Com. v. Peterson, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RASHAUN PETERSON
Appellant No. 1773 EDA 2015
Appeal from the Judgment of Sentence May 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008630-2014
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 04, 2016
Appellant, Rashaun Peterson, appeals from the judgment of sentence
entered on May 18, 2015, following his jury convictions for first-degree
murder, carrying a firearm on a public street in Philadelphia, and possessing
an instrument of crime (PIC).1 Upon review, we affirm.
The trial court summarized the facts of this case as follows:
On January 13, 2014, at or around 7:06 a.m.[,] police
responded to a 911 call for a person with a gun on Chelton
Avenue [in Philadelphia]. When [police] arrived at Chelton
Avenue, a crowd was gathered near the corner at Chelton
Avenue and Norwood Street, just a few feet from a
neighborhood store known as Pretty Mary’s. At the center
of the crowd, Aquil Bickerstaff lay on the sidewalk. In
Bickerstaff’s stomach, Officer [Gilberto] Gutierrez observed
holes, which he believed were from gunshots. Bickerstaff
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a), 6108 and 907(a), respectively.
*Retired Senior Judge assigned to the Superior Court.
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was later transported to Einstein Hospital where he was
pronounced dead at 8:32 a.m. that same day.
According to Dr. Gary Collins, formerly the Deputy Chief
Medical Examiner of the Philadelphia Medical Examiner’s
Office, Bickerstaff’s death was a homicide caused by a
gunshot wound to the upper left side of the abdomen.
Bickerstaff had a total of three gunshot wounds to the
abdomen, one gunshot wound to the left thigh, and one to
the right hand.
Trial Court Opinion, 8/6/2015, at 2 (record citations and footnotes omitted).
Three witnesses, Rashaad Lewis, Michael James, and Madrigal Pitman
gave statements to police regarding the shooting. Lewis told detectives that
he saw Appellant and Bickerstaff arguing when Appellant retrieved a firearm
from his grandmother’s house nearby and returned to argue some more
before shooting Bickerstaff four times. According to Lewis, Appellant began
walking away but turned and shot Bickerstaff again as he lay on the ground.
Lewis identified Appellant from photographs. James gave a similar
statement to police and identified Appellant from a photo array. Pitman told
police that she was with Bickerstaff, Appellant, and Aaron Peterson
(Appellant’s cousin) moments before Bickerstaff was shot. Pitman told
police that the three men went around the corner and she heard four
gunshots, and then several more shots after a brief pause. While fleeing the
scene, Pitman heard Aaron Peterson ask Appellant why he shot the victim.
In addition, police recovered video surveillance from Pretty Mary’s
convenience store. Appellant and Bickerstaff are seen walking out of the
camera’s view toward the corner of Chelton Avenue and Norwood Street.
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Aaron Peterson is seen walking in that same direction thirty seconds later.
About one minute later, the surveillance video shows two males, with their
backs to the camera, fleeing the scene and looking over their shoulders.
On April 30, 2014, police arrested Appellant. The Commonwealth
charged him with the aforementioned crimes. On May 11, 2015, a jury trial
commenced. The Commonwealth presented the evidence as recited above.
Further, at trial, Lewis was questioned regarding his statements to police.
Originally, Lewis told police that he could not identify the shooter, but later
identified Appellant in a subsequent statement to police; he claimed he
initially feared retaliation. Lewis also testified at trial that he did not
remember several of his statements to police and claimed that several of his
signatures on his statement “looked funny.” The Commonwealth also
presented evidence that approximately one month prior to the murder, on
December 17, 2013, Officer Jason Tomon observed a box of Smith and
Wesson .40-caliber ammunition next to the driver’s seat of a vehicle
Appellant was driving. In investigating the murder at issue, police recovered
seven .40-caliber Smith and Wesson cartridge casings from the ground at
the scene.
On May 18, 2015, the jury convicted Appellant of the previously
mentioned crimes. On that same date, the trial court sentenced Appellant to
life imprisonment without the possibility of parole for first-degree murder
with concurrent terms of imprisonment of one to two years each for both
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carrying a firearm on a public street in Philadelphia and PIC. This timely
appeal resulted.2
On appeal, Appellant presents the following issues for our review:
I. Whether the evidence was sufficient to sustain the
verdict?
II. Whether the court erred by admitting hearsay
testimony from Madrigal Pitman regarding statements
made by another at the time of the crime?
III. Whether the court erred by admitting hearsay
testimony from Madrigal Pitman regarding statements
made by [] Appellant’s uncle, wherein the uncle
relayed things allegedly stated by [] Appellant?
IV. Whether the court erred by ruling that evidence of
Appellant’s drug dealing would be admissible if []
Appellant introduced evidence that the decedent
possessed drugs for sale?
Appellant’s Brief at 4 (complete capitalization omitted).
In his first issue presented, Appellant “adamantly asserts that the
evidence was insufficient, as a matter of law, to establish he was responsible
for the crimes of [m]urder of the [f]irst[-d]egree, [c]arrying [f]irearm on
the [p]ublic [s]treets in Philadelphia and [PIC].” Id. at 12. In sum,
Appellant asserts:
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2
Appellant filed a notice of appeal on June 15, 2015. On June 16, 2015, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). After the grant of an extension,
Appellant filed a timely concise statement on July 17, 2015. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 6, 2015.
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The evidence in the present case is unreliable, inconsistent
and contradictory statements. No reasonable jury could
find that the testimony of the witnesses was credible, given
their horribly convoluted and contradictory statements.
Without the direct evidence contained in Lewis’ and James’
statements to detectives, there would clearly not have been
enough evidence to sustain a conviction. As such, the
evidence in this matter was insufficient to sustain the
verdict. Therefore, [Appellant’s] convictions [] should be
reversed.
Id. at 14.
We find Appellant waived this issue. “In order to preserve a challenge
to the sufficiency of the evidence on appeal, an appellant's Rule 1925(b)
statement must state with specificity the element or elements upon which
the appellant alleges that the evidence was insufficient.” Commonwealth v.
Freeman, 128 A.3d 1231, 1248 (Pa. Super. 2015) (citations omitted).
“Such specificity is of particular importance in cases where, as here, the
appellant was convicted of multiple crimes each of which contains numerous
elements that the Commonwealth must prove beyond a reasonable doubt.”
Id. (citation omitted).
In his Rule 1925(b) statement, Appellant argued only that “[t]he
evidence presented at trial was insufficient, as a matter of law, to support
the verdict.” Rule 1925(b) Statement, 7/17/2015, at 1. Appellant's Rule
1925(b) statement does not specify which element or elements of the
relevant crimes, or even which crimes, the Commonwealth failed to prove
beyond a reasonable doubt. Appellant’s assertion was far too vague to
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warrant meaningful review. Thus, Appellant has waived his challenge to the
sufficiency of the evidence.
Moreover, Appellant’s challenge goes to the credibility of the
Commonwealth’s witnesses, which actually implicates the weight, not the
sufficiency of the evidence presented at trial. See Commonwealth v.
Yong, 120 A.3d 299, 312 n.9 (Pa. Super. 2015). “[A] weight of the evidence
claim must be preserved either in a post-sentence motion, by a written
motion before sentencing, or orally prior to sentencing.” Pa.R.Crim.P. 607;
Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013). “Failure
to properly preserve the claim will result in waiver, even if the trial court
addresses the issue in its opinion.” Griffin, 65 A.3d at 938. Here, Appellant
did not challenge the weight of the evidence by written motion or on the
record prior to sentencing. For all of the foregoing reasons, Appellant
waived his first claim.
In his second issue presented, Appellant argues the trial court erred by
admitting hearsay testimony from Madrigal Pitman regarding statements she
heard that were made by another at the time of the crime. Appellant’s Brief
at 14. More specifically, Appellant maintains it was error to permit Pitman to
testify she heard someone she thought was “AP,” or Aaron Peterson, say,
“Why would you shoot Q, Rashaun?” Id. Appellant claims the statement did
not qualify under the excited utterance or the present sense impression
exceptions to the hearsay rule. Id. at 14-17. Appellant claims that in order
to admit the hearsay statement, the Commonwealth needed to establish an
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adequate foundation, or provide sufficient corroboration that Pitman or the
declarant witnessed the event. Id. at 15-17. Appellant maintains that
in addition to not seeing anything that occurred during the
shooting, not seeing who made any alleged statements, not
being sure who was speaking or what the circumstances
were when the statement was made, Pitman could not even
know who was still out in front of the store at the time the
shooting occurred, because she had not seen the group of
young men for significant period of time.
Id. at 15.
In his third issue presented, Appellant claims it was trial court error to
allow Pitman to testify that Appellant’s uncle told her that “when [Appellant]
gets out [of prison], he’s going to kill you.” Appellant’s Brief at 17.
Appellant acknowledges that the trial court issued a cautionary instruction
that the statement was not offered for the truth of the matter asserted, but
was only to assist in the credibility of the witness. Id. However, Appellant
argues that Pitman was “cooperative with the prosecution when she testified
consistently with her statement to police.” Id. at 18. Appellant asserts that
Pitman never recanted and did not need to explain a change in her story, so
her credibility was never at issue. Id. As such, Appellant claims the
statement was not admissible as hearsay and “was not admissible for an
alternative reason, such as credibility[.]” Id. Appellant claims the
statement prejudiced him. Id.
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In his fourth issue presented, Appellant contends the trial court erred
by ruling that if Appellant introduced evidence that the decedent possessed
drugs consistent with drug dealing, the Commonwealth could present
evidence of Appellant’s conduct involving drugs or drug sales. Appellant’s
Brief at 19. As a result, Appellant did not present evidence that the
decedent possessed drugs, which he claims “effectively deprived [him] of a
fair trial where he could offer evidence in his own defense” and “could [have]
argue[d] that others had a motive to harm the decedent.” Id. at 19-20.
This Court previously determined:
our standard of review for evidentiary rulings is a narrow
one: when we review a trial court's ruling on admission of
evidence, we must acknowledge that decisions on
admissibility are within the sound discretion of the trial
court and will not be overturned absent an abuse of
discretion or misapplication of law. In addition, for a ruling
on evidence to constitute reversible error, it must have
been harmful or prejudicial to the complaining party. A
party suffers prejudice when the trial court's error could
have affected the verdict.
Commonwealth v. Tyack, 128 A.3d 254, 257 (Pa. Super. 2015) (internal
citation and brackets omitted).
We reviewed the briefs of the parties, the relevant law, the certified
record, the notes of testimony, and the opinion of the able trial court judge,
the Honorable Barbara A. McDermott. The trial court determined that Aaron
Peterson made his statement in a loud voice, close in time and proximity to
the shooting, which showed it stemmed from the excitement of the shooting.
The trial court also concluded that there was sufficient corroboration that
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Aaron Peterson was the declarant based upon video surveillance, the
testimony of James and Lewis, and because Pitman recognized Aaron
Peterson’s voice, having known him for approximately a year. Further,
Judge McDermott determined it was proper to allow Pitman to testify
regarding the statement by Appellant’s uncle to explain why she failed to
appear on the first scheduled trial date and subsequently gave a third
statement to police. The trial court issued a cautionary instruction that the
statement made by Appellant’s uncle was to be used only to assess Pitman’s
credibility. Juries are presumed to follow court instructions. Finally, with
regard to precluding evidence that the decedent possessed drugs for sale,
the trial court noted that Pa.R.E. 404 allows for the introduction of evidence
of a victim’s pertinent trait, but the Commonwealth may rebut that evidence
with evidence of a defendant’s same trait. We conclude that there has
been no error in this case and that Judge McDermott’s opinion, entered on
August 6, 2015, meticulously and accurately disposes of Appellant’s
remaining issues on appeal. Therefore, we affirm Appellant’s last three
issues as presented on appeal based upon the trial court’s opinion and adopt
it as our own. In any future filings with this or any other court addressing
this ruling, the filing party shall attach a copy of the trial court opinion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2016
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Circulated 04/04/2016 11:32 AM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-5l-CR-0008630-2014
v.
Fi LED
RASHAUN PETERSON AUG O 6 2015
. Criminal Appeals Unit
First Judicial District of PA
OPINION
McDermott, .J. August 6, 2015
Procedural HistOl)'
On April 30, 2014, the Defendant, Rashaun Peterson, was arrested and charged with
Murder, Firearms Not to be Carried Without a License, Carrying Firearms in Public in
Philadelphia, and Possession of an Instrument of Crime ("PIC"). On May 11, 2015, the
Defendant appeared before this Court and elected to be tried by a jury. On May 18, 2015, the
jury returned verdicts of guilty for First-Degree Murder, Carrying Firearms in Public in
1
Philadelphia, and PIC.
On that same date, this Court sentenced the Defendant to a term of imprisonment of life
without the possibility of parole for First-Degree Murder and concurrent terms imprisonment of
one to two years for Carrying Firearms in Public in Philadelphia and one to two years for PIC.
On June 15, 2015, the Defendant filed a timely Notice of Appeal. On June 16, 2015, this
Court ordered the Defendant to submit a Statement of Matters Complained of on Appeal
pursuant Pa.R.A.P. l 925(b ). On June 30, 2015, the Defendant filed a Motion for Extension of
I
The remaining charge was no/le prossed.
Time to file a Concise Statement, which this Court granted on July 6, 2015. On July 17, 2015,
the Defendant timely filed a Concise Statement of Matters Complained of on Appeal.
On January 13, 2014, at or around 7:06 a.m. police responded to a 911 call for a person
with a gun on Chelten A venue. When Officer Gilberto Gutierrez and Officer Achuff arrived at
Chelten Avenue, a crowd was gathered near the corner at Chelten Avenue and Norwood Street,
just a few feet from a neighborhood store known as Pretty Mary's. At the center of the crowd,
Aquil Bickerstaff lay on the sidewalk. In Bickerstaff s stomach, Officer Gutierrez observed
holes, which he believed were from gunshots. Bickerstaff was later transported to Einstein
Hospital where he was pronounced dead at 8:32 a.m. that same day. N.T. 5/11/2015 at 41-55;
N.T. 5/13/2015 at 11, 86.
According to Dr. Gary Collins, formerly the Deputy Chief Medical Examiner of the
Philadelphia Medical Examiner's Office,2 Bickerstaff's death was a homicide caused by a
gunshot wound to the upper left side of the abdomen. Bickerstaff had a total of three gunshot
wounds to the abdomen, one gunshot wound to the left thigh, and one to the right hand. N.T.
5/13/2015 at 89-102; Commonwealth's Exhibit C-93.
On the day Bickerstaff was shot, Rashaad Lewis worked the overnight shift at Pretty
Mary's. On this same day, Lewis gave a statement to detectives in which he informed them that
he had heard several gunshots while he was on Norwood Street. He then saw a male, whom he
could not identify, run past. N.T. 5/11/2015 at 102-14.
On January 23, 2014, Lewis gave a second statement to detectives. Lewis informed
detectives that the information he provided in his previous statement was not truthful. When
asked by detectives why he did not tell the truth from the very beginning, Lewis revealed that he
2
Dr. Collins is currently the Chief Medical Examiner for the Division of Forensic Science for the State of Delaware.
2
was scared and that "[a]ny given minute they can slide right down on [him]." Id. at 91-101; N.T.
5/12/2015 (Vol. I) at 7-13, 29-30; N.T. 5/14/2015 at 55-75.
Lewis went on to tell detectives that immediately before the shooting, Bickerstaff and the
Defendant were arguing about a video basketball game on Chelten A venue in front of Pretty
Mary's; then, a woman walked past and they began to argue about her. During the argument, the
Defendant retrieved a black and silver automatic firearm from his grandmother's house.3 When
the Defendant returned, he cocked the gun back and said to Bickerstaff, "say that shit now." N.T.
5/12/2015 (Vol. I) at 14-20; N.T. 5/14/2015 at 55-75.
Although Lewis tried to stop him, the Defendant pushed past him and kept arguing with
Bickerstaff. The Defendant then said to Bickerstaff, "Come off camera," then shot him.4 The
Defendant first shot Bickerstaff four times; after he started to walk away, however, he turned
around and shot Bickerstaff again as Bickerstaff lay on the ground. N.T. 5/12/2015 (Vol. I) at
14-20; N.T. 5/14/2015 at 55-75.
Along with his statement to detectives on January 23, Lewis also reviewed and identified
photographs of the Defendant and of Aaron Peterson, a relative of the Defendant. With regard to
Aaron Peterson's photograph, Lewis stated "[t]hat's A, Aaron. I can vouch for him. He was
trying to save [Bickerstaff]." N.T. 5/12/2015 (Vol. 1) at 21-29.
Despite the fact that Lewis informed detectives on January 23 that he was now telling the
truth, at trial Lewis claimed that he did not remember a number of the items in his statement. He
also testified that the signatures on each page of the statement looked funny, He agreed,
however, that the signatures on pages seven and eight of the January 23 statement were in fact
3
The Defendant's Grandmother's house was approximately twenty feet from the corner ofChelten Avenue and
Norwood Street. N.T. 5/14/2015 at 64.
4
Lewis clarified for detectives that the camera the Defendant referenced was the surveillance camera outside Pretty
Mary's on Chelten Avenue. N.T. 5/12/2015 (Vol. l) at 14-20.
3
his, but that he did not remember signing them: He did, though, remember going to the
Homicide Unit on January 23 and talking with detectives about the shooting. He also
remembered detectives typing his answers as he spoke with them. He further testified that he
remembered detectives printing out his statement and allowing him to read it over. At trial,
Detective William Sierra, who was present during Lewis' January 23 interview, testified that
Lewis voluntarily gave all the answers in his statement. N.T. 5/11/2015 at 81-101; N.T.
5/12/2015 (Vol. 1) at 7-12, 30; N.T. 5/14/2015 at 55-75.
A second witness, Michael James, stood at the corner of Chelten A venue and Beechwood
Street, approximately six car lengths away from Bickerstaff and the Defendant, when they began
to argue. He witnessed the Defendant waving to Bickerstaff, telling him to come around the
corner. James next heard gunshots and then saw Bickerstaff fall to the ground. James testified
that the Defendant continued to fire while Bickerstaff lay on the ground. He also added that he
did not see anyone else on the street with a gun at the time the Defendant was shooting. N.T.
5/12/2015 (Vol. 2) at 11-20, 36.
On April 17, 2014, James gave a statement to police and identified the Defendant from a
photographic array. James also identified photographs of Lewis and Aaron Peterson and
indicated that they were present at the time of the shooting. Id. at 21-36.
Madrigal Pitman testified that she last saw Bickerstaff a little before 7:00 a.m., on
Chelten Avenue in front of Pretty Mary's. There, Pitman and Bickerstaff spoke briefly about
getting breakfast together. She testified that while she spoke with Bickerstaff, Aaron Peterson
and the Defendant, whom she had known for about a year, were standing nearby. After speaking
with Bickerstaff, Pitman and another woman, by the name of Nike, began walking toward the
corner store on Chelten A venue and Beechwood Street, which was diagonally across the street
4
from Pretty Mary's. As Pitman walked, she and the Defendant had a verbal exchange, where the
Defendant accused her of being a confidential informant. Pitman responded by telling the
Defendant to go "eff himself." Id. at 119-34, 178-83.
A fev. 1 minutes later, after leaving the corner store, Pitman stood on Beechwood Street,
about twenty feet from the corner of Chelten A venue. There, she heard four gunshots; after a
brief pause, she heard several more. Once Pitman heard the fifth shot, she sprinted north on
Beechwood Street onto the front porch of a home. About thirty seconds after she heard the
gunshots, Pitman heard a voice shouting, "[w]hy would you shoot Q,5 Rashaun? Why did you
shoot him?" Pitman recognized the voice as Aaron Peterson's. Id. at 116-34, 178-83.
On January 16, 2014, detectives interviewed Pitman. During her interview, she reviewed
photographs and identified the Defendant, Aaron Peterson, and Lewis. On January 17, 2014,
detectives interviewed Pitman a second time. This time, she reviewed a still photograph
generated from a video recovered from a surveillance camera outside Pretty Mary's. From the
still photograph, she identified the Defendant, Aaron Peterson, Lewis, and Bickerstaff as they
stood on Chelten Avenue outside Pretty Mary's at 7:00 a.m.,just a few minutes before the
shooting. N.T. 5/12/2015 (Vol. 2) at 134-48, 166, 196; N.T. 5/14/2015 at 45-47;
Commonwealth Exhibit C-84.6
From the surveillance video in front of Pretty Mary's, at 7:03 a.m., approximately three
minutes before police responded to a call for a person with a gun on Chelten A venue, the
Defendant and Bickerstaff are seen walking out of the camera's view toward the corner of
Chelten A venue and Norwood Street. Approximately thirty seconds later, Aaron Peterson
5
Aquil Bickerstaff was also known as "Q." N.T. 5/11/2015 at 78.
6
Although the clock on the still photograph indicates that the time was 7:35:29, Detective Dunlap testified that the
surveillance video was thirty-five minutes and twenty-eight seconds fast. N.T. 5/13/2015 at 180-83; Commonwealth
Exhibit C-84.
5
walked with others toward the same corner. About one minute later, at 7:04 a.m., the
surveillance video shows two males, looking back over their shoulders, running away from the
corner of Chelten Avenue and Norwood Street. Commonwealth Exhibit C-97.
On the day of the shooting, Officer Craig Perry of the Crime Scene Unit observed eight
fired cartridge casings ("FCCs") at Chelten Avenue and Norwood Street, seven of which were
recovered.7 Officer Norman DeFields, of the Firearm Identification Unit, an expert in firearm
identification, testified that all seven of the recovered FCCs were .40-caliber Smith and Wesson,
and were fired from the same gun. N.T. 5/13/2015 at 41, 147, 150.
On December I 7, 2013, less than a month before Bickerstaff's murder, Officer Jason
Tomon pulled alongside the Defendant who was in a parked white mini-van with three other
individuals. When police pulled up, the Defendant exited from the driver-side of the vehicle. In
the vehicle, next to the driver's seat, Officer Toman observed a white paper bag with a new pair
of jeans and a box of Smith and Wesson .40-caliber ammunition. Id. at 165-68.
On appeal, the Defendant raises four issues: (1) the Defendant challenges the sufficiency
of evidence for his convictions of First-Degree Murder, Carrying a Firearm in Public in
Philadelphia, and PIC; (2) the Defendant alleges that this Court erred in allowing hearsay
testimony from witnesses, as to statements these witnesses heard others make at the time of the
subject crime; (3) the Defendant alleges that this Court erred in allowing hearsay testimony from
a witness, as to statements made by another as to things the Defendant allegedly said; and (4) the
Defendant alleges that this Court erred in ruling that the Commonwealth could introduce
evidence of the Defendant's drug possession or drug dealing if the Defendant introduced
7
Officer Perry testified that when he attempted to recover one of the FCCs it fell into a sewer and was lost. N.T.
5/13/2015 at 41---42.
6
evidence of the decedent's drug dealing, as that evidence went to motive of others to shoot the
decedent.
This Court interprets the first, second, and third issues in the Defendant's Concise
8
Statement to be vague and insufficiently addressed. Thus, these issues are deemed waived.
Though the first issue is deemed waived, it will be addressed herein for future reference. Though
the second issue is deemed waived, it will also be addressed herein for future reference as this
Court has determined that the Defendant is most likely objecting to the testimony of Pitman as to
what she heard Aaron Peterson shout following the shooting. Though the third issue is also
deemed waived, it, too, will be addressed herein for future reference as this Court has determined
that the Defendant is most likely objecting to the testimony of Pitman as to threats made to her
by the Defendant's uncle.
Sufficiency of the Evidence
The Defendant, without providing any basis, claims that the evidence was insufficient for
First-Degree Murder, Carrying a Firearm in Public in Philadelphia, and PIC. Evidence presented
at trial is sufficient when, viewed in the light most favorable to the Commonwealth as the verdict
winner, the evidence and all reasonable inferences derived therefrom are sufficient to establish
all elements of the offense beyond a reasonable doubt. Commonwealth v. Baumhammers, 960
A.2d 59, 68 (Pa. 2008). The Commonwealth may sustain its burden of proving each element of
the crime beyond a reasonable doubt by means of wholly circumstantial evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943 (Pa. Super. 2011) (citing Commonwealth v. Brooks,
7 A.3d 852, 856-57 (Pa. Super. 2010)). The fact-finder is free to believe all, part, or none of the
evidence, and credibility determinations rest solely within the purview of the fact-finder.
8
A Concise Statement of Matters Complained ofon Appeal that is too vague to allow the court to identify the issues
raised on appeal is the functional equivalent of no Concise Statement at all. Commonwealth v. Dowling, 778 A.2d
683, 687-88 (Pa. Super. 200 I).
7
Commonwealth v. Treiber, 874 A.2d 26, 30 (Pa. 2005). The Superior Court considers all the
evidence admitted, without regard to any claim of wrongly admitted evidence. Commonwealth v.
Kane, 10 A.3d 327, 332 (Pa. Super. 2010). The Superior Court will also not weigh the evidence
or make credibility determinations. Id.
First-Degree Murder is any unlawful killing committed with malice and the specific
intent to kill. 18 Pa.C.S. § 2502(a); Commonwealth v. Johnson, 42 A.3cl 1017, 1025 (Pa. 2012).
Malice is defined as:
A wickedness of disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind regardless of social duty,
although a particular person may not be intended to be injured.
Malice may be found where the defendant consciously disregarded
an unjustified and extremely high risk that his actions might cause
serious bodily injury.
Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011) (citing Commonwealth v.
DiStefano, 782 A.2d 574, 582 (Pa. 1995). Malice can be inferred from the use of a deadly
weapon upon a vital part of the victim's body. Commonwealth v. Thomas, 54 A.3d 332, 335-36
(Pa. 2012).
Evidence is sufficient to sustain a conviction for First-Degree Murder when the
Commonwealth establishes that: (1) a human being was unlawfully killed; (2) the accused is
responsible for the killing; and (3) the accused acted with specific intent. 18 Pa.C.S. § 2502(a);
Commonwealth v. Chambers, 980 A.2d 35, 44 (Pa. 2009). The Commonwealth may establish
that a defendant intentionally killed the victim wholly through circumstantial evidence. Id.
(citing Commonwealth v. Rivera, 773 A.2d 131, 135 (Pa. 2001)). Specific intent may also be
established through circumstantial evidence, such as the use of a deadly weapon on a vital part of
the victim's body. Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (citing
Commonwealth v. Smith, 985 A.2d 886, 895 (Pa. 2009)).
8
In the case at bar, sufficient evidence established that the Defendant, with the specific
intent to kill, murdered Bickerstaff. Fonner Deputy Chief Medical Examiner, Dr. Collins,
testified that Bickerstaff' s death was a homicide caused by a gunshot wound to the upper left
side of the abdomen. N.T. 5/13/2015 at 89-102; see also Commonwealth's Exhibit C-93.
Two witnesses, Lewis and James, identified the Defendant as the shooter. Lewis'
January statement not only identified the Defendant as the shooter, but also gave a detailed
description of the shooting and of the events that led up to it.9 By their verdict, the jury chose to
believe Lewis' January 23 statement rather than his January 13 statement or his in-court
repudiation. As noted above, credibility determinations are within the sole province of the jury
to resolve in its role as the fact-finder. See Treiber and Kane, supra.
In addition, James' testimony corroborated Lewis' January 23 statement. James testified
that he also witnessed the Defendant and Bickerstaff arguing and then saw the Defendant shoot
Bickerstaff. Like Lewis' statement, James testified that the Defendant continued to fire after
Bickerstaff fell to the ground. N.T. 5/12/2015 (Vol. 2) at 11-20.
Pitman's testimony also corroborated the eyewitness accounts that the Defendant shot the
victim. Immediately following the gunshot, Pitman testified that she heard Aaron Peterson
asking the Defendant-by name-why he shot Bickerstaff. Id. at 130-34, 178-83. In addition to
eye\'vi~ness accounts identifying the Defendant as the shooter, the evidence also showed that the
Defendant had access to the same caliber ammunition used to kill Bickerstaff. N.T. 5/13/2015 at
41, 147, 150, 165-68.
In total, three shots fired by the Defendant struck Bickerstaff in the abdomen, a vital body
part. Id. at 89-102; Commonwealth's Exhibit C-93. The specific intent to kill as well as the
9
Although Lewis repudiated much of his January 23 statement at trial, the statement was still admissible as
substantive evidence. See Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992); Commonwealth v. Brady, 507 A.2d 66
(Pa. 1986).
9
requisite malice for First-Degree Murder can be inferred from the Defendant's use of a deadly
weapon upon a vital body part. See Thomas, supra. The large volume of shots fired by the
Defendant, and the fact that he continued to fire at Bickerstaff while he lay on the ground, further
evidences that the Defendant had the specific intent and requisite malice for First-Degree
Murder. Thus, the evidence was more than sufficient to establish that the Defendant shot
Bickerstaff with the specific intent and requisite malice for First-Degree Murder.
To secure a conviction for PIC, the Commonwealth must show that a defendant
possessed an instrument of crime with the intent to employ it criminally. 18 Pa.C.S. § 907(a).
An instrument of crime is "[a]nything used for criminal purposes and possessed by the actor
under circumstances not manifestly appropriate for lawful uses it may have." 18 Pa.C.S. §
907(d)(2); see also Commonwealth v. Robertson, 874 A.2d 1200, 1208-09 (Pa. Super. 2005).
Instantly, the Defendant retrieved a firearm from his grandmother's home, requested Bickerstaff
to walk off camera, and shot him. N.T. 5/12/2015 (Vol. 1) at 14-20. As discussed supra, the
Defendant employed the firearm in the commission of a murder. The evidence was thus
sufficient to establish that the Defendant's possessed an instrument with the intent to employ it
criminally.
The Defendant also challenges his conviction for Carrying a Firearm in Public in
Philadelphia. In Philadelphia, "no person shall carry a firearm, rifle, or shotgun at any time upon
the public streets or upon any public property in a city of the first class unless such person is
licensed to carry a firearm." 18 Pa.C.S.A. § 6108. Lewis saw the Defendant with a black and
silver automatic handgun when the Defendant came off the steps of his grandmother's house.
N.T. 5/12/2015 (Vol. 1) at 14-20. Further, both Lewis and James witnessed the Defendant shoot
Bickerstaff. Id.; N.T. 5/12/2015 (Vol. 2) at 11-20. The certificate of non-Iicensure submitted by
10
the Commonwealth conclusively established that the Defendant was not eligible to carry a
firearm at the time of the shooting. N.T. 5/15/2015 at 17. Thus, the evidence is more than
sufficient to establish that the defendant carried a firearm in public without a license.
Hearsay Statements
After a review of the record, this Court has determined that the Defendant's second claim
of error challenges the admission of Pitman's testimony as to what she heard another say
immediately following the shooting. About thirty seconds after she heard the gunshots, Pitman
heard a voice shout, "[w]hy would you shoot Q, Rashaun? Why did you shoot him?" N.T.
5/12/2015 (Vol. 2) at 181. Pitman testified that the voice she heard was Aaron Peterson's. Id. at
'
177-81. This Court admitted the statement as an excited utterance and as a present sense
impression.
Admission of evidence is a matter within the sound discretion of the trial court, and will
not be reversed absent a showing that the trial court clearly abused its discretion. Not merely an
error in judgment, an abuse of discretion occurs when the law is overridden or misapplied; or the
judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-
will, as shown by the evidence on record. Commonwealth v. Handfield, 34 A.3d 187, 207-08
(Pa. Super. 2011) (citing Commonwealth v. Cain, 29 A.3d 3, 6 (Pa. Super. 2011).
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." Pa.R.E. 80l(c). An
excited utterance, an exception to the hearsay rule, is a
spontaneous declaration by a person whose mind has been
suddenly made subject to an overpowering emotion caused by
some unexpected and shocking occurrence, which that person had
just participated in or closely witnessed, and made in reference to
some phase of that occurrence which he perceived, and this
declaration must be made so near the occurrence both in time and
11
place as to exclude the likelihood of its having emanated in whole
or in part from his reflective faculties .... Thus, it must be shown
first, that [the declarant] had witnessed an event sufficiently
startling and so close in point of time as to render her reflective
thought processes inoperable and, second, that her declarations
were a spontaneous reaction to that startling event.
Commonwealth v. Stokes, 615 A.2d 704, 712 (Pa. 1992). An excited utterance also "need not
describe or explain the startling event or condition; it need only relate to it." Pa.R.E., Rule
803(2) cmt. (emphasis original). Witnessing a shooting is sufficient as a startling event or
condition. See e.g., Commonwealth v. Hood, 872 A.2d 175 (Pa. Super. 2005) (finding where
witnesses made a 911 call and described a shooting, the shooting was sufficient as a startling
event or condition). Further, there is no clearly defined time limit within which the statement
must be made after the startling event; the determination is factually driven, made on a case-by-
case basis. Commonwealth v. Who/aver, 989 A.2d 883, 906-07 (Pa. 2010) (see e.g.,
Commonwealth v. Douglas, 737 A.2d 1188 (Pa. 1999) (holding that statements made eleven
minutes after a shooting were admissible).
In the instant case, Pitman heard Aaron Peterson, a man whom she had known for about
year, shout the statement from a block away after the shooting. A shout with such volume-
made almost immediately after the sound of gunfire-is an indication that it stemmed from the
emotion or stress of excitement created by the shooting.
The evidence also sufficiently corroborated that Aaron Peterson was most likely the
declarant. Both Lewis and James placed Aaron Peterson near the corner of Chelten Avenue and
Norwood Street at the time of the shooting. N.T. 5/12/2015 (Vol. 1) at 21-36; N.T. 5/12/2015
(Vol. 2) at 14-20. Moreover, the surveillance video showed Aaron Peterson walking toward the
corner of Chelten A venue and Norwood Street approximately one minute before the shooting
occurred. Commonwealth Exhibit 97.
12
Lewis also informed detectives that Aaron Peterson was trying to save Bickerstaff. N.T.
5/12/2015 (Vol. 1) at 21-24. That Aaron Peterson was trying to save Bickerstaff shows that he
was not only present at the time of the shooting, but that he also "participated in or closely
witnessed" the event he was commenting on. Harris v. Toys "R" Us-Penn, Inc., 880 A.2d
1270,1279 (Pa. Super. 2005).
In addition to the evidence placing Aaron Peterson near the shooting at the corner of
Chelten Avenue and Norwood Street, the evidence also showed that the person whom the shout
was directed at was also present at the shooting scene. Both Lewis and James not only placed
the Defendant at the shooting scene, but also identified him as the shooter. N.T. 5/12/2015 (Vol.
I) at 14-20; N.T. 5/12/2015 (Vol. 2) at 11-20. Thus, these facts sufficiently corroborate that
Aaron Peterson viewed the events in which his shout referenced.
Aaron Peterson's statement was also admissible under the present sense impression
exception to the hearsay rule. A present sense impression is a statement describing or explaining
an event or condition, made while or immediately after the declarant perceived it. Pa.R.E., Rule
803(1 ). A present sense impression, however, need not expressly describe the events the
declarant witnessed. See Commonwealth v. Harper, 614 A.2d 1180 (Pa. Super. 1992) (holding
that a statement of "[tjhose are my boyfriend's socks laying on that bed" after immediately
observing them was a present sense impression as the statement was a contemporaneous
verbalization of the declarant having observed the socks through a window).
A present sense impression's observation "must be made at the time of the event or
shortly thereafter, making it unlikely that the declarant had the opportunity to form an intent to
misstate his observation. Consequently, the trustworthiness of the statement depends upon the
timing of the declaration." Hood, 872 A.2d at 183. A present sense impression statement,
13
however, need not be made simultaneously with the event in which it describes; rather, near
contemporaneousness will suffice. Pa.RE., Rule 803(1). cmt.
In the case at bar, Aaron Peterson's shout was a contemporaneous verbalization made
thirty seconds after observing the Defendant shooting Bickerstaff. As discussed supra, the
evidence shows that the shout was reliable as Aaron Peterson was present at the time of the
shooting and was commenting on an event he almost certainly witnessed. Thus, Pitman's
testimony as to what she heard Aaron Peterson shout following the shooting was properly
admitted.
After a review of the record, this Court has determined that the Defendant's third claim
challenges the admission of Pitman's testimony regarding threats made to her by the Defendant's
uncle. At trial, when the Commonwealth questioned Pitman on why she failed to appear at the
first scheduled trial date and on the circumstances under which she gave her third statement to
police, the following exchange took place:
COMMONWEALTH: Did you go to - well, were you asked to come
to court previously?
PITMAN: I was. The first time it was supposed to go to trial and I
did not show due to some people trying to bribe me not to testify.
And I was in somebody's car the night before, and I heard
somebody walk by and they - excuse my language, Your Honor -
once that white bitch comes to court, she's never leaving. So I
didn't want to come. I have five kids at home. I don't want to risk
my life for this.
COMMONWEALTH: Did you at some point report to Detective Sierra
that you were having problems?
PITMAN: Right after I had my son I called him, and I asked him to
come down to my mom's house because two members of the
defendant's family had bribed me with $50 and an eight ball of
crack to recant my statement.
14
COM1vtONWEAL TH: And did you tell Detective Sierra that? Did he
take an interview from you?
PITMAN: Yes. He came, he didn't type it, he wrote everything, so
we had to go over it a few times, but I told him it was [the
Defendant's] uncle and another family member who were both
trying to have me meet with the [D]efendant's lawyer to recant,
and if I did meet with detectives, recant, and overall, I would be
paid $500 and an eight ball.
COMMONWEALTH: And did anyone else speak to you?
PITMAN: One of [the Defendant's] uncles - one of his other uncles
told me that when he gets out he's going to kill me.
COMMONWEALTH: What is the other person's name?
DEFENSE COUNSEL: I have an objection to that.
THE COURT: Lay a better foundation.
COMMONWEALTH: When-
DEFENSE COUNSEL: Just before - my objection would be to
hearsay - of blatant hearsay, and I think you should strike it and
instruct the jury she just testified what somebody else said to my
client.
THE COURT: No. I thought it was what he said to her. Did I miss
something?
PITMAN: Kenny Peterson directly told me, when Rashaun gets out,
he is going to kill you.
THE COURT: Who is "he"? Rashaun is going to kill?
PITMAN: yes.
THE COURT: Ladies and gentlemen [of the jury], once again, I'm
not going to strike it from the record, but I'm going to instruct you
that, clearly, that is not offered for the truth of the matter, nor can
you in any way conclude that that's the truth of the matter. This is
being offered to suggest or to offer it as an explanation to assist
15
you in your assessment of the credibility of the witness. It is not
offered for the truth of the matter.
N.T. 5/12/2015 (Vol. 2) at 169-73.
This testimony was elicited to assist the jury in weighing Pitman's credibility and the
truthfulness of her testimony. Courts have held that testimony regarding threats to a witness may
be admissible to assist the jury in assessing a witness's credibility. In Commonwealth v. Martin,
for example, the Superior Court explained that although threats made by third parties against
witnesses are not relevant to prove an accused's guilt, the Conunonwealth may introduce
evidence of threats made against a witness to explain the witness' prior inconsistent statements.
515 A.2cl 18, 21 (Pa. Super. 1986); see also Commonwealth v. Carr, 259 A.2d 165, 167 (Pa.
1969). In Commonwealth v. Bryant, a witness' revealed his subjective fear that appellant or
appellant's family might threaten him or his family if he testified against appellant. 462 A.2d
785, 788 (Pa. Super. 1983). There, the testimony was properly admitted to reconcile the
inconsistencies in the witness's pretrial and at-trial statements. Id
Similarly, in Commonwealth v. Brewington, the court properly admitted questioning that
showed appellant had access to a witness when the two were incarcerated together prior to trial.
740 A.2d 247, 256 (Pa. Super. 1999). There, the court held that, although no evidence showed
that the appellant had threatened the witness, the evidence that the witness and the appellant were
incarcerated together was admissible to explain the change in the witness's testimony by the
possibility of the witness being threatened or coerced by appellant. Id; see also Martin, 515
A.2d at 21 (finding that counsel was not ineffective for failing to object when a witness
explained that she changed her testimony because she had been threatened by appellant's
friends).
16
Here, Pitman's testimony that she had been threatened was properly admitted as the
testimony was not offered for its truth or to prove the Defendant's guilt. Rather, the testimony
was offered to assist the jury in assessing Pitman's credibility as a witness and to provide an
explanation as to why she gave a third statement to detectives and why she failed to appear at a
scheduled trial date. This Court immediately instructed the jury that the evidence was to be
considered for the sole purpose of assessing the witness's credibility and was not offered for the
truth of the matter asserted. N.T. 5/12/2015 (Vol. 2) at 172-73. The law presumes that
the jury will follow a court's instructions. See Commonwealth v. Spotz, 896 A.2d 1191, 1224 (Pa.
2006).
Evidence of the Defendant's Drug Dealing
The Defendant alleges that this Court erred in ruling that the Commonwealth could
introduce evidence of the Defendant's drug possession or drug dealing if the Defendant
introduced evidence of the decedent's drug dealing, as that evidence went to motive of others to
shoot the decedent.
By way of background, on March 2, 2015, the Defendant moved to exclude evidence of
the Defendant's drug dealing, which this Court granted. That same day, the Commonwealth
moved to preclude the Defendant from mentioning that drugs were found on the victim's body.
This Court held that motion under advisement. At trial, this Court instructed the Defendant that
he was permitted to introduce evidence of the victim, s alleged drug dealing to show possible
motive of another to committhe crime. But, based on the evidence at trial, this Court determined
that the Defendant was also in that pool of people who may have had a drug-related motive to
kill the decedent. Thus, if the Defendant introduced evidence of the decedent's drug dealing, the
17
Commonwealth was permitted to introduce similar evidence of the Defendant. N.T. 5/11/2015
15-18; N.T. 5/13/2015 at 109-19.
As noted above, admission of evidence is a matter within the sound discretion of the trial
court, and will not be reversed absent a showing that the trial court clearly abused its discretion.
See Handfield, supra. In Pennsylvania, a defendant may offer evidence of a victim's pertinent
trait. Pa.R.E., Rule 404(a)(2)(B). If such evidence is admitted, however, the Commonwealth
may: "(i) offer evidence to rebut it; and (ii) offer evidence of the defendant's same trait."
Pa.R.E., Rule 404(a)(2)(B)(ii) (emphasis added). Accordingly, the Defendant's claim is
meritless as this Court acted in accordance with the rules of evidence.
For the foregoing reasons, the Defendant's judgment of sentence should be affirmed.
BY THE COURT,
~-a·``~
Barbara A. McDermott, J.
18