Com. v. Jackson, M. ( 2017 )

J-S38037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARCUS JACKSON
Appellant No. 808 EDA 2016
Appeal from the Judgment of Sentence January 22, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0009181-2014
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 15, 2017
Appellant, Marcus Jackson, appeals from the judgment of sentence
imposed after a jury convicted him of third-degree murder,1 two firearm
violations,2 and possession of an instrument of crime.3 Appellant claims that
the trial court erred in admitting the preliminary hearing testimony of an
unavailable witness because he did not have an adequate opportunity to
cross-examine the witness. We affirm.
The trial court summarized the pertinent facts as follows:
Between 7:00 p.m. and 8:00 p.m. on April 25, 2011,
[Appellant] double parked his mother’s green Dodge
Durango on the 1500 block of Irving Street in Philadelphia
to purchase marijuana from “Da,” his supplier. Da entered
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 2502(c).
2 18 Pa.C.S. §§ 6106, 6108.
3 18 Pa.C.S. § 907.
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the vehicle with his associates “Reek” and “Far” and
exchanged punches with [Appellant] over a supposed drug
debt. Alex Jefferson Jr. [“Jefferson Jr.”] and [the victim,
Leon McMillan,] observed the fight from down the street and
rushed towards the Durango, where [the victim] punched
[Appellant] several times through the Durango’s driver side
window. Alex Jefferson Sr., Jefferson Jr.’s father, restrained
Jefferson Jr., who in turn restrained [the victim].
During the fight, [Appellant’s] keys fell out of the
Durango and onto the street. After [Appellant] stepped out
of the vehicle to retrieve the keys, he shouted to the crowd,
“I’ll be back,” and drove away.
[Appellant] met Wes[t]ley Richardson near the
intersection of 52nd and Chancellor Streets, two blocks
away. From there, [Appellant] drove the Durango to
Funston Street, approximately one mile north of Irving
Street, while [Westley Richardson] followed in his cream
Lincoln Continental. At Funston Street, [Appellant] and
[Westley Richardson] rendezvoused with Steffon Richmond
and an unidentified accomplice. Approximately an hour-
and-a-half after the fight, Richmond drove [Appellant] and
the unidentified accomplice to 50th and Locust Street in the
minivan, with [Westley Richardson] following in his Lincoln.
Richmond and [Westley Richardson] parked the vehicles
at the intersection, after which [Appellant] walked towards
Irving Street, one block south. A few moments after
[Appellant] turned the corner onto Irving Street, [Appellant]
called [Westley Richardson], who remained near the
vehicles. [Westley Richardson] answered his phone and
heard the sound of two to three gunshots from the other
end of the line.
Jefferson Jr., who remained outside on the 5100 block of
Irving Street after the fight, observed [Appellant] follow the
victim as [the victim] walked west on Irving Street. As [the
victim] turned to face 5107 Irving Street, Jefferson Jr. saw
[Appellant] shoot [the victim] three times. As [Appellant]
ran towards 51st Street, Jefferson Jr., rushed towards [the
victim] and cradled him in his arms. [The victim] took three
breaths and became unresponsive.
[Appellant] returned to 50th and Locust Street and
entered the minivan, which sped away southbound on 50 th
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Street, with [Westley Richardson] in tow. From Spruce
Street, one block South of Irving Street, Jefferson Sr.
observed the minivan race past him, with [Appellant] seated
in the vehicle. Jefferson Sr. walked north to Irving Street
and saw his son cradle the bleeding [victim]. In a panic,
Jefferson Jr. shouted “Pop, he came back,” and that “the
chumpy in the car” shot [the victim].
At 9:17 p.m., Officers Michael Kane and Jeremy Olesik
responded to a radio call reporting shots fired and
discovered [the victim] lying in a pool of blood on the street
directly in front of 5107 Irving Street. Having observed
gunshot wounds to the victim’s upper chest, left, thigh, and
right hand, Officers Kane and Olesik carried a non-
responsive [victim] to the back of their squad car. Medics
arrived and transported [the victim] to the Hospital of the
University of Pennsylvania, where he was pronounced dead
at 9:42 p.m.
***
[Westley Richardson] and [Appellant] drove their
vehicles to the area of 59th Street and Woodland Avenue.
There, [Appellant] jumped into the backseat of [Westley
Richardson]’s Lincoln, where he told [Westley Richardson]
that he shot the [victim] and proceed[ed] to cut off his
dreadlocks. Later that evening, [Westley Richardson]
returned home, where he told his mother Donna Richardson
that “Face,” ([Appellant]), “did some dumb shit,” and that
the two should vacate the house to avoid retribution.
On April 28, 2011, Detective Greg Singleton interviewed
[Westley Richardson] at the Homicide Unit. During that
interview, [Westley Richardson] identified [Appellant] as
“Face” and provided Detective Singleton with both his and
[Appellant’s] cell phone numbers. Based on this
information, Officer Edward Fidler of the Philadelphia Crime
Scene Unit investigated [Westley Richardson]’s Lincoln on
May 3, 2011, and discovered four patches of matted,
dreadlocked hair. On August 25, 2011, Detective James
Burns interviewed [Westley Richardson], who described the
events leading to the shooting and restated [Appellant’s]
confession to killing [the victim].
Trial Ct. Op., 4/19/16, at 1-5 (citations omitted).
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Police detectives interviewed Jefferson Jr. about the shooting five times.
However, it was not until after Appellant was arrested for the murder, and the
district attorney’s office thereafter relocated Jefferson Jr. and his family, that
Jefferson Jr. informed the authorities that he actually saw Appellant shoot the
victim. On August 14, 2014, both Westley Richardson and Jefferson Jr.
testified at Appellant’s preliminary hearing. At that time, Westley Richardson
denied that he ever referred to Appellant by the nickname as “Face,” and
generally denied making the two previous statements to police.
Westley Richardson did not appear for trial, and the Commonwealth
moved to read his preliminary hearing testimony into the record. The trial
court inquired about Richardson’s unavailability to testify for the
Commonwealth. The Commonwealth called two police detectives who detailed
their efforts to locate him.
Of relevance to this appeal, one detective testified that he spoke to
Donna Richardson, Westley Richardson’s mother, and reminded her that she
was to appear at trial. On cross-examination, the detective acknowledged
that Donna Richardson had given a statement to police, but that her statement
was not disclosed to defense counsel before the preliminary hearing.4 Defense
4 The relevant portion of Donna Richardson’s statement is as follows:
Last night my son called me and it was just to tell me that
he was staying out last night. That was about 10:30pm.
Then tonight my son text me and said to get out of the
house because them niggaz know where we all live. I reply
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counsel made the following argument regarding his inability to cross-examine
Westley Richardson at the preliminary hearing due to the Commonwealth’s
failure to produce Donna Richardson’s statement:
[DEFENSE COUNSEL]: We addressed the one
[component] as far as efforts to locate whether or not they
acted reasonably and towards that [sic].
The second component is whether or not counsel at the
prior proceeding in this case, a preliminary hearing, had a
full and fair opportunity to cross-examine. The
Commonwealth provided [Westley Richardson’s] statement
of 4/28/11. The Commonwealth provided to defense
counsel, myself, [Westley Richardson’s] statement of
8/25/11. They also provided me with his criminal extract
up until that time.
What they did not provide me with was DM-1, the
statement of Donna Richardson taken on 4/26/11. That was
not given to me at the preliminary hearing. Why is that
relevant? Had I been given that statement, I would have
been able to cross-examine [Westley Richardson] with
statements that he gave to his mom on the day after -- in
fact, that day of this incident that were inconsistent with the
statements that he told the police that were given to me.
For instance, in DM-1, on page one, four questions down to
Donna, What exactly did your son tell you?
and told him to call me and then I text back and said do we
need to move or what do we need to do. And he asked, do
you want to move? And I said, yes if things ain’t right. And
then I said to call me again because now I’m thinkin’ that
someone got his phone and I wanted to make sure that this
was my son that was texting me. And he text me telling me
that Face [Appellant] did some dumb shit last night. So he
does call me and I said to him, what the hell was going on?
And he said that, [Appellant] did some dumb shit last night
and when I asked what it was that he wouldn’t tell me. And
then [Westley Richardson] said that he wasn’t with
[Appellant].
Commonwealth’s Exhibit 22, at 1-2 (unpaginated) (emphasis added).
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ANSWER: Last night my son called me and it was just
to tell me that he was staying out last night. That was about
10:30. Then tonight my son text me and said to get of the
house because them -- I don’t want to use that word -- N
know where we all live. I replied and I told him to call me
and then I text back and said, Do we need to move or what
do we need to do? And he asked, Do you want to move?
And I said, Yes, if things ain’t right.
So why would you state those -- why would you make
those comments to your mom? Why would you have to
leave? Why would you have to move right away? Why
would you have to tell your mom to pack up and let’s get
out of there unless you were there, unless you had some
involvement, unless perhaps you knew more than what you
were telling the police?
This is inconsistent with what he tells the police. Those
statements, Your Honor, had I been provided the statement
of Donna Richardson, the cross-examination may have gone
something like this, [Westley Richardson] did you tell your
mom that you needed to leave the area right away? If he
says yes, then that would lead into further cross-
examination. Why sir, if you weren’t involved in this
incident like you told the police in your statement that you
weren’t even there -- I will show where that is -- would you
need to leave the area? Why would you need to get your
mom out unless you thought you were in danger of
retaliation?
So I didn’t know that he told his mom to get out of town.
His mom also told the police that she said to him, Do you
want to move? And according to her, he said, Yes if things
ain’t right [sic].
On page two at the top, in the middle of this answer
again, Your Honor, the statement from Donna Richardson
says, [Westley Richardson] said that he wasn’t with
[Appellant].
N.T., 10/20/15, at 54-57.
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Defense counsel then referred to Westley Richardson’s second
statement to police, which indicated that he was in the area of the murder
scene, and argued:
Do you see the inconsistency is what I am talking about
here? It’s not an innocuous harmless issue, I mean, you
can’t say I was there on one occasion and I was there to
make sure [Appellant] wasn’t rolled on and I went with him
and he parked and got out of his van and they say to
someone else, I wasn’t there. Oh, by the way, we got to
get out of town. I mean that is fodder for cross-
examination. That is important cross-examination, and now
despite their efforts to locate, I’m not able to do that. I am
not able to show this fact finder that this man provided an
inconsistent statement within an hour [of the murder].
Id. at 60-61.
The Commonwealth responded that Donna Richardson’s statement was
not vital impeachment evidence, noting:
In [Westley Richardson’s] first statement, which had been
marked on page four, date of 4/28/11, Question No. 5, this
is the question, [d]id you have a conversation with your
mother Donna Richardson about what happened?
I just told her to get out of the house after she told me that
the screen was broke. I told her that Face [Appellant] did
some dumb shit last night. I told her to get out of the house
and go to my aunt’s house. She asked me if I wanted to
move and go to my grandmother’s house.
Id. at 63.
The trial court granted the Commonwealth’s motion to present Westley
Richardson’s preliminary hearing testimony:
THE COURT: Okay, [defense counsel]. I agree with you
there is information in there; however, what you did not
address and what you can do is, if you choose, have an
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opportunity to actually impeach the witness. Once [Westley
Richardson’s preliminary hearing testimony is] read in, you
can present his mother to elicit all that information.
So I’m granting the Commonwealth’s motion.
If you want a bench warrant on [Donna] Richardson, I
certainly have evidence on this record and I will issue one if
you wish to call her in to impeach [Westley Richardson’s
preliminary hearing testimony]. But I do think that the
Commonwealth has met its burden in this particular case.
I’m going to permit that testimony.
Id. at 62. After discussing the matter with Appellant, defense counsel
informed the court that he would not be calling Donna Richardson. Westley
Richardson’s preliminary hearing testimony was read into the record.5
On October 23, 2015, the jury convicted Appellant of the crimes
enumerated above. On January 22, 2016, the trial court imposed an
aggregate sentence of twenty-three-and-one-half to forty-seven years of
imprisonment. Appellant timely filed a post-sentence motion for
reconsideration of the sentence, which the trial court denied on February 2,
2016.
Appellant timely appealed from the judgment of sentence. Both
Appellant and the trial court have complied with Pa.R.A.P. 1925. In its Rule
5 The Commonwealth eventually compelled the presence of Donna Richardson
at trial to obtain information regarding Westley Richardson’s whereabouts. In
addition, Donna Richardson testified that she had no recollection of speaking
to homicide detectives shortly after the murder and denied making any
statement to them. See N.T., 10/21/15, at 102-21. Defense counsel did not
cross-examine Donna Richardson regarding her previous conversations with
Westley Richardson. Id. at 121-22.
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1925(a) opinion, the trial court suggested that defense counsel had a full and
fair opportunity to cross-examine Westley Richardson at the preliminary
hearing, and that defense counsel was, or should have been, aware of the
alleged impeachment information based on the statements from Westley
Richardson that the Commonwealth had disclosed. Trial Ct. Op. at 12.
Appellant raises the following issue on appeal:
Did the trial court err by allowing the Commonwealth to
introduce the preliminary hearing testimony of an
unavailable witness where [Appellant] did not have a full
and fair opportunity to cross[-]examine that witness at
the preliminary hearing?
Appellant’s Brief at 4.6
Appellant asserts that had defense counsel obtained Donna Richardson’s
statement that Westley Richardson told her he was not with Appellant when
the murder occurred, defense counsel could have impeached Westley
Richardson with regard to his second statement to police that he was in fact
in the same area as Appellant “right before and right after the shooting.” Id.
at 9. According to Appellant, the denial of this opportunity to cross-examine
Westley Richardson precluded the admission of Westley Richardson’s
preliminary hearing testimony at trial. Id. In addition, Appellant avers that
the trial court “ignore[d] altogether the part of [Westley Richardson]’s
6 Appellant does not challenge the trial court’s conclusion that the
Commonwealth made reasonable efforts to locate Westley Richardson.
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statement to his mother that he was not with [Appellant] near the crime scene
[] before or after the shooting.” Id. No relief is due.
Our standard of review is well-settled.
“Questions regarding the admission of evidence are left to
the sound discretion of the trial court, and we, as an
appellate court, will not disturb the trial court's rulings
regarding the admissibility of evidence absent an abuse of
that discretion.” An abuse of discretion is more than a mere
error of judgment; rather, an abuse of discretion will be
found 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 or the record.”
Commonwealth v. Pukowsky, 147 A.3d 1229, 1233 (Pa. Super. 2016)
(citations omitted).
Our Supreme Court summarized the law regarding the admissibility of
an unavailable witness’s prior testimony as follows:
The exception to the hearsay rule which permits the
admission of an unavailable witness’s prior preliminary
hearing is predicated on the indicia of reliability normally
afforded by adequate cross-examination. But where that
indicia of reliability is lacking, the exception no longer
applies. Therefore, in order for prior testimony to be
admissible in a subsequent proceeding as substantive
evidence against the accused, there must have been a full
and fair opportunity to cross-examine. The Commonwealth
may not be deprived of its ability to present inculpatory
evidence at trial merely because the defendant, despite
having the opportunity to do so, did not cross-examine the
witness at the preliminary hearing stage as he might have
done at trial. However, where the defense, at the time of
the preliminary hearing, was denied access to vital
impeachment evidence, such as prior inconsistent
statements of the witness or the witness’s criminal record,
a full and fair opportunity to cross-examine the unavailable
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witness may be deemed to have been lacking at the
preliminary hearing.
Commonwealth v. Buford, 101 A.3d 1182, 1195 (Pa. 2014) (citations and
quotation marks omitted).
The record here reveals that although Westley Richardson placed
himself near the scene of the murder when he gave his second statement, he
denied the veracity of both statements and maintained that he had no
involvement with the crime when testifying at the preliminary hearing. See
N.T., 8/13/14, 7-77. Therefore, Westley Richardson’s preliminary hearing
testimony was not inconsistent with his statement to Donna Richardson.
Moreover, the information contained in Westley Richardson’s first
statement was substantially similar to the information contained in Donna
Richardson’s statement. In Westley Richardson’s first statement, which
Appellant received before the preliminary hearing, Westley Richardson
asserted that he was on the highway coming back from the Springfield Mall
when Appellant told him he “got jumped.” Commonwealth’s Ex. 23 at 2
(unpaginated). Westley Richardson responded that he could not do anything
to help Appellant because he was not in the area. Id. at 3. After speaking to
Appellant, Westley Richardson stated that he went home, washed up, and
went to Wawa to eat. Id. He then went to see a girl in South Philadelphia
after “riding around.” Id. He did not go home because he was receiving
threatening calls. Id. Additionally, Westley Richardson suggested he learned
of the shooting when the victim’s brother called him looking for Appellant. Id.
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at 3. He also acknowledged speaking with Donna Richardson the day after
the shooting and telling her to leave her home. Id. at 4. Therefore, Westley
Richardson’s first statement suggests that he was not with Appellant at the
time of the shooting and also told Donna Richardson to leave the home. Thus,
we discern no basis to disturb the trial court’s conclusion that the
Commonwealth failed to produce vital impeachment evidence before the
preliminary hearing. See Buford, 101 A.3d at 1195; Pukowsky, 147 A.3d
at 1233.
Appellant’s further reliance on Commonwealth v. Bazemore, 614
A.2d 684 (Pa. 1992), is misplaced. In Bazemore, while defense counsel
cross-examined the witness at the preliminary hearing, defense counsel was
unaware, and had not been informed, that the witness had made a prior
inconsistent statement to police. Id. at 685. In addition, defense counsel did
not know that the witness had a criminal record, or that the district attorney’s
office was contemplating filing homicide and conspiracy charges against him
in connection with the same incident that gave rise to Bazemore’s charges.
Id. The witness’ credibility was of “vital importance” in that case. Id. at
687-88. Under those circumstances, the Pennsylvania Supreme Court held
that there was no fair and full opportunity for cross-examination.
No such circumstances exist in Appellant’s case. A review of defense
counsel’s cross-examination of Westley Richardson reveals that defense
counsel had a full and fair opportunity to cross-examine Westley Richardson.
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In response to defense counsel’s questions, Westley Richardson claimed that
he had lied to police, and would have said anything to be able to leave from
police custody. See N.T., 8/13/14, 94-112. Westley Richardson’s first and
second statements, both of which Appellant received before the preliminary
hearing, contained similar inconsistencies as Westley Richardson’s statement
in Donna Richardson’s undisclosed statement. Furthermore, Westley
Richardson’s credibility was not of “vital importance” in this case, as another
witness, Jefferson, Jr., testified that he saw Appellant fire the shots that killed
the victim.
In sum, our review of the record supports the trial court’s determination
that Appellant was not denied vital impeachment evidence necessary for a full
and fair opportunity to cross-examine Westley Richardson at the preliminary
hearing. Thus, we discern no error in the trial court’s ruling that Westley
Richardson’s prior testimony was admissible as substantive evidence at
Appellant’s trial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/17
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