Com. v. Kelly, A. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANTONIO KELLY :
:
Appellant : No. 1821 WDA 2015
Appeal from the Judgment of Sentence October 21, 2015
In the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0000819-2014
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 03, 2017
Appellant Antonio Kelly appeals from the judgment of sentence
entered by the Court of Common Pleas of Lawrence County after a jury
convicted Appellant of first-degree murder and tampering with evidence.
Appellant asserts his murder conviction is against the weight of the evidence
and argues that the trial court abused its discretion in various evidentiary
matters. After careful review, we affirm.
On June 20, 2014, at approximately 7:00 p.m., officers of the New
Castle Police Department responded to a report of a possible homicide at the
Crestview Gardens housing projects (“Crestview Gardens”). The officers
discovered the body of Andrew Edwards, Jr. (“the victim”), lying in the first
floor hallway located at 1110 Pin Oak Drive. The victim’s body had seven
gunshot wounds: two bullet wounds above his eye, one bullet hole in his
nose, three bullet wounds to the right front shoulder, and one bullet wound
*Former Justice specially assigned to the Superior Court.
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in the left thigh. After securing the scene and conducting their investigation,
the officers took the victim’s body to the Beaver Valley Medical Center for an
autopsy. Dr. Todd Luckasevic, a forensic pathologist, determined that the
victim died as a result of the bullet wounds to his head.
Detectives Brian Cuscino and Aaron Vitale reviewed the Crestview
Garden surveillance video, which recorded the shooting. The footage
showed the victim walk past 1110 Pin Oak Drive, where he had contact with
three males. When the victim tried to enter the home at this address, the
three men followed him and shot him. After receiving tips about the
murder, the officers were able to identify the three men in the video as
Appellant, Samjuan Allen, and Keshawn Johnson. Several witnesses were
able to identify Appellant, who was dressed in a white t-shirt and gray
shorts. While the video does not show the actual shots being fired, it depicts
Appellant to the right of the doorway facing the victim, Appellant stepping
towards the victim, and the victim falling to the ground. However, the video
does show Appellant turning to leave and making a motion consistent with
tucking an object into his waistband.
Appellant was charged with criminal homicide and related offenses in
connection with the victim’s murder. Appellant proceeded to a jury trial
which commenced on September 22, 2015. Detective Cuscino testified early
in the trial to provide a roadmap of the police investigation which ultimately
led the officers to conclude that Appellant was the individual responsible for
the victim’s death. The trial court allowed Detective Cuscino to testify as to
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statements made by several of the witnesses that the prosecution intended
to present at trial and submit to cross-examination.
Appellant’s girlfriend, Jalisa Allen, was one of the witnesses that
identified Appellant in the surveillance video from Crestview Gardens. Ms.
Allen testified that on the day of the murder, she saw Appellant in the
morning wearing a white shirt and gray shorts. When she picked him up
later from Neshannock Village, she noticed Appellant had changed into black
sweatpants. She remembered this fact as she and Appellant had an
argument after she accused Appellant of being with another woman because
he changed his clothes. This statement was corroborated by surveillance
video the officers then acquired from Neshannock Village, showing Appellant
in a white shirt and black sweatpants. The officers also were able to obtain
the shoes they believe Appellant wore at the time of the murder, which had
the laces removed and had been bleached.
In addition, Ms. Allen discovered that her firearm, a black .22 caliber
revolver with a brown handle, may have been used to commit the victim’s
murder. Ms. Allen indicated that several days after the murder, Appellant
came to her residence and inquired as to whether Ms. Allen removed the
shells from her firearm. When she responded “no,” Appellant immediately
went upstairs and emptied the shells from the firearm, and left the home
with the shells in his hand. Appellant did not have a license to carry a
concealed weapon. A week later, Appellant offered to buy Ms. Allen a new
firearm and told her to get rid of her .22 caliber revolver. While Ms. Allen
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initially refused, she eventually sold the firearm. After the officers contacted
her in an attempt to retrieve the murder weapon, Ms. Allen was able to
obtain the firearm and turn it over to the police.
Samjuan Allen, one of the individuals identified on the surveillance
video at Crestview Gardens, also cooperated with the police investigation.
Mr. Allen testified that on the night of the murder, he intended to go to his
cousin’s residence at 1108 Pin Oak Drive. Before he arrived there, he met
up with Keshawn Johnson and Appellant. Mr. Allen indicated that he had
only known Appellant for about a week prior to this meeting. At
approximately 7:30 p.m., Mr. Allen observed the victim walk past them
while visibly intoxicated. The victim began staring at the men and said,
“what the “F’ you all looking at?” Notes of Testimony (N.T.) Trial, 9/25/15,
at 11. Thereafter, the victim continued walking towards the home at 1110
Pin Oak Drive.
Mr. Allen indicated that they followed the victim, who kept pulling up
his pants and saying “crazy” things to the men. N.T. at 12. Mr. Allen
claimed that he attempted to calm the victim down. Mr. Allen suddenly
heard gunshots, which startled him and caused him to get out of the way.
Thereafter Mr. Allen noticed Appellant step forward toward the victim, but
testified that he did not see Appellant shoot the victim. At that point, Mr.
Allen ran from the scene to his mother’s home in Crestview Gardens. Mr.
Allen specifically identified Appellant in a photo array.
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Lionel Edwards testified that, on the day of the murder, he was
standing in front of 1112 Pin Oak Drive with his children when he saw the
victim walking down the street, visibly intoxicated. When the three men
approached the victim and commotion ensued, Mr. Edwards gathered his
children quickly and attempted to leave the area. Mr. Edwards testified that
he heard gunshots, but did not see the shooter as he was trying to protect
his children. When Mr. Edwards looked back after the shooting stopped, he
saw Appellant holding a gun. He did not see any other individual in the
possession of a weapon.
Further, the Commonwealth presented the testimony of Raymond
Bailey, who testified that he was present at Crestview Gardens on the day of
the shooting. Specifically, Mr. Bailey witnessed Appellant shoot the victim in
the head as Mr. Bailey hid between two cars. Surveillance photos confirmed
that Mr. Bailey was at the crime scene when the shooting occurred. While
Mr. Bailey admitted that he was incarcerated at the time of trial for pending
drug charges, Mr. Bailey claimed he had not made any deal with the
prosecution in exchange for his testimony in this case.
After the conclusion of the trial, the jury convicted Appellant of first-
degree murder and tampering or concealing physical evidence. On October
21, 2015, the trial court sentenced Appellant to life imprisonment for the
murder conviction. Appellant did not file a post-sentence motion, but filed
this timely appeal as well as a timely concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b).
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On appeal, Appellant raises the following issues for our review:
I. Whether the verdict was against the weight of the
evidence?
II. Whether the trial court erred in allowing Detective Brian
Cuscino to testify to hearsay evidence?
III. Whether the trial court erred in allowing [the admission of]
tape recording of [Appellant’s] conversations while
[Appellant] was incarcerated on other non-related
charges?
Appellant’s Brief, at 5 (renumbered for ease of review).1
____________________________________________
1
We note that Appellant’s counsel included two additional issues in his
statement of questions involved in his brief that he expressly abandoned on
appeal.
First, Appellant included a challenge to the sufficiency of the evidence
supporting his murder conviction in his statement of questions presented in
his brief. However, in the argument section of the brief, Appellant’s counsel
concedes that the Commonwealth presented sufficient evidence to sustain
the murder conviction, but focuses his advocacy on criticizing the credibility
of the prosecution witnesses in his challenge to the weight of the evidence.
Second, Appellant raises a claim that the trial court erred in allowing
prosecution witness Raymond Bailey to testify. However, in the argument
section of the brief, Appellant’s counsel asserts that this issue is not ripe for
review and should be brought as an ineffectiveness claim under the Post
Conviction Relief Act.
As Appellant does not include any advocacy supporting either issue, we need
not review these claims on appeal. See Commonwealth v. Johnson, 604
Pa. 176, 191, 985 A.2d 915, 924 (2009) (reiterating that “where an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived”).
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First, Appellant claims the jury’s decision to convict him of first-degree
murder is against the weight of the evidence. However, we note that
Appellant did not raise this issue in the trial court before filing this appeal.
Our rules of criminal procedure provide that “[a] claim that the verdict was
against the weight of the evidence shall be raised with the trial judge in a
motion for a new trial: (1) orally, on the record, at any time before
sentencing; (2) by written motion at any time before sentencing; or (3) in a
post-sentence motion.” Pa.R.Crim.P. 607(A). “The purpose of this rule is to
make it clear that a challenge to the weight of the evidence must be raised
with the trial judge or it will be waived.” Pa.R.Crim.P. 607, Comment. See
Commonwealth v. Sherwood, 603 Pa. 92, 110, 982 A.2d 483, 494 (2009)
(noting that the appellant’s “failure to challenge the weight of the evidence
before the trial court deprived that court of an opportunity to exercise
discretion on the question of whether to grant a new trial”).
While the trial court addressed Appellant’s challenge to the weight of
the evidence in its Rule 1925(a) opinion, this fact does not entitle Appellant
to appellate review of his unpreserved claim. See id. (noting that
even though the appellant raised a weight of the evidence claim in his
1925(b) statement and the trial court addressed the weight claim in its
1925(a) opinion, appellant’s weight of the evidence claim was waived for
appellate review as the appellant failed to raise the claim at sentencing or in
a post-sentence motion). Accordingly, as Appellant waived his challenge to
the weight of the evidence, we decline to review this issue further.
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Second, Appellant claims that the trial court abused its discretion in
allowing Sergeant Cuscino to testify to hearsay statements made by
prosecution witnesses Jalisa Allen, Samjuan Allen, and Lionel Edwards.
The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed
only upon a showing that the trial court abused its discretion. In
determining whether evidence should be admitted, the trial court
must weigh the relevant and probative value of the evidence
against the prejudicial impact of the evidence. Evidence is
relevant if it logically tends to establish a material fact in the
case or tends to support a reasonable inference regarding a
material fact. Although a court may find that evidence is
relevant, the court may nevertheless conclude that such
evidence is inadmissible on account of its prejudicial impact.
Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014)
(citation omitted).
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Commonwealth v. Dent, 837 A.2d 571, 577 (Pa.Super.
2003); Pa.R.E. 801(c). However, “certain out-of-court statements offered to
explain a course of police conduct are admissible[;] [s]uch statements do
not constitute hearsay since they are not offered for the truth of the matters
asserted; rather, they are offered merely to show the information upon
which police acted.” Commonwealth v. Palsa, 521 Pa. 113, 117, 555 A.2d
808, 810 (1989). Nevertheless, the Supreme Court placed a limitation on
the admission of these statements:
it cannot be said that every out-of-court statement having
bearing upon subsequent police conduct is to be admitted, for
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there is great risk that, despite cautionary jury instructions,
certain types of statements will be considered by the jury as
substantive evidence of guilt. Further, the police conduct rule
does not open the door to unbounded admission of testimony,
for such would nullify an accused's right to cross-examine and
confront the witnesses against him.
Id. at 118, 555 A.2d at 810. In Palsa, the Supreme Court granted the
defendant a new trial when the arresting officer was permitted to explain his
course of conduct pertaining to his investigation and arrest of the defendant
by testifying to full and explicit statements made by an informant who did
not testify at the defendant’s trial.
Specifically, in this case, Detective Cuscino testified that Jalisa Allen
identified Appellant in the Crestview Gardens surveillance video and told him
about her interactions with Appellant on the day of the victim’s murder.
From this information, Detective Cuscino was able to form a timeline of
Appellant’s whereabouts that day and obtained additional surveillance
footage of him that day at Crestview Gardens and Neshannock Village. In
addition, Detective Cuscino testified that Jalisa Allen shared that Appellant
borrowed her firearm and then tried to convince her to dispose of the
weapon after the victim’s murder. From this information, Detective Cuscino
was able to obtain the firearm after the crime. In addition, Detective
Cuscino testified that Samjuan Allen also identified Appellant as the shooter
in a lineup. Both Jalisa Allen and Samjuan Allen testified later at Appellant’s
trial and were subject to cross-examination. At trial, Samjuan Allen testified
that he heard shots go off and saw Appellant step towards the victim, but
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did not see Appellant shoot the victim as he was running away. He admitted
identifying Appellant in a lineup.
We find that Detective Cuscino’s testimony provided the jury with a
chronological account of the progression of the investigation, which was
based on information received from surveillance footage and multiple
individuals. Detective Cuscino did not offer the statements for their truth,
but to explain his course of conduct. We also find that this case is
distinguishable from Palsa as the prosecution in this case was not
attempting to indirectly introduce inadmissible hearsay of a third party who
would not testify at trial and be subject to cross-examination. See
Commonwealth v. Jones, 540 Pa. 442, 451, 658 A.2d 746, 751 (1995)
(noting that in cases where the third-party declarant does not testify, a
concern exists that by allowing the police to testify regarding a declarant's
statement, the jury might take the statement as substantive evidence of
guilt without allowing the accused to cross-examine the declarant).
Even assuming arguendo that the trial court improperly allowed
Detective Cuscino to testify to these out-of-court statements, the prejudice
to Appellant was minimal as the declarants subsequently testified and were
subject to cross-examination by Appellant’s counsel. Moreover, the
Commonwealth offered the testimony of eyewitnesses who specifically saw
Appellant shoot the victim in the head or testified that he was the only
individual at the scene with a weapon. This testimony along with the video
surveillance footage and physical evidence found by police constituted
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overwhelming evidence of Appellant’s guilt. As a result, any error in
allowing Detective Cuscino to testify to the prosecution witnesses’ out-of-
court statements was harmless. Commonwealth v. Jones, 540 Pa. 442,
446–47, 658 A.2d 746, 749 (1995) (citation omitted) (“[a]n error may be
harmless where the properly admitted evidence of guilt is so overwhelming
and the prejudicial effect of the error is so insignificant by comparison that it
is clear beyond a reasonable doubt that the error could not have contributed
to the verdict”). Accordingly, we find this claim to be meritless.
Third, Appellant contends the trial court erred in admitting into
evidence the tape recordings of Appellant’s conversations with Jalisa Allen
while Appellant was incarcerated on other charges. In those conversations,
Appellant told Ms. Allen to dispose of a firearm that she had at her home
shortly after the victim’s murder. Specifically, Appellant argues that
Commonwealth only played portions of the telephone conversations and
mislead the jury by taking his statements out of context. Essentially,
Appellant argues that the prejudicial effect of the admission of the evidence
outweighed its probative value.
As noted above, we review a trial court’s decisions on evidentiary
matters under an abuse of discretion standard. See Antidormi, supra.The recorded conversations in which Appellant repeatedly ordered Ms. Allen
to dispose of her firearm were relevant evidence offered by the
Commonwealth to prove its allegations that Appellant had tampered or
attempted to conceal evidence. Moreover, the conversations were probative
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evidence of Appellant’s guilt and attempt to conceal his involvement in the
victim’s murder. As a result, the taped recordings have significant probative
value for the Commonwealth’s case.
Moreover, Appellant has not shown how the admission of the
recordings resulted in unfair prejudice. Appellant does not argue that the
recordings should have been excluded due to Appellant’s incarceration on
other charges as the jury was not informed that Appellant was in jail while
the conversations were recorded. We also note that Appellant was aware
that all his conversations from prison were recorded. Moreover, while
Appellant suggests he was prejudiced by the Commonwealth’s decision to
play limited portions of the taped discussions, he offers no specific
explanation to clarify how the Commonwealth allegedly took his statements
out of context or how those statements were misleading to the jury. After
the Commonwealth called Jalisa Allen to provide context to the
conversations, the recordings were admitted into evidence and Appellant
was given the opportunity to cross-examine Ms. Allen.
As a result, we conclude that the trial court did not err in admitting
these recorded conversations as they were highly relevant to the prosecution
and not unfairly prejudicial to Appellant.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2017
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