Commonwealth v. Patterson , 180 A.3d 1217 ( 2018 )

J. A16033/17
2018 Pa. Super. 24
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHRISTOPHER SCOTT PATTERSON, : No. 1390 WDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, August 12, 2016,
in the Court of Common Pleas of Westmoreland County
Criminal Division at No. CP-65-CR-0002188-2015
BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., AND STRASSBURGER, J.*
OPINION BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 8, 2018
Appellant, Christopher Scott Patterson, appeals from the August 12,
2016 judgment of sentence following his conviction of third-degree murder.
After careful review, we affirm.
The trial court provided the following factual and procedural history:
The charges in this case arose from the shooting
death of Kevin Croney, the owner and operator of
True Image Tattoo, on March 13, 2015, in the
parking lot of the tattoo shop in New Kensington,
Westmoreland County. The evidence presented at
trial established that on March 13, 2015, at
approximately 3:00 p.m., [appellant] went to the
True Image Tattoo shop for the purpose of getting a
laser tattoo removal treatment, as part of a series of
treatments Mr. Croney had been providing. After
entering the shop, [appellant] and Mr. Croney went
upstairs to Mr. Croney’s office and when they
returned back downstairs, they appeared to be
* Retired Senior Judge assigned to the Superior Court.
J. A16033/17
engaged in an argument regarding money. In order
to avoid disrupting the customers within the tattoo
shop, both Mr. Croney and [appellant] walked
through the back office door and out into a parking
area situate immediately behind the building.
[Appellant] testified that at this time, Mr. Croney
was getting perturbed because he wanted
[appellant] to start paying for the laser tattoo
removal treatments, and [appellant] was getting
perturbed because he did not feel like he owed
Mr. Croney any money based upon a prior
agreement that they had made. [Appellant] then
testified that he informed Mr. Croney that he would
go elsewhere to finish his treatment, and he turned
to go to his vehicle which was parked nearby in the
parking lot approximately six feet away. As
[appellant] was walking towards his car, he claims
that he was hit in the back of the head by
Mr. Croney, and an altercation ensued.
Mark Patrick, an employee of True Image Tattoo,
testified that after he overheard Mr. Croney and
[appellant] arguing, he went outside to make sure
everything was okay. When he walked outside, he
observed [appellant] pinning Mr. Croney up against
the door and punching him in the face. Mr. Patrick
attempted to defuse the situation by shoving
[appellant] away from Mr. Croney. At this time,
Mr. Patrick testified that the fighting could have
stopped right there—it was broken up—Mr. Croney
wasn’t advancing. However, despite Mr. Patrick’s
efforts to separate Mr. Croney and [appellant],
Mr. Patrick testified that after shoving [appellant]
away, [appellant] began running in his direction in
yet another attempt to get to Mr. Croney who was
standing behind him. Mr. Patrick testified that in
that moment he got spun around and looked up just
in time to see [appellant] shoot Mr. Croney.
[Appellant] testified that he shot Mr. Croney in
self[-]defense after he observed Mr. Croney holding
his pistol in his hand. Mr. Patrick testified that at no
time did he see Mr. Croney pull out his gun and point
-2-
J. A16033/17
it at [appellant]. During the investigation, a black
Glock 9mm pistol, later identified as belonging to
Mr. Croney and a Smith and Wesson .38 special
revolver belonging to [appellant] were recovered
from the scene.
On or about March 16, 2015, [appellant] was
arrested and initially charged with Criminal
Homicide. After the preliminary hearing, the
Criminal Homicide charge was held for court, but was
later amended to Murder of the First Degree. The
charge of Murder of the Third Degree was also added
by Criminal Information. [Appellant] was charged as
follows:
1. Count One: Murder of the First Degree,
in violation of 18 Pa.C.S.A. § 2502(a).
2. Count Two: Murder of the Third Degree,
in violation of 18 Pa.C.S.A. § 2502(c).
On March 14, 2016, [appellant] proceeded to a jury
trial before [the trial court]. During trial, [appellant]
was represented by Attorney Patrick Thomassey.
During the trial, the Commonwealth requested that
the jury be given an opportunity to view the scene of
the alleged crime. On the first day of the trial, the
jury, counsel for the parties, [appellant], and Sheriff
Deputies, drove to the scene of the alleged crime for
a view of the scene. To ensure safety of all involved,
the security of [appellant] and court personnel,
[appellant] was handcuffed and shackled at all times
while transported to the view and while on the scene
of the view in the presence of the jury.
On March 18, 2016, the jury returned a verdict of
guilty of Murder of the Third Degree, and sentencing
was deferred pending a Pre-Sentence Investigation.
On July 18, 2016, [appellant] was sentenced to
sixteen (16) to thirty-two (32) years[’] incarceration
at the Department of Corrections and ordered to pay
restitution in the amount of $14,050.00 to
Mr. Croney’s family.
-3-
J. A16033/17
On July 26, 2016, Attorney Thomas Will formally
entered his appearance on behalf of [appellant]. On
the same day, [appellant] timely filed post-sentence
motions. A hearing on the post-sentence motions
was held on September 1, 2016, at which time, all
post-sentence motions were denied. On
September 14, 2016, [appellant] filed a timely
Notice of Appeal to the Pennsylvania Superior Court.
On September 16, 2016, [the trial court] ordered
[appellant] to file a Concise Statement of Errors
Complained of on Appeal within twenty-one (21)
days. On October 5, 2016, [appellant] filed said
statement and raised eleven issues.
Trial court opinion, 11/1/16 at 1-4 (citations to record omitted). The trial
court filed an opinion pursuant to Pa.R.A.P. 1925(a) on November 1, 2016.
Appellant raises the following issues for our review:
I. Whether the Trial Court erred and denied
[a]ppellant’s U.S. Constitutional rights under
the Fifth, Sixth, and Fourteenth Amendments
when it permitted the jury to view [appellant]
shackled and restrained while on view at the
scene of the incident?
II. Whether the Trial Court erred when it directly
informed the jury that [appellant] was
incarcerated and not afforded bail as a result of
the incident in question?
III. Whether the Trial Court erred when it
permitted the Commonwealth to begin its case
at the scene of the incident without any prior
testimony or other presented evidence?
IV. Whether the Trial Court erred when it denied
[a]ppellant’s Motions for Acquittal?
V. Whether the evidence presented was sufficient
to convict [appellant] of homicide in the third
degree?
-4-
J. A16033/17
VI. Whether the Commonwealth presented
sufficient evidence to prove that [appellant]
did not act in self-defense?
VII. Whether the Trial Court erred when it denied
[appellant’s] Post Sentence Motion of
Acquittal/Arrest of Judgement and Modification
to a Conviction of Voluntary Manslaughter?
VIII. Whether the Trial Court erred when it denied
[appellant’s] Post Sentence Motion for
Modification of Sentence?
IX. Whether the Trial Court erred when it Denied
[appellant’s] Post Sentence Motion for New
Trial?
X. Whether the Trial Court Erred when it
permitted the Commonwealth to present
evidence of telephone recordings within the
Westmoreland County Correctional Facility?
XI. Whether the Trial Court erred when it did not
allow the jury to review transcripts of
[appellant’s] testimony during deliberation?
Appellant’s brief at 5.
I.
In his first issue for our review, appellant avers that the trial court
erred by permitting the jury to view appellant in shackles during the view of
the crime scene at the beginning of the trial. Specifically, appellant avers
that the trial court failed to consider any alternative measures to restrain
and/or “immediately subdue” appellant following an “adverse incident,” thus
abusing its discretion. (See id. at 31.) We disagree.
It is well settled under common law and the
Constitution that, part and parcel of the concept of a
-5-
J. A16033/17
fair trial, is a defendant’s right to be permitted to
appear free from shackles or other physical
restraint—this right, however, is not absolute.
Commonwealth v. Jasper, 610 A.2d 949, 955 (Pa.
1992). Circumstances that have justified the use of
restraint include where a defendant disrupts the
proceedings, when there is danger of an escape, and
where the court believes that an unrestrained
defendant may attack others. Id. Proper security
measures are within the sound discretion of the trial
court, and, thus, will not be disturbed absent an
abuse of that discretion. Commonwealth v.
Patterson, 308 A.2d 90 (Pa. 1973).
In re F.C. III, 2 A.3d 1201, 1222 (Pa. 2010). Our cases have defined an
abuse of discretion as, “. . . not merely an error of judgment but involves
misapplication or overriding the law or the exercise of a manifestly
unreasonable judgment passed upon partiality, prejudice or ill will.”
Commonwealth v. L.P., 137 A.3d 629, 635 (Pa.Super. 2016), quoting
Commonwealth v. Ruffin, 10 A.3d 336, 338 (Pa.Super. 2010) (citations
omitted).
Appellant cites a litany of cases from the Supreme Court of the United
States discussing the appearance of a criminal defendant during trial and the
prejudicial effect that a defendant’s appearance may have on a jury. See
Estelle v. Williams, 425 U.S. 501, 512 (1976) (holding that a defendant
cannot be compelled to “stand trial before a jury while dressed in identifiable
prison clothes”); Illinois v. Allen, 397 U.S. 337, 344 (1970) (stating that
shackling and gagging a defendant is “something of an affront to the []
dignity and decorum of the judicial proceedings,” and the use of shackles
-6-
J. A16033/17
could “have a significant effect on the jury’s feelings about the defendant”);
Holbrook v. Flynn, 475 U.S. 560, 571 (1986) (finding that four uniformed
and armed police officers sitting in the front row of the gallery directly
behind the defendant did not deny the defendant a fair trial); Deck v.
Missouri, 544 U.S. 622, 627 (2005) (gathering cases stating that “trial
courts may not shackle defendants routinely, but only if there is a particular
reason to do so”).
These cases miss the mark. While all these cases address the
appearance of a criminal defendant in the presence of the jury, they also all
address the defendant’s appearance within a courtroom setting and do not
address the logistical concerns that accompany a view of the crime scene.
Whether it is within the sound discretion of the trial court to require a
criminal defendant to appear at a view of the crime scene while shackled is
an issue of first impression in Pennsylvania.
Several other jurisdictions, however, have addressed the shackling of
a criminal defendant during a view of the crime scene. The Supreme Court
of California1 held that the trial court did not abuse its discretion when it
ordered the defendants to be shackled during a view of the crime scene
because the trial court determined that “the danger of flight or escape was
1
It has been longstanding law in California that a defendant must be
permitted to attend a jury view of the crime scene. People v. Bush, 10 P.
169, 175 (Cal. 1886), cited by People v. Garcia, 115 P.3d 1191, 1203 (Cal.
2005).
-7-
J. A16033/17
greater outside the courtroom,” even if a defendant did not have a history of
violence. People v. Hardy, 825 P.2d 781, 837 (Cal. 1992), cert. denied,
506 U.S. 987 (1992). See also People v. Roberts, 826 P.2d 274, 291-292
(Cal. 1992), cert. denied, 506 U.S. 964 (1992), citing People v. Mallory,
365 N.W.2d 673, 683 (Mich. 1984) (agreeing with the Supreme Court of
Michigan’s2 holding that a court may “exercise discretion to require the
restraining of a defendant at a jury view outside the courtroom ‘on the basis
of . . . other manifest circumstances.’”).
In State v. Hightower, 661 A.2d 948, 957 (R.I. 1995), the Supreme
Court of Rhode Island3 ordered that if the defendant were to attend a
viewing of the crime scene, he would have to be shackled at the discretion of
the marshals responsible for security outside the courtroom. The court
found that there was no abuse of discretion when the trial judge acted solely
on the advice of marshals or deputy sheriffs in order to determine “what is
necessary for the security of the participants in a trial whether in a
2
In Michigan, a criminal defendant charged with a felony is required to be
“personally present during the trial.” Mich. Comp. Laws § 768.3. The
Supreme Court of Michigan has long held that a criminal defendant has the
right to accompany a jury to a view of the crime scene. People v.
Auerbach, 141 N.W. 869, 877 (Mich. 1913).
3
Unlike California and Michigan, Rhode Island does not recognize the right
of a criminal defendant to be present for a jury view of the crime scene
because the defendant’s “participation at the view would be virtually
nonexistent,” and the view does not constitute a critical stage of the trial.
Hightower, 661 A.2d at 957, citing Snyder v. Massachusetts, 291 U.S.
108 (1934).
-8-
J. A16033/17
courtroom or outside the courtroom.” Id., citing State v. Byrnes, 433 A.2d
658, 663 (R.I. 1981).
In Pennsylvania, a criminal defendant has a rules-based right to attend
a jury view of the crime scene. Pa.R.Crim.P. 643(B). Based on the
similarities with the rights afforded to criminal defendants during jury views
in California and Michigan, we find that the trial court did not abuse its
discretion when it ordered appellant to be shackled during the jury view of
the crime scene. We further find that the trial court did not abuse its
discretion when it consulted with the Westmoreland County Sheriff’s Office
regarding logistical concerns surrounding the transportation of appellant to
the view. The trial court stated that the shackling of appellant for the view
was necessary “not only to ensure the safety of [appellant], the jurors, and
anyone else involved who would be present at the scene, but also in light of
the fact that there would be testimony offered outside and [appellant] may
have had the opportunity to flee if he was not restrained.” (Trial court
opinion, 11/1/16 at 4.)
The trial court’s reasoning is analogous with the rationale applied by
the Supreme Courts of California and Michigan. In Hardy, the court
specifically cited greater danger of escape outside the courtroom when it
determined that shackling the defendant for a jury view was not an abuse of
discretion by the lower court. Hardy, 825 P.2d at 837. Likewise, the
Mallory court cited escape prevention as one of the only reasons to shackle
-9-
J. A16033/17
a defendant during trial. Mallory, 365 N.W.2d at 682, citing People v.
Duplissey, 155 N.W.2d 850, 851 (Mich. 1968).
Finally, appellant avers that the trial court abused its discretion by
failing to “look into more creative solutions” to diminish the risk of potential
escape by appellant, while simultaneously protecting appellant’s rights.
(Appellant’s brief at 31-32.) Specifically, appellant cited various methods of
alternative restraint used by other jurisdictions throughout the
Commonwealth. (Id. at 32.) A lack of creativity by the trial court, however,
does not an abuse of discretion make. The trial court did not misapply the
law, nor did it exercise a manifestly unreasonable judgment when it ordered
that appellant be shackled in order to attend the jury view. Accordingly,
appellant’s first issue is without merit.
II.
For his second issue, appellant avers that the trial court erred when it
provided a curative instruction to the jury pertaining to appellant’s
incarceration and the necessity of appellant’s being restrained at the view of
the crime scene. Specifically, appellant states that “a cautionary instruction
indicat[ing] that [a]ppellant was incarcerated because of the serious nature
of the crimes charged harmed him in the minds of the jury and stripped him
of a cloak of innocence.” (Appellant’s brief at 32.)
When reviewing jury instructions, we are governed
by the following standard:
- 10 -
J. A16033/17
Our standard of review in assessing a
trial court’s jury instructions is as
follows:
[W]hen evaluating the
propriety of jury instructions,
this Court will look to the
instructions as a whole, and
not simply isolated portions,
to determine if the
instructions were improper.
We further note that, it is an
unquestionable maxim of law
in this Commonwealth that a
trial court has broad
discretion in phrasing its
instructions, and may choose
its own wording so long as
the law is clearly,
adequately, and accurately
presented to the jury for its
consideration. Only where
there is an abuse of
discretion or an inaccurate
statement of the law is there
reversible error.
Commonwealth v. Kerrigan, 920 A.2d
190, 198 (Pa.Super. 2007) (internal
citations, quotation marks, and brackets
omitted).
Commonwealth v. Trippett, 932 A.2d 188, 200
(Pa.Super. 2007).
We have explained the abuse of
discretion standard as follows:
It is not sufficient to
persuade the appellate court
that it might have reached a
different conclusion[;] it is
necessary to show an actual
abuse of the discretionary
- 11 -
J. A16033/17
power. An abuse of
discretion will not be found
based on a mere error of
judgment, but rather exists
where the court has reached
a conclusion [that] overrides
or misapplies the law, or
where the judgment
exercised is manifestly
unreasonable, or the result of
partiality, prejudice, bias or
ill-will.
Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa.
2013), quoting Commonwealth v. Eichinger, 915
A.2d 1122, 1140 (Pa. 2007).
Commonwealth v. Roane, 142 A.3d 79, 95-96 (Pa.Super. 2016).
In the instant appeal, the trial court provided the jury with the
following preliminary curative instruction prior to the view of the crime
scene:
Now I’m going to tell you at this point in time that
[appellant] is in custody. He is presently being held
in the Westmoreland County Prison. Homicide of the
kind that he is charged with is a nonbailable or
nonbondable offense in the Commonwealth of
Pennsylvania. So there is no way in which he could
be out of the custody of the Westmoreland County
Prison or while here in court in the custody of the
Westmoreland County Sheriff’s Department, and he
remains in that custody throughout the trial.
It is necessary that [appellant] be present at all
proceedings, including the view of the scene. And
during the view of the scene, [appellant] will be in
the custody of the Westmoreland County Sheriff’s
Department. He will also be in what we call
restraints. He will have shackles and handcuffs on.
- 12 -
J. A16033/17
I’m instructing you at this time that you are not to
draw any adverse or negative inference from the fact
that [appellant] is in the custody of the
Westmoreland County Sheriff, or that he is generally
being held in custody awaiting the disposition of
these charges. These are not matters for your
consideration. They are not to bear upon your
decision in any way in this matter. And I’m
instructing that you are not to hold it against
[appellant] that he will be in the custody of the
Sheriff and in shackles and handcuffs, things which
are beyond his control. [Appellant] is in custody
simply because that is what is required by the laws
of the Commonwealth of Pennsylvania, and I’m
instructing you that you’re to make no adverse
inference as a result of that.
Notes of testimony, 3/15/16 at 297-299.
“The law presumes that the jury will follow the
instructions of the court.” Commonwealth v.
Spotz, 896 A.2d 1191, 1224 (Pa. 2006) (citation
omitted); see also Commonwealth v. O’Hannon,
732 A.2d 1193, 1196 (Pa. 1999) (“Absent evidence
to the contrary, the jury is presumed to have
followed the trial court’s instructions.”).
Commonwealth v. Chmiel, 30 A.3d 1111, 1185 (Pa. 2011). Upon careful
review of the trial court’s instructions to the jury pertaining to the use of
shackles and handcuffs on appellant during the view of the crime scene, we
do not find any evidence that the trial court abused its discretion. Moreover,
appellant failed to demonstrate that he was prejudiced by the trial court’s
jury instructions, nor has he produced any evidence that the jury failed to
follow the trial court’s instructions. See Commonwealth v. Cash, 137
A.3d 1262, 1272 (Pa. 2016), cert. denied, 137 S. Ct. 1202 (2017) (stating
that a defendant cannot demonstrate prejudice as a jury is presumed to
- 13 -
J. A16033/17
follow the trial court’s instructions); Commonwealth v. Stokes, 839 A.2d
226, 230 (Pa. 2003), citing Commonwealth v. Baez, 720 A.2d 711, 729
(Pa. 1998), cert. denied, 528 U.S. 827 (1999).
Accordingly, appellant’s second issue is without merit.
III.
In his third issue for our review, appellant states that the trial court
erred in permitting the view of the crime scene to take place before any
prior presentation and admission of evidence. In presenting his issue,
appellant relies solely upon the Supreme Court of Pennsylvania’s
1949 decision in Commonwealth v. Darcy, 66 A.2d 663 (Pa. 1949), cert.
denied, 338 U.S. 862 (1949). The Darcy court, relying upon the Supreme
Court of the United States’ decision in Snyder v. Massachusetts, 291 U.S.
97 (1934), stated that:
it was not error to point out any part or parts [of the
crime scene.] The significance of what the jury saw
depended entirely on the sworn testimony which
they heard in court. For the trial judge to have
permitted any testimony to be received, or any
discussion to be indulged in, or any argument to be
made during the view, would have been improper.
Darcy, 66 A.2d at 667 (emphasis in original).
The Darcy court further stated the following:
It may be logically argued that viewing the scene of
the crime is not a part of the trial. A trial implies a
contest of opposing parties in the presence of the
judge. There is no contest between the parties when
a viewing takes place. The trial judge may or may
not be present, as he chooses. Yet there cannot be a
- 14 -
J. A16033/17
judicial trial without a trial judge. The attorneys for
the respective parties are usually present but they
take no active part. Neither can offer or object to,
any evidence, or ask any questions. They must
remain passive and mute. The prisoner, if present,
must do likewise. The situation is analogous to an
agreed-to temporary cessation of hostilities between
opposing armies on a battlefield. During the
cessation the soldiers of the opposing armies make
no hostile move. A flag of truce is in the ascendant
and is respected. In one sense the period of
cessation of conflict may be considered a part of the
battle; in another and stricter sense of the word it is
not a part of the battle; the battle is temporarily
suspended. So in viewing the scene of a crime by the
jury the trial is temporarily suspended, for there is
no clashing of opposing parties or opposing counsel
and no offer of evidence or asking of questions.
Id. at 667-668 (footnote omitted).
As referenced above, jury views are governed by Pennsylvania Rule of
Criminal Procedure 643, which requires the trial judge, the attorney for the
Commonwealth, the defendant, and the defendant’s counsel to be present
for the view. Pa.R.Crim.P. 643(B). The adoption of Rule 643 by our
supreme court in 1968 supersedes the analysis of the Darcy court. Indeed,
the Darcy court contemplated a jury view in which there were no
requirements for the trial judge or the defendant to be present at the view.
We therefore find that the trial was not suspended during the jury
view, as suggested by the Darcy court, and accordingly, the trial court did
not err by accepting testimony during the view. Appellant’s third issue is
therefore without merit.
- 15 -
J. A16033/17
IV.
In his brief, appellant states that issues four through six “address the
sufficiency of the evidence presented against [appellant.]” The Pennsylvania
Rules of Appellate Procedure require an argument to “be divided into as
many parts as there are questions to be argued; . . . followed by such
discussion and citation of authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a). Any claim for which an appellant fails to include “citation
to relevant authority or fails to develop the issue in any other meaningful
fashion capable of review” is waived. Commonwealth v. Johnson, 985
A.2d 915, 924 (Pa. 2009), cert. denied, 562 U.S. 906 (2010).
Here, appellant does not include any discussion pertaining specifically
to his motions for acquittal. Therefore, appellant’s fourth issue is waived.
V.
In his fifth issue presented for our review, appellant avers that the
Commonwealth failed to present sufficient evidence to warrant a conviction
of third-degree murder. We disagree.
In reviewing the sufficiency of the evidence, we view
all evidence admitted at trial in the light most
favorable to the Commonwealth, as verdict winner,
to see whether there is sufficient evidence to enable
[the fact finder] to find every element of the crime
beyond a reasonable doubt. This standard is equally
applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to the
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
- 16 -
J. A16033/17
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”
Moreover, 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.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations
omitted).
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. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)
(citations omitted).
The credibility and weight of the evidence are both matters that are in
the sole purview of the jury. Specifically, when considering whether the
evidence was sufficient to prove each element of each charge beyond a
reasonable doubt, we cannot assume the task of weighing evidence and
making independent conclusions of fact. Commonwealth v. Lewis, 911
A.2d 558, 563 (Pa.Super. 2006) (citations omitted). “Any doubts regarding
[an appellant’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.” Id.
- 17 -
J. A16033/17
In the instant appeal, after reviewing the evidence presented cast in
the light most favorable to the Commonwealth, as verdict winner, we find
that the evidence is sufficient to warrant the jury’s conviction for
third-degree murder.
Our Crimes Code defines third-degree murder as
follows:
[T]hird-degree murder is a killing done
with legal malice but without the specific
intent to kill required in first-degree
murder. Malice consists of a wickedness
of disposition, hardness of heart, cruelty,
recklessness of consequences, and a
mind regardless of social duty. Malice
exists where the principal acts in gross
deviation from the standard of
reasonable care, failing to perceive that
such actions might create a substantial
and unjustifiable risk of death or serious
bodily injury.
Commonwealth v. Kellam, 719 A.2d 792, 797
(Pa.Super. 1998) (citations and quotation marks
omitted). Section 2301 of the Crimes Code defines
“serious bodily injury” as “[b]odily injury which
creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss
or impairment of the function of any bodily member
or organ.” 18 Pa.C.S. § 2301.
Commonwealth v. Kendricks, 30 A.3d 499, 509 (Pa.Super. 2011),
appeal denied, 46 A.3d 716 (Pa. 2012).
We agree with the trial court’s determination that, “[t]he evidence at
trial demonstrated that [appellant] intentionally pointed a deadly weapon,
namely[,] a Smith and Wesson .38 special revolver[,] at Mr. Croney and
- 18 -
J. A16033/17
fired striking Mr. Croney in the head.” (Trial court opinion, 11/1/16 at 8.)
We further find that the evidence demonstrating that appellant shot
Mr. Croney in the head from a distance of several inches satisfies the malice
requirement to warrant a conviction for third-degree murder. (See notes of
testimony, 3/16/16 at 432.) Accordingly, appellant’s fifth issue is without
merit.
VI.
In his sixth issue on appeal, appellant avers that the Commonwealth
failed to present sufficient evidence to prove that he did not act in
self-defense.
When a defendant claims self-defense, the burden is on the
Commonwealth to disprove the defendant’s claim beyond a reasonable
doubt. Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012)
(citations omitted). In order for a defendant to successfully claim
self-defense, he or she must meet the following three elements: (1) the
defendant reasonably believed that he was in imminent danger of death or
serious bodily injury and that the use of deadly force was necessary to
prevent such harm; (2) the defendant did not provoke the incident which
resulted in the victim’s death; and (3) the defendant did not violate any duty
to retreat. Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012)
(citations omitted). As previously noted, the Commonwealth has the burden
of disproving self-defense beyond a reasonable doubt and may do so by
- 19 -
J. A16033/17
disproving any one of the three self-defense elements the defendant must
meet. Id. at 740-741.
Here, we only need to address the second factor as discussed in
Mouzon: whether appellant was at fault in provoking the incident that
resulted in the victim’s death. We find that the Commonwealth has proven
beyond a reasonable doubt that appellant was the aggressor in this case,
and therefore his self-defense claim must fail. As noted above, Mark Patrick
testified that he attempted to separate appellant and Mr. Croney by shoving
appellant away from Mr. Croney. (Notes of testimony, 3/16/16 at 429.)
Mr. Patrick further testified that after he shoved appellant away from
Mr. Croney, the fighting had stopped; however, appellant, after being
shoved away, began running toward Mr. Croney, shoving Mr. Patrick aside.
(Id. at 430, 432.) Mr. Patrick testified that he then saw appellant shoot
Mr. Croney at point-blank range. (Id. at 432.) Finally, Mr. Patrick also
testified that he did not see Mr. Croney aim his weapon at appellant. (Id. at
433-434.)
For these reasons, we find that the Commonwealth has met its burden
of disproving appellant’s self-defense claim beyond a reasonable doubt and
that the evidence fully supports the jury’s guilty verdict.
VII.
In his seventh issue on appeal, appellant avers that the evidence
presented only warranted a conviction of voluntary manslaughter. Having
- 20 -
J. A16033/17
already determined that appellant waived his issues pertaining to the
sufficiency of the evidence of his third-degree murder conviction, we need
not consider appellant’s seventh issue, as the issue is moot. See
Commonwealth v. Nava, 966 A.2d 630, 632-633 (Pa.Super. 2009),
quoting In re T.J., 699 A.2d 1311, 1313 (Pa.Super. 1997) (“A case is ‘moot’
when a determination is sought on a matter which, when rendered, cannot
have any practical effect on the existing controversy”).
Here, given that the challenge of the sufficiency of the evidence to
support appellant’s conviction for third-degree murder has been waived, any
determination on whether appellant should have been alternatively convicted
of voluntary manslaughter cannot have any practical effect.
VIII.
In his eighth issue for our review, appellant requests that we review
his sentence imposed by the trial court.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
- 21 -
J. A16033/17
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at
sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial
question that the sentence appealed
from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
The record indicates that appellant timely filed a notice of appeal and
that the issue was properly preserved in a motion to reconsider and modify
sentence.
Appellant failed to include a Rule 2119(f) statement in his brief, and
the Commonwealth has likewise failed to object to the lack of a Rule 2119(f)
- 22 -
J. A16033/17
statement. Since the requirement of such a statement is procedural and not
jurisdictional, “the Commonwealth’s failure to object to or otherwise assert
the defect in the form of Appellant’s brief has resulted in a waiver of the
defect.” Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.Super. 2003)
(citations omitted); see also Commonwealth v. Brougher, 978 A.2d 373,
375 (Pa.Super. 2009) (failure of the appellant to comply with Rule 2119(f),
where the Commonwealth does not object to statement’s absence, does not
compel waiver). Therefore, we must determine whether there is a
substantial question requiring us to review the discretionary aspects of the
sentence imposed by the trial court. Whether an issue raises a substantial
question is a determination made on a case-by-case basis.
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004) (citation
omitted).
A substantial question is raised when an appellant “advances a
colorable argument that the sentencing judge’s actions were either:
(1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)
(citation omitted).
In the instant appeal, appellant fails to meet either of the
requirements for a substantial question. Specifically, appellant fails to
articulate how the trial judge’s sentence is inconsistent with any aspect of
- 23 -
J. A16033/17
the Sentencing Code. As we stated in Commonwealth v. Disalvo, 70 A.3d
900 (Pa.Super. 2013),
“this [c]ourt has held on numerous occasions that a
claim of inadequate consideration of mitigating
factors does not raise a substantial question for our
review.” See also Commonwealth v. Kraft, 737
A.2d 755, 757 (Pa.Super. 1999), appeal denied,
747 A.2d 366 (Pa. 1999) (determining appellant’s
claim that sentence of incarceration for DUS violation
was excessive because sentencing court failed to
adequately consider certain mitigating factors did not
raise substantial question).
Id. at 903, quoting Commonwealth v. Downing, 990 A.2d 788, 794
(Pa.Super. 2010) (citations omitted)
Here, appellant avers that the trial court failed to fully consider
mitigating factors such as appellant’s age, prior record score, lack of violent
tendencies prior to the shooting, and appellant’s belief that his life was in
danger. Moreover, in its Rule 1925(a) opinion, the trial court explicitly
stated that it took into account the pre-sentence investigation, as well as
appellant’s mitigating factors when deciding his sentence. (See trial court
opinion, 11/1/16 at 10-11.) As our cases clearly indicate, this does not rise
to the level of a substantial question, and we thus cannot consider
appellant’s eighth issue on its merits.
IX.
In his ninth issue on appeal, appellant avers that the first eight issues
raised, when viewed in the aggregate, “create an accumulation of prejudices
- 24 -
J. A16033/17
that necessitate a new trial.” (Appellant’s brief at 42.) We have repeatedly
held that:
an appellant cannot bootstrap a series of meritless
claims into a cumulative claim of error. See
Commonwealth v. Rolan, 964 A.2d 398, 411
(Pa.Super. 2008) (“No number of failed claims may
collectively attain merit if they could not do so
individually.”) (quoting Commonwealth v.
Williams, 615 A.2d 716, 722 (Pa. 1992)) (emphasis
in original).
Commonwealth v. Kearney, 92 A.3d 51, 62 (Pa.Super. 2014), appeal
denied, 101 A.3d 102 (Pa. 2014). Accordingly, appellant’s ninth issue is
without merit.
X.
For his tenth issue raised for our review, appellant avers that the trial
court erred by permitting “the use of prison telephone conversations during
the cross-examination of [appellant.]” (Appellant’s brief at 42.)
Additionally, appellant alleges that the trial court erred because it stated that
a court order was not necessary to obtain the recordings. This claim is
without merit.
We have explained:
[Our] standard of review for a trial
court’s evidentiary rulings is narrow. The
admissibility of evidence is solely within
the discretion of the trial court and will
be reversed only if the trial court has
abused its discretion. An abuse of
discretion is not merely an error of
judgment, but is rather the overriding or
misapplication of the law, or the exercise
- 25 -
J. A16033/17
of judgment that is manifestly
unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown
by the evidence of record.
Commonwealth v. Mendez, 74 A.3d 256, 260
(Pa.Super. 2013) (internal quotations and citations
omitted). Moreover, “[t]o constitute reversible error,
an evidentiary ruling must not only be erroneous,
but also harmful or prejudicial to the complaining
party. Commonwealth v. Lopez, 57 A.3d 74, 81
(Pa.Super. 2012) (internal quotations and citations
omitted).
Interpreting the language of Pennsylvania’s Wiretap
Act is a pure question of law and thus demands a de
novo standard of review. Commonwealth v.
Deck, 954 A.2d 603, 606 (Pa.Super. 2008).
As our Supreme Court explained, “Pennsylvania’s
Wiretap Act is generally modeled after the federal
analogue, 18 U.S.C. §§ 2510-2520. The federal
legislation authorizes states to adopt coordinate
statutes permitting the interception of wire, oral, or
electronic communications and to grant greater, but
not lesser, protection than that available under
federal law.” Commonwealth v. Spangler, 570
Pa. 226, 809 A.2d 234, 237 (2002) (internal citations
omitted). Further, since Pennsylvania’s Wiretap Act
“emphasizes the protection of privacy,” “the
provisions of the Wiretap Act [must be] strictly
construed.” Id.
Our interpretation of the Wiretap Act necessarily
begins with the statutory language.
The Wiretap Act prohibits the intentional
interception, disclosure, or use of a “wire, electronic
or oral communication.” 18 Pa.C.S.A. § 5703.
However, the Wiretap Act contains enumerated
“exceptions to [the] prohibition of interception and
disclosure of communications.” In relevant part,
18 Pa.C.S.A. § 5704 declares:
- 26 -
J. A16033/17
It shall not be unlawful and no prior
court approval shall be required under
this chapter for:
...
(14) An investigative officer, a law
enforcement officer or employees of
a county correctional facility to
intercept, record, monitor or divulge
any telephone calls from or to an
inmate in a facility under the
following conditions:
(i) The county correctional
facility shall adhere to the
following procedures and
restrictions when intercepting,
recording, monitoring or
divulging any telephone calls
from or to an inmate in a county
correctional facility as provided
for by this paragraph:
(A) Before the
implementation of this
paragraph, all inmates of
the facility shall be notified
in writing that, as of the
effective date of this
paragraph, their telephone
conversations may be
intercepted, recorded,
monitored or divulged.
(B) Unless otherwise
provided for in this
paragraph, after
intercepting or recording a
telephone conversation,
only the superintendent,
warden or a designee of
the superintendent or
- 27 -
J. A16033/17
warden or other chief
administrative official or
his or her designee, or law
enforcement officers shall
have access to that
recording.
(C) The contents of an
intercepted and recorded
telephone conversation
shall be divulged only as is
necessary to safeguard the
orderly operation of the
facility, in response to a
court order or in the
prosecution or
investigation of any crime.
(ii) So as to safeguard the
attorney-client privilege, the
county correctional facility shall
not intercept, record, monitor or
divulge any conversation
between an inmate and an
attorney.
(iii) Persons who are calling into
a facility to speak to an inmate
shall be notified that the call
may be recorded or monitored.
(iv) The superintendent, warden
or a designee of the
superintendent or warden or
other chief administrative
official of the county
correctional system shall
promulgate guidelines to
implement the provisions of this
paragraph for county
correctional facilities.
18 Pa.C.S.A. § 5704.
- 28 -
J. A16033/17
Commonwealth v. Mickel, 142 A.3d 870, 874 (Pa.Super. 2016).
In his severely limited argument, appellant does not allege any
violations of the Pennsylvania Wiretap Act. Indeed, appellant does aver that
the recordings of his telephone conversations were obtained without a court
order. This argument is wholly without merit. A plain reading of the
Pennsylvania Wiretap Act explicitly reflects that it shall not be unlawful, and
no court order is required for a county correctional facility to intercept,
record, monitor, and/or divulge most inmate telephone conversations for the
prosecution of any crime. 18 Pa.C.S.A. § 5704(14)(i)(C). We therefore find
that appellant’s tenth issue is without merit.
XI.
In his final issue for our review, appellant avers that the trial court
erred when it did not permit the jury to review transcripts of appellant’s
testimony during deliberations. As noted by appellant, a jury, “in order to
refresh [its] recollection, [may request] a reading of a portion of the
testimony actually given at the trial[;] it is [then] a matter within the
discretion of the trial court whether to grant such [a] request.”
Commonwealth v. Peterman, 244 A.2d 723, 726 (Pa. 1968); see also
Commonwealth v. Johnson, 838 A.2d 663, 677 (Pa. 2003), cert. denied,
543 U.S. 1008 (2004).
Aside from a bald allegation that the estimated hour that was required
to produce a transcript of appellant’s testimony, “which in the [trial] court’s
- 29 -
J. A16033/17
eyes was too long in a murder trial deliberation,” appellant fails to allege any
abuse of discretion on the part of the trial court. (See appellant’s brief at
44.) Additionally, the trial court stated it its Rule 1925(a) opinion that it was
concerned having a portion of appellant’s testimony re-read to the jury
would not provide the jury with “the same benefit of observing [appellant] or
his demeanor or the manner in which [appellant] testified.” (Trial court
opinion, 1/1/16 at 13.)
We therefore find that the trial court did not abuse its discretion when
it denied the jury’s request to review the transcripts of appellant’s trial
testimony during deliberations. Accordingly, appellant’s claim is without
merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2018
- 30 -