Com. v. Campbell, D. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DEVINE A. CAMPBELL, : No. 58 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, December 4, 2013,
in the Court of Common Pleas of Mercer County
Criminal Division at No. CP-43-CR-0000121-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 27, 2015
On November 21, 2013, following a jury trial, appellant was convicted
of one count of murder in the second degree, 18 Pa.C.S.A. § 2502(b); two
counts of robbery, 18 Pa.C.S.A. § 3701(a)(1)(i) and (ii), and two counts of
criminal conspiracy to commit robbery, 18 Pa.C.S.A § 903(a)(1). Herein,
appellant appeals from the judgment of sentence entered on December 4,
2013, in the Court of Common Pleas of Mercer County. We affirm.
The facts of this case are as follows. On December 30, 2011,
William Basilone (“the victim”) was shot and killed outside of Basilone’s Bar
and Restaurant, the establishment he owned. The security cameras1 outside
* Retired Senior Judge assigned to the Superior Court.
1
The bar had video surveillance cameras mounted outside and inside the
bar.
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the bar did not capture the shooting, but did capture the images of three
individuals walking up and down Roemer Boulevard at approximately
10:30 p.m. One of the men was wearing a gray hooded sweatshirt with a
Champion logo; he was identified as co-defendant Joshua Stewart
(“Stewart”). (Notes of testimony, 11/12-21/13 at 368, 375.) The second
man was appellant,2 wearing a plain, dark, hooded sweatshirt and faded
jeans, while the third individual was wearing a camouflage jacket and was
later identified as Tyler Kalenic (“Kalenic”). (Id. at 369, 373, 375.)
Kalenic explained that earlier that evening, he was with appellant and
Stewart who asked him if he wanted to rob someone with them. (Id. at
371.) The men went to Basilone’s, and Kalenic entered the bar by himself
and approached the cash register. Kalenic testified that he placed a fake
order for a pizza to “[check] the place out” and see how many people were
present. (Id. at 378.) The video surveillance depicted Tyree Sanders
(“Sanders”) walking east on Roemer Boulevard where he saw and greeted
Kalenic, Stewart, and appellant. As Sanders walked away, the men walked
back to the parking lot of the bar. At this point, Kalenic left and went home.
Later that evening, the camera depicted Stewart enter the bar,
approach the register, and leave. Still later in the evening, the cameras
depicted two individuals, Stewart, who was wearing a gray hoodie and
appellant, wearing a dark hoodie, crossing the street and approaching the
2
Appellant was 17 years of age.
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bar; both men were wearing masks. Stewart had both hands in the front
pocket of his hoodie. Appellant pulled on the handle of the door to the bar
and was unable to open it; the men then walked out of camera range. (Id.
at 392.) After this failed attempt to enter, the men went to the alley behind
the building and removed their masks. (Id. at 393-394.)
Testimony was presented that appellant argued with Stewart, telling
Stewart that the door was locked and there was no need to go on with the
robbery. During the argument, the victim came around the corner.
Stewart, who was unmasked, pulled a gun and fired at the victim, striking
him several times. Appellant immediately fled the scene. The victim was
pronounced dead at the hospital. Three eyewitnesses testified as to what
they heard and saw from three different vantage points. Stewart and
appellant ran to Kalenic’s house and went into the basement. (Id. at
400-401.) All three men later got into Ciera Vincent’s (“Ciera”) car; Ciera’s
sister Olivia was also present. Ciera drove Kalenic to a friend’s house and
drove appellant and Stewart to Stewart’s house. (Id. at 403.)
Appellant was charged with the aforementioned crimes;
J. Jarrett K. Whalen, Esq. (“Attorney Whalen”), was appointed to represent
appellant. Attorney Whalen had also been appointed to represent appellant
in other pending criminal cases. On August 22, 2012, counsel filed a motion
to withdraw. In the motion, counsel explained that while incarcerated,
appellant and Louis Y. Brewer (“Brewer”) allegedly robbed another inmate.
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Attorney Whalen had been appointed to represent Brewer in two unrelated
cases. Following a hearing on August 31, 2012, the trial court denied the
motion to withdraw. (Docket #25.)
On February 5, 2013, appellant’s counsel filed another motion to
withdraw as counsel. (Docket #35.) Counsel averred that he received
discovery indicating that Cedric Boyd (“Boyd”), who would be a material
witness in appellant’s case, would testify that appellant and Stewart made
incriminating oral statements and provided Boyd with incriminating written
documents while incarcerated in the Mercer County Jail. Appellant’s counsel
had previously represented Boyd and received privileged and confidential
information relative to Boyd. The trial court denied counsel’s motion to
withdraw and issued a protective order stating that counsel could not
participate at trial in cross-examining Boyd if he were called as a
Commonwealth witness. (Docket #43.) Nor could counsel disclose any
information he received from Boyd.
On May 13, 2013, appellant filed a motion in limine seeking to
exclude approximately 55 photographs of the deceased victim;
approximately 4 of the photographs were taken when the victim was in the
emergency room and the other 51 were taken during the course of the
autopsy and x-rays. (Docket #54.) The following day, the trial court
granted appellant’s motion in part and denied it in part. (Docket #57.) The
motion was granted to the extent the Commonwealth consented to withdraw
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any photographs of the victim taken in the emergency room or at the
hospital. The motion was denied with respect to the autopsy photographs
and x-rays.
Appellant filed another motion in limine on November 1, 2013,
seeking to exclude evidence pertaining to Olivia and Ciera Vincent’s
subsequent pregnancies, allegedly by appellant’s and Stewart’s brothers.
(Docket #76.) The motion also sought to exclude appellant’s prior criminal
record, Facebook photographs, and threats made toward Boyd and his
family. On November 15, 2013, the trial court issued an order finding
appellant’s prior criminal record would be admissible as crimen falsi in the
event that appellant testifies at trial. (Docket #87.) The order also stated
that any testimony by Olivia and Ciera Vincent regarding having children to
appellant’s or Stewart’s brothers is admissible on the grounds of credibility
given their connection by blood to one or both men. (Id.) Further, the
court ordered that any testimony by Boyd that appellant told him in writing
or orally about appellant’s plan to have his brother or Stewart’s brother
impregnate one or both of the sisters was admissible for the sole purpose of
establishing the credibility of Boyd as a jailhouse snitch. (Id.) The order
directed that the Commonwealth shall not elicit information relative to any
threats allegedly made toward Boyd and his family, unless the door was
opened by defense counsel on cross-examination. The argument that
Facebook and cell phone photographs of either appellant or Stewart should
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not be admitted without establishing the Facebook account or other account
information from the digital providers was denied. (Id.) On November 7,
2013, appellant filed a motion for a continuance and related relief, including
a motion for change of venire and/or venue.
A jury was impaneled on November 18, 2013, and trial commenced.
Appellant testified and averred that he never agreed to rob William Basilone
or any other individual. Rather, he had only agreed to rob the bar with
Stewart. When appellant attempted to open the door to the bar but
discovered it was locked, appellant went to the alley and removed his mask
because the robbery attempt was over. Appellant testified that he argued
with Stewart that there was no need to go on with the robbery, and during
the course of the argument, Basilone came around the corner. Stewart
pulled out the gun and fired at Basilone.
On November 21, 2013, appellant filed two motions for judgment of
acquittal. The motions were denied, and appellant was convicted of one
count of murder in the second degree, two counts of robbery, and two
counts of criminal conspiracy to commit robbery. On December 4, 2013,
appellant was sentenced to serve a term of imprisonment of not less than
35 years to life for the second-degree murder conviction. For the crimes of
robbery and conspiracy to commit robbery, appellant received aggregate
consecutive sentences of 156 months to 40 years’ imprisonment, which were
concurrent with the sentence imposed for second-degree murder. Appellant
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filed a post-sentence motion, which was denied. Appellant filed a timely
notice of appeal.
The following issues have been presented for our review:
I. WHETHER THE TRIAL COURT ERRED WHEN
THE TRIAL COURT DENIED APPELLANT’S
COUNSEL’S MOTION TO WITHDRAW BASED
UPON APPELLANT’S COUNSEL’S PREVIOUS
REPRESENTATION OF LOUIS YONTE BREWER?
II. WHETHER THE TRIAL COURT ERRED WHEN
THE TRIAL COURT DENIED APPELLANT’S
COUNSEL’S MOTION TO WITHDRAW BASED
UPON APPELLANT’S COUNSEL’S PREVIOUS
REPRESENTATION OF CEDRICK BOYD, A
COMMONWEALTH WITNESS, AND FURTHER
PROHIBITING APPELLANT’S COUNSEL FROM
HAVING ANY INVOLVEMENT IN THE
INVESTIGATION, PREPARATION, AND/OR
CROSS EXAMINATION OF MR. BOYD, OR ANY
DEFENSE WITNESS WHO WOULD
POTENTIALLY REBUT ANY TESTIMONY
PRESENTED BY BOYD, WHICH PREVENTED
APPELLANT’S COUNSEL FROM EFFECTIVELY
REPRESENTING APPELLANT?
III. WHETHER THE TRIAL COURT ERRED WHEN
THE TRIAL COURT DENIED APPELLANT’S
MOTION FOR SUPPRESSION RELATIVE TO
STATEMENTS AND WRITTEN MATERIAL
BETWEEN APPELLANT AND BOYD?
IV. WHETHER THE TRIAL COURT ERRED WHEN
THE TRIAL COURT DENIED APPELLANT’S
MOTION IN LIMINE REQUESTING EXCLUSION
OF AUTOPSY PHOTOGRAPHS AND X-RAYS OF
THE VICTIM?
V. WHETHER THE TRIAL COURT ERRED WHEN
THE TRIAL COURT DENIED APPELLANT’S
MOTION FOR CONTINUANCE AND RELATED
RELIEF, BASED UPON THE DISCOVERY OF
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NEW POTENTIAL DEFENSE WITNESSES
COMING FORWARD, THE COURT APPOINTED
PRIVATE INVESTIGATOR NOT COMPLETING
TASKS ASSIGNED TO HIM, THE NEED TO FIND
AN UNTAINTED JURY POOL, AND THE
POTENTIAL FOR A JURY VIEWING OF THE
CRIME SCENE AT THE SAME TIME OF THE
YEAR AS THE ALLEGED CRIME?
VI. WHETHER THE TRIAL COURT ERRED WHEN
THE TRIAL COURT DENIED IN PART
APPELLANT’S MOTION IN LIMINE RELATIVE TO
AN ALLEGED CONSPIRACY TO IMPREGNATE
THE VINCENT SISTERS, COMMONWEALTH
WITNESSES, AND PHOTOGRAPHS OBTAINED
OF CO-DEFENDANT JOSHUA STEWART AND
APPELLANT VIA JOSHUA STEWART’S
FACEBOOK PAGE?
VII. WHETHER THE TRIAL COURT ERRED WHEN
THE TRIAL COURT ASSISTED THE APPELLEE IN
ADVISING HOW TO EXAMINE APPELLEE
WITNESS TYREE SANDERS?
VIII. WHETHER THE TRIAL COURT ERRED WHEN
THE TRIAL COURT DENIED APPELLANT’S
MOTION FOR JUDGMENT OF ACQUITAAL[sic]
UPON COMPLETION OF THE APPELLEE’S CASE
AND APPELLANT’S MOTION FOR JUDGMENT OF
ACQUITTAL UPON CONCLUSION OF ALL
EVIDENCE?
IX. WAS THE SENTENCE OF THE COURT
MANIFESTLY EXCESSIVE IN LENGTH BECAUSE
THE TRIAL COURT’S SENTENCE EXCEEDED
THE MANDATORY MINIMUM, FAILED TO
ADEQUATELY CONSIDER APPELLANT’S AGE,
THE REHABILITATIVE ASPECT OF SENTENCING
AND THAT APPELLANT WAS NOT THE ALLEGED
GUNMAN?
Appellant’s brief at 4-6.
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The first issue presented concerns whether the trial court erred in
denying defense counsel’s motion to withdraw based on his claim of conflict
of interest due to his representation of appellant and Brewer in unrelated
cases. We find no error with either the trial court’s decision or rationale.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the opinion of the trial court, it is our determination that
there is no merit to the question raised on appeal. Accordingly, we affirm
this issue on the basis provided by the Honorable Christopher J. St. John’s
October 16, 2012 Memorandum Opinion and Order and adopt it as our own.
(Docket #25.)
Next, appellant argues that the trial court erred in denying his second
motion to withdraw, which cited a conflict of interest as the result of
Attorney Whalen’s prior representation of Boyd. Following our review, we
find no merit to this claim. As Judge St. John’s opinion, filed on March 4,
2013, correctly disposes of the issue presented, we will affirm based on the
opinion. (Docket #43.)
The third claim presented for our review concerns whether the trial
court properly denied appellant’s motion to suppress information obtained by
Boyd. He contends that the Commonwealth’s use of this evidence violated
his right to counsel guaranteed under the Sixth Amendment of the United
States Constitution and Article I, Section 9 of the Pennsylvania Constitution.
Appellant essentially argues that Boyd acted outside the scope of a
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permissible government listening post in obtaining statements and writings
from appellant and Stewart. (Appellant’s brief at 26.)
The Commonwealth cannot circumvent a defendant’s Sixth
Amendment right to counsel by sending in an informant to question a
defendant in circumstances where police could not do so themselves without
the presence of an attorney for the defendant. Commonwealth v.
Franciscus, 710 A.2d 1112 (Pa. 1998). However, where a prisoner
volunteers his complicity in criminal activity to a fellow inmate, he does so at
his own peril. Indeed,
“the Sixth Amendment is not violated whenever—by
luck or happenstance—the State obtains
incriminating statements from the accused after the
right to counsel has attached” . . . . [A] defendant
does not make out a violation of that right simply by
showing that an informant, either through prior
arrangement or voluntarily, reported his
incriminating statements to the police.
Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986), quoting U.S. v. Henry,
447 U.S. 264, 277 (1980). A voluntary jailhouse admission to a fellow
inmate is not subject to any more protection than a confession made by the
defendant outside of his jail cell to another person willing to notify
authorities. Commonwealth v. Ogrod, 839 A.2d 294, 329 (Pa. 2003).
“Rather, the defendant must demonstrate that the police and their informant
took some action, beyond merely listening, that was designed deliberately to
elicit incriminating remarks.” Id. In other words, “individual acts do not
become imbued with the character of governmental action merely because
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they are later relied upon and used by the government in furtherance of
governmental objectives.” Commonwealth v. Hawkins, 701 A.2d 492,
505 (Pa. 1997).
The Pennsylvania Supreme Court has found no Sixth Amendment
violation where the defendant “fails to supply any specific evidence” of a
“conspiracy” between the police and the informant. Ogrod, 839 A.2d at
329. A defendant cannot establish a violation where he does not cite
“evidence that the Commonwealth arranged for the witness to be placed
near [the defendant] to question him.” Id.; see Hawkins, 701 A.2d at 505
(no Sixth Amendment violation where “the record demonstrates that the two
informants acted on their own initiative without the benefit of any promise or
reward by the Commonwealth”). Likewise, there can be no violation where
“the authorities never solicited [the informant] to obtain information
concerning the [crime for which the defendant was suspected].”
Commonwealth v. Lopez, 739 A.2d 485, 500 (Pa. 1999); see id. at
501 n.20, contrasting Franciscus, supra, because there,
the police agreed to testify on behalf of the jailhouse
informant concerning his continuing efforts on their
behalf, and because the police actively assisted the
informant in his efforts to obtain incriminating
statements from his fellow inmates, the jailhouse
informant had been acting as an agent of the
government when he obtained incriminating
statements from Franciscus.
The trial court made the following findings of fact concerning this
issue.
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2. While in the Mercer County Jail in early 2012,
Mr. Boyd shared a cell for about two months
with Defendant Stewart and received various
information verbally from him with regard to
his pending homicide and robbery cases and
alleged plots pertaining to his homicide case.
3. Prior to August of 2012, [Boyd] also had
conversations with [appellant] at the Mercer
County Jail and/or reviewed correspondence in
the nature of notes and other writings that he
was either a direct participant in or was a
courier, and later contacted the Mercer County
District Attorney’s Office through his then
attorney, Stanley Booker.
....
5. Upon receiving a letter from Attorney Booker
confirming Mr. Boyd’s desire to cooperate with
the Commonwealth, and that there was no
plea bargain in Mr. Boyd’s cases to induce his
cooperation, Mr. Boyd met with Detectives
Grolemund and Piatek in the Mercer County
Courthouse and gave a tape-recorded
interview as to the information he obtained
from the Defendants, and at the time of those
interviews, Mr. Boyd did not have the written
correspondence that he promised to later
deliver to the Commonwealth.
6. On August 13, 2012, Detective Grolemund
advised Mr. Boyd that he was now a
government agent and that he should not
initiate any questioning or conversations with
either defendant.
7. After August 13, 2012, Mr. Boyd did not
initiate and/or question either defendant, even
though he continued to meet with
Detective Grolemund and Detective Piatek to
deliver various pieces of written
correspondence and to give further details
pertaining to that communication.
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....
9. Mr. Boyd was not offered any plea bargains in
any of his cases but the Commonwealth
promised to advise the Court in his criminal
cases, at the appropriate time, of Boyd’s
cooperation and Mr. Boyd requested protection
while incarcerated and asked the
Commonwealth for assistance for his family to
travel to SCI Albion to meet him.
....
11. The Commonwealth did not request Mr. Boyd,
after August 9, 2012, to affirmatively seek out
either defendant and acquire additional
information and/or work as a government
agent.
12. It was at the insistence of Boyd and/or his
Attorney Booker that the meetings that
occurred with the Commonwealth and
Mr. Boyd occur.
Findings of fact, 4/4/13 at 2-5.
The evidence demonstrated that Boyd was not acting as a government
informant when appellant voluntarily confessed to him. Appellant failed to
cite or produce any evidence that the police sent Boyd to question
defendant, promised Boyd anything to obtain information from defendant,
intentionally placed Boyd near appellant to further their investigation, or
actively assist. Rather, once Boyd spoke with the detectives and was
informed that he was not to initiate any questions or conversations with
appellant, he followed those instructions and merely acted as a listening
post. After Boyd met with the detectives upon the direction of his attorney,
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the detectives promised him no consideration but did offer to advise the
court in his criminal cases that he had been cooperative. Thus, the trial
court properly denied appellant’s motion.
The fourth issue is whether the trial court erred when it denied
appellant’s motion in limine concerning autopsy photographs and x-rays of
the victim. (Appellant’s brief at 27.)
Our standard of review is as follows:
Admission of evidence . . . rests within the sound
discretion of the trial court, which must balance
evidentiary value against the potential dangers of
unfairly prejudicing the accused, inflaming the
passions of the jury, or confusing the jury. We
reaffirm our confidence in our trial judges to oversee
the presentation of evidence so that overtly
passionate, intentionally biased and inflammatory
material is kept out of the courtroom. We will
reverse a trial court’s decision as to admissibility of
evidence only if [Appellant] sustains the heavy
burden to show that the trial court has abused its
discretion.
Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa. 2013) (citations and
internal quotation marks omitted).
When considering the admissibility of photographs of a homicide
victim, which by their very nature can be unpleasant, disturbing, and even
brutal, the trial court must engage in a two-step analysis:
First a [trial] court must determine whether the
photograph is inflammatory. If not, it may be
admitted if it has relevance and can assist the jury’s
understanding of the facts. If the photograph is
inflammatory, the trial court must decide whether or
not the photographs are of such essential evidentiary
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value that their need clearly outweighs the likelihood
of inflaming the minds and passions of the jurors.
Commonwealth v. Tharp, 30 A.2d 519, 531 (Pa. 2003) (citation omitted).
Appellant claims that the photographs should not have been admitted
as the cause of death was stipulated prior to trial as was the admissibility of
the coroner’s report. (Appellant’s brief at 27.) This argument, however,
ignores the rule stated in Commonwealth v. Stanley, 446 A.2d 583, 588
(Pa. 1982), that the Commonwealth may prove its case with any proper
evidence, “and does not have to accept the accused’s stipulations”
(emphasis omitted).
Appellant also argues that the very nature of the photographs could
have diverted the jury’s attention from its duty to impartially weigh the
evidence.3 (Appellant’s brief at 28.) The photographs depict the victim on
the autopsy table and the bullet wounds. Appellant argues that he was not
the gunman and was “only charged with felony murder,” so the photographs
had no evidentiary purpose. (Id.) We find no error on the part of the trial
court and affirm on the rationale provided in the April 29, 2014 opinion.
(Trial court opinion, 4/29/14 at 10-12.)
The fifth issue presented is whether the trial court erred in denying
appellant’s motion seeking a continuance. (Appellant’s brief at 29.) The
decision of whether to grant or deny a request for a continuance is within
3
We note appellant has abandoned that portion of his argument which
concerned the x-rays.
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the sound discretion of the trial judge. Commonwealth v. Chambers, 685
A.2d 96, 104 (Pa. 1996). The refusal to grant a continuance constitutes
reversible error only if “prejudice or a palpable and manifest abuse of
discretion is demonstrated.” Commonwealth v. Griffin, 804 A.2d 1, 12
(Pa.Super. 2002). Following our review, we find that Judge St. John’s
opinion, filed on April 29, 2014, correctly disposes of the issue presented,
and accordingly, we affirm based on the opinion. (Trial court opinion,
4/29/14 at 12-15.)
The argument presented in support of appellant’s sixth issue concerns
the admissibility of photographs of appellant and Stewart from Stewart’s
Facebook page. Appellant argues that the trial court erred in admitting
these photographs. Specifically, appellant contends that digital photographs
are so susceptible to alteration that either an individual present at the time
the photograph was taken must testify to the accuracy of the image or an
expert must testify that no one has tampered with the photograph.
(Appellant’s brief at 33.)
Again, questions concerning the admissibility of evidence lie within the
sound discretion of the trial court, and we will not reverse the trial court’s
decision absent a clear abuse of discretion. Bryant, supra. Demonstrative
evidence must also be properly authenticated by evidence sufficient to show
that it is a fair and accurate representation of what it is purported to depict.
Pa.R.E. 901(a). To authenticate photographs, motion pictures, and video
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recordings, Pennsylvania courts have always and without exception held that
the photograph or recording must be authenticated through testimony from
a witness with personal knowledge who can testify that it “fairly and
accurately represents that which it purports to depict.” See, e.g.,
Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006).
Commonwealth v. Schwartz, 615 A.2d 350, 357 (Pa.Super. 1992)
(photographs must “accurately and fairly depict what they purport to
show”), appeal denied, 629 A.2d 1379 (Pa. 1993). Evidence may be
sufficiently authenticated by direct proof and/or circumstantial evidence,
including the testimony of a witness with personal knowledge “that a matter
is what it is claimed to be.” Pa.R.E. 901(b). Authentication testimony may
be provided by the person who took the photograph or video, or by some
other witness “with sufficient knowledge to state that it fairly and accurately
represents the object or place reproduced as it existed at the time” of
recording. Nyce v. Muffley, 119 A.2d 530, 532 (Pa. 1956).
Under the circumstances of this case, we agree with the trial court that
the testimony of the Commonwealth’s chief investigator, Andrew J. Thomas,
was sufficient to authenticate the photographs. As Judge St. John has
prepared a thorough and well-reasoned opinion that correctly disposes of
this claim, we shall affirm on that basis. (Trial court opinion, 4/29/14 at 15-
23.)
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The seventh issue presented avers that the trial court erred in
allegedly assisting the Commonwealth as to how to examine Tyree Sanders
as a witness. At trial, Sanders had difficulty remembering events that took
place on the night in question. The Commonwealth requested a recess to
obtain the full transcript of Sanders’ testimony from Stewart’s trial to
attempt to revive his recollection. During the recess, the trial court
discussed with both parties how the trial could proceed and discussed
several ways to rehabilitate and refresh a witness’s recollection.
Following our review of the record, it is clear that the trial court was
acting in the interest of judicial economy when discussing the matter with
the parties in chambers during recess; there is no indication that the trial
court was partial to the Commonwealth or provided inappropriate guidance.
We again affirm based upon our independent review of the record and the
trial court’s opinion. (Trial court opinion, 4/29/14 at 23-27).
Next, appellant claims the trial court erred by denying appellant’s
motion for judgment of acquittal upon completion of the Commonwealth’s
case-in-chief and upon the conclusion of all of the evidence. Appellant
argues that there “was no evidence presented at trial to support a conviction
of murder of the second degree, the robbery of William Basilone, or
conspiracy to commit the robbery of William Basilone.” (Appellant’s brief at
36.) Essentially, appellant argues that assuming the conspiracy did exist,
the conspiracy terminated when he found that the bar was closed, and
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therefore, the subsequent criminal acts (murder of the victim) were
independent acts beyond the scope of the conspiracy. “Further, nothing was
taken from Basilone’s person.” No relief is due.
A motion for judgment of acquittal challenges the
sufficiency of the evidence to sustain a conviction on
a particular charge, and is granted only in cases in
which the Commonwealth has failed to carry its
burden regarding that charge.
Commonwealth v. Foster, 33 A.3d 632, 634-635 (Pa.Super. 2011).
A defendant commits second-degree murder when he or she is a
principal, accomplice, or co-conspirator to a statutorily-enumerated felony
and a person is killed in the course of that felony’s commission.
18 Pa.C.S.A. § 2502(b); Commonwealth v. Knox, 50 A.3d 732, 739
(Pa.Super. 2012). The defendant need not be a party to a completed crime;
rather, one perpetrates a felony when he engages or is an accomplice to a
completed felony, an attempt to commit a felony, or flight after committing
or attempting to commit a felony. 18 Pa.C.S.A. § 2502(d).
Robbery is among the enumerated felonies that may satisfy the
predicate-offense element of second-degree murder. Id. A person commits
robbery where, inter alia, in the course of committing a theft, he inflicts or
threatens serious bodily injury on another, commits or threatens
immediately to commit any felony of the first or second degree, or takes or
removes property from the person of another by force however slight.
18 Pa.C.S.A. § 3701(a)(1). The evidence is sufficient to sustain a robbery
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conviction where the defendant intentionally assists his cohort with the
robbery, even if he or she did not carry a weapon, employ threats, or cause
injury. E.g., Commonwealth v. Everett, 443 A.2d 1142, 1145 (Pa.Super.
1982).
A person is an accomplice if “with the intent of promoting or facilitating
the commission of the offense, he: (i) solicit[ed the principal] to commit it;
or (ii) aid[ed] or agreed or attempt[ed] to aid such other person in planning
or committing it.” Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa.
2004), citing, 18 Pa.C.S.A § 306. Thus “if the accomplice acts with the
intent of promoting or facilitating the commission of the crime, he is equally
criminally liable for the acts of the principal.” Commonwealth v.
Woodward, 614 A.2d 239, 242 (Pa.Super. 1992).
The evidence adduced at trial proved that, while being watched on
security cameras, appellant and Stewart attempted to gain access to
Basilone’s bar to commit the robbery while wearing masks. When the men
realized the door was locked, they walked off camera. Testimony was
presented that they went to the alley behind the building and appellant
removed his mask. The victim came around the corner, Stewart pulled a
gun and he fired at the victim several times. There was evidence that a very
short time passed from the moment appellant departed the scene to the
fatal shooting.
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Appellant argues that he and his partner did not kill the victim while in
the course of the commission of a felony, as he had abandoned the
conspiracy once he found the door was locked. To the contrary, the
evidence amply showed that the pair was actively committing a robbery
when they killed the victim. These circumstances were more than sufficient
to support the jury’s conviction of second-degree murder. See, e.g.,
Commonwealth v. Knox, 50 A.3d 749, 752-757 (Pa.Super. 2012)
(evidence sufficient to support juvenile appellant’s conviction of
second-degree murder where co-conspirator fatally shot victim as victim fled
robbery); Commonwealth v. Johnson, 485 A.2d 397, 401-402 (Pa.Super.
1984) (evidence that co-conspirator killed victim at scene of robbery one
minute after robbery ended sufficient to support appellant’s conviction of
felony-murder; “[w]e are of the opinion that this was a negligible passage of
time during the furtherance of the conspiracy; it did not represent the
termination of the robbery nor appellant’s abandonment of the scheme”);
Commonwealth v. Orlowski, 481 A.2d 952, 961 (Pa.Super. 1984) (killing
of eyewitnesses is natural and probable consequence of violent conspiracy);
Commonwealth v. Olds, 469 A.2d 1072, 1077 (Pa.Super. 1983) (a murder
occurs “during the perpetration of a felony” and is therefore second-degree
murder where it occurs either during an attempted robbery or flight
following an attempted robbery).
- 21 -
J. S61014/14
Whether the victim’s death was in furtherance of the conspiracy was
for the jury’s determination. Commonwealth v. McNeal, 319 A.2d 669(Pa. 1974). Additionally, it is immaterial whether appellant actually
expected Basilone’s death. He may be charged with knowing that death
could result from the robbery. Commonwealth v. Martin, 348 A.2d 391(Pa. 1975). In this latter instance, he remains responsible for the murder.
The final issue concerns the discretionary aspects of appellant’s
sentence for second-degree robbery. “It is well settled that, with regard to
the discretionary aspects of sentencing, there is no automatic right to
appeal.” Commonwealth v. Austin, 66 A.3d 798, 807-808 (Pa.Super.
2013) (citation omitted). This appeal is, therefore, more appropriately
considered a petition for allowance of appeal. 42 Pa.C.S.A. § 9781(b). Two
requirements must be met before a challenge to the judgment of sentence
will be heard on the merits. Koren, supra. First, the appellant must set
forth in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of his sentence.
Id.; Pa.R.A.P. 2119(f). Second, he must show that there is a substantial
question that the sentence imposed is not appropriate under the Sentencing
Code. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Urrutia, 653 A.2d 706,
710 (Pa.Super. 1995).
The determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis. Commonwealth v.
- 22 -
J. S61014/14
Maneval, 688 A.2d 1198, 1199-1200 (Pa.Super. 1997). Generally,
however, in order to establish a substantial question, the appellant must
show actions by the sentencing court inconsistent with the Sentencing Code
or contrary to the fundamental norms underlying the sentencing process.
Id.Appellant has not included in his brief the mandatory concise
statement of reasons relied upon for allowance of appeal from the
discretionary aspects of his sentence. A failure to include the Rule 2119(f)
statement does not automatically waive an appellant's argument; however,
we are precluded from reaching the merits of the claim when the
Commonwealth lodges an objection to the omission of the statement. See
Commonwealth v. Myers, 86 A.3d 286, 289, n. 3 (Pa.Super. 2014). Here,
the Commonwealth has not objected.4 Therefore, we will determine whether
there is a substantial issue requiring it to review the discretionary aspects of
the sentence imposed by the trial court.
Appellant complains that his sentence was manifestly excessive
because the court failed to properly consider his age at the time of the
offenses, that he was not the gunman, and appellant’s prior record score of
zero. (Appellant’s brief at 38.) Such an argument does not raise a
4
The Commonwealth erroneously states that “a statement of the reasons
relied upon for appeal is set forth in Martin’s brief as required by
Commonwealth v. Tuladzieki, 522 A.2d 17 (Pa. 1987), and
Pa.R.A.P. 2119(f).” (Commonwealth’s brief at 22 (emphasis added).) Our
review of appellant’s brief proves otherwise.
- 23 -
J. S61014/14
substantial question. Commonwealth v. Edwards, 71 A.3d 323(Pa.Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013), quoting
Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa.Super. 2011) (a
panel of this court has determined an allegation that the sentencing court
“failed to consider” or “did not adequately consider” various factors does not
raise a substantial question that the sentence was inappropriate).
Judgment of sentence affirmed.
Wecht, J. joins the Memorandum.
Strassburger, J. files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2015
- 24 -
il Circulated 02/27/2015 02:02 PM
II FILED IN MERCER COUNTY
2012 OCT 16 AM II : 34
KATHLEEN M. KLOOS
CLERK AND REGISTER
II
IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA
CRIMINAL
:1
COMMONWEALTH OF PENNSYLVANIA:
v. ' /No. 121 Criminal 2012
No. 558 Criminal 2012
DEVINE A. CAMPBELL
APPEARANCES
Ii For the Commonwealth: Robert G. Kochems, Esquire
District Attorney's Office
209 Mercer County Courthouse
Mercer, PA 16137
For the Defendant: J. Jarrett K. Whalen, Esquire
118 North Pitt Street
Mercer, PA 16137
II MEMORANDUM OPINION AND ORDER
ST. JOHN, J.
II Defendant Devine A. Campbell who has been incarcerated in the Mercer
II County Jail since the beginning of 2012 is represented by a court appointed
attorney, J. Jarrett K. Whalen, on a series of criminal cases. First. at 121 Criminal
12012 the defendant is charged with murder of the second degree, two counts of l
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2012.
Attorney Whalen was also appointed to represent a juvenile, Louis Y.
I Brewer, on unrelated cases at 18 Juvenile 2012 on February 29,2012 on an escape
Icharge and was also appointed on that date to represent him on an aggravated
I assault case at 540 Criminal 2012. Attorney Whalen appeared before the
Honorable Robert G. Yeatts of this Court on July 20,2012 at 18 Juvenile 2012 on
behalf of Mr. Brewer at a certification hearing when the District Attorney advised the
Court and Attorney Whalen that Mr. Brewer, Devine Campbell and Anthony
i McMillan were going to be charged with a robbery that allegedly occurred on June 1,
I
2012 in the Mercer County Jail, and that Attorney Whalen therefore had a confiict
and could not continue to represent Mr. Brewer. Judge Yeatts entered an Order
removing Attorney Whalen from Mr. Brewer's cases at 18 Juvenile 2012 and 540
Criminal 2012 on July 20, 2012. Notably, Attorney Whalen had not been appOinted
2
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II by the Court to represent either Mr. Brewer or Devine Campbell on this alleged
jailhouse robbery'
I
:1 Attorney Whalen filed a motion to withdraw as the attorney for Devine
ICampbell at Nos. 121 and 558 Criminal 2012 based upon the conflict of interest he
I alleges exists because of his court appointment to represent Mr. Brewer on two
II unrelated cases because he was about to become a co-defendant of Mr.
Campbell's on a totally unrelated alleged jailhouse robbery, to which Attorney
Whalen was never appointed to represent either defendant. An evidentiary
I hearing was held before the undersigned judge on August 31, 2012. The
,
i Commonwealth took the position that there was no conflict of interest or appearance
I of impropriety in the Campbell cases to which Attomey Whalen had already been
appointed and the Brewer cases to which he was previously appointed. The
parties submitted their respective memorandums in mid-September of 2012.
The parties concede that Mr. Brewer has no connection to the cases
encaptioned above with regard to Devine Campbell. The only arguable conflict is
with regard to the alleged jailhouse robbery case involving Brewer, Campbell and
McMillan. Attorney Whalen has never represented any defendant on that case.
I
i That potential conflict was resolved with an immediate order preventing Attorney
I
Whalen from representing Mr. Brewer on all of his cases. Attorney Whalen submits
Ithat he should also be removed from all of Devine Campbell's cases.
lMr. Brewer was not charged until July 20, 2012 at 149 Juvenile 2012 with the aJleged jailhouse
robbery. Likewise, Mr. Campbell was not charged at 150 Juvenile 2012 until July 20, 2012.
3
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II
I' Attorney Whalen argues that his continued representation of Devine
! Campbell in cases unrelated to Mr. Brewer, both of whom have different interests,
I
II creates the possibility that his judgment could be impaired or that his loyalty be
!I divided if he continues to represent Devine Campbell. However, there are no facts
I, or cogent theories that have been presented to the Court to support this argument.
! In point of fact, Attorney Whalen is not and has not represented multiple clients in
l one or more of these cases. Nor is he engaging in dual representation that would
I create a conflict of interest. Notably, Attorney Whalen was unable to point to any
facts or circumstances where he obtained any information in representing Brewer
that would call into question his loyalty to Mr. Campbell since he no longer
,
I represents Mr. Brewer on any cases and Mr. Brewer is not involved in any wayan
the cases to which Mr. Whalen has been appointed to represent Mr. Campbell. Nor
has Attorney Whalen had any conversations with either defendant on the jailhouse
I robbery.
Attorney Whalen also argues that Rule 1.7 of the Rules of Professional
Conduct prevent a lawyer from representing a client if he has a concurrent conflict of
interest with another client. A lawyer has a concurrent conflict of interest if his
I
I
~ representation of one client will be directly adverse to that of another or if there is a
I
significant risk that that could occur or could materially limit the lawyer's
responsibility to another client. However, there is and was not any concurrent
conflict of interest in Mr. Whalen representing defendant Campbell in the
above-captioned cases even though he was appointed to represent Mr. Brewer in
cases unrelated to the subject cases. The potential confiict of interest arose when
4
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it was determined that Mr. Campbell would be a co-defendant prospectively with Mr.
Brewer in the jailhouse robbery case and was resolved by Mr. Whalen's immediate
I removal from all of Mr. Brewer's cases. In addition, Attorney Whalen has not been
appointed to represent Mr. Campbell on the jailhouse robbery case.
II Mr. Whalen also argues that his representation of Mr. Campbell is now
Ilimited since he is not appointed to represent Mr. Campbell on all of his cases,
Iincluding the alleged jailhouse robbery case. Mr. Whalen therefore argues that he
! cannot obtain a comprehensive package plea agreement for Mr. Campbell. This
argument is specious, however, because no defendant has the right to a plea
I bargain, a comprehensive plea agreement andlor the right to have only one attorney
i assigned to represent him in all of his pending cases. Furthermore, the District
Attorney's memorandum dated September 14, 2012 expressly states on page 2 that
Mr. Campbell would not be prevented from obtaining or pursuing a global plea
I agreement on all of his cases even though he may have multiple attomeys. In fact,
the District Attorney noted in his memorandum that the Commonwealth would meet
, with all attorneys simultaneously if appropriate as it has done in the past on other
I cases to negotiate global plea agreements.
I Thus, IT IS THE FINDING OF THE COURT that Attorney Whalen does not
I
have a conflict of interest in representing Devine Campbell at the above-captioned
numbers, nor will his representation be limited because he is not appointed to
Irepresent Mr. Campbell on all of his pending cases.
HENCE, THIS ORDER:
5
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FILED IN MEHCER COUNTY
2012 OCT 16 AM": 34
·CKLAETRHKLEf N N. KLOOS
AND REGISTER
I' IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA
I CRIMINAL
I
, COMMONWEALTH OF PENNSYLVANIA:
v. No. 121 Criminal 2012
No. 558 Criminal 2012
I DEVINE A. CAMPBELL
I
ORDER
I
I AND NOW, on this 15~ day of October, 2012, IT IS HEREBY ORDERED that
/' the motion of J. Jarrett K. Whalen to be removed in the above-captioned cases is
I DENIED.
BY THE COURT:
,
rmb
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,-
IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA :
v. No. 121 Criminal 2012
DEVINE A. CAMPBELL
FINDINGS OF FACT, CONCLUSIONS OF LAW AND PROTECTIVE ORDER
This matter came before the Court for a hearing on February 15, 2013 on
the motion of court-appointed trial counsel, Attomey J. Jarrett K. Whalen, Esquire,
on his motion to withdraw as counsel for the defendant because of his prior
representation of a new Commonwealth witness, Cedrick Dwight Boyd, and after
the receipt of information from both defense la . .
wyers and the Dlstnct Attomey, the
Court makes the following Findings of Fact:
FINDINGS OF FACT
1. Defendant Devine A C b .
, . amp ell, IS charged with five criminal counts
at the above term and number including murder of the second degree, robbery,
etc., and Attomey Whale .
n was court-appointed to represent the defendant on April
26, 2012.
2.
This alleged incident occurred on December 30, 2011 .
II
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3. Attomey Dustin Cole was court appointed to represent the defendant
as a second chair trial lawyer on August 7, 2012.
II 4. Attomey Whalen was retained to privately represent Cedrick Dwight
Boyd at 331 Criminal 2011 on February 10, 2011 on serious sex offenses alleged
to have occurred with a minor individual wherein he faces a potential five-year
mandatory minimum tenm of incarceration for offenses that allegedly occurred on
December 13, 2010 and where the criminal complaint was filed on January 6,
2011.
5. Attorney Whalen represented Mr. Boyd through the preliminary
hearing which was held on March 3, 2011 but was not retained to represent Mr.
Boyd in the Court of Common Pleas and had no further direct communication with
him after the preliminary hearing.
6. In December of 2012, the Commonwealth provided infonmation and
discovery to Attomey Whalen that Cedrick Dwight Boyd was going to be called as
a Commonwealth witness to testify to incriminating infonmation he received while
incarcerated in the Mercer County Jail from defendant Campbell in this homicide
case.
7. Attomey Whalen obtained infonmation from Cedrick Dwight Boyd
during his representation of Mr. Boyd on an unrelated case that Attomey Whalen
would be able to use to substantially undercut the credibility of his former client
(Boyd) at the trial in this matter.
8. An in-camera hearing was held later this date in chambers with
Attorney Whalen, the Court's law clerk and a court reporter with the consent of the
2
II Circulated 02/27/2015 02:02 PM
II
Commonwealth attomey to ascertain the nature and extent of the confidential
information relayed by Cedrick Dwight Boyd to Attomey Whalen during their
attomey/client relationship.
9. The information obtained by Attomey Whalen from his former client
during his representation of Mr. Boyd is not readily available and/or ascertainable
except directly from Mr. Boyd.
10. The confidential information received by Attomey Whalen from Mr.
Boyd could potentially be used to impeach Mr. Boyd's credibility at the homicide
trial of Mr. Campbell; however, the admissibility of this confidential information is
questionable.
11 . The information received in confidence by Attomey Whalen from Mr.
Boyd is protected by the attorney/client privilege under Rule 1.6 of the Rules of
Professional Responsibility and Attomey Whalen does not have a duty to disclose
any of that information under the Rules of Professional Conduct, specifically Rule
3.3.
CONCLUSIONS OF LAW
Defense counsel, Attomey Whalen, does not have an actual confiict of
interest that precludes him from representing defendant Campbell in this homicide
case because of Attomey Whalen's representation in an unrelated case of a chief
Commonwealth witness, Cedrick Dwight Boyd. Furthermore, the defendant in the
homicide case is not prejudiced by the continued representation by Attomey
Whalen at the trial in this matter because Attorney Whalen is barred from
disclosing any of the information previously received from Mr. Boyd during his
3
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attorney/client relationship which existed from February 10, 2011 through July 12,
2011 and where all communications between Attorney Whalen and his former
client were concluded by the end of March of 2011 before Attorney Whalen was
appointed to represent the defendant in this homicide case. In addition, the
information that is arguably impeachment material that was received during this
confidential relationship by Attorney Whalen may not be admissible to impeach Mr.
Boyd if he were called as a witness by the Commonwealth against Mr. Campbell,
because it is protected by the attorney client privilege and may not otherwise be
admissible under the applicable Rules of Evidence.
Furthermore, Attorney Whalen does not have a duty under the Rules of
Professional Conduct per Rule 3.3 to disclose to the Court and to the parties the
confidential information he received from Mr. Boyd . IT IS FURTHER THE
FINDING OF THE COURT that defendant Campbell would not be prejudiced by
the continued representation by Attorney Whalen because if he were removed,
then new counsel would not be privy to the information anyway held by Attorney
Whalen. Attorney Whalen's information in effect is no different than information
parties typically have in other cases that is inadmissible because it has been
suppressed or is protected by a privilege.
Hence, Attorney Whalen's motion to withdraw as counsel for defendant
Campbell in this matter will be denied subject to the following Protective Order:
4
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, ,
I
'''J ,..
I
I
II
,
-4
r
i Z: 39
IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA :
v. No. 121 Criminal 2012
DEVINE A . CAMPBELL
PROTECTIVE ORDER
AND NOW, on this 4- day of March, 201 3, IT IS HEREBY ORDERED that
the motion by Attomey Whalen to withdraw as defense counsel in this matter
II based upon his prior representation of the Commonwealth witness, Cedrick
Dwight Boyd , is DENIED. IT IS FURTHER ORDERED that Attorney Whalen shall
not participate at the trial in this matter in cross-examining Cedrick Boyd if he is
called as a witness by the Commonwealth nor shall Attorney Whalen disclose any
information he received from Cedrick Boyd during Attomey Whalen's
representation of Mr. Boyd from February 10, 2011 through July 12, 2011, to any
other person, absent further Order of Court.
BY THE COURT:
II
~
-=C"h'-n:-s.-t:-o1:O-:e;ir-J: .- J"'-!h'n-'-:-~:-=Ud=g=e---'J·
S::c(.L
rmb ~
I
,
Circulated 02/27/2015 02:02 PM
IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA :
v. No, 121 Criminal 2012
DEVINE A. CAMPBELL
RULE 1925 OPINION
Appellant, Devine A. Campbell , was convicted by a jury on November 21 ,
2013 of the following crimes:
1. Robbery by attempting to enter Basilone's Bar and
Threaten Another with Serious Bodily Injury wrth a Handgun in
violation of 18 PS § 3701(a)(1)(ii);
2. Criminal Conspiracy to Commit Robbery with Joshua
Lee Stewart inside of Basilone's Restaurant and Bar in violation of
18 PS §§ 903(a)(1) and 3701(a)(1)(ii);
3. Robbery by Inflicting Serious Bodily Injury to William
Basilone in violation of 18 PS § 3701 (a)(1)(i);
4. Criminal Conspiracy to Commit Robbery with Joshua
Lee Stewart as to William Basilone in violation of 18 Pa.C.S.A. §§
903(a)(1) and 3701 (a)(1)(i); and
5. Murder of the Second Degree of William Basilone in
violation of 18 Pa .C.SA § 2502(b) .
These offenses occurred on December 30, 2011 when appellant was 17
years of age Prior to his conviction , the United States Supreme Court ruled that
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mandatory life sentences for homicides committed by persons under the age of 18
without the possibility of parole was unconstitutional. Miller v. Alabama , _ U.S.
_ , 132 S.Ct. 2455 (2012). Pennsylvania law at the time of the Miller decision
was that any person convicted of second degree murder must serve a mandatory
term of life imprisonment (18 Pa .C.S.A. § 1102(b», and the Parole Board was
prohibited from paroling inmates serving a life sentence. See 61 Pa.C.SA §
II 6137(a)(l ) (Purdon's 2010) . Shortly thereafter, the Pennsylvania Superior Court
held that "a mandatory sentence of a term of life imprisonment without the
possibility of parole for a juvenile offender is cruel and unusual punishment and a
violation of the Eighth Amendment of the United States Constitution and Article I,
Section 13 of the Pennsylvania Constitution." Com. v. Knox , 50 A.3d 749, 769 (Pa.
I Super. 2012).
I Also prior to appellant's conviction in this case, the Pennsylvania legislature
responded by adding Section 1102.1 to Title 18 regarding sentencing of persons
under the age of 18 who are convicted of murder, which became effective October
I
125, 2012. Thus, the law of Pennsylvania pertinent here provided that a person
convicted of murder of the second degree after June 24, 2012 who was under the
I
l age of 18 when the crime was committed , but who was age 15 or older, "shall be
sentenced to a term of imprisonment the minimum of which shall be at least 30
years to life." 18 Pa C.S.A. § 1102.1(c)(l) (Purdon's Supp. 2013).
Thus, appellant was sentenced on December 4, 2013 for the second
degree murder conviction pursuant to Section 1102.1(c)(l) to serve a term of
imprisonment in a state correctional facility of not less than 35 years to life.
Appellant was also sentenced at the same time on the other two convictions for
2
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robbery and conspiracy to commit robbery to aggregate consecutive sentences of
156 months to 40 years of imprisonment which was concurrent with the sentence
imposed for second degree murder. Obviously, appellant IS eligible for parole on
the second degree murder sentence as well as the other sentences.
Appellant filed a timely post-sentence motion but did not challenge the
legality of the sentence for murder of the second degree. Instead, his sale
challenge to the sentence is that the Court should not have exceeded the
II mandatory minimum term of incarceration of 30 years and that it was an abuse of
II discretion to impose a 35 year minimum sentence for his role In the murder of
William Basilone by his co-defendant Joshua Lee Stewart during the commission
I
of an armed robbery. The post-sentence motion was denied and the appellant
filed a timely Notice of Appeal to the Superior Court of Pennsylvania.
I Appellant raised the following nine issues in his Statement of Errors
I Complained of on Appeal:
1. The Trial Court erred as a matter of law andlor abused
its discretion in that the Trial Court denied undersigned counsel's
Motion to Withdraw on October 15, 2012 based upon underSigned
counsel previously representing Louis Yonte Brewer.
2. The Trial Court erred as a matter of law andlor abused
its discretion in that the Trial Court denied undersigned counsel's
Motion to Withdraw on March 4, 2013, based upon undersigned
counsel having previously represented Cedrick Boyd , and further
prohibiting undersigned counsel from having any involvement in the
investigation, preparation andlor cross-examination of Mr. Boyd , or
relative to any defense witness who would potentially rebut any
testimony presented by Mr. Boyd , which prevented undersigned
counsel from effectively representing Defendant.
3. The Trial Court erred as a matter of law andlor abused
its discretion in that the Trial Court denied Defendant's Motion for
Suppression relative to statements and written material between
Defendant and Cedrick Boyd on March 28, 2013.
3
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4. The Trial Court erred as a matter of law andlor abused
rts discretion in that the Trial Court denied Defendant's Motion in
Limine relative to autopsy photographs and x-rays of the victim on
May 13, 2013.
5. The Trial Court erred as a matter of law andlor abused
its discretion in that Trial Court denied Defendant's Motion for
Continuance and Related Relief, filed on November 7, 2013, based
upon new potential defense witnesses coming forward , the court
appointed private investigator not completing tasks assigned to him,
the need to find an untainted jury pool, and the potential for a jury
viewing of the crime scene at the same time of the year as the
alleged crime.
6. The Trial Court erred as a matter of law andlor abused
its discretion in that the Trial Court denied in part Defendant's Motion
in Limine relative to the conspiracy to impregnate the Vincent sisters
and photographs obtained of co-defendant Joshua Stewart and
Defendant via Joshua Stewart's Facebook page on November 14,
2013 .
7. The Trial Court erred as a matter of law andlor abused
its discretion in that the Trial Court assisted the Commonwealth in
advising how to conduct direct examination of Commonwealth
witness Tyree Sanders.
S, The Trial Court erred as a matter of law andlor abused
its discretion in that Trial Court denied Defendant's Motion for
Judgment of Acquittal upon Completion of the Commonwealth's
Case and Defendant's Motion for Judgment of Acquittal upon
Conclusion of All Evidence, both on November 21 , 2013.
9. The Trial Court erred as a matter of law andlor abused
its discretion in that the sentence imposed by this Honorable Court is
manifestly excessive and unreasonable, inasmuch as the Trial
Court's sentence exceeded the mandatory minimum, failed to
adequately consider Appellant's age, the rehabilitative aspect of
sentencing, and the fact that the Defendant was not the shooter in
this case .
I. DID THE TRIAL COURT ERR IN DENYING THE LEAD DEFENSE
COUNSEL'S MOTION TO WITHDRAW WHEN HE WAS TEMPORARILY
APPOINTED TO REPRESENT LOUIS YONTE BREWER?
The custom in homicide cases in Mercer County is to court appoint the
Public Defender's Office of Mercer County which would assign two lawyers to the
4
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case. However, in this case, the Public Defender's Office was already
representing appellant's co-defendant, Joshua Lee Stewart. ' Accordingly, Attorney
J. Jarrett K. Whalen was appointed as conflict counsel as appellant's lead defense
counsel and Attorney Dustin Cole was appointed to assist in appellant's defense.
Attorneys Whalen and Cole at all times had their own separate and independent
II law offices.
Appellant was arrested and incarcerated shortly after this homicide in the
Mercer County Jail where he stayed throughout the case until he was sentenced .
I While incarcerated, appellant was allegedly involved in an assaultfjail house
i robbery" which allegedly occurred on June I , 2012. Louis Y. Brewer was also an
inmate in the Mercer County Jail at the time and had a juvenile petition pending at
18 Juvenile 2012 for an alleged escape on February 29, 2012. One of appellant's
defense attorneys, Attorney Whalen, was appOinted to represent Mr. Brewer at 18
Juvenile 2012 being a case unrelated to appellant's homicide case. When I
Attorney Whalen appeared in another courtroom in the Mercer County Court of
II Common Pleas to represent Mr. Brewer at a certification hearing on July 20, 2012 ,
Attorney Whalen and the Court was advised by the Commonwealth that Mr.
I Brewer and appellant were going to be charged with the Jailhouse robbery and that
I Mr. Whalen could not continue to represent Mr. Brewer. Thus, Attorney Whalen
was removed on all of Mr. Brewer's cases on July 20, 2012 and was not appOinted
to represent appellant on the jailhouse robbery case.
! Joshua Lee Stewart was convicted by a jury two months before appellant at 122 Criminal
2012 (as the gunman who actually shot and killed William Basilone) of both first and second degree
murder, robbery and criminal conspiracy with appellant to commit robbery Mr. Stewart was
sentenced on September 26, 2013 by the undersigned judge to serve a mandatory life sentence
without parole because he was 18 years of age at the time of the offense.
S
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Attorney Whalen fi led a Motion to Withdraw in the homicide case as the
II attorney fOf appellant because he had been appointed to represent Mr. Brewer on
" two unrelated cases. Notably, Mr. Brewer was not a witness for any party at any
time dunng this homicide case, nor was there alleged to be any information
obtained by Attorney Whalen from the Brewer case that would compromise him In
the homicide defense of appellant.
II An evidentiary heari ng was held on August 31, 2012 at which lime the
parties stipulated to the facts and the Court later denied Attorney Whalen's Motion
to Withdraw in the homicide case as appellant's attorney by Memorandum Opinion
and Order dated October 15, 2012. The Superior Court is directed to that
Memorandum Opinion for a fu ller explanation of the Court's refusal to remove
Attorney Whalen to be appellant's lead counsel in this homicide case. It should be
noted that appellant had several cases pending at the same time as the homicide
case and one of Attorney Whalen's theones as to why he should be removed as
appellant's homicide attorney was that if he could not rep resent appellant on all
cases, that appellant would be compromised in his defense by being unable to
negotiate a global plea agreement with all cases through one attorney. Appellant,
of course , is not entitled to have the same court appointed attorney on all cases
but the Court generally attempts to do that in a small county for judicial economy.
Nonetheless, the failure to do that does not amount to error and the lower court's
Order refusing to remove Attorney Whalen as appellant's attorney should be
affirmed .
6
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II. WHETHER THE TRIAL COURT ERRED IN DENYING LEAD DEFENSE
COUNSEL'S MOTION TO WITHDRAW BECAUSE HE PREVIOUSLY
REPRESENTED THE JAILHOUSE SNITCH , CEDRICK BOYD?
Appellant's lead defense counsel Whalen filed a second Motion to Withdraw
based on an alleged conflict of interest since he previously represented Ced rick
Boyd in criminal proceedings. Mr. Boyd was incarcerated throughout the duration
II
of this murder case and was transported back and forth between the Mercer
County Jail and the state correctional facility at Albion. During that timeframe, Mr.
Boyd claimed that he had received written correspondence and/or oral
Irepresentations from appellant and his co-eonspirator regarding their alleged
participation in the Basilone homicide/robbery.
An evidentiary hearing was held on February 15, 2013 where it was
established that Attorney Whalen was privately retained by Mr. Boyd on February
10, 2011 to represent him at a preliminary hearing held on March 3, 2011 on
sexual assault charges in Mercer County. See Transcript dated March 15, 2013 at
pg 5-7. Furthermore, at that preliminary hearing Mr. Boyd discussed the simple
Iassault charge that was also pending against him regarding the same victim.
Attorney Whalen was not retained by Mr. Boyd to represent him any further and
his last contact with Mr. Boyd was on March 3, 2011 at the preliminary hearing.
Attorney Whalen indicated that he obtained information from Mr. Boyd
during his representation that was confidential and which he would be duty bound
to use at appellant's trial to Impeach him if Mr. Boyd were to testify. Mr. Whalen
Indicated that he would be able to cross-examine Mr. Boyd by using confidential
information that would totally impeach Mr. Boyd. Later on February 15, 201 3 the
Court held an in-camera hearing where Mr. Whalen put on the record in the
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absence of the Commonwealth's attorneys and defense attorney Cole the precise
information that he would use on cross-examination. The transcript of that in-
camera hearing has been sealed.
The trial court subsequently entered an Order denying Attomey Whalen 's
Motion to Withdraw in appellant's murder case, but ordered that Attorney Whalen
was prohibited from participating in any way in the cross-examination of Mr. Boyd
if he were to testify, or in preparing Attorney Cole for that cross-examination and/or
revealing any confidential information to Attorney Cole or any other person that
came from Mr Boyd .
While appellant's murder case slowly made its way to trial, the
Commonwealth continued to represent that they intended to call Mr. Boyd in its
case in chief to incriminate appellant with regard to his role in this
homicide/robbery. Mr. Boyd was also listed on the Commonwealth's witness list.
However, Cedrick Boyd was never called by the Commonwealth at
appellant's jury trial. Hence, if the trial court's ruling denying Attorney Whalen'S
motion to withdraw was in error, then it is harmless error since Mr. Boyd played no
role in appellant's trial in his conviction. Nonetheless, this Court suggests that the
IMotion to Withdraw was properly denied and that it should be affinmed on appeal.
III. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S MOTION TO
SUPPRESS INFORMATION OBTAINED BY THE JAILHOUSE SNITCH ,
CEDRICK BOYD?
Once the defense learned that the Commonwealth had a witness named
II Cedrick Boyd who it intended to call at tnal to testify against appellant and his co-
defendant at his separate tnal, from information allegedly obtained while he was
an inmate at the Mercer County Jail with appellant and his co-defendant, both
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defendants filed motions to suppress the information obtained by Mr. Boyd
primarily on the theory that he was acting as a listening post for the government
and obtained this information without advising appellant of his constitutional right
to remain silent andlor consult with an attorney. Evidentiary hearings were held on
this suppression motion on March 6 and 28, 2013 at which time both co-
defendants were present and represented by their respective defense teams.
Appellant's second lawyer, Dustin Cole, conducted the cross-examination of
Cedrick Boyd in light of this Court's Order prohibiting Attomey Whalen from being
involved.
Following the hearings, the Court made Findings of Fact and Conclusions
of Law and entered an Order on March 28, 2013 denYing appellant's motion to
suppress the information obtained by Cedrick Boyd allegedly from both defendants.
The suppression court held that appellant's Fifth andlor Sixth Amendment Rights
were not violated in that Cedrick Boyd was not acting as a government Infonmant
or agent at any time that he received the alleged incriminating infonmation, The
appellate court is directed to the Findings of Fact and Conclusions of Law dated
IMarch 28, 2013 and suggests that the suppression court's ruling be affirmed on
, appeal. Furthenmore, this issue is both without merit and moot because Cednck
Boyd as indicated above did not testify at appellant's jury trial. Thus, any err, if any,
committed by the suppression court would be harmless.
IV. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S MOTION IN
LIMINE REGARDING CERTAIN AUTOPSY PHOTOGRAPHS AND X-RAYS
OF THE VICTIM'S INJURIES?
Defense counsel filed a Motion In Limine on May 13, 2013 challenging
various items of evidence that the Commonwealth had previously indicated it had
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intended to introduce at the trial in this matter. That motion was granted in part
and denied in part by the trial court and the Commonwealth also agreed on its own
not to use various exhibits as well. A status conference/pre-trial hearing was held
Ion May 13, 2013 which was transcribed '
Argument was conducted on May 13, 2013 at a status conference on this
Motion in Limine See May 13, 2013 Transcript pgs. 4-7. Appellant's attorney was
Iessentially arguing that the photographs of decedent's body on the autopsy table
II depicting the various entry and exit wounds and the x-rays demonstrating the
, presence of bullet fragments, were irrelevant because appellant was willing to
stipulate to the cause of death. However, the Commonwealth was not willing to
stipulate to cause of death and in fact called at trial the medical examiner to show
the various entry and exit wounds and to identify various bullet fragments that
were removed from the body which were marked as other Commonwealth exhibits.
(See Trial Transcript, Vol. II, pgs. 38 to 64 for testimony of Dr. Joseph S. Ohr and
Ithe admission of these exhibits.) Part of the Commonwealth's motive behind
presenting these photographs was to demonstrate that a single weapon being
a .22 caliber was used to shoot Mr. Basilone multiple times at various angles as he
tried to get away. It is notable that appellant's attorney was not arguing that the
photographs were too bloody or too shocking.
The record of the May 13, 2013 argument on appellant's Motion in Limine
does not establish exhibit numbers to which the motion is applicable when these
2 The tnal court had previously held a pre-tnal conference on April 25, 2013 at whIch time
the Commonwealth displayed through the evIdence presentation equipment close to 200
photographs that could be viewed by the Court. defense attorneys, appellant and the co"defendanl.
See generally, Transcript dated Aprit 25, 2013, pgs 15 to 42 . The preview of autopsy photos and
lHays begIns on p 26 .
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photographs were ultimately admitted at trial. Accordingly, the trial court has
examined the transcript of the trial and the exhibits and has identified 11
photographs' that are photographs of the decedent's naked body apparently lying
on an autopsy table prior to the actual autopsy itself. These photographs are in
color and are from various angles showing the front, back and side of the
decedent where the various bullet wounds entered and/or exited his body. These
photographs contained no blood and merely appear to depict puncture wounds,
These photographs also are not inflammatory, gory in any way, nor shocking.
They were also admitted without objection at tnal. See Tr Transcript Vol. II, at pg,
62.
Appellant was also objecting to x-rays and the trial court has reviewed the
record and identified four trial exhibits which are photographs of x-rays purportedly
depicllng the presence of bullet fragments in decedent's body, 4 These
I photographs/x-rays are in color but are not inflammatory, gory, or in any other way
offensive or shocking , They are relevant to show that the fragments of bullets
retrieved from decedent's body were eventually identified as ,22 ca liber and are
also relevant to show the use of a deadly weapon on vital parts of the decedent's
body to support the Commonwealth's burden to prove elements of the robbery and
homicide charges, These were also admitted without objection at trial, Id
While trial counsel did not object at trial to the admission of these exhibits
now beIng challenged on appeal , he preserved his objection in his Motion in
Limine The Court's comparison of the record of the slide show preview on April
3 See Commonwealth exhibits 43, 44, 47 , 53-57, 61 , 62 and 65.
4 See Commonwealth exhibits 50, 58 and 66-$7
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II
25, 2013 with the admitted triat exhibits, in conjunction with the Court's intimate
knowledge of the case, reveats that the trial exhibits of the autopsy and x-rays are
the same as those objected to by the defense in its Motion in Limine filed May 13,
2013. Nonetheless, the Commonwealth has the right to present evidence to prove
j its case rather than enter into stipulations regarding the cause of death as it did
here. Accord ingly, the trial court's ruling denying the Motion in Limine should be
affirmed .
V. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PRE-TRIAL
MOTION FOR A CONTINUANCE OF THE TRIAL AND RELATED RELIEF?
II Appellant's attorney filed motions to continue the trial from the November
,2013 trial term with motions filed on November 7 and 12,2013. Appellant argued
that the defense needed additional time to allow its court appointed investigator to
interview several witnesses to impeach the credibility of the jailhouse snitch,
Cedrick Boyd . In addition , defense believed that it may be requesting a view of
the alleged crime scene and that it would be more appropriate for that view to
,occur closer to the date of the offense which was at the end of December. Finally,
appellant believed that a continuance was needed to allow further time to pass
between the guilty verdict on his co-defendant's trial which occurred on September
17, 2013 to help insure that they did not have a tainted jury pool from the adverse
press coverage of the first trial. Appellant also wanted the Court to appoint an
,, attorney to help Attorney Cole prepare to cross-examine the jailhouse snitch and
I
:present Impeachment witnesses because Attorney Cole lacked experience and
lead defense counsel (Atty. Whalen) was conflicted out of this part of the case.
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I The motions were denied . The parties were able to pick an impartial jury, no view
:
of the scene was requested and the jailhouse snitch did not testify.
The merits of these motions to continue the trial were discussed in
chambers, off the record, with the attorneys prior to jury selection and in court on
November 12, 2013. The motion itself actually sets forth the grounds for the
request, and the trial court formally entered an Order denying the motions. See
h ranscriPt dated November 12, 2013 . Appellant himself stated to the Court under
oath that he did not want a continuance. Id, at pgs, 14-15. In any event,
appellant's ground for err on the refusal to grant a continuance and for assignment
of a third attorney is both moot and meritiess,
Appellant had previously filed a motion for a change of venue because of
II pre-trial publicity which was held in abeyance until completion of jury selection
Iwhich included general voir dire as weH as individual voir dire. The motion for
ichange of venue was denied by Order dated November 14, 2013 upon selection of
a fair and impartial jury, Thus, it is apparent that the parties were able to pick a fair
I and impartial jury despite the pre-trial publicity and the recent conviction of the co-
defendant of murder in the first degree, murder of the second degree and two
I
. counts of robbery and conspiracy to commit robbery,
The grounds that the Court erred in denying the motion to continue the trial
to get it closer to the end of December is also without merit. First of all, the
defense never requested a view of the alleged crime scene (Id, at 35) and even if
they had, the view would have been substantially similar because the trial was
occurring just before winter and the only difference would have been a few bushes
or trees that might have had leaves on it in November which actually would have
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aided the defense theory that Commonweatth witness. Tyler Kalenic, could not
have seen the shooting by looking up the alley from the rear of his home. In
addition. there were numerous photographs of the scene both at nighttime when
the crime occurred and in the follOWing days from multiple angles which enabled
the defense to present its theory that Mr. Kalenic's view of the shooting in the alley
:t
beside Basilone's Bar was obstructed in some way.
Finally, the most merit in the motion to continue was that the court
appOinted investigator had not completed interviews of potentiat witnesses who
Iwould impeach the credibility of Cedrick Boyd, if he were to testify on behalf of the
ICommonwealth . There were four or five potential defense witnesses that needed
to be Interviewed who were Incarcerated in state correctional facilities . Upon
learning of those individuals, the trial court ordered the Sheriff of Mercer County to
transport them to the Mercer County Jail so that they could be interviewed by the
defense and used at tnal as witnesses. As it turned out, however, the
II
Commonwealth elected not to call Cedrick Boyd at this trial. Hence, the jury did
not have any Information about Mr. Boyd or any jailhouse snitch, and that there
was no need for any of these rebuttal defense witnesses so they were transported
back to their various institutions during the trial Accordingly, the trial court
I respectfully recommends that this assignment of err be denied.
I Appellant's continuance motion also requested speCial relief in the form of
the appointment of a third attorney for the sale purpose of assisting Attorney Cole
in preparing for and cross-examining Cedrick Boyd . This assignment of error is
MOOT since Mr. Boyd was not called to testify. Furthermore, Attorney Cole was
capable of fulfilling this role based upon his training and expenence. Id. at pgs.
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15-17 He had previously examined Mr Boyd at the suppression hearing ,
observed another defense attorney cross him at the co-defendant's trial and had a
transcript of testimony. Hence, the trial court suggests that this assignment of
error is both moot and without merit.
VI. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S MOTION IN
LIMINE TO PREVENT TESTIMONY THAT TWO FEMALE WITNESSES
WERE IMPREGNATED BY THE RESPECTIVE BROTHERS OF THE CO-
DEFENDANTS AFTER THE CRIME OCCURRED, AND EXCLUDE
PHOTOGRAPHS OF APPELLANT AND HIS CO-DEFENDANT FROM CO-
DEFENDANT'S FACEBOOK PAGE?
Defense counsel filed a Motion in Limine on November 1, 2013 to exclude:
1 Evidence that the brothers of appellant and hiS co-
defendant intentionally impregnated two Commonwealth witnesses;
2 Appellant's prior crimen falsi record ;
3. Facebook photographs of appellant and co-defendant:
and
4 Threats allegedly made to the jailhouse snitch
The Commonwealth agreed not to introduce any evidence of the
impregnation as a plot to divert the Vincent sisters' testimony, but it did plan to
Iintroduce testimony that they had children to their brothers after the homicide. The
Commonwealth also agreed not to introduce evidence of threats to Mr. Boyd,
unless the defense opened the door. The objection as to Mr. Boyd became moot
II Since he did not testify. The Commonwealth's evidence at trial was that Devine
II Campbell and Joshua Stewart had been in contact throughout the evening of
these crimes with two sisters, Cierra Vincent and Olivia Vincent, and that these
sisters picked them up near the crime scene in their car and took them away after
the robbery/homicide. Cierra Vincent was the operator of that motor vehicle and
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the females were not implicated in the crimes and did not testify to any specific
knowledge of the crimes. Nonetheless, Cierra Vincenl was called at the trial to
testify with regard to various cell phone contacts she had with appellant during the
evening and closer to the time of the shootings, and that she actually picked
appellanl and the co-defendant up shortly after the shoaling at the home of Tyler
Kalenic wh Ich was located just down the alley from the crime scene.
Cierra Vincent testified that she was 19 on December 30, 2011 when this
offense occurred and that she was with her younger sister Olivia Vincent who was
15 years old at the time of the alleged offense and they are now 21 and 17,
respectively. Tr. Transcript Vol. II , pg . 491 , 506-508. After walking the jury through
the various cell phone contacts between herself and appellant,S she was asked if
she had any children to which she responded she had a g month old boy born
February 7, 2013 and that Eric Stewart was the father of that child . Id. at 507.
She also testified that he is the brother of co·defendant, Joshua Lee Stewart, and
that her sister Olivia has a girl who is 10 months old and was born on January 16,
12013 and that the father of her daughter, Dre Campbell, is the brother of the
appellant. Id. at 507-508
It was this testimony that appellant's attorney attempted to prohibit because
of the possibility that the jailhouse snitch would testify that he was told by appellant,
that appellant and his co·defendant hatched a plot while in jail to have their
brothers impregnate the Vincent sisters theoretically in the hopes of preventing
5 Ms. Vincent knew appellant and hiS co-defendant, and knew that appellant did not have a
cell phone and was usmg co-defendant's cell phone fd at 498. She had Mr Stewart's phone
contact Information from her pnor phone contacts with him Id. The Commonwealth showed
photographs taken from her cell phone depicting the time and duration of contacts between her and
appellant the night of the murder. See Commonwealth's Exhibits 23, 25, 28 through 32, and 36 . Id.
al pgs 499-504
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them from testifying at the trial. Of course, Cedrick Soyd never testified so the jury
never learned of that alleged plot, nor of any alleged threats against him.
Defense counsel's argument is th us reduced to the contention that the jury
should not even be permitted to know the blood relationship of these young
women to either defendant. In short, the trial court denied the motion as to this
testimony because that connection might be re levant to either side in establishing
or cha llenging the credibility of Cierra Vincent's testimony. The Superior Court is
directed to pages 48-57 for a lengthy discussion between the attorneys and the
I
ICourt for the Court's rationale. Tr. Transcript, Vol. I, pgs. 48-57.
The Court also engaged in a lengthy discussion with the attorneys on the
record about the foundation necessary to admit photographs of appellant andlor
, his co-conspirator, Joshua L. Stewart, from Facebook. Id. at pgs. 36-48 . Defense
I counsel co ntended that the Commonwea lth cannot establish a foundation as to
authenticity of DIGITAL PHOTOGRAPHS without calling a witness from Facebook
or a cell phone company.
I
The Commonwealth prese nted various witnesses and numerous exhibits at
trial to establish that appellant, co-defendant Joshua Lee Stewart, and a juvenile
named Tyler Kalenic conspired to rob Sasilone's Sar and Restaurant at gunpoint.
The bar had video surveillance cameras mounted on the outside and inside of the
bar which captured some of the actions of these three individuals when they tried
to carry out this armed robbery. The video surveillance record ings were played
several times to the jury through several witnesses who walked them through that
night and identified each of the individuals depicted in the video. Tyler Kalenic
was not charged by the Commonwealth as he eventually abandoned his efforts in
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the alleged robbery, so he testified under a grant of immunity. His testimony
clearly identified appellant and co-defendant Stewart as the two individuals
depicted in the video surveillance recordings as well as himself when he entered
the bar earlier in the evening and faked purchasing a pizza so that he could
determine how many people were In the bar. See Commonwealth Exhibit 71
which is the flash drive of the video surveillance recordings.
The Commonwealth also introduced still photographs taken from the
surveillance video of the alleged robbers. See Commonwealth Exhibits 5 through
8. The co-defendant, Joshua Lee Stewart, who was identified by various
Commonwealth witnesses, is seen on the videos wearing two different hoodie
I
sweatshirts. He is seen at one point wearing a bright yellow hoodie with the word
"Steelers" in black letters across the chest and in other parts of the video is seen
wearing a light gray hoodie sweatshirt with the "Champion" logo on it with a large
"C" on the front. The Steeler hoodie was ultimately seized from the co-defendant
Iwhen he was booked at the police station on January 3, 2012. Also confiscated
from the co-defendant was his cell phone and a "O"-ring which contained a key
and a small rectangular Rite Aid card. The ring itself was pinkish in color. The
Commonwealth also seized a gray hoodie sweatshirt bearing the Champion logo
I from the home of Tyler Kalenic which was admitted as Exhibit 72. Appellant was
identified in the surveillance video as wearing the same dark colored hoodie at all
times.
I
In order to prove that the individuals in the surveillance video were the
appellant and the co-defendant Stewart, the Commonwealth also introduced the
co-defendant's cell phone which was admitted into evidence without objection as
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II Commonwealth Exhibit 17. The Commonwealth then extracted several
photographs from the co-defendant's cell phone which were admitted over
objection as Commonwealth's Exhibits 22 , 23 and 131. Commonwealth Exhibits
22 and 23 both appeared on co-defendant's Facebook page as well and were
admitted into evidence as Commonwealth's Exhibits 38 and 39, respectively.
Commonwealth Exhibits 22 and 23 are photographs from the co-defendant's cell
Iphone of pictures he purportedly took of himself in a mirror using that cell phone
Iwearing either a yellow Steelers hoodie sweatshirt or a light gray Champion
, hoodie sweatshirt. Commonwealth Exhibit 23 IS a photograph of appellant and co-
II defendant apparently with co-defendant's ce ll phone which was uploaded to
II Facebook and admitted as Commonwealth Exhibit 39. Finally, Commonwealth
IExhibit No 9 IS a self-portrait portraying co-defendant Stewart on Facebook
wearing a Champion hood Ie sweatshirt with a D-ring hanging from his waist.
The Motion in Limine specifically attacks the admissibility of any Facebook
photographs but does not attack the admissibility of cell phone photographs.
INonetheless, it is clear throughout the transcript that defense counsel widened his
objection orally at trial to include the cell phone photographs All of these
Iphotographs were Introduced into evidence by the Commonwealth's chief
I'investigator, Andrew J . Thomas. He testified at the beginning and the end of the
Commonwealth's case in chief about the various exhibits. See generally Trial Tr..
Vol. I, pgs. 219 through 227; and Vol. II, pgs. 113-114. Officer Thomas testified as
to Exhibits 22, 23 and 131 that those photographs were on co-defendant's cell
phone which was admitted Into evidence as Commonwealth's Exhibit 17. The
photographs were printed out and used at trial to show the co-defendant wearing
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the light gray Champion hoodie sweatshirt and the yellow Steeler hoodie
sweatshirt that appear to be the same as were worn by co-defendant Stewart in
the video surveillance tape. The single photo (Commonwealth Exhibit 23)
depicting appellant and co-defendant together was to prove that they knew each
other.
Defense counsel did not challenge the relevance of these photographs but
simply challenged their admissibility based upon both the best evidence rule and
the lack of proper authentication . During the argument pnor to trial on the Motion
in limine, defense counsel's argument was limited to the Facebook photographs
and he argued that the best evidence rule required that a representative from
Facebook be called to establish whose Facebook account It was and that there
had been no alteration or change in the photographs posted on that account. This
of course would require the Facebook company to bring in the hardware that
actually stored the digital images of appellant and co-defendant. The best
evidence therefore would be the actual hardware storage of the images which
Iwould then be portrayed onto a screen with a printout to follow as the actual
exhibit. The Commonwealth here was not required by the Court to bring the
company representative into Court with the computer hardware and there is no
record to indicate the size of that hardware or whether or not it can even be
transported to Court. A requirement that the Commonwealth prove that there has
been no alteration or doctoring without evidence of such is an unreasonable
burden to place on a party under the best evidence and authentication rules of
I evidence, so long as the record contains evidence that the pictures are what they
purport to be.
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Pennsylvania Rule of Evidence 901 simply requires the proponent of a
piece of evidence to "produce evidence sufficient to support a finding that the item
is what the proponent claims it is." Rule 901 (a). The rule also lists some
examples of how to satisfy the identification andlor authentication requirement.
Rule 901(b)(1) indicates the most basic rule of authentication which allows the
item to be ,dentified through testimony of a witness with knowledge. Hence,
II Officer Thomas' testimony at trial that all of the photographs of appellant and his
I co-defendant depicted each of them, since he came to know each of them
throughout his investigation , and that Facebook photographs were obtained
pursuant to a search warrant much later in the investigation. Hence, his testimony
alone establishes the proper identification and authentication of these photographs
of what they depict to be , i. e. photographs of appellant and co-defendant.
Furthermore. the existence of Facebook photographs 38 and 39 obviously
were transferred from the co-defendan!'s cell phone as Officer Thomas testified
that they appear to be the same photographs. Similarly, it would be unreasonable
" to require the Commonwealth to bring in a representative of the cell phone
company to testify that the digitally stored photographs on the cell phone were
accurate and unadulterated . Only if evidence was produced by the defense that
fabrication andlor alteration of photographs occurred , should the Commonwealth
be strapped with the burden of proving that they were not altered rather than in the
first instance being required to prove that they were not touched up.
tn the event that the appellate courts take the position that Exhibits 9, 38
and 39 from Facebook did not constitute best evidence andlor were not properly
authenticated or identified , it would be harmless error because Exhibits 38 and 39
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were also admitted into evidence as photographs printed directly from co-
defendant's cell phone as Exhibits 22 and 23 and there is no special social
networking foundation requirement applicable to cell phone photographs that may
arguably be applicable to soc.al media photographs. Moreover, since the item that
actually stored Ihe photographs (the cell phone) was actually in evidence (which
was nol turned on or viewed by anyone dUring the trial), and the photos printed
therefrom actually show the phone in the picture as the camera , the pholos are
almost self-identifying . Hence, it is suggested that the appellate courts affimn the
Court's ruling .n denying the Motion .n Limine as to these photographs as well as
the trial rulings admitting these photographs.
Finally, defense counsel's Motion in Limine sought to keep out vanous prior
convictions of the appellant. Paragraph 9 of the Motion in Limine lists some minor
misdemeanor offenses including theft by unlawful taking, a misdemeanor of the
third degree. At oral argument on this motion, defense counsel conceded that this
theft charge .s a proper crimen falsi offense that could be used to impeach the
defendant's credibility at trial if he were to testify. Accordingly, defense counsel
Iwithdrew the request to exclude the theft charge in his Motion in Lim.ne. The
Commonwealth also agreed not to use any of the other minor misdemeanors
which included possession of drug paraphernalia, simple assault, and summary
harassment and defiant trespass offenses as well as a compulsory school
attendance violation. Tr. Transcript Vol. I, pg. 37.
In fact, at the trial in this matter the appellant elected to testify in his own
defense and he testified on direct examination that he had a prior conviction for a
misdemeanor theft charge. Tr. Transcript Vol. II , pgs. 226-227. Moreover, the
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Commonwealth did not seek to introduce any other prior offenses. Therefore. it is
clear that the Motion in Limine was properly addressed as to pnor convictions and
should be sustained on appeal.
VII. WHETHER THE TRIAL COURT ERRED IN ALLEGEDLY ASSISTING THE
COMMONWEALTH ON HOW TO EXAMINE A COMMONWEALTH
WITNESS.
The Commonwealth called Tyree Sanders as a brief witness at trial. Mr.
Sanders was seen walking past Basilone's Bar on the sidewalk on the video
surveillance tape and meeting appellant, co-defendant Stewart and Tyler Kalenic
briefly about a half a block from the bar. However. Mr. Sanders was having an
extremely difficult time on dIrect examination recalling the events of that evening,
admitting that he could see himself walking on the video surveillance tape but not
even remembering that he had testified at the preliminary hearing and the co-
defendant's trial in the same witness chair in this matter. Tr. Transcript, Vol. II , pgs.
339 to 344 A brief recess was then taken so that the district attorney could
retrieve additional documents from his office to attempt to revive the witness's
recollection. Id. at pgs. 343-44.
II During the recess. the attorneys met with the Court in chambers off the
record because the Commonwealth was surprised by the sudden lapse of memory
Il of Tyree Sanders. The recess lasted 54 minutes (Id at 344) but only part of that
time was spent In chambers.
After the recess, defense counsel reversed its position and objected to the
Commonwealth being permitted to treat Mr. Sanders as a hostile witness. The
ICommonwealth stated that its request was based upon the surprise of the
witness 's testimony, so the objection was overruled. Id.
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The Commonwealth proceeded to lead Mr. Sanders through the videotape
surveillance to pOint out various objects on the video so that he can see himself
and recall having a brief encounter with the robbers. Mr. Sanders slowly began to
acknowledge his presence on the video and that he walked up the hill and crossed
Roemer Boulevard and met three individuals in the middle of that street. !d. at 350.
Mr. Sanders ultimately adopted the video as an accurate depiction of what he did
~I that night and the fact that he had a brief encounter with three people. !d. at 352.
He also acknowledged having a little memory problem so the Commonwealth
showed him a copy of his trial testimony from September 13, 2012 against the co-
defendant. !d. at 353. Mr. Sanders ultimately acknowledged that the transcript
contained his sworn testimony and it In fact refreshed his recollection that he did
testify before. !d. at 354. The Commonwealth attorney then walked Mr Sanders
,
:through various portions of his prior testimony to revive his recollection of meeting
up with three friends briefly that night. !d. at 354-57.
Eventually, Mr. Sanders' recollection was refreshed that he met up briefly in
I: the middle of Roemer Boulevard as indicated on the videotape with friends named
Knoxx, Louie and Tylor. He did not know their full names at the ~me and he was
able to Identify Louie as the appellant seated at counsel table during the trial. /d.
I
at 356-57 . Three other witnesses testified on the second day of testimony at the
trial on November 19, 2013 after Mr. Sanders left the stand .
The following morning, defense counsel requested to meet with the Court in
chambers on the record. Tr. Transcript, Vol. II , pgs. 4-9. These few transcript
pages contained recollections of the Court as to the unrecorded discussion in
chamber.s during the recess of Tyree Sanders' testimony. At that time, defense
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counsel wanted to place on the record an objection to the guidance given by the
Court allegedly during the unrecorded in-chambers discussion in the middle of the
Sanders' testimony_ The discussion on this objection tried to memorialize the
unrecorded in-chambers conference from the day before. The Court provided its
recollection of the unrecorded chambers meeting by indicating that Mr. Sanders
was now called for the third time as a witness for the Commonwealth. Id. at 6. He
Ihad been a witness at the preliminary hearing on January 19, 2012 and as a
Commonwealth witness at the first homicide tnal of the co-defendant, Joshua Lee
' stewart, on September 13, 2013. As memorialized by the Court, the discussion
Isurrounded the various ways to rehab ilitate andlor refresh the recollection of a
witness with a failed memory. Included in that discussion was a way to see if the
witness would adopt portions of a transcnpt from prior testimony as an accurate
II depiction of his prior sworn testimony. See Pa . Rule of Evidence 803 .1(3).
Naturally, it was unknown how Mr. Sanders would respond to various questions
after the recess about whether or not he accepted the transcript as an accurate
]! dePlction of his testimony andlor whether it wou ld refresh his recollection. Thus,
ij variOUS avenues were discussed generally as appropriate means of securing Mr.
Sanders' truthful testimony in this case.
Defense counsel objects that this was in effect coaching the
,commonwealth on how to proceed in questioning Mr. Sanders. However, the goal
of the Court was to review the appropriate Rules of Evidence with the parties out
of Court to streamline the process in Court. Moreover, the Court was not being
biased to the Commonwealth in this discussion. For example, the record reflects
(ld. at pg . 9) that there was still a Crawford issue that would need to be addressed
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before pages 7 and 8 of Mr. Sanders' testimony from the co-defendant's trial two
months earlier could be admitted into eVidence. Defense counsel asked the Court
what the Crawford issue was and the Court advised defense counsel that Mr.
Sanders was not subjected to cross-examination by Mr. Campbell's defense team
at the Stewart trial, and that there was an argument that any testimony not
sublected to Mr. Campbell's cross-examination may not be admissible. Id. Thus,
the Court was balanced in its treatment of both the Commonwealth and appellant,
which demonstrated the Court's efforts to conduct a fair tnal for both parties in
accordance with the Rules of Evidence.
In addition , on another occasion , the Court also provided instructions to
II Attorney Dustin Cole for the defense with regard to the possible cross-examination
of the jailhouse snitch , Cedrick Boyd, by Mr. Cole. See Tr. Transcript, Vol. I. pgs.
47-48. The Court pointed out to Attorney Cole (who was present two months
earlier at the Stewart trial to observe the testimony of Mr. Boyd) that he had
previously cross-examined Mr. Boyd and that he had also observed another
lattorney at Mr. Stewart's trial use a certain technique of cross-examination. He
may want to consider and weigh his options and tactics in hiS cross-examination of
Mr. Boyd If he were to testify at the Campbell trial based upon the success or
failure of techniques used previously by Attorney Cole or other defense counsel.
This passage is simply pointed out to the appellate courts to demonstrate the
even-handed approach of the trial court and the lack of any prejudice to appellant
in conducting his homicide trial at least as it relates to discussions andlor
,instructions to attorneys as to proper methods for examining witnesses in certain
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situations. Hence, it is suggested that this issue raised by defense counsel be
overruled
VIII. DID THE TRIAL COURT ERR BY DENYING APPELLANT'S MOTION FOR
JUDGMENT OF ACQUITIAL UPON COMPLETION OF THE
COMMONWEALTH'S CASE IN CHIEF AND/OR UPON CONCLUSION OF
ALL OF THE EVIDENCE?
In the first Instance, it must be understood that defense counsel's
assignment of error on this issue is not applicable to the conviction for robbery and
conspiracy to commit robbery of the Basilone Bar and Restaurant Clearly the
video surveillance tape recording showed appellant and Mr. Stewart trying to get
pnto the Basilone Bar to carry out their robbery plot, but the door was locked . Their
unindicted co-conspirator, Tyler Kalenic, testified at trial of their conspiracy to rob
the bar which was corroborated by the videotape recording of Mr. Kalenic going
first into the bar during business hours to case the joint, followed by a visit inside
the bar by co-defendant Stewart wearing a yellow Steelers hoodie sweatshirt, and
I
then Ihe ultimate attempt by Mr Stewart and appellant to actually walk into the bar
to conduct the robbery. Tyler Kalenic clearly testified as well of being shown
the .22 caliber pistol by Mr. Stewart which he carried throughout the evening and
Ithat appellant and Mr. Stewart asked him to join them In "hitting a lick" Tr.
I
Transcripl, Vol. I, pgs, 366-71 .
Mr Kalenic also identified appellant and co-defendant from the video
surveillance tape as well as still photographs. He walked the jurors through Ihat
evening but testified that he gave up on the robbery plot before they ultimalely
tried to enter the bar and went home which was located roughly seven houses
north of the bar along an alley that was adjacent to the bar. He also noted that he
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watched from his kitchen window back up the alley towards the bar and was able
to see appellant and co-defendant go into the alleyway and then saw the decedent
walk Into the alley and be shot multiple times by co-defendant Stewart. Finally, Mr.
Kalenic testified that the appellant and Mr. Stewart then ran down the alley to his
house where all three were picked up in a car by Cierra Vincent and driven away
from the area. Mr. Kalenic also described the clothing worn at various times that
evening by himself, co-defendant Stewart and appellant. The testimony of Tyree
Sanders corroborated the identification of co-defendant and appellant and placed
them near the scene of the crime shortly before it occurred . Taken together in a
light most favorable to the Commonwealth, the Commonwealth had produced
sufficient evidence to submit to the jury the robbery and criminal conspiracy to
commit robbery and felony murder charges based upon what occurred in the alley
II outside of the bar after they first attempted to enter the bar to commit robbery.
Hence, it IS suggested that the denial of the defense Motion for Judgment of
Acquittal following the Commonwealth's case in chief was appropriate and should
[I be sustained .
In addition , it IS suggested that the denial of the Motion for Judgment of
I
Acquittal upon completion of the entire case should likewise be sustained on
appeal The defense presented one witness and that was appellant. He testified
that he was 17 years of age at the time and admitted that he had a prior theft
lconvlction and that he had entered into an agreemenUconspiracy with Joshua
Stewart and Tyler Kalenic to rob Basilone's Bar on December 3D, 2011. He also
Itestified that it would be a robbery at gunpoint with the .22 caliber revolver
possessed that evening by Joshua Stewart. Appellant also confirmed his identity
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and the Identity of Mr. Kalenic and Mr. Stewart on the video surveillance tape and
on still photographs. He also admitted that he was the individual that ultimately
attempted to open the front door of Sasilone's Sar when they pulled their masks
up to go inside to conduct the robbery but the door was locked.
He further admitted that he then went into the alleyway next to the bar with
the co-defendant and stood near the back of the Sasilone Sar building while the
co-defendant was closer to the front of the building and that he saw the decedent
come out of the bar and walk to the beginning of the alley at which time Mr.
Stewart shot him multiple times. They both then ran down the alley to Mr.
Kalenic's house and were picked up shortly thereafter by Cierra Vincent and driven
from the area.
Appellant contended in his testimony that while he was in the alley, he did
not have nor was there any plan to rob Mr. Sasilone or anyone else and that he
was attempting to convince hiS friend , Joshua Stewart, to abandon any further plot
to steal that night at gunpoint. Thus, while he admitted his participation in the
II initial robbery attempt and conspiracy of the bar itself, he denied any involvement
II other than mere presence at the scene of the crime when the decedent was shot
and killed by Mr. Stewart.
Obviously, his denial was rejected by the jury. Therefore, it was proper for
the trial court to deny the defense Motion for Judgment of Acquittal upon
completion of the trial because of the credibility question that had to be resolved
by the jury.
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IX. WAS THE SENTENCE IMPOSED ON THE OFFENSE OF FELONY
MURDER MANIFESTLY EXCESSIVE AND UNREASONABLE BY
EXCEEDING THE MANDATORY MINIMUM TERM OF INCARCERATION
BY FIVE YEARS, AND DID THE SENTENCE COURT FAIL TO CONSIDER
APPELLANT'S AGE, THAT HE WAS NOT THE SHOOTER AND HIS
REHABILITATIVE NEEDS?
Appellant is only challenging the sentence imposed for second degree
murder. A sentence hearing was held on December 4, 2013 and appellant's
sentence for murder of the second degree in violation of 18 P.S. § 2502(b) when
he was 17 years of age at the time of the offense was that he serve a term of
incarceration in a state correctional facility of 35 years to life pursuant to 18 P.S. §
11021(c)(1). He was also sentenced on the two robbery and criminal conspiracy
to commit robbery conVictions but those were concurrent sentences.
The murder in this case occurred on December 30-31 , 2011 . Appellant was
17 years of age at the time and the person who actually shot the decedent was 18
at the time and upon his conViction by a jury was sentenced to a mandatory life
sentence without parole. Pennsylvania amended its statute for sentences
imposed for murder by persons under age 18 prior to appellant's conviction in this
case. The new statutory sentencing scheme in this case then called for a
mandatory minimum term of incarceration of 30 years with a maximum of life in
prison, with the possibility of parole. However, the Sentence Court imposed an
,I additional five years of incarceration on top of the mandatory minimum of 30 years.
It is this additional five year period that is being challenged by the appellant as
being excessive and unreasonable because he was not the shooter, was 17 at the
time and the Court did not allegedly address his rehabilitative needs.
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Pennsylvania's sentencing code mandates that "the court shall follow the
general principal that the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the offense as it relates to
the impact on the life of the viclim and on the community, and the rehabilitative
needs of the defendant." 42 Pa. C.S.A. § 9721 (b) (Supp. 2013). The Court must
also take into account the sentencIng guidelines applicable in each case.
Appellant had a prior record score of 0 even though he had prior convictions.
The offense gravity score for second degree murder was H-2 and the mitigated,
II standard and aggravated ranges all called for a sentence of 360 months (30 years)
of incarceration . Naturally, the statutory limit provided in Section 1102.1 was a life
II sentence as a maximum.
Appellant was 19 years of age al the time of his sentence heanng and the
Sentence Court took Into consideration 11 letters submitted by family members of
the decedent and decedent's friends . Those individuals and others attended
numerous pre-trial hearings and two jury trials as well as the sentence hearing and
II it was obvious that this senseless murder had a substantial impact on family,
~friends and the community in general because Mr. Basilone was a long-time fixture
lias was his establishment in the Farrell community for decades. The Court also
Iitook into consideration about 15 letters submitted on behalf of the appellant which
i
portrayed a different side of him than was previously seen by the Court.
Appellant had been Incarceraled since January 3, 2012 in the Mercer
County Jail and the Court received a report from the jail indicating that he had poor
adjustment while there including ten misconducts. Six of those misconducts were
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t omPleted . Id. at 16-17. The district attorney also argued that Mr. Campbell is
highly manipulative and that he was involved in an escalating series of robberies
I for insignificant amounts of money. In fact , he and Mr. Stewart obtained nothing
from the Basilone robbery/homicide . In conclusion , the Commonwealth argued for
consecutive sentences for the robberies to the murder charge. The
I Commonwealth also pointed out that co-defendant Stewart was out of placement
as a Juvenile on August 29, 2011 but that the robberies did not start until Mr.
ICampbell was released from placement two and one-half months later. Id. at 20.
I
Defense counsel conceded at the sentence hearing that appellant was in
the juvenile system and is "not a success story. " Id. at 21 . Defense counsel also
apologized to the Basilone family for his inability to get appellant on the right track
when in the juvenile system . Id. at 22.
The Court also revIewed with appellant at the sentence hearing his juvenile
record and asked appellant various questions about what was going on in hIS life
at that time. Basically, appellant admitted being an adjudicated delinquent in
September of 2008 for possession of drug paraphernalia and was placed on
probation for six months. Id. at 26. He was removed from the community and
placed in shelter care after three months of probation because he was not going to
school and was starting to use marijuana and vodka. Id. at 27 He formed his
relationship with co-defendant Stewart at the end of 2007 . In February of 2009 ,
appellant was placed at Abraxas until June of 2009 and was placed back into the
community on probation but was returned into shelter care by October of 2009.
He was placed again in November of 2009 at the Northwest Academy Boot Camp
which is normally a six month intense program that appellant did not complete until
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October of 2010. Appellant conceded that he had to do an extra SIX months in the
program because he wrote a letter to Mr. Stewart threatening to hurt his probation
officer. fd. at 28. Appellant also received a simple assault conviction in June of
2011 and was at the Keystone Adolescent Center for about three and one-half
months unlil he was ultimately released on November 14, 2011 , about 45 days
before the homicide in this case. Appellant was still on juvenile probation at the
time of this offense fd. at 29.
The Sentence Court also noted that the Court took into consideration all of
the Information in the pre-sentence investigation report and all of its observations
of appellant In the 23 months that the case was pending in lhe Mercer County
Court of Common Pleas at numerous pre-trial hearings and conferences. The
Sentence Court noted that it observed an escalation in appellant's criminal
behavior from lhe lower juvenile offenses to the armed robberyfhomicide case.
The Court also noted the criminal disposition of appellanl in designing and
I planning this particular robbery and upgrading his criminal activities with the use of
Ia firearm . fd. at 35. The Sentence Court also factored in the commission of a new
crime while In the jail pending trial in this matter and the numerous misconducts
while Incarcerated . In addition, the Court took into consideration that appellant
I and co-defendant involved a 15 year old in this armed robbery being Tyler Kalenic.
IThe Sentence Court also noted that the only remorse shown by appellant was at
the sentence hearing and his genuineness was questionable. fd.
Hence, the inclusion of five additional years on the minimum sentence on
the second degree murder conviction for appellant was not excessive nor
unreasonable, and it was tailored to protect society from an individual's escalating
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criminal conduct which continued throughout his Incarceration . Hence, the
Sentence Court respectfully suggests that the challenge to the sentence be denied .
BY THE COURT:
Date: April 29, 2014 ~
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Christo`` J. SI. JOhA, Judge
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