Com. v. Minnick, A. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY MINNICK,
Appellant No. 905 EDA 2014
Appeal from the Judgment of Sentence March 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013411-2012
BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 08, 2016
Anthony Minnick appeals from the judgment of sentence of 40 to 80
years’ incarceration imposed March 7, 2014, following his conviction by a
jury for two counts of attempted murder, four counts of aggravated assault,
two counts of possessing a firearm as a convicted felon, two counts of
possessing an instrument of crime, and criminal conspiracy.1 We affirm in
part, vacate in part, and impose an amended sentence for the reasons set
forth below.
The underlying facts of this case involve two related shootings. In
August 2009, Appellant and Mr. Demetrius Pittard were involved in the
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*
Retired Senior Judge assigned to the Superior Court.
1
Respectively, 18 Pa.C.S. §§ 901(a), 2702(a), 6105(a)(1), 6106(a)(1),
907(a), and 903.
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packaging of narcotics. Following the disappearance of Appellant’s stash of
narcotics, Appellant shot Mr. Pittard thirteen times at close range, seriously
injuring him. Though Mr. Pittard initially identified Appellant as the shooter,
referring to him by his street name, “Ant Man,” Mr. Pittard thereafter refused
to cooperate with the police investigation. No charges were brought against
Appellant at that time.
Three years later, in August 2012, Mr. Pittard was sitting in a car,
stopped at a gas station, along with a friend, Mr. John Cox, and a young,
three-year-old relative. Appellant, a passenger in a red Cadillac, drove up
next to Mr. Pittard and fired several shots at him. No one was injured.
Initially, Mr. Pittard declined to identify Appellant as the shooter. However,
on the day following the 2012 shooting, Mr. Pittard positively identified
Appellant. Mr. Pittard also renewed his identification of Appellant as the
shooter in the 2009 incident.2
A jury trial commenced in December 2013. Following trial, Appellant
was found guilty of the charges set forth above. In March 2014, the trial
court sentenced Appellant to an aggregate sentence of 40 to 80 years’
incarceration. Of relevance to this appeal, regarding Appellant’s conviction
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2
Appellant does not challenge the sufficiency or weight of the evidence
against him, which was considerable, including eyewitness testimony as well
as documentary and videotape evidence. Thus, we need not elaborate
beyond this brief factual background. For a thorough exposition, see Trial
Court Opinion, 11/04/2014, at 2-11.
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for attempted murder for the 2012 incident, the court sentenced Appellant
to 20 to 40 years’ incarceration, to be served consecutive to those sentences
imposed for the 2009 incident.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement.3 The trial court issued a responsive opinion.
Appellant raises the following issues on appeal:
1. [Whether] the trial court err[ed] in overruling [A]ppellant’s
objection to testimony from the victim that his family told him
they had been threatened by [A]ppellant’s family, where that
testimony was hearsay and there was no evidence that
[A]ppellant had encouraged or even been aware of his family’s
actions[;]
2. [Whether] the prosecutor improperly vouch[ed] for the
credibility of a witness in her opening statement when she told
the jury they should believe the victim because he thought he
was dying[;]
3. [Whether] the prosecutor improperly ask[ed] the jury in
her closing argument to infer that [A]ppellant was intimidating a
witness, and thus inferentially also argue[d] his consciousness of
guilt, based on the presence and behavior of spectators in the
courtroom during that witness’s testimony[;]
4. [Whether] the trial court err[ed] in denying [Appellant’s]
request for a Kloiber charge[; and]
5. [Whether] [A]ppellant’s sentence of 20 to 40 years’
imprisonment for attempted murder in 2012 [was] illegal where
the victim did not suffer any bodily injury in that crime[.]
Appellant’s Brief at 4.
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3
Appellant also filed a supplemental statement of errors complained of on
appeal.
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In his first issue, Appellant contends that the trial court abused its
discretion when it permitted Mr. Pittard to explain his reticence to identify
Appellant as the shooter, testifying in part that Appellant’s father had
threatened Mr. Pittard’s family. We review evidentiary decisions of the trial
court for an abuse of discretion. Commonwealth v. Jones, 912 A.2d 268,
281 (Pa. 2006). Here, we discern no abuse of the court’s discretion.
In response to questioning from the Commonwealth soliciting an
explanation why he had failed initially to identify Appellant after the August
2012 shooting, Mr. Pittard testified as follows:
[Mr. Pittard:] When you tell on someone, I was going right
back to the same neighborhood. As I was saying, my family is
involved. His father came to my house, when I told him this
time and he is threatening my brother and he thought …
[Counsel for Appellant]: Objection to all of that. Move to
strike. …
The Court: The objection is noted.
…
[Commonwealth]: Mr. Pittard, you were explaining why it
was that you gave a false statement; is that correct?
[Mr. Pittard:] Yes, ma’am. His father at the last court date is
threatening to kill my mother, my grandmother, the baby. He’s
going to pay to get us killed. His son is not going to sit in jail,
that is what he said.
[Counsel for Appellant]: I move for a mistrial.
Notes of Testimony (N.T.), 12/10/2013, at 151-52.
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During a brief recess following this exchange, Appellant argued a
mistrial was necessary because the “self-serving declaration” was “highly
prejudicial.” Id. at 154. The Commonwealth countered as follows:
[Mr. Pittard’s] state of mind and attitude as to why he was afraid
of the circumstances surrounding, [sic] that are absolutely
relevant and it is a fair line of questioning by the Commonwealth
to go into exactly why he didn’t want to report, [and] why he
was scared[.]
Id. at 154-55.
The trial court denied the motion for a mistrial and permitted this
testimony for the limited purpose of explaining why Mr. Pittard gave a false
statement to the police in August 2012. See N.T. at 155-56; see also Trial
Court Opinion at 15. Following closing arguments, the trial court addressed
this limited purpose implicitly, instructing the jury as follows:
You also heard evidence tending to show that the [Appellant’s]
father spoke with Mr. Pittard on a prior occasion. I’m instructing
you, you must use this evidence … for one purpose only and that
is to help you judge the credibility and weight of the testimony
and statements of the complainant. This evidence must not be
consider[ed] by you in any other way other than for the purpose
I just stated.
N.T., 12/13/2013, at 75-76.
Before this Court, Appellant renews his prior arguments. According to
Appellant, Mr. Pittard’s testimony was inadmissible hearsay and unduly
prejudicial because it suggested to the jury that Appellant had encouraged
the threats. See Appellant’s Brief at 11 (citing in support Commonwealth
v. Collins, 702 A.2d 540, 544 (Pa. 1997) (noting that “threats against a
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witness are not admissible as an admission of guilt against the accused
unless the accused is linked in some way to the making of the threat”)).
The record simply does not support this argument. Thus, we reject it
summarily.
Appellant also suggests that the timing of the alleged third-party
threats render them inadmissible. Appellant acknowledges that testimony
regarding third-party threats against a witness may be admissible on other
grounds. Id. (again citing in support Collins, 702 A.2d at 544 (recognizing
well-established precedent in Pennsylvania that third-party threats are
admissible to explain a witness’s prior inconsistent statement)). However,
according to Appellant, because the threats alleged by Mr. Pittard occurred
after his identification of Appellant in August 2012, his trial testimony does
not properly address his prior reticence to identify Appellant.
In contrast, the Commonwealth maintains that Mr. Pittard’s testimony
regarding threats against his family was relevant to his credibility,
particularly in how it related to his identification of Appellant. See
Commonwealth’s Brief at 14. As noted by the Commonwealth, evidence of
threats to a witness may be admissible “for purposes other than to explain a
prior inconsistent statement.” Commonwealth’s Brief at 13 (citing several
cases in support). For example, though not directly on point, this Court has
previously held admissible evidence of third-party threats where such
evidence explained why a witness later accepted a plea deal and agreed to
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testify. See Commonwealth v. Buchanan, 689 A.2d 930, 934 (Pa. Super.
1997). Moreover, the Commonwealth relies upon a case from California, in
which that state’s Supreme Court held as follows:
Evidence that a witness is afraid to testify or fears retaliation for
testifying is relevant to the credibility of that witness and is
therefore admissible. An explanation of the basis for the
witness’s fear is likewise relevant to her credibility and is well
within the discretion of the trial court.
People v. Burgener, 62 P.3d 1, 28 (Cal. 2003), cert. denied, 540 U.S. 855(2003) (citations omitted).
The Commonwealth’s argument is persuasive. Mr. Pittard attempted
to explain his reticence to identify Appellant. He testified that being labeled
a “snitch” in his neighborhood was dangerous:
If you tell on somebody, you can’t stay in that neighborhood or
somebody might harm you and your family. If you’re still in the
same neighborhood, it is not good for you and your family.
N.T., 12/10/2013, at 158. It is also noteworthy that Mr. Pittard’s reticence
persisted until he and his family received assistance relocating to another
neighborhood:
A. Like I was trying to explain to them the first time, get us
out of that neighborhood, that was after.
Q. And the detectives were able to do that for you?
A. Yes, ma’am.
Q. And for your family?
A. Yes, ma’am, some of them.
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Q. And once they did that, that is when you decided you
wanted to talk; is that right?
A. Yes, ma’am.
Id. at 167.
In our view, considered in this context, Mr. Pittard’s reference to
third-party threats merely illustrated the potential danger he faced when he
agreed to identify Appellant. Such testimony was relevant to the jury’s
determination of Mr. Pittard’s credibility. Buchanan; Burgener. The
court’s instruction provided a proper, limited context for the jury’s
deliberations. Thus, we agree that it was admissible, and Appellant’s claim
is without merit. Jones.
In his second issue, Appellant contends that the Commonwealth
improperly vouched for the credibility of Mr. Pittard, and thus committed
prosecutorial misconduct, when it suggested during opening remarks that a
“dying man’s last words” were inherently reliable. See Commonwealth’s
Brief at 13 (quoting N.T., 12/10/2013, at 43). According to Appellant,
“evaluating the credibility of witnesses is the sole province of the jury,” and
“it is well established that a prosecutor may not express a personal opinion
about a witness’s credibility.” Id. (citing in support Commonwealth v.
Tedford, 960 A.2d 1, 31 (Pa. 2008)).
Initially, we note that although Appellant timely objected to the
Commonwealth’s opening statement, he requested neither a mistrial nor a
curative instructive. See N.T., 12/10/2013, at 43. Accordingly, Appellant
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has not properly preserved this issue, and we deem it waived. See
Commonwealth v. Jones, 460 A.2d 739, 741 (Pa. 1983); Pa.R.Crim.P
605(b).
Absent waiver, Appellant’s claim is devoid of merit. We review a claim
of prosecutorial misconduct for an abuse of discretion, focusing on “whether
the defendant was deprived of a fair trial, not a perfect one.”
Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. Super. 2011) (quoting
Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super. 2008)). No such
deprivation occurred here. The record does not support Appellant’s
assertion that the prosecutor personally vouched for Mr. Pittard’s credibility.
Rather, the prosecutor merely commented on the admissibility of certain
evidence proffered by the Commonwealth. See N.T., 12/10/2013, at 43-44
(asserting that the common law has long recognized the admissibility of
dying declarations).4 Nevertheless, a prosecutor may comment on a
witness’s credibility in anticipation of an attack on it. See, e.g.,
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4
Notwithstanding the Commonwealth’s arguments to the contrary, it is
unlikely that Officer Holmes’ testimony regarding Mr. Pittard’s initial
identification of Appellant in 2009 was admissible as a dying declaration
exception to the rule against hearsay. Commonwealth v. Griffin, 684 a2d
589, 592 (Pa. Super. 1996) (“A statement may be considered a dying
declaration, and hence admissible notwithstanding its hearsay attributes, if
the declarant identifies his attacker, the declarant believes he is going to die,
that death is imminent, and death actually results.”) (emphasis added); see
also Pa.R.E. 804(b)(2) (providing that a statement made under belief of
imminent death is admissible when the declarant is unavailable as a
witness). Nevertheless, the testimony was likely admissible as an excited
utterance. See Pa.R.E. 803(2).
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Commonwealth v. Keaton, 45 A.3d 1050, 1075-76 (Pa. 2012). Thus, on
the merits, Appellant would be entitled to no relief.
In his third issue, Appellant contends that the trial court erred when it
overruled his objection to the Commonwealth’s closing argument. According
to Appellant, the Commonwealth implicitly suggested to the jury that
Appellant sought to intimidate witnesses, when it highlighted the presence
and behavior of spectators in the courtroom. See Appellant’s Brief at 14-16.
This claim, too, is without merit. First, Appellant misstates the record: the
trial court did not overrule Appellant’s objection but rather denied
Appellant’s motion for a mistrial. N.T., 12/13/2013, at 63. Moreover, the
court recognized that a cautionary instruction was appropriate. Id.Thereafter, the trial court instructed the jury expressly to “disregard the
opinion of the prosecutor as to guests who were inside the courtroom, which
is a public gallery.” Id. at 67. The jury is presumed to follow such curative
instructions. See Commonwealth v. Jones, 683 A.2d 1181, 1201-02 (Pa.
1996), cert. denied, 519 U.S. 826 (1996). Thus, Appellant suffered no
prejudice, and we discern no abuse of the court’s discretion. Jones, 683
A.2d at 1201-02; Solomon, 25 A.3d at 383.
In his fourth issue, Appellant contends the trial court abused its
discretion when it denied his request for a Kloiber charge. See
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), cert. denied, 348
U.S. 875 (1954). According to Appellant, Mr. Pittard and Mr. Cox failed to
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identify Appellant from a photographic array on multiple occasions, following
the 2009 and 2012 incidents. Thus, according to Appellant, the trial court
should have instructed the jury to view their subsequent identifications with
caution. See Appellant’s Brief at 16-17.
We review the trial court’s jury instructions for an abuse of discretion.
See Commonwealth v. Leber, 802 A.2d 648, 651 (Pa. Super. 2002).
Where a witness has failed to identify a defendant on one or more prior
occasions, it may be appropriate for the trial court to warn the jury that
identification testimony “must be received with caution.” Kloiber, 106 A.2d
at 827. However, no cautionary instruction is required where the issue of
identification relates to the credibility of a witness. See, e.g.,
Commonwealth v. Paolello, 665 A.2d 439, 455 (Pa. 1995) (distinguishing
between circumstances that relate to the physical ability of a witness to
identify a defendant and those that relate to the credibility of a witness).
Here, Appellant does not challenge the ability of Mr. Pittard or Mr. Cox to
identify Appellant. Accordingly, no Kloiber charge was required, and we
discern no abuse of the court’s discretion.
Finally, Appellant contends the trial court imposed an illegal sentence
when it sentenced him to 20 to 40 years’ incarceration for attempted murder
arising from the 2012 incident. According to Appellant, because none of the
victims in the 2012 incident sustained any injuries, the maximum sentence
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allowed was 20 years. See Appellant’s Brief at 17 (citing in support 18
Pa.C.S. § 1102(c)).
Our standard of review in this regard is de novo. See
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013). Here,
the trial court concedes its error. See Trial Court Opinion at 26-27. The
court notes further that we may amend Appellant’s sentence rather than
remanding this case for a new sentencing. Id. at 27 (citing
Commonwealth v. Klein, 795 A.2d 424, 430 (Pa. Super. 2002)). The trial
court requests that we do so, and the Commonwealth agrees. Id.; see also
Commonwealth’s Brief at 31.
According to the trial court,
[h]ad [Appellant] filed a motion to reconsider [his] sentence as
to the attempted murder conviction, the trial court would have
amended the sentence to 10 to 20 years of incarceration for the
attempted murder conviction docketed to CP-51-CR-0013417-
2012. Such a sentence would have run concurrent with the
other convictions on the same docket number, but consecutive
to the other case docketed to CP-51-CR-0013411-2012.
Trial Court Opinion at 27. Thus, we vacate Appellant’s judgment of sentence
in part, solely as it relates to the length of sentence imposed for his
conviction for the 2012 attempted murder, and impose an amended
sentence of 10 to 20 years’ incarceration as set forth above in the trial
court’s opinion. Appellant’s amended, aggregate sentence shall be 30 to 60
years’ incarceration. See Klein, 795 A.2d at 430.
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Judgment of sentence affirmed in part and vacated in part; amended
sentence imposed.
Judge Platt joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2016
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