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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERREL NOAKS
Appellant No. 1138 WDA 2014
Appeal from the Judgment of Sentence imposed June 16, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0013737-2011
BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED AUGUST 25, 2017
Appellant, Terrel Noaks, appeals from the judgment of sentence
imposed on June 16, 2014 in the Court of Common Pleas of Allegheny
County, following his convictions of third degree murder and firearms not to
be carried without a license.1 Appellant asserts trial court error for denying
the motion to sever his trial from that of his co-defendant, Jerod Cager
(“Cager”), and argues the evidence was insufficient to support each of his
two convictions. Following review, we affirm.
Appellant and Cager were arrested following the August 14, 2011
shooting death of Antwan Leake (“Leake”) that took place in the kitchen of a
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(c) and 6106(a)(1), respectively.
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Pittsburgh home owned by the aunt of Leake’s girlfriend, Kiona Sirmons
(“Sirmons”). Sirmons and several of her girlfriends were in the living room
of the home when the shooting occurred. Immediately after the shooting
Sirmons called 9-1-1 and explained that her boyfriend had been shot and
was dead. She and her girlfriends then hid upstairs in the home until police
arrived.
Both Appellant and Cager were charged with criminal homicide,
firearms not to be carried without a license, and conspiracy. Appellant filed
a motion to sever, claiming that evidence that could be presented against
Cager—including evidence relating to phone records and stemming from
other bad acts, including gun and drug transactions—would be prejudicial to
Appellant. Following a September 6, 2013 hearing, the trial court denied the
motion to sever, but directed counsel to confer on redactions to Cager’s
statement and precluded the Commonwealth from introducing certain
evidence of guns recovered from Cager at the time of his arrest or Cager’s
drug dealing. The court also indicated it would provide appropriate jury and
limiting instructions consistent with Commonwealth v. Brown, 925 A.2d
147 (Pa. 2007). Order, 9/6/13, at 1.
The case proceeded to trial on Thursday, January 23, 2014, and
continued through Friday, January 31, 2014. The jury began its
deliberations on Monday, February 3, and reached a verdict shortly before
noon on Tuesday, February 4. As noted above, the jury found Appellant
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guilty of third degree murder and the firearms violation. The jury convicted
Cager of first degree murder2 and the identical firearms violation. The jury
acquitted both men of conspiracy.
On June 16, 2014, the trial court sentenced Appellant to a minimum of
200 months and a maximum of 480 months at SCI Camp Hill for third
degree murder and a concurrent sentence of 25 to 50 months for the
firearms violation. On the same day, the trial court sentenced Cager to life
in prison without the possibility of parole at SCI Camp Hill for first degree
murder and a concurrent sentence of 40 to 80 months for the firearms
violation.
Appellant filed this timely appeal on July 16, 2014. He and the trial
court complied with Pa.R.A.P. 1925. In his Rule 1925(b) statement,
Appellant raised nine issues, three of which he asks us to consider on appeal
as follows:
I. Did the trial court err when it denied [Appellant’s] motion
to sever his trial from that of his co-defendant [Cager], as
prejudicial evidence that was admissible against the co-
defendant would not have been admissible against
[Appellant]?
II. Did the Commonwealth present sufficient evidence to
convict [Appellant] of carrying a firearm without a license,
as no witness testified they saw [Appellant] with a weapon
at any time—let alone with a concealed, operable firearm?
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2
18 Pa.C.S.A. § 2502(a).
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III. Did the Commonwealth present sufficient evidence to
convict [Appellant] of third-degree murder, as no witness
at trial identified [Appellant] as being present at the scene
of the crime, and the Commonwealth presented no
scientific evidence that linked [Appellant] to the crime
scene?
Appellant’s Brief at 6.
In his first issue, Appellant challenges the denial of his motion to
sever, claiming prejudicial evidence was admitted at trial that would not
have been admissible in a separate trial against Appellant. As our Supreme
Court has recognized, “Whether to join or sever offenses for trial is within
the trial court's discretion and will not be reversed on appeal absent a
manifest abuse thereof, or prejudice and clear injustice to the defendant.”
Commonwealth v. Wholaver, 989 A.2d 883, 898 (Pa. 2010) (citing
Commonwealth v. Newman, 528 Pa. 393, 598 A.2d 275, 277 (1991)).
See also Brown, 925 A.2d at 161 (“Severance questions fall within the
discretion of the trial judge and an order denying severance will not be
overturned on appeal absent an abuse of discretion. When conspiracy is
charged, a joint trial generally is advisable.”) (citations omitted).
Rule of Criminal Procedure 582 (Joinder—Trial of Separate Indictments
of Informations) provides, in relevant part:
(A) Standards
(1) Offenses charged in separate indictments or
informations may be tried together if:
(a) the evidence of each of the
offenses would be admissible
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in a separate trial for the
other and is capable of
separation by the jury so
that there is no danger of
confusion; or
(b) the offenses charged are
based on the same act or
transaction.
(2) Defendants charged in separate indictments or
informations may be tried together if they are
alleged to have participated in the same act or
transaction or in the same series of acts or
transactions constituting an offense or
offenses.
Pa.R.Crim.P. 582(A). Rule of Criminal Procedure 583 (Severance of Offenses
or Defendants) provides that “[t]he court may order separate trials of
offenses or defendants, or provide other appropriate relief, if it appears that
any party may be prejudiced by offenses or defendants being tried
together.” Pa.R.Crim.P. 583.
Both Appellant and the Commonwealth quote Commonwealth v.
Brookins, 10 A.3d 1251 (Pa. Super. 2010), appeal denied, 22 A.3d 1033
(Pa. 2011), for the three factors recognized as persuasive in determining
whether the prejudice suffered by the defendants rises to the level that
warrants severance. Those factors are:
(1) Whether the number of defendants or the complexity of the
evidence as to the several defendants is such that the trier of
fact probably will be unable to distinguish the evidence and apply
the law intelligently as to the charges against each defendant;
(2) Whether evidence not admissible against all the defendants
probably will be considered against a defendant notwithstanding
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admonitory instruction; and (3) Whether there are antagonistic
defenses.
Id. at 1256 (citation omitted). Further, “a defendant claiming error on
appeal has the burden of demonstrating that he suffered actual, not
speculative, prejudice because of the ruling permitting a joint trial.” Brown,
925 A.2d at 162 (citation omitted).
In its Rule 1925(a) opinion, the trial court noted that its ruling denying
Appellant’s motion to sever included directives for counsel to confer on
appropriate redactions to Cager’s statement and a prohibition against
evidence relating to the guns recovered from Cager as evidence of his drug
dealing. The court also agreed to provide a jury instruction and a limiting
instruction consistent with Brown, supra. Rule 1925(a) Opinion, 8/5/16, at
13.
The trial court explained:
Commonwealth v. Brown, which involves similar facts,
contains persuasive reasoning. 925 A.2d 147 (Pa. 2007). The
Brown court observed that both defendants were charged with
[c]onspiracy, the other crimes charged were essentially the
same, and one witness’s testimony was the key evidence against
both defendants. Brown at 163. Moreover, the defenses were
not in irreconcilable conflict, and the primary challenge for both
defendants was the same: to convince the jury not to credit the
testimony of the key witness. Id. Likewise, in the matter sub
judice, both defendants were charged with [c]onspiracy and
similarly charged at the remaining counts. The primary obstacle
for each was to discredit the identification made by Sirmons to
police. The Brown court found that the jury did not have to
disregard the defense of one defendant to accept the defense of
the other. Id. Following the same logic, this [c]ourt properly
denied [Appellant’s] [m]otion to [s]ever.
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Id. at 13-14.
We agree. While there was certainly more evidence presented against
Cager than against Appellant, the evidence was not so complex as to render
the jury unable to distinguish the evidence and intelligently apply the law as
instructed by the trial court. There is no basis for concluding that evidence
not relevant to Appellant was considered against him. In fact, the jury’s
finding that Cager was guilty of first degree murder whereas Appellant was
guilty of third degree murder suggests that the jury was able to weigh the
evidence against the two defendants separately. Moreover, as the trial court
observed, their defenses were not antagonistic.
Again, our standard of review directs that we not reverse the trial
court’s ruling on severance absent a manifest abuse of discretion, prejudice,
or clear injustice to Appellant. We find none of those here. Appellant’s first
issue fails.
In his second and third issues, Appellant challenges the sufficiency of
the evidence supporting his convictions. In its Rule 1925(a) opinion, the
trial court provided a detailed summary of the evidence presented during the
seven-day trial, with citations to the record. Having reviewed the trial
transcripts in their entirety, we conclude that the trial court has provided a
fair and accurate review of the testimony. Therefore, we adopt the trial
court’s “Summary of the Evidence” as our own and incorporate it herein by
reference as if fully set forth. Rule 1925(a) Opinion, 8/5/16, at 3-10.
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In Commonwealth v. Rahman, 75 A.3d 497 (Pa. Super. 2013), this
Court instructed:
We are guided by the following standard of review when
presented with a challenge to the sufficiency of the evidence
supporting a defendant’s conviction:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record “in the light
most favorable to the verdict winner giving the prosecution
the benefit of all reasonable inferences to be drawn from
the evidence.” Commonwealth v. Widmer, 560 Pa. 308,
744 A.2d 745, 751 (2000). Evidence will be deemed
sufficient to support the verdict when it establishes each
material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt
to a mathematical certainty. Any doubt about the
defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the
combined circumstances.
Id. at 500-01 (Pa. Super. 2013) (quoting Commonwealth v. Pettyjohn,
64 A.3d 1072, 1074 (Pa. Super. 2013) (internal citations and quotations
omitted)).
In his second issue, Appellant challenges the sufficiency of evidence
supporting his conviction of firearms not to be carried without a license
under 18 Pa.C.S.A. § 6106(a)(1). Specifically, Appellant argues there was
no testimony indicating anyone saw Appellant with a weapon. With respect
to sufficiency of evidence for a violation of § 6106(a)(1), our Court has held:
In order to convict a defendant for carrying a firearm without a
license, the Commonwealth must prove: (a) that the weapon
was a firearm, (b) that the firearm was unlicensed, and (c) that
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where the firearm was concealed on or about the person, it was
outside his home or place of business.
Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (citations
and footnote omitted).
As explained in Parker, the Commonwealth’s burden of proof may be
sustained by wholly circumstantial evidence “so long as the combination of
the evidence links the accused to the crime beyond a reasonable doubt.”
Id. Further, “[a]lthough a conviction must be based on ‘more than mere
suspicion or conjecture, the Commonwealth need not establish guilt to a
mathematical certainty.’” Id. (quoting Commonwealth v. Coon, 695 A.2d
794, 797 (Pa. Super. 1997) (citations omitted) (emphasis in original)). And,
finally, “when reviewing the sufficiency of the evidence, this Court may not
substitute its judgment for that of the fact-finder; if the record contains
support for the convictions they may not be disturbed.” Id. (quoting
Commonwealth v. Marks, 704 A.2d 1095, 1098 (Pa. Super. 1997)
(additional citation omitted)).
Addressing the sufficiency of evidence to support the firearms
conviction, the trial court observed:
The parties stipulated that [Appellant] was a person unable to
lawfully possess a firearm.[3] [A Commonwealth witness]
testified that he had purchased a gun with Cager’s money and
handed it to Cager in [the witness’s] car immediately after
purchase. Ballistic evidence indicated that the fatal wounds
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3
Appellant was sixteen years of age as of the date of the murder.
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were inflicted by the same or a similar gun. Eyewitness
identification, cell phone evidence and ballistic evidence from the
crime scene placed a second shooter, [Appellant], at the scene.
Cell phone records indicated that [Appellant] and Cager were in
the vicinity of the murder at the time of its commission. The
ballistic evidence established that two guns were used at the
scene and eyewitness testimony established that [Appellant] and
Cager fled from the kitchen shortly after shots were fired. These
facts suffice to establish the crime of [c]arry a [f]irearm
[w]ithout a [l]icense.
Rule 1925(a) Opinion, 8/5/16, at 23. We agree with the trial court that the
evidence, viewed in the light most favorable to the Commonwealth, was
sufficient to support Appellant’s conviction of firearms not to be carried. The
evidence established that Appellant was not licensed to carry a firearm.
Despite Appellant’s assertions to the contrary, there was testimony Leake
was killed by shots fired from two firearms and that Appellant and Cager fled
from the kitchen after the shots were fired. No firearms were discovered in
the kitchen, other than one not involved in the shooting that was recovered
from the waistband of Leake’s pants. Circumstantial evidence supports the
finding that the firearm was concealed on Appellant’s person when he
entered the home and when he fled from the kitchen. As such, the firearm
was concealed outside Appellant’s home or place of business. Appellant is
not entitled to relief on his second issue.
Appellant’s third issue challenges the sufficiency of the evidence
supporting his conviction of third degree murder. Section 2502 of the
Crimes Code defines murder as follows:
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(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). In Commonwealth v. Truong, 36 A.3d 592
(Pa. Super. 2012) (en banc), appeal denied, 57 A.3d 70 (Pa. 2012), this
Court explained:
Third degree murder occurs when a person commits a killing
which is neither intentional nor committed during the
perpetration of a felony, but contains the requisite malice.
Malice is not merely ill-will but, rather, wickedness of disposition,
hardness of heart, recklessness of consequences, and a mind
regardless of social duty. Malice may be inferred from the use of
a deadly weapon on a vital part of the victim’s body. Further,
malice may be inferred after considering the totality of the
circumstances.
Id. at 597-98 (quotations and internal citations omitted).
Appellant again asserts the evidence was insufficient to support his
conviction because no witness testified he was present at the scene of the
crime and that the Commonwealth failed to produce scientific evidence to
link him to the crime scene. We cannot agree.
In determining the evidence was sufficient to support Appellant’s third
degree murder conviction, the court reasoned:
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According to the testimony, two men entered the house,
proceeded directly to the kitchen and shot Leake multiple times,
causing his death. Two eyewitnesses identified Cager and
[Appellant] as running out of the kitchen immediately after shots
were fired. Ballistic evidence from the crime scene match a gun
Cager had obtained illegally. Cell phone records put Cager and
[Appellant] in proximity to the crime at the time of its
commission as well as in regular communication with each other.
These facts, taken together, suffice to establish the basis for
Appellant’s conviction for [m]urder in the [t]hird [d]egree.
Rule 1925(a) Opinion, 8/5/16, at 22.
As noted above, circumstantial evidence can support a conviction if the
evidence links the accused to the crime beyond a reasonable doubt.
Further, the Commonwealth need not establish guilt to a mathematical
certainty. We agree with the trial court that the combination of evidence,
viewed in the light most favorable to the Commonwealth, links Appellant to
the crime scene beyond a reasonable doubt. Again, we may not substitute
our judgment for that of the jury as fact-finder because the record contains
support for the conviction. See Parker, 847 A.2d at 750. Appellant’s
sufficiency challenge to his third degree murder conviction fails.
Appellant is not entitled to relief on any of his three issues. Therefore,
we affirm his judgment of sentence. In the event of further proceedings, the
parties shall attach a copy of the trial court’s Rule 1925(a) opinion to their
filings.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
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