Com. v. Coleman, J., Jr. ( 2021 )

J-S01025-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH SENTORE COLEMAN, JR. :
:
Appellant : No. 710 MDA 2020
Appeal from the Judgment of Sentence Entered February 13, 2020
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000352-2019
BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED APRIL 23, 2021
Joseph Sentore Coleman, Jr. (Appellant) appeals from the judgment of
sentence imposed February 13, 2020, in the Lycoming County Court of
Common Pleas. Appellant was sentenced to an aggregate term of life
imprisonment, following his jury convictions of first-degree murder, robbery,1
and related offenses, for the August 2016 shooting death of Christopher
Wilkins. On appeal, Appellant challenges both the sufficiency and weight of
the evidence supporting his convictions, the admission of inflammatory photos
of the deceased, the court’s refusal to provide a missing witness instruction,
and the court’s refusal to permit the testimony of a defense witness that
another person admitted to committing the crime. We affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 2502(a), 3701(a)(1)(iii).
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The testimony presented during Appellant’s jury trial is summarized by
the trial court as follows:
On August 30, 2016, Appellant approached Jamal Brown
regarding a drug debt Brown owed him. Appellant told Brown that
he wanted to commit a robbery at 505 Park Avenue because a guy
from Philadelphia sold drugs out of that residence. Appellant told
Brown that he would consider the debt paid if Brown helped him.
He asked Brown to describe the layout of 505 Park Avenue, which
Brown did, and then Appellant left.
* * *
Appellant returned and said, “It’s a go.” Brown got into the
vehicle with Appellant[ and Appellant’s girlfriend, Ariel Harlan,
who was driving. Harlan] drove them to a house near Washington
Boulevard. Harlan went inside the house and came back to the
vehicle with a bag. Then they drove to Timberland Apartments,
picked up James Calvin Rooks, and drove back to the area of 505
Park Avenue.
Appellant pulled a small revolver out of a bag and gave it to
Rooks and he gave Rooks something to put over his face.
Appellant pulled out a bigger revolver for himself. Brown saw
Appellant and Rooks go inside 505 Park Avenue. About an hour
later, Brown saw Appellant at the Shamrock bar in different,
lighter-colored clothing.
[ ] Harlan testified that Appellant, Brown and Rooks were in
her vehicle, a black Dodge Dart, on August 30, 2016. She parked
the vehicle on Cherry Street. Brown got out of the vehicle and
went around the corner toward 505 Park Avenue. Brown returned
a few minutes later. Appellant and Rooks got out of the vehicle
and had a “pow wow” meeting with Brown on the sidewalk. Brown
walked away. Appellant and Rooks walked toward 505 Park
Avenue. A few minutes later, Harlan heard a gunshot and then
saw Appellant and Rooks turning the corner coming back to her
vehicle. She saw Appellant “shove a cloth thing and a gun in his
waistband.” They jumped in the vehicle and Appellant screamed
for her to drive. Appellant threw the cloth out of the car on the
way to Turkey Hill. It was a mask.
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Tyrone “Tyke” Small testified that he was sitting in the living
area in 505 Park Avenue. Two “dudes” ran in and said, “This is a
robbery.” One of them slapped him on the back of his shoulder
with a gun and he fell to the floor. They [let] him up and walked
him over to the Victim’s bedroom. They opened the bedroom door
and made him get down on the ground. The person with the gun
pointed it at the Victim and asked him where the “stuff” was. The
Victim said he did not know. The person asked again and the
Victim said he did not know what the person was talking about
and then one of them shot the Victim. Both people were wearing
masks, but Small could see their skin and knew they were Black.
The Victim fell to the floor and one of the people, the smaller one,5
went through the Victim’s pockets.
__________
5Appellant is smaller than Rooks.
__________
[ ] Rooks testified that Appellant came to his residence [and]
said he needed him for something, but he did not tell him what.
Appellant had a weapon on his waist and said, “Ain’t going to be
no problem.” Rooks did not want anything to happen to his kids
or his kids’ mom so he got in the vehicle. Harlan was driving.
They drove up to a person, Appellant spoke to him, and then the
person got in the vehicle. Appellant tried to give Rooks a weapon
but he did not want it.
Appellant and Rooks went to the back of the house at 505
Park Avenue. Appellant gave Rooks a pant leg or something to
put over his face. Appellant was wearing a ski mask and grey hat.
They went inside the residence. Appellant told the Victim to “give
it up.” The Victim said he didn’t have anything. There was
another individual in there who Appellant hit with his gun and he
was down on the floor. Appellant pointed his gun at the Victim.
The Victim was holding Appellant’s arm a little bit. Appellant
pointed the gun at the Victim and shot the gun at him.
Trial Ct. Op., 9/2/20, at 1, 6-8 (citations to trial transcript omitted).
During the investigation at the scene of the shooting, police recovered
a gray baseball cap and “black scarf or sleeve.” Trial Ct. Op. at 8. Subsequent
testing revealed “DNA mixtures of at least 3 people” on the black sleeve and
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baseball cap. Id. at 9. However, “Appellant’s DNA was the major component
of . . . DNA samples” taken from those two items. Id. at 9-10.
During the course of investigating an unrelated double homicide,2
Williamsport Police gathered evidence implicating Appellant in the Park
Avenue robbery and shooting. He was arrested in February of 2019.3 A
criminal information was filed on April 1, 2019, charging him with criminal
homicide, robbery (three counts), criminal conspiracy to commit robbery,
possessing an instrument of crime, and burglary.4
The case proceeded to a jury trial commencing on February 10, 2020.
On February 13th, the jury returned a verdict of guilty on all charges,
____________________________________________
2 On February 19, 2019, Appellant was convicted of two counts of second-
degree murder and related offenses for an unrelated gunpoint robbery that
occurred on October 31, 2016. His direct appeal from that conviction is
pending before this Court. See Commonwealth v. Coleman, 672 MDA
2020.
3 Rooks was also arrested and charged with criminal homicide and related
offenses. On July 30, 2020, he entered a guilty plea to one count of conspiracy
to commit robbery and was sentenced to a term of nine months’ to four years’
imprisonment. See Commonwealth v. Rooks, CP-41-CR-0000353-2019.
4 18 Pa.C.S. §§ 2201(a), 3701(a)(1)(i)-(iii), 903(a)(1), 907(b), 3502(a)(1).
Appellant was also charged with conspiracy to commit homicide,
persons not to possess firearms and firearms not to be carried without a
license. See 18 Pa.C.S. §§ 6105(c)(2), 6106. The trial court granted
Appellant’s pretrial motion to sever the firearms offenses, and the
Commonwealth subsequently nolle prossed those charges after the jury’s
verdict. See Order, 10/22/19, at 1; Order, 4/15/20. The Commonwealth also
withdrew the second count of conspiracy. See Order, 2/13/20.
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specifically finding Appellant guilty of both first- and second-degree murder.
The trial court immediately proceeded to sentencing, whereupon it imposed
the mandatory sentence of life imprisonment without parole.5
Appellant filed a timely post-sentence motion challenging the weight of
the evidence supporting his convictions, and asserting the trial court
improperly charged the jury. See Appellant’s Post Sentence Motion, 2/24/20,
at 3-5. On May 6, 2020, the trial court entered an order and opinion denying
Appellant relief. This timely appeal follows.6
Appellant raises the five issues for our review:
I. Whether the verdicts of guilty were based on insufficient
evidence[?]
II. Whether the verdicts of guilt were against the weight of the
evidence[?]
III. Did the trial court abuse its discretion by permitting the jury
to have inflammatory and overly prejudicial photos in its
possession during deliberations?
IV. Did the trial court err in failing to charge the jury with a
failure to call potential witness instruction even though the
Commonwealth failed to call three of the eyewitnesses who
were at the scene of the crimes?
____________________________________________
5 The court imposed concurrent sentences on the remaining offenses, but
directed that the life sentence run consecutively to any other sentences
Appellant was then serving. See Order, 2/13/20, at 1- 5 (unpaginated). As
noted supra, Appellant was convicted of two counts of second-degree murder
a year earlier. See Commonwealth v. Coleman, 672 MDA 2020.
6Appellant complied with the trial court’s directive to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On
September 2, 2020, the trial court filed a comprehensive, 28-page opinion.
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V. Did the trial court err by precluding the exculpatory
testimony of Leon Hall who would have testified that one of
the eyewitnesses who testified against [Appellant] admitted
to committing the crimes[?]
Appellant’s Brief at 7.
Preliminarily, we set forth the relevant law and standards of review
concerning the claims raised by Appellant on appeal. Challenges to the
sufficiency and weight of the evidence supporting a conviction are discrete
inquiries:
A claim challenging the sufficiency of the evidence is a
question of law. 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. . . . When reviewing a sufficiency claim the
court is required to view the evidence in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
A motion for new trial[,] on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. . . .
Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (citations
omitted). Thus, when considering a weight claim,
an appellate court must review the trial court’s exercise of
discretion. . . . We do not contemplate the underlying question of
whether the verdict actually was against the weight of the
evidence. Rather, we evaluate the trial court’s decision of that
issue, and we do so under an abuse of discretion standard.
Commonwealth v. Clemons, 200 A.3d 441, 463–64 (Pa. 2019) (citation
omitted), cert. denied, 140 S. Ct. 176 (2019). “In order for a defendant to
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prevail on a challenge to the weight of the evidence, ‘the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
court.’” Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa. Super. 2015).
Questions concerning the admissibility of evidence are within the
discretion of the trial court, and “only a showing of an abuse of that discretion,
and resulting prejudice, constitutes reversible error.” Commonwealth v.
Sanchez, 36 A.3d 24, 48 (Pa. 2011) (citations omitted). Photographic
evidence may be deemed inflammatory and inadmissible following a two-step
analysis:
“First, the court must decide whether a photograph is
inflammatory by its very nature. If the photograph is deemed
inflammatory, the court must determine whether the essential
evidentiary value of the photograph outweighs the likelihood that
the photograph will improperly inflame the minds and passions of
the jury.” The availability of alternate testimonial evidence does
not preclude the admission of allegedly inflammatory evidence.
Id. at 49 (citations omitted). Further, the trial court has the discretion to
determine what evidence or exhibits the jury may view during deliberations.
See Pa.R.Crim.P. 646(A) (“Upon retiring, the jury may take with it such
exhibits as the trial judge deems proper[.]”); Commonwealth v. Haney, 131
A.3d 24, 38-39 (Pa. 2015).
A trial court’s refusal to give a requested jury instruction does not
constitute reversible error unless the defendant was prejudiced by the court’s
refusal. Commonwealth v. Miller, 172 A.3d 632, 645 (Pa. Super. 2017).
“When 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.” A trial
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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.”
Id. (citations omitted).
Hearsay statements, though generally precluded, may be admissible if
a defendant establishes, inter alia, “the declarant is unavailable as a witness”
and the statement is against the declarant’s interest. Pa.R.E. 804(b)(3). The
Rule defines a statement against interest as one that:
(A) a reasonable person in the declarant’s position would have
made only if the person believed it to be true because, when
made, it . . . had so great a tendency . . . to expose the declarant
to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly
indicate its trustworthiness, if it is offered in a criminal case as
one that tends to expose the declarant to criminal liability.
Pa.R.E. 804(b)(3)(A)-(B). As with any evidentiary claim, the determination
of whether a statement meets the exception to the hearsay requirement lies
within the discretion of the trial court. Commonwealth v. Benson, 10 A.3d
1268, 1274-74 (Pa. Super. 2010).
Appellant first argues the evidence was insufficient to support his
convictions. He contends the Commonwealth’s only eyewitness who identified
Appellant as the shooter — Rooks — was not credible because he was also
charged with the crime. Appellant’s Brief at 14. Appellant also maintains
Rooks’ testimony was contrary to the physical evidence, i.e., where Rooks
claimed he wore the sleeve over his head, his DNA was not found on the item.
See id. at 14-15, 18. Further, Appellant asserts Small, the only eyewitness
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to the shooting who was not charged, testified that he heard Rooks’ voice in
prison sometime after the incident and “did not recognize it as one of the
shooters who forced him to the ground.” Id. at 15-16. Appellant also
emphasizes that another witness who was in the house at the time of the
shooting, Lewis Martin, testified that neither of the culprits was Appellant,
whom he had known for more than 12 years and would have recognized. See
id. at 16. Martin also stated that neither of the robbers had dreadlocks, yet
Rooks testified he had dreadlocks at the time of the shooting. See id. at 19.
Lastly, Appellant points to the testimony that he was wearing a baseball hat
that time of the shooting, but the hat recovered from the crime scene had no
blood on it. Id. at 20.
Appellant relies on these same arguments in his second issue, asserting
the verdicts were against the weight of the evidence. 7 See Appellant’s Brief
at 21. He further contends the benefit Rooks received from the prosecution
for his testimony, “in addition to his uncorroborated testimony regarding his
dreadlocks as well as the lack of DNA on a mask that he is alleged to have
worn, makes [Rooks’] testimony unreliable and not credible.” Id. Appellant
also emphasizes the Commonwealth did not call Lewis Martin as a witness,
when Martin told police on the day of the shooting that Appellant was not
____________________________________________
7 We note Appellant properly preserved his weight of the evidence claim by
raising it in a timely post-sentence motion. See Pa.R.Crim.P. 607(A)(3);
Appellant’s Post Sentence Motion, 2/24/20, at 3-5.
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involved. See id. at 22. Thus, Appellant maintains the jury’s verdict was
speculative and against the weight of the evidence. Id. at 23.
In his third issue, Appellant contends the trial court abused its discretion
when it “permitted the jury to view inflammatory photographs even though
[Appellant] was not disputing that the decedent was shot to death.”
Appellant’s Brief at 23. He insists that photographs were not relevant, and
the court failed to explain “how the photos were not inflammatory and
prejudicial to the jury[.]” Id. at 26. Appellant also claims “the photos should
not have been illuminated in the dark to further emphasize . . . their shocking
nature to the jury.” Id.
Next, Appellant insists the trial court erred when if failed to instruct the
jury to draw an unfavorable inference from the fact that the Commonwealth
failed to call two witnesses — Jeffrey Green and Jerry Green. See Appellant’s
Brief at 26, 29; see also Pa. SSJI (Crim), § 3.21A (Failure to Call Potential
Witness). He maintains the witnesses were “material,” he was not able to
locate them, but the Commonwealth was “aware as to [their] location.” Id.
at 29.
Lastly, Appellant argues the trial court abused its discretion when it
excluded, as hearsay, testimony that another person admitted to shooting the
victim. Appellant’s Brief at 30. He claims Leon Hall would have testified that
“shortly after the shooting” he spoke to Jamal Brown, and that Brown admitted
he was the shooter. Id. Appellant contends Hall’s proposed testimony was
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relevant, and admissible as a statement against interest pursuant to Pa.R.E.
804(b)(3).
Upon our review of the record, the parties’ briefs, and the relevant
statutory and case law, we conclude the trial court’s September 2, 2020,
opinion thoroughly addresses and properly disposes of Appellant’s claims on
appeal. Accordingly, we rest on its well-reasoned bases. See Trial Ct. Op. at
3-10 (evidence was sufficient to prove beyond a reasonable doubt that
Appellant “while wearing a mask and armed with a firearm” entered the
residence intending to rob the victim, and during the course of the robbery,
fatally shot the victim in the head); 10-19 (the verdict “was not so contrary
to the evidence as to shock one’s sense of justice[;]” the testimony did not
establish there would have been blood on the hat had Appellant worn it during
the shooting; Martin admitted under cross-examination “he could not see
either of [the robbers’] faces” because one was wearing a ski mask and the
other had his face partially covered; Rooks testified he had no agreement with
the Commonwealth in exchange for his testimony; Small testified that when
he heard Rooks’ voice in prison he did not connect it to the shooting because
he “wasn’t thinking about it”); 19-22 (photographs of the victim’s body were
not inflammatory or unduly prejudicial, but instead relevant to show
“stippling,” in order to estimate firing distance);8 22-25 (Appellant not entitled
____________________________________________
8 We note Appellant’s argument in his brief differs from that in his Rule
1925(b) concise statement, where he challenged only the trial court’s decision
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to failure to call witness instruction because the witnesses were equally
available to both parties, and proposed testimony would have been irrelevant
or cumulative); 25-28 (Hall’s proposed testimony — that Brown admitted he
was the shooter — was hearsay and did not meet the exception as a statement
against interest because Brown was not unavailable to testify, his purported
admission was “very vague,” and it was not made under circumstances
indicating its trustworthiness).
Judgment of sentence affirmed. We direct that a copy of the trial court’s
September 2, 2020, opinion be filed along with this memorandum and
attached to any future filings in this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/23/2021
____________________________________________
to allow the jury to have the photographs in its possession during
deliberations. See Appellant’s Concise Statement of Matters Complained of
on Appeal Pursuant to Rule 1925(B) Order, 6/12/20. For that reason, we
could consider this claim waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.”).
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R E P(•1 P erior Court Middles District
710 MDA 2020
SEP 03ma
IN THE COURT OF COMMON PLEAS OF L COMIN
111
11RGCOTNTY
ATT P ,. LVANIA
COMMONWEALTH No. CP-41-CR-0000352-2019
VS. CRIMINAL DIVISION
JOSEPH SENTORE COLEMAN, JR., r, _
Appellant : 1925(a) Opinion t
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OPINION IN SUPPORT OF ORDER IN
COMPLIANCE WITH RULE 1925(a) OF o= -
THE RULES OF APPELLATE PROCEDURR•,
• L
N
This Opinion is written in support of the trial court's judgment of sentence
entered on February 13, 2020, which became final on May 6, 2020 when the trial court issued
its opinion and order denying Appellant's post sentence motion.
This case arose out of ashooting that occurred at 505 Park Avenue in
Williamsport, Pennsylvania.
On August 30, 2016, Appellant approached Jamal Brown regarding adrug
debt Brown owed him. Appellant told Brown that he wanted to commit arobbery at 505
Park Avenue because aguy from Philadelphia sold drugs out of that residence. Appellant
told Brown that he would consider the debt paid if Brown helped him. He asked Brown to
describe the layout of 505 Park Avenue, which Brown did, and then Appellant left.
Appellant returned later and said, "it's ago." Brown got into avehicle with
Appeflant and his then-girlfriend, Ariel Harlan, who was driving. They drove to aresidence
and picked up James "Calvin" Rooks. Then they drove back to the area of 505 Park Avenue.
1
Ff r— s.
Harlan parked the vehicle on Cherry Street.
Appellant pulled asmall revolver out of abag and gave it, as well as amask
made out of adark-colored sleeve or pant leg, to Rooks. Appellant pulled out abigger, black
revolver and aski mask for himself.
Brown got out of the vehicle and walked toward 505 Park Avenue to make
sure that the door was unlocked. He returned to the vehicle, met with Appellant and Rooks,
told them that the door was unlocked, and then walked away.
Appellant and Rooks entered 505 Park Avenue. Tyrone Small was in the
living area just inside the door. Appellant hit Small on the back of his right shoulder with a
gun, knocking him down. He got him up, opened the door to the adjoining bedroom of
Christopher Wilkins' (hereinafter "Victim"), and put Small on the ground inside the
bedroom. Appellant pointed his firearm at the Victim and asked him where the "stuff' was.
When the Victim said he didn't know or he didn't have anything, Appellant shot him. One of
them rifled through the Victim's pockets and then they ran out of the door. As they ran out of,
the residence, they dropped the sleeve mask and abaseball hat on the porch. They ran back
to the vehicle, and Appellant yelled for Harlan to drive away.
The Commonwealth charged Appellant with criminal homicide, conspiracy to
commit criminal homicide, three counts of robbery, conspiracy to commit robbery, burglary,
possession of instruments of crime (weapon), person not to possess firearm, and firearm not
to be carried without alicense. The trial court severed the two firearms charges for trial
'Due to an inadvertent dictation error, Victim's name is incorrectly stated as Christopher Williams in the
opinion and order denying Appellant's post sentence motion.
2
purposes. 2
A jury trial was held February 10-13, 2020 on all of-the charges except the
severed firearms charges. At trial, the Commonwealth withdrew the charge of conspiracy to
commit criminal homicide. On February 13, 2020, the jury found Appellant guilty of first-
degree murder, second-degree murder, burglary, possessing instruments of crime, and three
counts of robbery. The trial court sentenced Appellant to life in prison without the possibility
of parole for first-degree murder to be served consecutive to any and all sentences that
Appellant was serving. 3
On February 24, 2020, Appellant filed apost sentence motion in which he
asserted that the verdict was against the weight of the evidence and that the jury was
improperly charged that it could find Appellant guilty of first, second and third degree
murder. In an opinion and order entered on May 6, 2020, the trial court denied Appellant's
post sentence motion.
Appellant filed atimely notice of appeal. Appellant filed aconcise statement
of matters complained of on appeal in which he raised five issues.
Appellant first asserts that the verdicts of guilt were based on insufficient
evidence. Although the jury convicted Appellant of numerous offenses, Appellant has not
specified either the offense or the element or elements upon which the evidence was
insufficient. Therefore, Appellant has waived this issue. Commonwealth v. Corr, 227 A.3d
11, 18 (Pa. Super..2020)(If an appellant wants to -preserve aclaim that the evidence was
2Ultimately, the Commonwealth nolle prossed the severed firearms charges.
3The court imposed concurrent sentences for the remaining charges, except for one count of robbery that
merged with second-degree murder.
3
insufficient, then the Rule 1925(b) statement needs to specify the element or elements upon
which the evidence was insufficient); Commonwealth v. Ellison, 213 A.3d 312, 320-321 (Pa.
Super. 2019)(In order to preserve achallenge to the sufficiency of the evidence on appeal, an
appellant's [Pa-R.A.P.] 1925(b) statement must state with specificity the element or elements
upon which the appellant alleges that the evidence was insufficient, particularly where the
appellant is convicted of multiple crimes each of which contains numerous elements that the
Commonwealth must prove beyond areasonable doubt); Commonwealth v. Hoffman, 198
A.3d 1112, 1125 (Pa. Super. 2018)(same); Commonwealth v. Tyack, 128 A.3d 254,260 (Pa.
Super. 2015)(Where a1925(b) statement does not specify the allegedly unproven elements,
the sufficiency claim is waived on appeal).
Even if Appellant has not waived this issue, Appellant's claim lacks merit.
Based on Appellant's post sentence motion regarding the weight of the evidence, the trial
court believes Appellant is asserting that the evidence was insufficient to establish that
Appellant committed the crimes or that he committed an intentional killing.
When reviewing asufficiency claim, the court considers whether the evidence
introduced at trial and all reasonable inferences derived therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, are sufficient to establish the elements of
the offense beyond areasonable doubt. Commonwealth v. Smith, 2020 WL 4146845, *3 (Pa.,
July 21, 2020); Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011). "Furthermore, the
Commonwealth may sustain its burden by wholly circumstantial evidence and the jury is free
i
to believe all, part, or none of the evidence" Commonwealth v. Thomas, 215 A.3d 36, 40
(Pa. 2019).
4
"A criminal homicide constitutes murder of the first degree when it is
committed by an intentional killing." 18 Pa. C.S. §2502(a). "To obtain afirst-degree murder
conviction, the Commonwealth must demonstrate_that ahuman being was unlawfully killed,
the Appellant perpetrated the killing, and the Appellant acted with malice and aspecific
intent to kill." Commonwealth v. Mattison, 623 Pa. 174, 82 A.3d 386, 392 (2013). Both the
specific intent to kill and malice may be inferred from the use of adeadly weapon on avital
part of the victim's body. Commonwealth v. Hicks, 638 Pa. 444, 156 A.3d 1114, 1124 (2017).
The forensic pathologist, Dr. Barbara Bollinger, testified that the Victim had a
gunshot wound to the left ear and that the projectile went into his skull. The projectile
fractured his skull and created hemorrhages within his brain and the uppermost portion of his
spinal cord. The gunshot would have killed the Victim within seconds. Dr. Bollinger also
testified that there was stippling around the gunshot entrance wound. 4 Stippling represents an
intermediate range of fire from about 12 inches to 3feet. Trial Transcript, Feb. 12, 2020, at
16-20.
Jamal Brown testified that Appellant gave -
him $1000 of crack cocaine.
Brown was supposed to sell the cocaine and give Appellant $700. However, he only gave
Appellant $400; he was short by $300. Appellant asked Brown about the money. Brown
asked for more time. Appellant asked Brown if he would like to clear the debt by explaining
what goes on at 505 Park Avenue. Brown said he would like to do that. Trial Transcript, Feb.
11, 2020, at 20-21.
Appellant then told Brown that he wanted to rob 505 Park Avenue because
'Stippling is abrasions or cuts of the skin that occur from unburned powder and other debris that may be present
in the barrel of agun when it is discharged. Trial Transcript, Feb. 12, 2020, at 18.
5
"guys from Philadelphia were selling drugs out of that house." Appellant asked Brown about
the layout of the house and if it was easy to get in. Brown told Appellant that there was no
lock on the door and the guys did not have any weapons or anything. Appellant left but said
he would be back. Trial Transcript, Feb. 11, 2020, at 21.
Appellant returned and said, "It's ago." Brown got into the vehicle with
Appellant. Appellant's girlfriend, Ariel Harlan, drove them to ahouse near Washington
Boulevard. Harlan went inside the house and came back to the vehicle with abag. Then they
drove to Timberland Apartments, picked up James Calvin Rooks, and drove back to the area
of 505 Park Avenue. Trial Transcript, Feb. 11, 202 0, at 22-23.
Appellant pulled asmall revolver out of abag and gave it to Rooks and he
gave Rooks something to put over his face. Appellant pulled out abigger revolver for
himself. Brown saw Appellant and Rooks go inside 505 Park Avenue. About an hour later,
Brown saw Appellant at the Shamrock bar in different, lighter-colored clothing. Trial
Transcript, Feb. 11, 2020, at 23-24,26-28.
Ariel Harlan testified that Appellant, Brown and Rooks were in her vehicle, a
black Dodge Dart, on August 30, 2016. She parked the vehicle on Cherry Street. Brown got
out of the vehicle and went around the corner toward 505 Park Avenue. Brown returned a
few minutes later. Appellant and Rooks got out the vehicle and had a"pow wow" meeting
with Brown on the sidewalk. Brown walked away. Appellant and Rooks walked toward 505
Park Avenue. A few minutes later, Harlan heard agunshot and then saw Appellant and
Rooks turning the corner coming back to her vehicle. She saw Appellant "shove acloth thing
and agun in his waistband." They jumped in the vehicle and Appellant screamed for her to
6
drive. Appellant threw the cloth out of the car on the way.to Turkey Hill. It was amask.
Trial Transcript, Feb. 11, 2020, at 10-12.
Tyrone "Tyke" Small testified that he was sitting in the living area in 505 Park
Avenue. Two "dudes" ran in and said, "This is.a robbery." One of them slapped him on the
back of his shoulder with agun and he fell to the floor. They left him up and walked him
over to the Victim's bedroom. They opened the bedroom door and made him get down on
the ground. The person with the gun pointed it at the. Victim and asked where the "stuff' was.
The Victim said he did not know. The person asked again and the Victim said he did not
know what the person was talking about and then one of them shot the Victim. Both people
were wearing masks, but Small could see their skin and knew they were Black. The Victim
fell to the floor and one of the people, the smaller one, 5 went through the Victim's pockets.
Trial Transcript, Feb. 11, 2020, at 91-93, 101.
Calvin Rooks testified that Appellant came to his residence at Timberland
Apartments. Appellant said he needed him for something, but he did not tell him what.
Appellant had aweapon on his waist and said, "Ain't going to be no problem." Rooks did
not want anything to happen to his kids or his kids' mom so he got in the vehicle. Harlan
was driving. They drove up to aperson, Appellant spoke to him, and then the person got in
the vehicle. Appellant tried to give Rooks aweapon but he did not want it.
Appellant and Rooks went to the back of the house at 505 Park Avenue.
Appellant gave Rooks apant leg or something to put over his face. Appellant was wearing a
ski mask and agray hat. They went inside the residence. Appellant told the Victim to "give
-'Appellant is smaller than Rooks.
7
it up." The Victim said he didn't have anything. There was another individual in there who
Appellant hit with his gun and he was down on the floor. Appellant pointed his gun at the
Victim. The Victim was holding Appellant's arm alittle bit. Appellant pointed the gun at
the Victim and shot the gun at him. Trial Transcript, Feb. 11, 2020, at 105-113, 124, 130.
Sergeant Brian McGee of the Williamsport Bureau of Police testified that the
police were dispatched to 505 Park Avenue for ashooting. The police cleared the residence
and proceeded to establish aperimeter with crime scene tape. Trial Transcript, Feb. 10,
2020, at 39-43.
Detective Trent Peacock testified that there was agray ball cap and ablack
scarf or sleeve laying on the back porch. The items were photographed, and the police
obtained asearch warrant for the residence. Trial Transcript, Feb. 10, 2020 at 96-97.
Trooper William Jones was called to assist the Williamsport police with the
crime scene. He photographed ablack cloth and agray hat on the back deck. Trial
Transcript, Feb. 10, 2020 at 110-111.
Trooper Russell Ramin collected the black cloth and gray hat from the crime
scene and released them to Officer Joseph Ananea of the Williamsport Police. Trial
Transcript, Feb. 10, 2020 at 119.
Officer Ananea took custody of those items from Trooper Ramin and locked
them in an evidence locker at the Williamsport police station.
Detective Trent Peacock sent the black cloth or sleeve and the gray baseball
hat to the Pennsylvania State Police (PSP) Wyoming lab. Trial Transcript, Feb. 12, 2020, at
59-60.
8
Brunee Coolbaugh of the PSP Wyoming lab received aBode DNA buccal
swab of Appellant from Detective Peacock and sent it to the PSP DNA lab. Trial Transcript,
Feb. 12, 2020 at 66-67.
Kelsey Gober of the PSP Wyoming lab received ablack cut-off sleeve, a
Brooklyn Dodgers baseball hat, aknown DNA sample from the Victim, and aknown DNA
sample from Rooks. She took cuttings from the sleeve and hat and sent them to the DNA
lab, along with the known DNA samples from the Victim and Rooks. Trial Transcript, Feb.
12, 2002 at 71-78, 84.
Regina Kozer, aforensic DNA analyst at the PSP DNA lab in Greensburg
extracted DNA from the Appellant's known DNA sample and created aDNA profile. She
provided the data from her analysis to aprivate lab for additional analysis. Trial Transcript,
Feb. 12, 2020, at 29.
Britney Lenig, aforensic DNA scientist for the PSP received the known blood
sample card from the Victim (K1), acutting from ablack sleeve (Q1), acutting from a
Brooklyn Dodgers ball cap (Q2), and the known sample from Rooks (K2). Q1 and Q2
contained DNA mixtures of at least 3people. Ms. Lenig could not obtain an interpretable
DNA profile from these questioned samples and therefore could not make acomparison to
any known reference samples. Trial Transcript, Feb. 12, at 40-46. She also conducted Y
chromosome testing. The interpretable part of Q1 matched the known reference sample of
Appellant with amatch statistic of approximately one in every 8696 individuals. Id. at 57.
Jennifer Bracamontes is aDNA analyst at Cybergenetics. She received the
DNA data and profiles from the PSP lab. She determined that Appellant's DNA was the
9
major component of the DNA samples from Q1, the black sleeve, and Q2, the ball hat.
Appellant's DNA on Ql was 468 octillion times more probable than acoincidental match to
an unrelated African American. 468 octillion is 468 followed by 29 zeroes. Appellant's
DNA on Q2 was 4.3 septillion times more probable than acoincidental match to an unrelated
African American. 4.3 septillion is 43 followed by 24 zeroes. Trial Transcript, Feb. 12,
2020, at 63, 83-86.
The evidence presented at trial established that Appellant unlawfully killed the
Victim. Appellant, while wearing amask and armed with afirearm, entered 505 Park
Avenue with the intent to commit arobbery. He demanded items from the Victim. When the
Victim said he did not know what Appellant was talking about or that he did not have
anything, Appellant pointed his firearm at the Victim and shot the Victim in the head from a
distance of 12 inches to 3feet. The projectile went through the Victim's left earlobe and into
his skull, causing hemorrhaging in his brain and spinal cord and killing him within seconds.
Since the head is avital part of the human body, the jury could infer that Appellant
committed the killing with the specific intent to kill and with malice aforethought.
Appellant avers that the verdicts of guilty were against the weight of the
evidence. The court addressed this issue in its opinion and order entered on May 6, 2020.
For the benefit of the appellate courts and the parties, the court will reprint the relevant
portion of the opinion with some minor additions and corrections.
[Appellant] in his [post sentence] motion asserts that only
three witnesses testified that [Appellant] committed the crimes, that all three
witnesses had criminal,charges pending and were receiving abenefit for
their testimony, that no forensic evidence implicated [Appellant's]
accomplice, that there was no blood on the hat that [Appellant] wore, that
there was no blood on the cutoff mask that was worn by the accomplice, that
10
the Commonwealth failed to submit "referenced samples to the lab" for
analysis to determine the identity of other individuals, that an eyewitness to
the shooting indicated that neither of the assailants wore dreadlocks or
twisties in their hair, that the only physical evidence was [Appellant's] DNA
on items recovered at the scene along with the DNA of at least three other
individuals and that [Appellant's] accomplice testified that [Appellant] and
the decedent were "tussling and the gun went off." (Post-Sentence Motion,
Paragraphs 8through 34). Further, during the argument in this matter,
[Appellant's] counsel argued that "the main problem" was that the one
"actual eyewitness", Lewis Martin[,] testified that [Appellant] was not one
of the two individuals that he saw there. (Post-Sentence Motion Transcript,
p. 4). [Appellant's] counsel further argued that the other eyewitness, "Tyke"
(Tyrone Small) served time at the prerelease facility with accomplice
"Rooks" but didn't recognize him from his voice. (Post-Sentence Motion
Transcript, p. 4). [Appellant's] counsel further argued that accomplice
Rooks testified that he was wearing amask that covered his entire face yet
the mask was tested and only [Appellant's] DNA was found on the mask.
(Post-Sentence Motion Transcript, p. 5). [Appellant's] counsel argued as
well that despite [Appellant] allegedly being in close proximity when the
shot was fired, there was no blood splatter on his hat although "there was
blood splatter all across the room." (Post-Sentence Motion Transcript, p. 5).
"The weight of the evidence is amatter exclusively for the
finder of fact, who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses." Commonwealth v. Gonzalez, 109
A.3d 711, 723 (Pa. Super. 2015). A trial court may only grant anew trial on
aweight claim "when the jury's verdict is so contrary to the evidence as to
shock one's sense of justice and the award of anew trial is imperative so
that right may be given another opportunity to prevail." Commonwealth v.
Clay, 64 A.3 d1049, 1055 (Pa. 2013).
A trial court should not grant anew trial because of amere
conflict in the testimony. Id. "Rather, to grant anew trial, the trial court
must 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). As well, the court may not reweigh the evidence
and substitute its judgment for the factfinder. Commonwealth v. Troy, 832
A.2d 1089, 1092 (Pa. Super. 2003).
Finally, averdict is contrary to the evidence such that it
shocks one's sense of justice when "the figure of justice totters on her
pedestal, or when the jury's verdict, at the time of its rendition, causes the
trial judge to lose his breath, temporarily, and causes him to almost fall from
the bench, then it is truly shocking to the judicial conscience."
Commonwealth v. Cruz, 919 A.2d 279, 282 (Pa. Super. 2007).
The verdict in this case was not so contrary to the evidence
11
as to shock one's sense of justice. Notwithstanding all the facts, certain facts
were not so clearly of greater weight that to ignore them or to give them
equal weight with all the facts, would be to deny justice. Obviously, during
its deliberations, the jury had the opportunity to weigh the credibility of all
of the witnesses and the evidence presented at trial and determined which
evidence it found most compelling.
The court will first address those facts which [Appellant]
alleges are so clearly of greater weight that to ignore them would be to deny
justice. While certainly, [Appellant's] counsel has an obligation to zealously
represent [Appellant], many of the alleged facts are embellished in favor of
[Appellant].
The testimony did not establish that there was blood
splattered all across the room where the decedent was shot. Janiece Green, a
neighbor who contacted 911 and who found the decedent was asked whether
there was alot of blood in the room. She answered that there was alot of
blood around him. (February 10, 2020 Transcript, pp. 63-64). When asked
whether there was blood everywhere in the room, she answered "no."
(February 10, 2020 Transcript, p. 63). Detective Trent Peacock who
responded to the scene testified that while the decedent was face down in a
pool of his own blood, there was blood on the front of awashing machine
and on asock found on the washing machine. (February 10, 2020 Transcript,
pp. 100-101). Trooper William Jones of the Pennsylvania State Police was
called to the scene to help with the processing by taking photos. (February
10, 2020 Transcript, pp. 109-110). It was his responsibility to document the
crime scene by taking photographs as well as avideo. (February 10, 2020
Transcript, p. 121). He testified regarding aphotograph that he took of the
scene depicting the washer and "some blood marks on the washer."
(February 10, 2020 Transcript, p. 113). He testified as well that there was
"blood associated on" a"rag ... on the face of the washer." (February 10,
2020 Transcript, p. 113). Detective Peacock also testified as to aphotograph
depicting the decedent laying on the ground and there being abloody sock
on the front of the washing machine and ablood smear on the front of the
washing machine. (February 10, 2020 Transcript, pp. 100-101). In fact, and
contrary to what is alleged by [Appellant], no witness testified that there was
"blood splatter all across the room."
As for James Rooks, prior to entering the residence,
[Appellant] gave him a"little mask thing" for his face. (February 11, 2020
Transcript, p. 110). He described it as "like something like apant leg" that
he "put—over [his] face or whatever." (February 11, 2020 Transcript, p.
110). [Appellant] had aski mask with "two holes in it and the mouth."
(February 11, 2020 Transcript, p. 111). After the shooting, he took the mask
off of his face and threw it on the ground. (February 11, 2020 Transcript, p.
129). He took it off by pulling it over his head. (February 11, 2020
Transcript, pp. 129-130).
12
As for Lewis Martin, he testified that he was in the residence
when the assailants entered. (February 12, 2020 Transcript, pp. 131-132).
Both individuals were wearing masks and one had ahat on. (February 12,
2020 Transcript, p. 141). The one with ahat on had amask that covered his
entire face. (February 12, 2020 Transcript, p. 145). While he did testify that
neither one had dreadlocks (February 12, 2020 Transcript, pp. 132, 134), he
later admitted that he could not see their hair. (February 12, 2020 Transcript,
p. 147). Further, while he testified that [Appellant] was not one of the two
individuals (February 12, 2020 Transcript, p. 133), he later admitted that he
could not see either of their faces. (February 12, 2020 Transcript, p. 147). He
said the one individual had afull ski mask and the other individual had his
face partially covered where all he could see was the "eyes up". (February
12, 2020 Transcript, p. 146).
As for [Appellant's] claim that all three of the
Commonwealth witnesses who testified regarding what occurred that day,
had criminal charges pending and "were receiving abenefit for their
testimony", such is simply not true. Ariel Harlan testified that charges were
pending and that she was hoping to get favorable treatment although she was
not advised or offered any benefit whatsoever. (February 11, 2020
Transcript, p. 16). Jamal Brown testified that he was charged with first
degree murder but didn't know if he would be given any benefit from his
testimony. (February 11, 2020 Transcript, pp. 43-44). Finally, James Rooks
testified that he had no agreement with the prosecutors in exchange for him
testifying. (February 112020 Transcript, p. 126).
As for Mr. Rooks, he testified that upon entering the
decedent's room, [Appellant] pointed agun at [the decedent]. (February 11,
2020 Transcript, p. 113). He testified that [Appellant] shot "the other dude."
(February 11, 2020 Transcript, p. 113). Immediately following the gunshot,
[Appellant] "ran out of the room." (February 11, 2020 Transcript, p. 114). In
explaining what happened after [Appellant] pointed the gun at the decedent,
Rooks testified that "they started tussling and from there and he shot-shot
the gun off." (February 11, 2020 Transcript, p. 113). In further explaining
what he meant by "tussling", Rooks explained that [Appellant] was holding
the decedent's arm and the decedent was holding Appellant "a little bit"
while Appellant had the gun pointed at him. (February 11, 2020 Transcript,
p. 124). The whole incident "happened fast." (February 11, 2020 Transcript,
p. 124).
The facts argued by [Appellant] and as actually reflected in
the testimony of the witnesses, are far from greater weight than all of the
other facts as presented at trial.
Sergeant Brian McGee was on duty on August 30, 2016
working for the Williamsport Bureau of Police and responded to 505 Park
Avenue for areported shooting. (February 10, 2020 Transcript, pp. 39-40).
He entered the residence and in aroom to the right he found the decedent
13
laying face down on the ground with apool of blood surrounding his head.
(February 10, 2020 Transcript, pp. 41, 42).
Janiece Green was living across the street on August 30,
2016 at 504 Park Avenue. (February 10, 2020 Transcript, pp. 52-53). She
was at her home when Savoy Jennings came knocking on her window,
hysterical, saying "something happened to his friend Chris." (February 10,
2020 Transcript, p. 55). As she was leaving her house to go over to 505 Park
Avenue, she saw aperson turning the corner off of Park Avenue. (February
10, 2020 Transcript, p. 64).
She went to 505 Park Avenue and entered where she saw the
victim in one room and her Uncle Jeff in another room. (February 10, 2020
Transcript, pp. 55, 56, 61). He was asleep. (February 10, 2020 Transcript, p.
61). She woke him and he began getting into his wheelchair. (February 10,
2020 Transcript, pp. 55, 56, 61). She immediately called 911. (February 10,
2020 Transcript, p. 56). Savoy Jennings was friends with the decedent and
was living with him at 505 Park Avenue on August 30, 2016. (February 10,
2020 Transcript, p. 68). At the time, Janiece Green was his girlfriend.
(February 10, 2020 Transcript, p. 69).
Earlier in the day, between approximately 9:00 a.m. and
12:00 noon, he was at the decedent's house sitting in his room with him and
smoking. (February 10, 2020 Transcript, p. 69). He left briefly to go across
the street to see Janiece but soon returned to 505 Park Avenue to get a
lighter. (February 10, 2020 Transcript, p. 70).
While crossing the street to return, he saw two black males
turning the corner at Cherry and Park Streets. (February 10, 2020 Transcript,
p. 70). The one was tall and slender while the other was heavy set with
dreadlocks. (February 10, 2020 Transcript, p. 71).
Upon his return to 505 Park Avenue, he saw the back door
open and ahat on the back patio. (February 10, 2020 Transcript, pp. 70, 77).
He went into the decedent's room and saw him laying on the floor in a
puddle of blood with abullet wound to the side of his head. (February 10,
2020 Transcript, p. 71).
On August 30, 2016, Trent Peacock was working as an agent
for the Williamsport Bureau of Police investigating violent crimes.
(February 10, 2020 Transcript, p. 95). He responded to the shooting scene at
505 Park Avenue..(February 10, 2020 Transcript, p. 96). Upon arrival, he
noticed agray ball cap and ablack scarf or sleeve type item both laying on
the back porch. (February 10, 2020 Transcript, p. 96).
He became the lead investigator in the case. (February 10,
2020 Transcript, p. 102). His investigation determined that five people had
been at the scene at or around the shooting including Savoy Jennings,
Tyrone Small, Lewis Martin, Janiece Green and Jeff Green. (February 10,
2020 Transcript, p. 103).
On September 27, 2016, he submitted the following items to
14
the lab for DNA testing: the decedent's DNA profile; the black cutoff sleeve
found on the back porch; the gray ball cap found on the back porch; and
white socks. (February 11, 2020 Transcript, p. 59). He also sent to the lab
[Appellant's] DNA sample and the DNA sample of Mr. Rooks. (February
11, 2020 Transcript, pp. 60-61).
Trooper William Jones was employed by the Pennsylvania
State Police at Troop Fin Montoursville, PA on August 30, 2016. (February
10, 2020 Transcript, p. 109). He was called to the crime scene to assist as
indicated above by taking photographs and avideo. (February 10, 2020
Transcript, pp. 109, 110).
Trooper Russell Ramin was employed by the Pennsylvania
State Police in August of 2016 and was called to assist with the crime scene.
(February 10, 2020 Transcript, p. 117). He collected two items depicted in
Commonwealth Exhibit 26 (the ball cap and the cloth/sleeve) and released
them to Williamsport police officer Joseph Ananea. (February 10, 2020
Transcript, p. 119).
Joseph Ananea was employed by the Williamsport Bureau
of Police and assigned to the Forensic Services Unit. (February 10, 2020
Transcript, p. 120). On August 30, 2016, he was called to the crime scene.
(February 10, 2020 Transcript, p. 122). He took aphotograph of the ball cap
and the cloth/sleeve on the back porch which was introduced and marked as
Exhibit 37. (February 10, 2020 Transcript, p. 123). In the room where the
decedent's body was found, he collected abloody sock "draped over
the ... washing machine ... next to the body." (February 10, 2020 Transcript,
p. 125).
He took the custody of the ball cap and "sleeve" from
Trooper Ramin. (February 10, 2020 Transcript, p. 126). The ball cap was
described as aBrooklyn Dodgers ball cap (Commonwealth Exhibit 39) and
the sleeve was described as ablack cut off sleeve. (Commonwealth Exhibit
40).
He was present for the autopsy of the decedent, Chris
[Wilkins], and took custody of the projectile and jacket taken from the body
as well as aDNA sample. (February 10, 2020 Transcript, pp. 127-128;
Commonwealth Exhibit 42).
Ariel Harlan testified that on August 30, 2016 she was
driving her vehicle on Cherry Street in Williamsport, PA with Appellant as
the front seat passenger. [Appellant] was wearing aSuperman t-shirt and
black sweatpants. She was driving ablack Dodge Dart and Calvin Rooks
was in the back passenger seat and Jamal Brown in the back driver seat.
(February 11, 2020 Transcript, pp. 6, 7, 8, 14, 17).
She was parked on Cherry Street when Brown got out and
walked toward 505 Park Avenue. After afew minutes, he returned.
(February 11, 2020 Transcript, pp. 10, 11). After Brown returned,
[Appellant] and Calvin Rooks got out of the car and met with Brown.
15
[Appellant] and Rooks then started walking toward 505 Park Avenue.
(February 11, 2020 Transcript, p. 11).
After afew minutes, she heard aloud noise, then saw them
running around the corner. As they were running around the corner to her
car, she saw [Appellant] shoving agun and cloth type thing in his waistband.
[Appellant] jumped in her car, screamed for her to drive away and she did
so. (February 11, 2020 Transcript, pp. 11, 12, 13). As she drove away,
[Appellant] threw a"cloth thing" out of the car. Later she returned to where
he threw it and saw that it was amask. (February 11, 2020 Transcript, pp.
12,15).
Jamal Brown testified that on August 30, 2016, he
encountered [Appellant] on Park Avenue and [Appellant] asked him about
the $300.00 that Brown owed him for [Appellant] fronting him some crack
cocaine. (February 11, 2020 Transcript, pp. 20, 21).
[Appellant] told him that he wanted to "rob" 505'Park
Avenue because "guys from Philadelphia" sold drugs out of there. He asked
Brown to describe the layout. After Brown described the layout, [Appellant]
left. (February 11, 2020 Transcript, p. 21).
Later, [Appellant] encountered Brown again and told Brown
it was "a go." Brown got in the car with [Appellant] and Ms. Harlan.
(February 11, 2020 Transcript, p. 22).
All three then drove to the Timberland Apartments where
they picked up Calvin Rooks who was described by Brown as black, heavy
set with dreadlocks. (February 11, 2020 Transcript, pp. 22, 23).
They then drove back to Park Avenue. Ms. Harlan parked
the car on Cherry Street. Once they arrived, [Appellant] pulled asmall
revolver gun out of abag and gave it to Mr. Rooks. [Appellant] pulled a
bigger revolver, believed to be black, out of the bag for himself. (February
11, 2020 Transcript, pp. 23, 24, 50).
After [Appellant] went across the street to speak with
"Jerry", he came back to the car. Rooks got out, they both went around the
corner up to the handicap ramp and yelled to Brown, who could see them
from his vantage point, that the door was locked. Brown replied that it was
not locked. (February 11, 2020 Transcript, pp. 24, 25, 27, 29, 49).
As indicated, Brown could see the back of 505 from where
he was located and saw both [Appellant] and Rooks go inside the back door.
(February 11, 2020 Transcript, pp. 26-27). As he was walking away from the
scene, he heard aloud bang. (February 11, 2020 Transcript, p. 28).
Steven Schmit was employed by the Pennsylvania State
Police and was called to the scene on August 30, 2016 to "document and
forensically map the scene and evidence." (February 11, 2020 Transcript, pp.
52,53).
Tyrone Small was inside 505 Park Avenue on August 30,
2016. (February 11, 2020 Transcript, pp. 89-90). He was in the living room
16
while the decedent and Savoy Jennings also known as "Vortex" were in the
decedent's room. (February 11, 2020 Transcript, pp. 44, 91). Vortex then
left. (February 11, 2020 Transcript, p. 91).
Mr. Small then saw two individuals "run" into the
residence. (February 11, 2020 Transcript, p. 91). One of the "dudes" who
came in hit Mr. Small on the back of his right shoulder with agun knocking
him down. (February 11, 2020, Transcript, pp. 91, 92). They got him up,
opened the decedent's door, put Small back on the ground and one of the
assailants pointed agun at the decedent asking him where the stuff
was.(February 11, 2020 Transcript, p. 92).
When the decedent indicated he didn't know, "one of
them shot him." (February 11, 2020 Transcript, p. 92, 101). Immediately
after the shooting, the smaller assailant went through the decedent's pockets.
(February 11, 2020 Transcript, p. 101).
He could not identify the assailants, they both had masks
on, other than noting that they were "black." (February 11, 2020 Transcript,
pp. 92, 93).
When he was locked up at the PRC, he met Calvin Rooks
and talked with him. (February 11, 2020 Transcript, pp. 102, 103). He
definitely knew his voice. (February 11, 2020 Transcript, p. 103). However,
he did not know whether it was similar to what he heard during the incident
because he wasn't thinking about it. (February 11, 2020 Transcript, p. 103).
James Rooks, who goes by Calvin, was at 505 Park
Avenue with [Appellant] on August 30, 2016. (February 11, 2020
Transcript, p. 105). Earlier in the day, [Appellant] came to Rooks'
girlfriend's house and said he needed Mr. Rooks; so Mr. Rooks went with
him. They both got into Ariel Harlan's car. (February 11, 2020 Transcript,
pp. 106, 107, 108).
They drove toward Park Street but parked on a"side
street." [Appellant] tried to give him agun. [Appellant] gave him aface
mask "like apant leg." [Appellant] had asimilar mask with his gray hat on.
(February 11, 2020 Transcript, pp. 109, 110, 111).
They went through the back door at 505 Park Avenue and
[Appellant] had agun in his hand. (February 11, 2020 Transcript, pp. 111,
112). While Rooks was in the hallway looking in, [Appellant] went into the
decedent's room, hit another dude with agun knocking him down to the
floor, asking the "boy to give it up", they started tussling, and [Appellant]
shot him. (February 11, 2020 Transcript, pp. 113, 114, 124).
They then left, [Appellant] took the mask off and Rooks
threw his mask on the porch. (February 11, 2020 Transcript, pp. 114, 118,
129, 130).
Rooks identified the picture of the Brooklyn Dodgers ball
cap as the hat [Appellant] was wearing. (February 11, 2020 Transcript, pp.
117, 118). At the time of the incident, Rooks had small twisty hair like
17
dreads (February 11, 2020 Transcript, p. 118). The mask found on the back
porch was the one that Rooks was wearing. (February 11, 2020 Transcript,
p. 121).
The Commonwealth presented the testimony of six expert
witnesses to address chain of custody and DNA evidence. Brunee
Coolbaugh testified as an expert in the field of serological analysis and was
employed by aforensic scientist for the Pennsylvania State Police. (February
11, 2020 Transcript, p. 64).
Kelsey Gober, was employed by the Pennsylvania State
Police as aForensic Scientist (February 11, 2020 Transcript, pp. 69, 70) and
testified as an expert in the field of serology. (February 11, 2020 Transcript,
pp. 70, 71). She tested various items to determine if there was any biological
material on them noting that there were no visible stains on the ball cap.
(February 11, 2020 Transcript, p. 86).
Barbara Bollinger, M.D. is employed by Forensic
Pathology Associates and was admitted as an expert in the field of forensic
pathology. (February 11, 2020 Transcript, pp. 12, 13). She performed the
autopsy on the decedent and testified that he sustained agunshot wound to
his head causing him to die. (February 12, 2020 Transcript, pp. 15, 16, 17,
18, 20). She also testified that stippling was observed at the wound entrance
site indicating that the gunshot was somewhere between one and three feet
away. (February 12, 2020 Transcript, pp. 19, 20, 21, 22).
Regina Kozero was employed as aForensic Scientist and
was admitted as an expert in the field of DNA analysis. (February 12, 2020
Transcript, pp. 24, 25). She prepared aDNA profile of [Appellant].
(February 12, 2020 Transcript, p. 29).
Britney Lenig was employed as aForensic Scientist for
the Pennsylvania State Police and was admitted as an expert in the field of
DNA analysis. (February 12, 2020 Transcript, pp. 34, 35). She received and
processed five items for analysis including the blood sample card from the
decedent, acutting from inside the Brooklyn Dodgers ball cap, two cuttings
from the sock found on the washer in the decedent's bedroom, aDNA
profile for [Appellant] and acutting from the black cutoff sleeve found on
the back porch. (February 12, 2020 Transcript, pp. 40, 41). She also received
three known reference samples from the decedent, Rooks and [Appellant].
(February 12, 2020 Transcript, pp. 50, 51).
She testified that the maj or DNA contributor to both the
sleeve and the hat was amatch to [Appellant]. (February 12, 2020
Transcript, pp. 57, 59).
The Commonwealth's final witness was Jennifer
Horoyak-Bracamontes. She is aDNA Analyst for acompany called
Cybergenetics. (February 12, 2020 Transcript, p. 63). She testified as an
expert in the field of DNA evidence interpretation. (February 12, 2020
Transcript, p. 67).
18
Using a"super computer" program called True Allele
which was first developed in the early 2000's but updated in 2009, she
analyzed data from the black cutoff sleeve, the Brooklyn Dodgers baseball
hat and the two cuttings from the sock, and compared those with known
samples from the decedent and [Appellant]. (February 12, 2020 Transcript,
pp. 79, 80, 81, 82).
Based upon the computer's analysis and results, there was
avery high statistical DNA match between both the sleeve and the hat and
[Appellant]. (February 12, 2020 Transcript, pp. 83, 90).
With respect to the sleeve, there were five DNA
contributors and with respect to the hat, there were three. [Appellant],
however, contributed most of the DNA to both samples. (February 12, 2020
Transcript, pp. 86, 88, 91, 92).
The remaining testimony and evidence presented to the
jury was presented as part of [Appellant's] case in chief.
Eric Armstead was employed as aproperty manager for
the Lycoming County Housing Authority. (February 12, 2020 Transcript, p.
77). Jonathan Green testified that the [Appellant] was previously at 505 Park
Avenue and knew the layout. (February 12, 2020 Transcript, p. 109). He also
testified that he previously saw Jamal Brown wearing aBrooklyn Dodgers
gray hat. (February 12, 2020 Transcript, pp. 109, 110).
In addition to the testimony by Lewis Martin indicated
above, he testified that he works as apersonal care assistant and was at 505
Park Avenue when the shooting occurred. (February 12, 2020 Transcript, pp.
128-129). The previous night he was hanging out, playing cards and "doing
drugs" including marijuana and heroin. (February 12, 2020 Transcript, pp.
129, 138).
He was asleep in achair in Jeffrey Green's room and
heard "I ain't got nothing" repeated three times and then he heard a"pop."
(February 12, 2020 Transcript, pp. 130, 131). He saw two individuals come
out of the decedent's room. One was short, slim and muscular and the other
was alittle taller with really dark skin. (February 12, 2020 Transcript, pp.
131, 132, 133, 140, 141).
Based on all of this evidence, when the jury rendered its
verdict, this judge did not temporarily lose his breath. The verdict did not
cause this judge to almost fall from the bench. The verdict was not truly
shocking to the judicial conscience of the court or in other words, did not
shock this judge's sense of justice.
Opinion and Order, 5/6/20.
Appellant next avers that the trial court abused its discretion by permitting the
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jury to have in its possession during its deliberations inflammatory and overly prejudicial
photos. 6 The trial court cannot agree.
Subject to certain exceptions not applicable here, Rule 646 of the
Pennsylvania Rules of Criminal Procedure permits the jury, upon retiring to deliberate, to
"take with it such exhibits as the trial judge deems proper." Pa. R. Crim. P. 646(A). The
Pennsylvania Supreme Court has "interpreted this Rule as committing the determination of
what objects may be viewed by the jury during its deliberations to the sound discretion of the
trial court" which will not be reversed absent an abuse of discretion. Commonwealth v.
Haney, 131 A.3d 24, 38 (Pa. 2015). "An abuse of discretion is not merely an error of
judgment, but if in reaching aconclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill
will, as shown by the evidence of record, discretion is abused." Id. at 39.
There is nothing in the record to show that the trial court misapplied or
overrode the law, exercised manifestly unreasonable judgment, or made its decision based on
partiality, prejudice, bias or ill will. Rather, prior to its admission into evidence, the trial
court viewed the photographs and considered the arguments of the parties. See Trial
Transcript, Feb. 12, 2020, at 2-10. The trial court found that the photographs were not
inflammatory or unduly prejudicial. Instead, the trial court agreed with the Commonwealth's
argument that the photographs were relevant and admissible, particularly with respect to the
intent to kill.
sWhile the court and counsel were discussing the items of evidence the court would permit the jury to possess
during its deliberations outside of the presence of the jury, Appellant's counsel objected to the jury possessing
Commonwealth's Exhibits 51, 52 and 53. Trial Transcript, Feb. 13, 2020, at 105.
20
The Commonwealth utilized these exhibits during the testimony of the
forensic pathologist, Dr. Barbara Bollinger. Trial Transcript, Feb. 12, 2020, at 18-19.
Commonwealth's Exhibit 51 depicted the gunshot wound in the Victim's left earlobe as well
as aportion of his head and neck around the left ear so that the jury could see the stippling
around the gunshot wound. Commonwealth's Exhibit 52 depicted aclose-up of the Victim's
left ear so that the jury could better observe the stippling. Commonwealth's Exhibit 53
depicted agloved hand lifting the left earlobe to show where the bullet entered the Victim's
scalp.
Dr. Bollinger testified that stippling is useful in estimating the range of fire,
that is, the distance from the end of the gun to the victim's wound. Dr. Bollinger estimated
the range of fire was from about 12 inches to 3feet. Id. at 19.
Although the pathologist had cleaned the body, there was asmall amount of
blood around the gunshot wound and inside the Victim's ear. The fact that some blood was
still visible does not require afinding that the photographs were inflammatory.
Commonwealth v. Lewis, 567 A.2d 1376, 1382 (Pa. 1989).
In Commonwealth v. Karenbauer, 715 A.2d 1086 (Pa. 1988), the Court stated:
Photographs of amurder victim are not per se inadmissible. Rather,
it is the manner in which the body of the victim is displayed that causes
photographs to be emotionally charged. Concerning admissibility, the
determinative inquiry is whether the photos have evidentiary value that
outweighs the possibility of inflaming the minds and passions of the jurors.
The trial court's decision in the matter will not be reversed absent an abuse
of discretion.
It is well established, and of particular importance to our analysis,
that photographs of the victim's wounds may be relevant to show the
assailant's intent to kill. In assessing the intent of the actor in acase of
criminal homicide, ... the fact finder who deals in such an intangible inquiry
must be aided to every extent possible. Accordingly, the fact that amedical
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examiner can describe the victim's wounds to the jury does not render
photographs of those wounds irrelevant.
Id. at 1096 (citations and quotation marks omitted).
The manner in which the body was displayed in the photographs was focused
solely on the location of the gunshot wound, and none of the photographs showed the
victim's face. Moreover, the specific intent to kill was acontested issue at trial.
Accordingly, the trial court did not abuse its discretion in permitting the jury to possess these
photographs during its deliberations.
Appellant asserts that the trial court erred in failing to charge the jury with a
failure to call potential witness instruction even though the Commonwealth failed to call
three of the eyewitnesses' at the scene of the crimes. Those witnesses allegedly were Jeff
Green, Jerry Green, and Lou Martin. $ Trial Transcript, Feb. 13, 2020, at 12-15.
The failure to call potential witness instruction states:
1. There is aquestion about what weight, if any, you should give to
the failure of [a party] [the Commonwealth] [the defendant] to call [a
person] [name of person] as awitness.
2. If [however] three factors are present, and there is no satisfactory
explanation for aparty's failure to call apotential witness, the jury is allowed
to draw acommon-sense inference that [his] [her] testimony would have
been unfavorable to that party. The three necessary factors are:
First, that the person is available to that party only and not to the
other;
Second, that it appears the person has special information material to
the issue; and
Third, that the person's testimony would not be merely cumulative.
3. Therefore, if you find these three factors present, and there is no
satisfactory explanation for the [party's] [Commonwealth's] [defendant's]
"The trial court believes that counsel's description of Jeff Green and Jerry Green as eyewitnesses is abit of a
mischaracterization of the potential information these witnesses could provide. There is nothing in the record to
suggest that either individual observed the shooting or any of the conduct that occurred inside the apartment.
eIt appears that the proper names of the witnesses were Jeffrey Green, Jerome Green, and Lewis Martin.
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failure to call [a person] [name of person] to testify, you may infer, if you
choose to do so, that [his] [her] testimony would have been unfavorable to
[that party] [the Commonwealth] [the defendant].
Pa.SSJI (Crim), §3.21A.
This instruction clearly did not apply to Lewis Martin, as Appellant's counsel
called Mr. Martin as adefense witness at trial. See Trial Transcript, Feb. 12, 2020, at 127-
154.
The other two witnesses were not available only to the Commonwealth.
Rather, it appears that these witnesses were equally available or unavailable to both the
Commonwealth and Appellant. As far as the Commonwealth knew, both Jeff Green and
Jerry Green still resided at 505 Park Avenue. The Commonwealth provided their last known
address to Appellant in discovery. Trial Transcript, Feb. 13, 2020, at 13-14. Furthermore,
relatives of these allegedly missing witnesses testified for each of the parties. Janiece Green,
the daughter of Jerry Green and the niece of Jeff Green, testified for the Commonwealth. See
Trial Transcript, Feb. 10, 2020, at 53. Jonathan Green, the brother of Jeff Green and Jerry
Green, testified for Appellant. See Trial Transcript, Feb. 12, 2020, at 107. Jonathan Green
indicated that these individuals used to live at 505 Park Avenue.' Neither the Commonwealth
nor Appellant asked Jonathan Green or Janiece Green during their trial testimony where these
individuals were currently living.
Additionally, based on the testimony presented at trial, it does not appear that
Jeff Green would have had any special information material to the issues in this case. The
505 Park Avenue is aduplex with an upstairs and adownstairs apartment. Jeffrey Green lived downstairs and
Jerry Green lived upstairs. See Trial Transcript, Feb. 10, 2020, at 53; Trial Transcript, Feb. 12, 2020, at I07.
23
testimony presented at trial was that Jeff Green is aparaplegic who was asleep in bed in his
bedroom at the time of the shooting. See Trial Transcript, Feb. 10, 2020, at 56, 61 (Janiece
Green's testimony); Trial Transcript, Feb. 12, 2020, at 135 (Lewis Martin's testimony). He
did not get out of his bed and into his wheelchair until his niece came over to the house after
the shooting. Trial Transcript, Feb. 10, 2020, at 61. One cannot see inside the Victim's
bedroom from inside Jeff Green's bedroom. See Trial Transcript, Feb. 12, 2020, at 139, 140
(Lewis Martin's testimony). Therefore, Appellant was not entitled to amissing witness
instruction with respect to Jeff Green.
Case law provides additional exceptions to the missing witness instruction.
To invoke the missing witness instruction against the Commonwealth, the witness must only
be available to the Commonwealth and no other exceptions must apply. Commonwealth v.
Culmer, 604 A.3d 1090, 1098 (Pa. Super. 1992). There are at least six circumstances or
exceptions where aparty is not entitled to the missing witness adverse instruction:
1. The witness is so hostile or prejudiced against the party expected
to call him that there is asmall possibility of obtaining unbiased truth;
2. The testimony of such awitness is comparatively unimportant,
cumulative, or inferior to that already presented;
3. The uncalled witness is equally available to both parties;
4. There is asatisfactory explanation as to why the party failed to call
such awitness;
5. The witness is not available or not within the control of the party
against whom the negative inference is desired; and
6. The testimony of the uncalled witness is not within the scope of
the natural interest of the party failing to produce him.
Commonwealth v. Miller, 172 A.3d 632, 645-46 (Pa. Super. 2017), citing Commonwealth v.
Boyle, 733 A.2d 633, 638 (Pa. Super. 1999).
In addition to being equally available or unavailable to the parties, the
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testimony of Jerry Green would likely fall within exceptions 1, 2, or 6. Jamal Brown testified
at trial that Appellant walked across the street and asked Jerry Green if he could rob 505 Park
Avenue and Jerry told him yeah as long as he did not do anything to his brother, Jeff Green.
Trial Transcript, Feb. 11, 2020, at 24-25. If Jerry Green were to testify favorably to the
Commonwealth, his testimony would be cumulative to the testimony of Jamal Brown and fall
within exception 2. However, if Jerry Green would not admit this type of connection or
involvement in the crime, his testimony would fall within exceptions 1or 6. Therefore,
Appellant was not entitled to amissing witness instruction with respect to Jerry Green.
Finally, Appellant alleges that the trial court erred by precluding the
exculpatory testimony of Leon Hall who would have testified that one of the witnesses who
testified against Appellant admitted to committing the crimes.
During trial, Appellant's counsel made an offer of proof that Leon Hall would
testify to the following: He had been friends with Jamal Brown. On the day of the shooting,
he was scared because he had heard that two shooters were coming after Jamal Brown. Jamal
Brown did not want to discuss it over the phone so Leon Hall met Jamal Brown at the
Shamrock, alocal bar. As they were sitting at the Shamrock, Leon Hall said something to the
effect of if people are trying to kill you maybe sitting in front of the Shamrock is not agood
idea. Jamal Brown then said something to the effect of, "no, it's cool," or "it's athrow off; it
was me." Leon Hall took that to mean that Jamal Brown admitted to being the shooter at 505
I
Park Avenue. Trial Transcript, Feb. 12, 2020, at 112-121.
The Commonwealth argued that Leon Hall's interpretation of the statement
was a"leap" and Jamal Brown's statements were inadmissible hearsay. Appellant's counsel
25
1
argued that the statements were a"non-party admission" or astatement against interest. The
Commonwealth indicated that the statement did not satisfy the hearsay exception for
statements against interest.
Although there is ahearsay exception for an admission or statement of an
opposing party, see Pa. R. E. 803(25), there is no exception for a"non-party admission."
There is ahearsay exception for astatement against interest but the statement in question did
not meet the requirements of that exception.
Rule 804(b)(3), which governs the admissibility of statements against interest,
states:
The following are not excluded by the rule against hearsay if the
declarant is unavailable as awitness:
(3) Statement Against Interest. A statement that:
(A) areasonable person in the declarant's position would have
made only if the person believed it to be true because, when made, it was so
contrary to the declarant's proprietary or pecuniary interest or had so great a
tendency to invalidate the declarant's claim against someone else or to
expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly
indicate its trustworthiness, if it is offered in acriminal case as one that
tends to expose the declarant to criminal liability.
Pa. R. E. 804(b)(3).
There is nothing in the record to suggest that Jamal Brown was unavailable as
awitness. To the contrary, Jamal Brown testified at trial as awitness for the Commonwealth.
Trial Transcript, Feb. 11, 2020, at 18-51.
The trial court also disagreed with Appellant's characterization of the
statement as an admission by Jamal Brown that he was the shooter. The statement is very
vague. Brown either said "it's cool," "it's athrow off' and/or "it was me." One cannot tell
26
to what "it" refers. Rather than indicating that Brown was the shooter, Brown may simply
have been trying to assure Leon Hall that he knew the individuals were not looking for him,
because Brown assisted the individuals by providing information about the residence and its
occupants in exchange for the discharge of his drug debt.
The statement also was not supported by corroborating circumstances that
clearly indicate its trustworthiness.
Among the factors acourt might consider in determining the
reliability of inculpatory or exculpatory statements are:
the circumstances under which the statements were uttered, including
the custodial/non-custodial aspect of the setting and the identity of the
listener; the contents of the statement, including whether the statements
minimize the responsibility of the declarant or spread or shift the blame;
other possible motivations of the declarant, including improper motive such
as to lie, curry favor, or distort the truth; the nature and degree of the
"against interest" aspect of the statements, including the extent to which the
declarant apprehends that the making of the statement is likely to actually
subject him to criminal liability; the circumstances or events that prompted
the statements, including whether they were made with the encouragement
or at the request of alistener; the timing of the statement in relation to
events described; the declarant's relationship to the defendant; and any other
factors bearing upon the reliability of the statement at issue.
Commonwealth v. Cascardo, 981 A.2d 245, 258 (Pa. Super. 2009), quoting Commonwealth
v. Robins, 812 A.2d 514, 525-26 (Pa. 2002). "While there is no required list of factors for
conducting this evaluation, we note the commonly referenced ones listed supra, and thus
begin with aconsideration of the basic components, of when and where the statements were
made, to whom they were made and what was said." Cascardo, 981 A.2d at 258-59, quoting
Robins, 812 A.2d at 526.
The statement was avague, apparently off-the cuff remark to afriend while at
abar. It did not specifically admit any crime. It was not made in acustodial setting.
27
Furthermore, it was not made to law enforcement or "any other reliable persons of authority
or those having an adverse inference to the declarant." See Commonwealth v. Statum, 769
A.3d 476, 479 (Pa. Super. 2001)(statement made to an attorney).
Since Jamal Brown was available as awitness, his purported statement to
Leon Hall was not definitive enough to subject him to criminal liability, and the statement
was not supported by corroborating circumstances that clearly indicated its trustworthiness,
the trial court did not err in finding that Leon Hall's proposed testimony about the statement
was hearsay.
DATE: •••' By Ae Court,
Marc F. Lovecchio, Judge
cc: Martin Wade, Esquire (ADA)
Jeana Longo, Esquire
Work file
Gary Weber, Esquire (Lycoming Reporter)
Superior Court (original & 1)
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