyson on it.
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2
At the time of the shooting, Green had been with Dudley on the
steps in front of Dudley’s house.
3
Detective Rash’s first name is not in the certified record.
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The Commonwealth next called Troy Taylor, also known
as “Lionel Tyson”, to testify. On October 6, 2015, Mr.
Taylor pled guilty to conspiracy to commit murder, and
attempted murder. Mr. Taylor lived at 4526 Hurley Street
back on July 11, 2011. Earlier in the day on July 11, 2011,
Brian Daniels, the Complainant’s boyfriend, shot at Mr.
Taylor. He testified that [Howard] was not at 4526 Hurley
Street that night. He further stated that basically
everyone was wearing white tee shirts and tank tops the
night of the shooting because it was summertime. Mr.
Taylor testified that Eric Tyson - his brother - shot the
Complainant, rather than [Howard]. His brother was
wearing a white tank top and dark blue capris. He stated
that [Howard] was wearing light blue shorts. Although Mr.
Taylor said his brother was the shooter, he identified
[Howard] at a photo array and pled guilty to facts that
incriminate [Howard] as his co-conspirator.
Earlier on July 11, 2011, Officer Stephan and his
partner received a radio call for a different shooting that
occurred on the 4500 block of Hurley Street. Their vehicle
was the first that arrived on location. They were first met
by Mr. Taylor who stopped them in the middle of the street
and described the shooter as a “black male 5’8 to 5’10, 30
to 35 years old, dark complected, heavy build, wearing a
white tee and black pants.” The SWAT team later arrived
on the scene and did a complete sweep of 4533 Hurley
Street. No weapons or persons were found inside the
residence. Mr. Taylor provided the full story of the events
on July 10th and July 11th of 2011. He stated that he got
into a verbal argument with a man over a parking spot on
the street, then that man went into 4533 Hurley Street,
and came back out with a gun. The man proceeded to
chase him around the minivan while shooting at him. The
man, later identified as Brian Daniels, got a few rounds off
and then ran back into 4533 Hurley Street.
Opinion, 3/23/16, at 3-6 (“1925(a) Op.”) (internal citations omitted).
On October 13, 2015, a jury convicted Howard of the above-mentioned
crimes. On December 18, 2015, the trial court sentenced Howard to the
following consecutive sentences: 10 to 20 years’ incarceration for the first
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attempted murder conviction; 10 years’ probation for the second attempted
murder conviction; 10 to 20 years’ incarceration for the conviction for
conspiracy to commit murder; and 5 to 10 years’ incarceration for the
conviction for possession of firearm prohibited.4 On December 23, 2015,
Howard filed a post-sentence motion, which the trial court denied on January
4, 2016. On January 16, 2016, Howard filed a timely notice of appeal.
Howard raises the following claims on appeal:
I. Is [Howard] entitled to an Arrest of Judgment on all
charges and especially with regard to Criminal Attempted
Murder and Conspiracy to Commit Murder and where there
is insufficient evidence to sustain the verdict?
II. Is [Howard] entitled to a new trial as the greater weight
of the evidence does not support the verdict?
III. Is [Howard] entitled to a new trial as the result of
Court error when the Court prohibited cross-examination
of forensic analyst Gregory Van Alstine as to his personal
experience in successfully recovering DNA evidence from
shotgun shells in a specific case?
IV. Is [Howard] entitled to a new trial as the result of
Court error where the Court prohibited cross-examination
of Commonwealth witness Lionel Tyson as to his bias and
prejudice?
V. Is [Howard] entitled to a new trial as the result of Trial
Court error where the Court made several errors with
regard to the same issue and where the Court failed to
give a curative instruction based on mid-trial testimony of
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4
The convictions for aggravated assault and conspiracy to commit
aggravated assault merged with the attempted murder conviction for
sentencing purposes. The trial court imposed no further penalty for the
second firearms not to be carried without a license conviction or the
convictions for carrying firearms on public streets in Philadelphia and PIC.
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certain detectives that they were aware of the identity of
certain 911 callers and where the evidence was never
relayed to the defense?
Howard’s Br. at 3.
Howard first challenges the sufficiency of the evidence to support his
attempted murder and conspiracy convictions.
We apply the following standard when reviewing a sufficiency of the
evidence claim:
[W]hether 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.
Commonwealth v. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quoting
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)) (some
alterations in original).
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Howard claims the evidence was insufficient to support the attempted
murder conviction because the Commonwealth failed to establish he had a
specific intent to kill or that the shooting was premeditated.
“A person may be convicted of attempted murder ‘if he takes a
substantial step toward the commission of a killing, with the specific intent in
mind to commit such an act.’” Commonwealth v. Jackson, 955 A.2d 441,
444 (Pa.Super. 2008) (quoting Commonwealth v. Dale, 836 A.2d 150,
152 (Pa.Super. 2003)). Further:
“The mens rea required for first-degree murder, specific
intent to kill, may be established solely from circumstantial
evidence.” Commonwealth v. Schoff, 911 A.2d 147,
160 (Pa.Super.2006). “[T]he law permits the fact finder to
infer that one intends the natural and probable
consequences of his acts[.]” Commonwealth v. Gease,
548 Pa. 165, 696 A.2d 130, 133 (1997).
Id. (alterations in original). “Specific intent to kill can be inferred from the
use of a deadly weapon upon a vital part of the victim’s body.”
Commonwealth v. DeJesus, 860 A.2d 102, 106 (Pa. 2004).
The evidence established that: Taylor had a prior argument with
Dudley and her boyfriend; Taylor gave Howard the gun and said, “there the
bitch go right there”; Howard stated, “bitch, you thought it was a joke. Shit
going to get real”; Howard fired the gun four times at Dudley and Green; a
bullet struck Dudley in the stomach; and pellets struck Green on the right
side of his face, his back, and his thigh, causing a serious wound on his inner
thigh. This evidence was sufficient to establish that Howard had a specific
intent to commit murder. See DeJesus, 860 A.2d at 107 (“the fact that
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appellant shot the victim in vital body parts independently warranted the
jury finding of a specific intent to kill”); Jackson, 955 A.2d at 445 (sufficient
evidence of attempted murder where appellant ran from detective, then
turned, looked and raised his arm toward detective).5
Howard also claims there was insufficient evidence to establish
conspiracy because the Commonwealth failed to establish there was an
agreement between Howard and Taylor.
Criminal conspiracy is defined as follows:
A person is guilty of conspiracy with another person or
persons to commit a crime if with the intent of promoting
or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S. § 903(a). The conspiracy statute further provides:
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5
Howard does not make a separate intent to kill argument with
respect to Green. Cf. 18 Pa.C.S. § 303(b)(1) (“When intentionally or
knowingly causing a particular result is an element of an offense, the
element is not established if the actual result is not within the intent or the
contemplation of the actor unless: (1) the actual result differs from that
designed or contemplated as the case may be, only in the respect that a
different person or different property is injured or affected or that the injury
or harm designed or contemplated would have been more serious or more
extensive than that caused[.]”).
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No person may be convicted of conspiracy to commit a
crime unless an overt act in pursuance of such conspiracy
is alleged and proved to have been done by him or by a
person with whom he conspired.
Id. § 903(e).6 This Court has stated that:
[a]n agreement can be inferred from a variety of
circumstances including, but not limited to, the relation
between the parties, knowledge of and participation in the
crime, and the circumstances and conduct of the parties
surrounding the criminal episode. These factors may
coalesce to establish a conspiratorial agreement beyond a
reasonable doubt where one factor alone might fail.
Commonwealth v. Irvin, 134 A.3d 67, 76 (Pa.Super. 2016) (quoting
Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007)).
Here, the Commonwealth presented sufficient evidence of an
agreement to commit murder where Taylor handed Howard a shotgun and
stated, “there the bitch go right there,” and Howard proceeded to shoot
Dudley.
Howard next argues that the verdicts as to attempted murder and
conspiracy were against the weight of the evidence.
This court reviews a weight of the evidence claim for an abuse of
discretion. Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
“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
____________________________________________
6
Howard does not make a separate argument concerning the overt-
act requirement.
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court’s determination that the verdict is against the weight of the evidence.”
Id. at 1055.
A trial court should not grant a motion for a new trial “because of a
mere conflict in the testimony or because the judge on the same facts would
have arrived at a different conclusion.” Id. “Rather, ‘the role of the trial
judge is to determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.’” Id. (quoting Commonwealth v.
Widmer, 744 A.2d 745, 752 (Pa. 2000)). “[A] new trial should be awarded
when the jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice and the award of a new trial is imperative so that right may
be given another opportunity to prevail.” Id. (quoting Commonwealth v.
Brown, 648 A.2d 1177, 1089 (Pa. 1994)).
Here, the trial court found:
[Howard] had the requisite intent for the charges at issue.
Additionally, the Commonwealth established the required
elements of all charges through credible witness
testimony. Based on the Commonwealth’s witnesses,
[Howard] and Mr. Taylor co-conspired to shoot the
Complainant, which resulted in serious bodily injury to her
and Mr. Green. The verdict did not shock one’s sense of
justice. Therefore, the verdict was not against the weight
of evidence and [Howard] is not entitled to a new trial.
1925(a) Op. at 12-13. We conclude the trial court did not abuse its
discretion in denying Howard’s weight of the evidence claim.
In his third issue, Howard argues that the trial court erred because it
did not permit him to cross-examine forensic analyst Gregory Van Alstine.
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He claims that, although he stipulated to the admission of Van Alstine’s
report, the cross-examination would have revealed that the report’s
conclusions were meritless or lacked foundation.
At trial, Howard stipulated to the admission of Van Alstine’s report:
[Assistant District Attorney]: . . . What’s been marked,
Your Honor, as C-25, crime scene swab, a DNA report,
there has [been] a stipulation by a[nd] between counsel
that if Officer Tull were called to testify, he examined those
shotgun shells for latent prints. He was unable to find any
latent prints on the shotgun shells. He took a DNA swab of
all prints submitted by the defendant and he submitted it
to the DNA Forensics Lab. The Forensics Lab then ran that
DNA and they were unable to obtain DNA from the swabs.
The results were either no or inconclusive for the presence
of DNA. There is a further stipulation that that is not
under the common results.
THE COURT: So-stipulated, Counsel?
[Defense Counsel]: Yes.
N.T., 10/9/15, at 104-05. The Commonwealth then rested and defense
counsel moved three exhibits into evidence and stated, “[t]here is no
evidence on behalf of the defense today, Your Honor.” Id. at 109. Howard’s
appellate brief does not cite to any place in the record where the defense
asked to question Van Alstine. Because he stipulated to the report and did
not seek to examine Van Alstine at trial, Howard waived this claim.7
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7
Further, even if he had not waived this claim, we would find it lacked
merit. The trial court concluded: “It is clear that [Howard] stipulated to the
C-25 DNA report, therefore, agreeing to all the facts as proven. The proven
facts in the report are uncontested and have no need for the cross-
examination of the forensic analyst.” 1925(a) Op. at 20. We conclude the
(Footnote Continued Next Page)
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Howard next argues the trial court erred when it prohibited cross-
examination of Taylor regarding the sentence Taylor faced pursuant to the
sentencing guidelines.
We apply the following standard to trial court decisions regarding
limitations to cross-examinations:
“A trial court has broad discretion to determine whether
evidence is admissible,” and a trial court’s ruling regarding
the admission of evidence “will not be disturbed on appeal
unless that ruling reflects manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support
to be clearly erroneous.” Commonwealth v. Huggins,
68 A.3d 962, 966 (Pa.Super. 2013). In addition, the trial
court has broad discretion regarding “both the scope and
permissible limits of cross-examination.” Commonwealth
v. Briggs, []12 A.3d 291, 335 ([Pa.] 2011). “The trial
judge’s exercise of judgment in setting those limits will not
be reversed in the absence of a clear abuse of that
discretion, or an error of law.” Id.
Commonwealth v. Rosser, 135 A.3d 1077, 1087 (Pa.Super. 2016).8
The trial court permitted Howard to cross-examine Taylor regarding his
plea agreement with the Commonwealth and his sentence, but precluded
Howard from questioning Taylor regarding the applicable sentencing
guidelines.
_______________________
(Footnote Continued)
trial court did not abuse its discretion. See Commonwealth v. Hoover,
107 A.3d 723, 729 (Pa. 2014) (determinations as to admissibility of
evidence reviewed for abuse of discretion).
8
Howard argues that the trial court abused its discretion by limiting
the cross-examination. He does not argue that such limitation violated his
Sixth Amendment right to confront witnesses.
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Prior to Taylor’s testimony, the following exchange occurred:
THE COURT: And what we do need to address is the
maximum sentence and fines. I don’t think that is
necessary for the jury to know that.
[ADA]: That’s fine.
THE COURT: Considering we’re looking at some of those
same charges here.
[ADA]: The sentence that he received, Your Honor, I think
that is admissible, Your Honor. Not the maximum, but the
sentence that he received. I think it’s directly relevant to
– obviously, the that he’s in, the time that he took. It’s
not like he got out on bail because he pled guilty or that
he walked home. I think it definitely shows how solemn
this is as a process. It is not something somebody would
take lightly.
[DEFENSE COUNSEL]: I’m alright with it, Your Honor.
THE COURT: If he’s all right with it, that’s fine.
[DEFENSE COUNSEL]: As long as we can talk about the
guideline being 210 months.
THE COURT: See that’s the problem. I do not want all
that because I don’t want that in the jury’s mind when
they’re deliberating about what the penalty might be. And
I think that is the problem.
[DEFENSE COUNSEL]: Well I think the issue is he received
a very light sentence.
THE COURT: I think that what we can say is that he
received a period of incarceration.
[ADA]: And I’m going to ask him if he’s currently
incarcerated.
THE COURT: That’s fine, did he receive a period [of]
incarceration as a result of this plea. But we’re not going
to get into the specifics.
[DEFENSE COUNSEL]: And the fact that his sentence is 11
years below the guidelines?
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THE COURT: We are not even opening that door. He just
received a period of incarceration. We are not even going
there.
[DEFENSE COUNSEL]: That is awesome impeachment that
he got a great deal in this case, without even having to
cooperate. I should at least be able to say that he got a
significant reduction in the sentence.
[ADA]: Well we can’t back-door in one thing if we are not
letting in the other. If I can’t get in the exact time of his
sentence, then we can’t be like he got a significant
reduction in what he was going to receive. I mean, you’re
right, the jury is going to have to know – if they will be
thinking about what the penalties are going to be in this
case, and if [defense counsel] is going to be implying that
it is extremely high, or whatever, isn’t that the same exact
thing that you want to heed against, actually bringing the
guidelines in? Your Honor, so if he received a period of
incarceration and he is currently incarcerated, I agree with
you and think that is admissible.
...
[DEFENSE COUNSEL]: He is asking for the polluted source
instruction, the accomplice testimony that says you should
take his testimony – he is asking that for his witness. I
know when I try to impeach him about the terms of his
sentence which is negotiated by the Commonwealth at a
severe discount to the guidelines, that is perfectly
relevant. If he’s going to say it’s a polluted source, I need
to be able to say, yeah, you took a deal because it was
really, really good.
[ADA]: Judge, I should just say this as a brief point of
clarification. I only included the polluted source charge
because I felt it was applicable. . . . But if he doesn’t think
that, and he is going to obviously waive that for appeal,
thinks that that’s not an issue in this case, then I am
certainly not going to ask you for a polluted source charge.
...
THE COURT: . . . What I will allow is that we are not going
to talk about specific numbers. You can talk about – you
can bring in some of the information you wanted to elicit
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about – your viewpoint on that, but [the ADA] can counter,
but you just cannot counter with guidelines and numbers
and things of that nature.
N.T., 10/9/15, at 7-12.
Further, during defense counsel’s cross-examination of Taylor, the
following exchange occurred:
Q: You were facing a lot of jail time in this case, weren’t
you?
A: Correct.
Q: And you are going to be getting out in just a couple of
years, correct?
A: Correct.
Q: Because you got a good deal?
A: Correct.
Q: And you got a good deal without even any kind of
agreement to help the DA, correct?
A: Correct.
Q: So when we talk about deals, right, part of a deal is
cutting your losses when you’re ahead, right?
A: Yes.
Q: So you saw an opportunity to avoid trial and make
sure you were getting out in just a couple of years,
correct?
A: Correct.
Q: If he had said you shot that girl with Elvis Presley, you
would have said, yeah, for that deal I would have taken
that.
A: Correct.
N.T., 10/9/15, at 32-33.
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Accordingly, Howard was permitted to elicit testimony that Taylor had
bias and motive to implicate Howard at his plea hearing because he received
a reduction in his sentence. We conclude the trial court did not abuse its
discretion in precluding the use of Taylor’s specific sentence and the
applicable sentencing guideline numbers.
Finally, Howard contends the trial court erred in refusing to issue
missing witness and missing evidence instructions to the jury. He claims
that Detective MacClain testified that the prosecution knew the names and
addresses of the 911 callers through a reverse-look-up system, but did not
provide them to the defense. He further maintains that the prosecution
withheld information that three witnesses the police spoke with on the day of
the shooting no longer resided in Pennsylvania.
Howard provides no citation to the record, no witness names, and cites
no case law in support of his argument. Accordingly, he has waived this
claim. See Pa.R.A.P. 2119(a) (each portion of the argument section of brief
shall include “such discussion and citation of authorities as are deemed
pertinent”); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(“[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”).
Further, even if Howard had not waived the claim, we would conclude
that it lacks merit. It appears Howard requested a missing witness
instruction because the Commonwealth did not call Omar Green, Maria
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Rodriguez, or Xavier Cotto and a missing evidence or witness instruction
because he first learned that that the police department performed a reverse
look-up on the telephone numbers that called 911 on the night of the
incident during Detective MacClain’s testimony.9 N.T., 10/9/15, at 88-100.
“[O]ur standard of review when considering the denial of jury
instructions is one of deference—an appellate court will reverse a court’s
decision only when it abused its discretion or committed an error of law.”
Commonwealth v. Galvin, 985 A.2d 783, 798-99 (Pa. 2009).
A missing witness adverse inference instruction states:
When a potential witness is available to only one of the
parties to a trial, and it appears this witness has special
information material to the issue, and this person’s
testimony would not merely be cumulative, then if such
party does not produce the testimony of this witness, the
jury may draw an inference that it would have been
unfavorable.
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9
Detective MacClain testified that another detective called the phone
numbers who had called 911. He stated that the detective
called the other numbers back, but we did not get
anybody. Some we left messages, which is common.
Sometimes we leave a message . . . and they don’t call
back, or they call back. I believe [Cusick] was the only
one that was contacted and maybe one other person that
said they heard shots.
N.T., 10/8/15, at 190-91. Further, Detective MacClain testified that there
was a bench warrant out for Green’s arrest, id. at 176, and, on cross-
examination stated that Green was in “Georgia, North Carolina, or
something like that” and “[t]here are other witnesses” in Georgia too, id. at
196.
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Commonwealth v. Evans, 664 A.2d 570, 573 (Pa.Super. 1995) (quoting
Commonwealth v. Manigault, 462 A.2d 239, 241 (Pa. 1983)). Similarly,
a missing evidence instruction is appropriate “where evidence which would
properly be part of a case is within the control of the party in whose interest
it would naturally be to produce it, and, without satisfactory explanation he
fails to do so, the jury may draw an inference that it would be unfavorable to
him.” Clark v. Phila. Coll. of Osteopathic Med., 693 A.2d 202, 204
(Pa.Super. 1997) (quoting Haas v. Kasnot, 92 A.2d 171, 173 (1952)).
This Court has stated:
[F]or the “missing witness” adverse inference rule to be
invoked against the Commonwealth, the witness must
be available only to the Commonwealth and no other
exceptions must apply. In order to determine whether
a witness was “available” to a party, the trial court must
ascertain whether the witness was “peculiarly within the
knowledge and reach” of one party.
Evans, 664 A.2d at 574 (citations omitted).
As to the information regarding the 911 callers, the trial court noted
that “[t]he Commonwealth point[ed] to Pa.R.Crim.P. Rule
573[(B)(2)](a)(i),[10] arguing that the names and addresses of witnesses are
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10
Pennsylvania Rule of Criminal Procedure 573(B)(2)(a)(i) provides:
(a) In all court cases, except as otherwise provided in
Rules 230 (Disclosure of Testimony Before Investigating
Grand Jury) and 556.10 (Secrecy; Disclosure), if the
defendant files a motion for pretrial discovery, the court
may order the Commonwealth to allow the defendant’s
attorney to inspect and copy or photograph any of the
(Footnote Continued Next Page)
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J-S02035-17
discretionary discovery” and argued that Howard never requested the
information. 1925(a) Op. at 23. Further, as to the missing witnesses, the
trial court noted that the Commonwealth searched for Green, Rodriguez, and
Cotto, “in good faith . . . only to find that they were in Atlanta.” Id.
The trial court concluded that no missing witness or evidence
instructions were needed, reasoning that “missing witness and missing
evidence instructions only apply when certain evidence is in exclusive control
of the Commonwealth and when they fail to produce them or they withhold
them from counsel.” Id. Further, it found that a missing evidence
instruction would insinuate that the Commonwealth is purposely withholding
evidence, which was not proper here because the Commonwealth acted in
good faith in attempting to locate the witnesses. Id.
We agree and conclude that the trial court did not err in refusing to
issue missing witness and missing evidence jury instructions.
Judgment of sentence affirmed.
_______________________
(Footnote Continued)
following requested items, upon a showing that they are
material to the preparation of the defense, and that the
request is reasonable:
(i) the names and addresses of eyewitnesses; . . .
Pa.R.Crim.P. 573(B)(2)(a)(i).
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J-S02035-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2017
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