Com. v. Jones, J. ( 2018 )

J-A11014-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JARED DONOVAN JONES
Appellant No. 1297 MDA 2017
Appeal from the Judgment of Sentence Entered March 22, 2017
In the Court of Common Pleas of Lebanon County
Criminal Division at No: CP-38-CR-0000424-2016
BEFORE: STABILE, NICHOLS, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 24, 2018
Appellant, Jared Donovan Jones, appeals from the March 22, 2017
judgment of sentence imposing life imprisonment without the possibility of
parole for first-degree murder. We affirm.
The trial court summarized the pertinent facts:
This case arises from events that occurred on September
19, 2015 at Vinny’s Good Time Night Club (hereafter “Vinny’s”) in
the city of Lebanon. About ten minutes before the club was
scheduled to close, a dispute erupted between Richard Kinnard, II
(hereafter “Kinnard”), [Appellant], and a security officer employed
by Vinny’s. The defendants were ejected from the premises. After
a short hiatus, Kinnard returned to the nightclub. Shots were
fired. Corey Bryan (hereafter “Bryan”) was struck and killed.
Despite the fact that Vinny’s was crowded when the shooting
occurred, most patrons left the premises at or before the arrival
of police. No one professed to have seen the shooting. An
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* Retired Senior Judge assigned to the Superior Court.
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investigation ensued. Eventually, that investigation was
chronicled in a jury trial that took place in February of 2017.
The centerpiece of the Commonwealth’s case in chief was
footage from a videotape surveillance system at Vinny’s. The
videotape showed Kinnard and [Appellant] engaged in an
argument with security officer Bryan. The tape also depicted
Kinnard and [Appellant] leaving Vinny’s and entering the parking
lot. Shortly thereafter, the video depicted Kinnard returning to
the bar entrance. Another camera showed Bryan at the door
toward which Kinnard had been walking. The video depicted
Bryan clutching his stomach and falling to the ground. Thereafter,
most patrons scurried away. Kinnard was caught on video running
to a car. None of the camera views depicted the shooter or anyone
else in possession of a firearm.
Vinny’s surveillance system showed Kinnard enter a car in
the parking lot. The car then departed the parking area and
turned north on Route 343. Shortly thereafter, North Lebanon
Township Police were called to the scene of a one vehicle accident
north of the City of Lebanon. Sergeant Timothy Knight of the
North Lebanon Township Police Department arrived at the scene
of the crash, which was approximately two miles from Vinny’s.
When he arrived, no one was present in the vehicle. Upon
additional investigation, Sergeant Knight learned that the vehicle
was registered to William Kinnard. Blood was located throughout
the vehicle. Wedged in behind the right rear headrest was a gun.
Sergeant Knight checked the serial number of the firearm and
learned that it had been stolen. When the vehicle was
subsequently processed more completely, police also found a
payment receipt for a loan registered to Kinnard, a medical paper
pertaining to Kinnard, a letter from the Harrisburg Area
Community College addressed to [Appellant], an LA Fitness paper
in the name of Kinnard, a MoneyGram with Kinnard’s name on it,
health documents from Memorial Hospital pertaining to Kinnard,
and insurance paperwork in the name of Patty Kinnard.
The gun found inside the BMW vehicle was sent for ballistics
testing. In addition, bullets were found inside Vinny’s and a
projectile was recovered from the body of Bryan. Trooper Todd
Neumyer, a firearms expert with the Pennsylvania State Police,
testified that the bullets recovered from the body of Bryan and
Vinny’s were fired from the gun that had been located in the BMW
vehicle that crashed.
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The parties reached a stipulation that the blood recovered
from the BMW vehicle was transmitted to the Pennsylvania State
Police Crimes Laboratory for serology and DNA testing. There, a
forensic DNA scientist by the name of Sabrine Panzer-Kaelin
completed testing that revealed the existence of blood from
Kinnard and [Appellant] inside the crashed BMW vehicle.
Following the crash of their BMW vehicle, both [Appellant]
and Kinnard left the area. . . . With respect to [Appellant],
Detective [Keith] Uhrich communicated with his mother and his
sister. On January 27, 2016, [Appellant] was apprehended in
Hershey, Pennsylvania.
Following his apprehension, [Appellant] provided a recorded
statement to police. This statement became the focus of
extensive pre-trial litigation[.] Eventually, the court crafted a
statement that could be read to the jury. This statement
incorporated some of [Appellant’s] own words and some
paraphrasing. The statement of [Appellant] read to the jury
focused upon the conduct of [Appellant] and not the conduct of
Kinnard. Specifically, [Appellant] admitted that he was at Vinny’s
on the night of the murder. He admitted that he had an argument
with Bryan. He admitted that he drove the BMW vehicle belonging
to William Kinnard away from Vinny’s. He acknowledged that he
crashed the vehicle. After regaining consciousness following the
crash, [Appellant] acknowledged that he left the scene of the
accident and that he left Lebanon County. In the statement,
[Appellant] denied having any knowledge or connection to the
shooting death of Bryan.
Trial Court Opinion, 7/17/17, at 5-8 (record citations and some capitalization
omitted).
At the conclusion of a lengthy joint trial, the jury found Appellant guilty
of first-degree murder, third-degree murder, two counts of aggravated
assault, flight to avoid apprehension, and five counts of conspiracy.1 Appellant
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1 18 Pa.C.S.A. § 2502(a) and (c), 2702, 5126, and 903, respectively.
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filed a timely post-sentence motion, which the trial court denied on July 17,
2017. This timely appeal followed. Appellant raises nine assertions of error:
1. Did the trial court err in trying Appellant together with co-
defendant [Kinnard]?
2. Did the trial court err in admitting into evidence the recorded
telephone conversation between Charles Williams and
[Kinnard]?
3. Did the trial court err in allowing the jury to hear the recorded
telephone conversation between Charles Williams and
[Kinnard]?
4. Did the trial court err in failing to instruct the jury that the
recorded telephone conversation between Charles Williams and
[Kinnard] could not be considered as evidence against
Appellant?
5. Did the trial court err in presenting a summarized version of
Appellant’s statement to the police rather than allow the jury
to hear or read Appellant’s statement in its original form?
6. Did the trial court err in refusing to give the voluntary
intoxication defense instruction for Appellant?
7. Did the trial court err in refusing to compel [Kinnard] to provide
handwriting exemplars?
8. Did the trial court err in denying Appellant’s post-sentence
motion challenging the sufficiency of the evidence?
9. Did the trial court err in denying Appellant’s post-sentence
motion challenging the weight of the evidence?
Appellant’s Brief at 4 (reordered).
Appellant argues issues one through five together. Appellant’s Brief at
13-16. Appellant cites only one case, Bruton v. United States, 391 U.S.
123 (1968), in which the United States Supreme Court held that the facially
incriminating confession of a non-testifying defendant is inadmissible against
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a co-defendant regardless of a limiting instruction to the jury. Here, the trial
court prepared a summary of a statement, made by Appellant to police, in
order to omit any reference to Kinnard that would have been inadmissible
against him. Subsequent to Bruton, courts have been admitting a non-
testifying defendant’s confession into evidence so long as direct references to
another co-defendant are appropriately edited. For example, in
Commonwealth v. Travers, 768 A.2d 845 (Pa. 2001), the Pennsylvania
Supreme Court held that a confession edited to refer to a co-defendant as “the
other man,” accompanied by a limiting instruction, was appropriate under
Bruton.
In our view, Bruton is merely a beginning point for analysis of several
of Appellant’s assertions of error, but Appellant relies on Bruton for the
entirety of his analysis. Appellant does not develop any legal argument
regarding Pennsylvania law on severance motions, the admissibility of
evidence, jury instructions, or the standards governing our review of those
issues. In the three pages of argument that Appellant devotes to these five
distinct assertions of error, Appellant does not specify which portion or
portions of the trial court’s summary were inadmissible under Bruton, nor
does he indicate precisely how the trial court’s summary was prejudicial to
him. Similarly, Appellant fails to specify which portion or portions of Kinnard’s
recorded phone call were prejudicial to him, and how so. In summary,
Appellant has failed to develop any argument upon which we can grant relief.
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Next, Appellant claims the trial court erred in refusing to permit him to
offer a voluntary intoxication defense. Ordinarily, voluntary intoxication, or
diminished capacity, is not a defense in Pennsylvania. 18 Pa.C.S.A. § 308. In
cases of murder, however, a defendant may offer evidence of intoxication if it
is “relevant to reduce murder from a higher degree to a lower degree of
murder.” Id. “Thus, a defendant asserting a diminished capacity defense
admits responsibility for the underlying action, but contests the degree of
culpability based upon his inability to formulate the requisite mental state.”
Commonwealth v. Williams, 980 A.2d 510, 527 (Pa. 2009), cert. denied,
560 U.S. 940 (2010). “Consequently, where a defendant has denied
committing a crime during his trial testimony, this Court has refused to find
counsel ineffective for failing to present a defense that would have conflicted
with such testimony.” Id.Appellant cites only one case, Williams, in support of his argument. He
claims, based on Williams, that a defendant is entitled to a voluntary
intoxication defense so long as he does not deny committing the crime during
his own testimony. Williams does not support such a broad proposition. In
that case, the PCRA court found that counsel was not ineffective for failing to
assert a diminished capacity defense because that defense was inconsistent
with the misidentification defense defendant offered at trial. Id. at 527. The
Supreme Court observed that the question was more complicated, because
Appellant alleged on collateral review that he admitted to counsel that he killed
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the victim by accident, but counsel insisted on presenting a misidentification
defense based on falsified testimony. Id. at 527-28. Thus, a diminished
capacity defense would have been available to the defendant had counsel
proceeded with defendant’s accidental killing theory. The Supreme Court
affirmed the denial of the defendant’s petition because he failed to prove the
allegations in his petition, and because, given the evidence of record, counsel
had a reasonable strategic basis for seeking acquittal rather than diminished
capacity. Id.
We find no support in Williams for Appellant’s argument. That is,
Williams did not hold that a defendant could assert a diminished capacity
defense so long as he does not take the stand and testify to his own innocence.
To the contrary, the Williams Court wrote that a defendant asserting the
diminished capacity defense admits culpability for the underlying crime, but
contests the degree of culpability. Id. at 527. Instantly, Appellant’s defense
was that Kinnard was responsible for the murder. The trial court explained:
In this case, [Appellant] has clearly denied any culpability
for the killing of Corey Bryan. In a statement to police that was
read to the jury, [Appellant] stated that he was in a car at the
time of the shooting, he stated that he did not hear any shots
fired, he stated that he did not have any role in bringing a gun to
the nightclub, and he stated that he did not even know that
anyone else in his car possessed a gun or shot someone. In
addition, [Appellant] presented evidence in the form of a letter
written by Defendant Kinnard that completely exculpated him
from any involvement in the shooting. Clearly, [Appellant] has
asserted innocence. Because of this, [Appellant] cannot take
advantage of the diminished capacity defense.
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Trial Court Opinion, 2/13/17, at 7. Given the foregoing, we conclude that the
trial court correctly refused to allow Appellant to present a diminished capacity
defense.
Additionally, we observe that “[i]ntoxication . . . may only reduce
murder to a lower degree if the evidence shows that the defendant was
‘overwhelmed to the point of losing his faculties and sensibilities.’”
Commonwealth v. Blakeney, 946 A.2d 645 (Pa. 2008) (quoting
Commonwealth v. Breakiron 571 A.2d 1035, 1041 (1990)), cert. denied,
555 U.S. 1177 (2009). Appellant fails to cite any evidence to support a
conclusion that he was sufficiently intoxicated in this case.
Next, Appellant argues that the trial court erred in denying his motion
to compel handwriting exemplars from Kinnard. Appellant wished to have a
handwriting expert authenticate letters in Appellant’s possession that Kinnard
allegedly authored. Once again, Appellant’s citation to pertinent authority is
sparse. He cites Gilbert v. California, 388 U.S. 263 (1967), and
Commonwealth v. Moss, 334 A.2d 777 (Pa. Super. 1975), for the general
proposition that compelled production of handwriting exemplars does not
violate a defendant’s right against self-incrimination under the United States
and Pennsylvania Constitutions. Appellant’s Brief at 18. Appellant argues that
his expert’s conclusion as to the authenticity of the letters Appellant
introduced into evidence was not as definitive as it might have been.
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The record reveals that the Commonwealth provided Appellant’s counsel
with letters that Kinnard wrote while Kinnard was incarcerated, and Appellant
provided those letters to his expert. N.T. Hearing, 12/19/16, at 19. The
expert used those letters as a basis for comparison, and she testified at trial
that the signatures were consistent and that there was a strong probability
that the same person authored all of the letters. N.T. Trial, 2/9/17, at 516-
30. The trial court found that the letters Appellant wished to introduce into
evidence were authentic, and the trial court admitted them. Given the
foregoing, we do not understand how the trial court’s refusal to compel
exemplars prejudiced Appellant. Appellant simply fails to acknowledge that
the Commonwealth provided letters admittedly authored by Kinnard, and that
his expert relied on those as a basis for comparison. We discern no error in
the trial court’s ruling.
Next, Appellant challenges the sufficiency of the evidence in support of
his conviction. We must therefore determine “whether the evidence, viewed
in the light most favorable to the Commonwealth as the verdict winner,
supports the jury’s finding that every element of the offense was proven
beyond a reasonable doubt.” Commonwealth v. Hicks, 156 A.3d 1114,
1123 (Pa. 2017). “The Commonwealth may sustain this burden by wholly
circumstantial evidence and the jury is free to believe all, part, or none of the
evidence.” Id. “To obtain a first-degree murder conviction, the
Commonwealth must demonstrate that a human being was unlawfully killed,
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the defendant did the killing, and the defendant acted with a specific intent to
kill.” Commonwealth v. Markman, 916 A.2d 586, 597 (Pa. 2007).
Moreover, the jury may convict the defendant as an accomplice so long as the
facts adequately support the conclusion that he or she aided, agreed to aid,
or attempted to aid the principal in planning or committing the offense, and
acted with the intention to promote or facilitate the offense.” Id. Appellant
argues that the Commonwealth failed to prove the intent element for any of
his convictions. He cites Markman for the proposition that “simply knowing
about the crime or being present at the scene is not enough.” Id. at 598.
The trial court noted the following facts, all of which find support in the
record:
 Video evidence [showed] that both [Appellant] and Kinnard
were present at Vinny’s on the evening of the homicide.
 Testimony from witnesses and through videotape that an
argument ensued between [Appellant], Kinnard, and Bryan
that resulted in the ejection of [Appellant] and Kinnard from
Vinny’s.
 Videotape evidence revealed that [Appellant] left Vinny’s in a
highly agitated state.
 The video depicted that [Appellant] and Kinnard left the club
and proceeded to a car. Kinnard then was depicted coming
back to the entrance of Vinny’s. A separate camera depicted
Bryan being shot at or near the time when Kinnard walked
toward the entrance.
 The video depicted [Appellant] and Kinnard leaving Vinny’s and
proceeding north on Route 343.
 A BMW vehicle was involved in a one car crash approximately
2 miles to the north of Vinny’s at or near the time when police
were called to the scene of a shooting at Vinny’s.
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 The occupants of the vehicle fled from the scene of the crash.
 The BMW vehicle involved in the crash was registered to
William Kinnard, who is a relative of Kinnard. Numerous
documents were found in the vehicle that linked Kinnard to it.
One document that was pertaining to [Appellant] was also
found in the vehicle.
 Blood from both [Appellant] and Kinnard was found inside the
vehicle .
 A gun was located inside the vehicle. Ballistics testing linked
this gun to bullets found in Vinny’s and inside the corpse of
Bryan.
 Following the crash of the BMW vehicle, both Kinnard and
[Appellant] left the geographic area. Kinnard went to Arizona.
 [Appellant] provided a statement in which he acknowledged
being present at Vinny’s, he acknowledged being involved in
an argument with Bryan and he acknowledged driving the BMW
away from Vinny’s. In his statement, [Appellant] also admitted
that he left the scene of the crash and left the Lebanon area
following the shooting.
Trial Court Opinion, 7/17/17, at 14-16 (some capitalization omitted).
Contrary to Appellant’s argument, the record, read in light most
favorable to the Commonwealth as verdict winner, establishes much more
than Appellant’s mere presence at the scene of Bryan’s murder. Appellant,
along with Kinnard, was ejected from Vinny’s by Bryan. Appellant left Vinny’s
in an agitated state. Both men entered a BMW, where Kinnard retrieved a
gun. Appellant waited in the car while Kinnard returned to Vinny’s and fatally
shot Bryan.2 Appellant drove and eventually crashed the getaway car, and
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2 One of the bullets from Kinnard’s gun hit another patron but did not seriously
injure her. This accounts for several of Appellant’s convictions.
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both men fled the jurisdiction. This evidence is more than sufficient to
establish Appellant’s intent to be an accomplice to the shooting.
Finally, Appellant argues the jury’s verdict was contrary to the weight of
the evidence. The law governing this issue is well settled:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, the
role of the trial judge is to determine that notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice. It has often been stated that a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.
An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (emphasis in
original).
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Beyond the standard of review, Appellant’s argument consists of a single
paragraph in which he notes that the Commonwealth’s case against him was
circumstantial. Appellant claims that his convictions are contrary to the weight
of the evidence because they are based on nothing more than surveillance
video and Appellant’s statement to police. Given the body of evidence we
described in connection with Appellant’s sufficiency of the evidence argument,
we disagree. We discern no abuse of discretion in the trial court’s decision
not to grant Appellant a new trial.
Because we have found all of Appellant’s arguments lacking in merit, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2018
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