Com. v. Burgess, R. ( 2016 )

J-A10038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT L. BURGESS
Appellant No. 700 WDA 2015
Appeal from the Judgment of Sentence November 25, 2014
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0002178-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 30, 2016
Appellant, Robert L. Burgess, appeals from the judgment of sentence
entered in the Beaver County Court of Common Pleas, following his jury trial
convictions for one count each of burglary, criminal trespass, possession
with intent to deliver a controlled substance (“PWID”), possession of a
controlled substance (marijuana), conspiracy to commit PWID, and firearms
not to be carried without a license; two counts each of first-degree murder,
simple assault, and recklessly endangering another person; four counts each
of kidnapping, false imprisonment, and unlawful restraint; and his bench
trial conviction for persons not to possess firearms.1 We affirm.
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1
18 Pa.C.S.A. §§ 3502, 3503; 35 P.S. §§ 780-113(a)(30), (a)(16); 18
Pa.C.S.A. §§ 903, 6106, 2502(a), 2701, 2705, 2901, 2903, 2902, 6105.
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The trial court opinion sets forth the relevant facts and procedural
history of this case.2 Therefore, we will only briefly summarize the facts and
procedural history most relevant to this appeal. In June 2008, Demetria
Harper (“Mrs. Harper”) advised Appellant and his cohort, Devon Shealey
(“Mr. Shealey”), that she could obtain marijuana for an attractive price in El
Paso, Texas, and arranged to buy marijuana with Appellant and Mr.
Shealey’s money. After purchasing the marijuana, Mrs. Harper falsely
informed Appellant and Mr. Shealey that the police had stopped her vehicle
and confiscated the drugs. Mrs. Harper actually mailed the drugs to her
Pennsylvania residence. Appellant and Mr. Shealey doubted Mrs. Harper’s
story. On June 29, 2008, Mrs. Harper returned to her home in Pennsylvania.
The next day, Appellant and Mr. Shealey learned a package had been
delivered to the Harper residence. Based on their belief that the package
contained drugs Mrs. Harper had purchased in Texas, Appellant and Mr.
Shealey traveled to Mrs. Harper’s residence and demanded return of the
money they had supplied or the marijuana. Appellant and Mr. Shealey
confronted Mrs. Harper and Richard Harper (“Mr. Harper”) at gunpoint in
their bedroom with their two minor daughters present. Appellant and Mr.
Shealey forced Mr. and Mrs. Harper to the basement at gunpoint and “hog-
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2
The court’s recitation of the facts appears in its analysis of Appellant’s
challenge to the sufficiency of the evidence (which Appellant does not raise
on appeal). (See Trial Court Opinion, filed June 23, 2015, at 6-14.)
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tied” them by the hands and feet. Appellant and Mr. Shealey then forced
the children to the basement and locked them in the furnace room. Mr.
Shealey fatally shot Mr. Harper in the head; Appellant fatally shot Mrs.
Harper in the head.
During investigation of the case, Detective Timmie Patrick (“Detective
Patrick”) of the Beaver County District Attorney’s Office Detective Bureau
interviewed Tyrone Beasley, Jr. (“Mr. Beasley”), Antoinette Smothers (“Ms.
Smothers”) (Appellant’s fiancée), and Shavon Hampton (“Ms. Hampton”)
(Appellant’s girlfriend and the mother of Appellant’s child). From the
witnesses’ statements and telephone records, Detective Patrick discovered
these witnesses knew of Appellant’s involvement in the drug transaction and
homicides. Detective Patrick employed what he deemed “standard tactics”
for gathering information to learn how much knowledge the witnesses had to
offer about the case.
Police also received facts about the case from Isaiah Paillet (“Mr.
Paillet”). Mr. Paillet told police that while he was incarcerated on the same
cellblock as Appellant, Appellant had disclosed specific details of his
participation with Mr. Shealey in the murders of Mr. and Mrs. Harper.
According to Mr. Paillet, Appellant said Mr. Shealey shot Mr. Harper, and
Appellant shot Mrs. Harper.
Appellant proceeded to jury selection in October 2014. During jury
selection, three law enforcement officers, Detective Patrick, Detective
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Sergeant Michael Kryder, and Special Agent Maurice Ferentino, were present
alongside the Commonwealth’s two prosecutors who were trying the case.
Prior to trial, defense counsel requested sequestration of all but one of the
law enforcement officers, claiming Pa.R.E. 6153 prohibited three law
enforcement officers from sitting at the prosecution’s table during trial. The
court denied defense counsel’s motion to sequester.
On October 28, 2014, a jury convicted Appellant of two counts of first-
degree murder and numerous other offenses in connection with Appellant’s
and Mr. Shealey’s murder of Mr. and Mrs. Harper. The court also convicted
Appellant of persons not to possess firearms. The trial court sentenced
Appellant on November 25, 2014, to two consecutive life sentences for the
first-degree murder convictions and an aggregate consecutive term of
twenty-seven (27) to fifty-four (54) years’ imprisonment for the other
offenses. On December 1, 2014, Appellant timely filed post-sentence
motions, which the court denied on March 31, 2015. On April 27, 2015,
Appellant timely filed a notice of appeal. The court ordered Appellant on
April 30, 2015, to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant timely filed his Rule 1925(b)
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3
See Pa.R.E. 615(b) (stating: “At a party’s request the court may order
witnesses sequestered so that they cannot learn of other witnesses’
testimony. Or the court may do so on its own. But this rule does not
authorize sequestering: …(b) an officer or employee of a party that is not a
natural person (including the Commonwealth) after being designated as the
party’s representative by its attorney”).
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statement on May 13, 2015.
Appellant raises three issues for our review:
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
AND/OR ERRED IN FAILING TO INSTRUCT THE JURY AS TO
DURESS?
WHETHER THE TRIAL COURT ERRED [OR] ABUSED ITS
DISCRETION WHEN IT PERMITTED THREE (3) LAW
ENFORCEMENT OFFICERS TO BE PRESENT AT THE
COMMONWEALTH TABLE DURING THE ENTIRE TRIAL
WHICH VIOLATED RULE 615 OF THE PENNSYLVANIA
RULES OF EVIDENCE?
WHETHER ALL OF THE CHARGES SHOULD BE DISMISSED
DUE TO A VIOLATION OF DUE PROCESS WHEN DETECTIVE
TIMMIE PATRICK CAJOLED AND/OR THREATENED
WITNESSES WHICH WAS OUTRAGEOUS CONDUCT?
(Appellant’s Brief at 9).
“Our standard of review when considering the denial of jury
instructions is one of deference—an appellate court will reverse a court’s
decision only when [the court] abused its discretion or committed an error of
law.” Commonwealth v. Janda, 14 A.3d 147, 163 (Pa.Super. 2011).
Additionally:
This Court’s standard of review for a trial court’s decision
on sequestration of witnesses is [an] abuse of discretion.
We will not reverse a trial judge’s decision to grant or deny
sequestration absent a clear abuse of discretion.
Moreover, an appellant must demonstrate that he…was
actually prejudiced by a trial judge’s sequestration order
before any relief may be warranted. … A request for
sequestration must be specific and supported by a showing
that the interests of justice require it. The purpose of
sequestration is to prevent a witness from molding his
testimony with that presented by other witnesses.
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Commonwealth v. Stevenson, 894 A.2d 759, 767 (Pa.Super. 2006),
appeal denied, 591 Pa. 691, 917 A.2d 846 (2007) (internal citations
omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable John
Dohanich, we conclude Appellant’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion at 40-50, 18-29) (finding: (1) Mr.
Paillett’s trial testimony, read in its entirety, does not support Appellant’s
claim that Mr. Shealey threatened Appellant or forced him to kill Mrs.
Harper; evidence showed Appellant was leader in underlying drug
transaction; upon learning of Mrs. Harper’s return from Texas and that
package had been delivered to her home, Appellant immediately left
Baltimore and showed up at Mrs. Harper’s residence with Mr. Shealey
because “they [were] f’ing up [his] money”; Mr. Paillett confirmed Mrs.
Harper was “Appellant’s problem”; no evidence of record suggests Appellant
feared Mr. Shealey or that Mr. Shealey threatened Appellant or coerced him
to shoot Mrs. Harper; evidence did not warrant jury instruction on duress;
(2) Rule 615 does not on its face prohibit Commonwealth from having more
than one law enforcement officer at prosecutor’s table as Commonwealth’s
representative; Appellant’s averment that testimony of three officers who
sat at prosecutor’s table supported and overlapped one another lacks
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specificity and fails to show that interests of justice required sequestration;
Appellant does not indicate how any officer’s testimony was molded by
testimony of other officers; absent proof of specific evidence to justify
sequestration or demonstration of actual prejudice, Appellant’s claim fails;
as well, three government agencies jointly cooperated in investigation
leading to charges against Appellant, and officers from these agencies who
sat at prosecutor’s table were co-affiants on charging documents; further,
testimony from these officers was not so critical to Commonwealth’s case, in
light of evidence from other witnesses, to justify sequestration; facts of
cases on which Appellant relies are distinguishable; (3) Appellant’s
complaint that Detective Patrick’s interactions with three witnesses
constituted outrageous government misconduct in violation of Appellant’s
due process rights is waived for failure to raise that claim pre-trial or during
trial; moreover, regarding Mr. Beasley, record shows Mr. Beasley voluntarily
consented to meet police at headquarters for interview; Mr. Beasley did not
inform police that he suffers from Type I Diabetes, and he exhibited no signs
of distress or confusion during interview; Mr. Beasley was coherent, he
corrected officers regarding some details of investigation, and Mr. Beasley
confirmed he was not bullied by police; after interview, Mr. Beasley’s
significant other drove him to hospital because she was concerned Mr.
Beasley had not taken his Diabetes medication while he was at police
station; record does not support Appellant’s allegation that police threatened
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Mr. Beasley or that his hospital visit was result of police conduct during
interview; regarding Ms. Smothers, Detective Patrick played recording for
Ms. Smothers of Appellant talking to his other girlfriend; after hearing
Appellant’s voice on tape, Ms. Smothers agreed to assist with investigation;
Detective Patrick also played recording of Appellant and Ms. Smothers, so
she would know police had their communications on tape; Detective Patrick
showed Ms. Smothers photograph of crime scene, so she would understand
serious nature of investigation; Ms. Smothers did not indicate she was
threatened or coerced to give statement to police; regarding Ms. Hampton,
Detective Patrick also played recordings for Ms. Hampton of conversations
between Appellant and Ms. Hampton, and between Appellant and Ms.
Smothers; Detective Patrick also showed Ms. Hampton photograph of crime
scene to gain her assistance; record is devoid of any threats, false
representations, deception or trickery used by Detective Patrick in
interviewing these witnesses; Detective Patrick’s interview tactics fall within
normal course of criminal investigation and do not constitute outrageous
government misconduct to establish due process violation). Accordingly, we
affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2016
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Circulated 08/12/2016 01:42 PM
IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA
No. 2178 of 2012
v.
ROBERT L. BURGESS
MEMORANDUM OPINION
DOHANICH, S.J. June 23, 2015
The defendant, Robert L. Burgess, has appealed the judgment of sentences
imposed following his convictions by a jury on October 28, 2014, of two counts of
first degree murder, burglary, criminal trespass, four counts of kidnapping, four
counts of false imprisonment, four counts of unlawful restraint, carrying a firearm
without a license, two counts of simple assault, two counts of recklessly
endangering another person, possession with intent to deliver marijuana,
conspiracy to commit possession with intent to deliver marijuana and simple
possession of marijuana. The jury acquitted the defendant of conspiracy to commit
first degree murder, two counts of robbery and conspiracy to commit robbery.
Upon the defendant's waiver of jury trial and request for a bench trial on the
charge of person not to possess a firearm to be heard simultaneouslywith the jury
trial on the above charges, the court convicted the defendant of said firearms
offense. The Commonwealth, prior to trial, without objection and with leave of
court, withdrew eight counts of robbery.
At the time of arraignment on November 301 2012, the Commonwealth,
pursuant to the Sentencing Code, 42 Pa. C.S. §9711, filed its notice of intention to
seek the death penalty citing six separate aggravating factors in the event of
convictions of first degree murder. Following the death penalty phase, the jury
was unable to reach a verdict as to the penalty.
The instant case is the companion case to Commonwealth v. Devon 0.
Shealey at No. 2177 of 2012, which is currently on appeal to the superior court at
No. 186 WDA 2015.
The charges against the defendant resulted from the invasion of the
home and shooting deaths of Richard Harper (Richard) and his wife, Demetria
Harper (Demetria), in the presence of their two minor daughters, Laniya, age 10,
and lyana, age 8, committed by the defendant and co-defendant, Devon 0. Shealey
(Shealey), in the late evening hours of June 30, 2008, in the Harper residence
located at 809 Second Avenue, Beaver Falls, Beaver County, Pennsylvania.
On November 25, 2014, the court sentenced the defendant to two
consecutive terms of life imprisonment on the first degree murder convictions,
2
followed by consecutive sentences on two counts of kidnapping relating to the
children of not less than ten years nor more than twenty years; person not to
possess a firearm of not less than five years nor more than ten years; and
possession with intent to deliver marijuana of not less than two years nor more
than four years, for aggregate consecutive sentences of not less than 2.7 years nor
more than ~ 4 years. Sentences on the remaining charges were ordered to run
concurrent or merged with corresponding offenses.
The defendant filed a timely post-sentence motion on December 1, 2014.
Briefs were submitted by the defendant and the Commonwealth following which
the court denied the defendant's post-sentence motion by order of March 31, 2015.
Notice of appeal was filed by the defendant on April 27, 2015. The court directed
the defendant to file and serve a concise statement of errors complained of on
appeal on or before May 21, 2015. The defendant's timely concise statement filed
on May 13, 2015, sets forth the following errors complained of on appeal:
1. Whether there was insufficient evidence concerning the charges
of first degree murder, simple assault, recklessly endangering another
person, burglary, criminal trespass, firearms not to be carried without
a license, kidnapping, false imprisonment, person not to possess a
firearm and unlawful restraint, when the Commonwealth failed to
prove that Appellant was the actual person that committed the crimes?
See Brief in Support of Post-Sentencing Motions, Argument I.
2. Whether there was insufficient evidence to prove the charges of
recklessly endangering another person when the two (2) children of
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the victims were behind a wall of approximately one (1) foot or more
of stone and could not possibly be endangered of serious bodily injury
when the guns were fired? See Brief in Support of Post-Sentencing
Motions, Argument II.
3. Whether the trial court erred and/or abused its discretion when
it permitted three (3) law enforcement officers to be present at the
Commonwealth table during the entire trial which violated Rule 615
of the Pennsylvania Rules of Evidence? See Brief in Support of Post-
Sentencing Motions, Argument III.
4. Whether all of the charges should be dismissed due to a
violation of due process when Detective Timmie Patrick cajoled
and/or threatened witnesses which was outrageous conduct? See Brief
in Support of Post-Sentencing Motions, Argument IV.
5. Whether the trial court erred and/or abused its discretion in
failing to grant a mistrial when Agent Maurice Ferentino testified that
the Appellant was a gang member and/or associated with a gang? See
Brief in Support of Post-Sentencing Motions, Argument V.
6. Whether trial court abused its discretion in failing to grant a
mistrial when the Commonwealth presented testimony that the
Defendant was on parole? See Brief in Support of Post-Sentencing
Motions, Argument VI.
7. Whether the trial court abused its discretion by allowing the
Commonwealth to present inadmissible hearsay evidence? See Brief
in Support of Post-Sentencing Motions, Argument VII.
8. Whether the trial court erred. in failing to instruct the jury as to
duress? See Brief in Support of Post-Sentencing Motions, Argument
VIII.
9. Whether the trial court erred in refusing to allow written jury
instructions as to the defenses? See Brief in Support of Post-
Sentencing Motions, Argument IX.
4
This Opinion is filed pursuant to Rule 1925(a) of the Pennsylvania Rules of
Appellate Procedure, 42 Pa. C.S., to address the issues raised by the defendant in
his concise statement.
SUFFICIENCY OF EVIDENCE AS TO IDENTITY
OF DEFENDANT AS PERPRETRATOR OF ALL OFFENSES
The defendant challenges the sufficiency of the Commonwealth's evidence
proving that he was the perpetrator of the crimes for which he was convicted.
The test for a challenge to the sufficiency of the evidence was summarized
in Commonwealth v. Donahue, 428 Pa.Super. 259, 272, 630 A.2d 1238, 1244
(1993), as follows:
The standard we apply in reviewing the sufficiency of the evidence is
whether viewing all the evidence admitted at trial in the light most
favorable to the verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime beyond a reasonable
doubt. In applying the above test, we may not weigh the evidence and
substitute our judgment for the fact-finder. In addition, we note that
the facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined circumstances.
The Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test, the
entire record must be evaluated and all evidence actually received
must be considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced is ·
free to believe all, part or none of the evidence. Furthermore, when
reviewing a sufficiency claim, our Court is required to give the
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prosecution the benefit of all reasonable inferences to be drawn from
the evidence.
However, the inferences must flow from facts and circumstances
proven in the record, and must be of such volume and quality as to
overcome the presumption of innocence and satisfy the jury of an
accused's guilt beyond a reasonable doubt. The trier of fact cannot
base a conviction on conjecture and speculation and a verdict which is
premised on suspicion will fail even under the limited scrutiny of
appellate review.
When viewing the evidence in the light most favorable · to the
Commonwealth as the verdict winner, the following facts were established at trial:
In the spring of 2008, Demetria and Margarette (Nay Nay) Moore (Moore) became
acquainted through the activities of their respective children as residents in the
same Second Avenue, Beaver Falls neighborhood, and over time, became close
friends. The Harper family had relocated to Beaver Falls from El Paso, Texas.
Moore had been familiar with the defendant, Burgess, since attending high school;
lost touch with him through the years; and resumed their relationship in 2007.
Burgess lived on Letsche Street in the North Side section of Pittsburgh. Moore
introduced Demetria to Burgess when Demetria transported Moore to the Burgess
residence in early June, 2008. On at least two additional occasions, Demetria
drove Moore to the Burgess home within a week or two of the first visit, during
which the co-defendant, Shealey, was also present. Demetria was introduced to
Shealey, also known as "D", through Burgess, who was also known as "Raw". At
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one of the meetings, Demetria advised Burgess and Shealey that she could obtain
marijuana for an attractive price in El Paso, which prompted discussions among
Demetria, Burgess, Shealey and Moore, and led to a plan by which Burgess and
Shealey would front funds to Demetria for her to travel to El Paso, obtain
marijuana, and mail it to an address provided by Burgess. To assure Demetria's
participation in the plan, a copy of Demetria's identification card, which included
her address, was made by Burgess on a copier at his residence. On June 25, 2008,
Moore drove Demetria to the Burgess residence where Demetria purchased a
round-trip airline ticket online utilizing the computer of Burgess by which
Demetria would travel from Pittsburgh to El Paso and return to Pittsburgh. Moore
then transported Demetria to her home in Beaver Falls where she packed a suitcase
and was taken by Moore to the Pittsburgh International Airport. Upon arriving at
the airport, Demetria and Moore met Burgess and another unidentified individual.
Burgess provided Demetria with $1,500.00 in funds to purchase marijuana in
Texas. Demetria departed thereafter and arrived in El Paso later that day. After
several days of negotiations, Demetria, by way of arrangements made through
LaDon Williams (Williams), a friend of Demetria in El Paso, she purchased four
pounds of marijuana for $800.00. The marijuana had an odor of gasoline, and
Demetria and Williams attempted to remove the odor by way of a process of
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boiling vegetables in a pot while holding the marijuana above the steam that was
generated. While in Texas from June 25, 2008, through June 29, 2008, Demetria
remained in constant contact with Moore, who was in the presence of and staying
at the residence of Burgess. Shealey was also present at the Burgess home during
this time. Moore, at the direction and insistence of Burgess, sent numerous text
messages to Demetria inquiring as to the progress of her efforts to obtain the
marijuana. After acquiring the marijuana, Demetria falsely forwarded a text
message to Moore that Demetria had been stopped by the police at a checkpoint,
had been arrested and the marijuana confiscated, when in fact, she had the
marijuana mailed to her home in Beaver Falls. According to Moore, Burgess
doubted Demetria's truthfulness. Prior to Demetria returning to Pittsburgh,
Burgess and Shealey drove to Baltimore, Maryland to visit Burgess' girlfriend,
Antoinette Smothers (Smothers). Demetria returned home from Texas on June 29,
2008. Upon observing a package being delivered to the Harper residence on June
30, 2008, Moore telephoned Burgess while he was in Baltimore to report the
delivery. Immediately thereafter, Burgess and Shealey departed Baltimore and
returned to Pittsburgh in the early evening hours. Later that same night, Burgess
and Shealey traveled to Beaver Falls, entered the Harper home wearing masks
completely covering their faces, gloves and dark clothing, and confronted
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Demetria and Richard at gun point in their second floor bedroom while the two
children were present demanding the return of the money previously provided
and/or the marijuana. Demetria advised that the marijuana was in a box in the
bedroom to which Burgess replied that they had no interest in the box. Demetria
and Richard were taken to the basement at gunpoint and hog-tied by the hands and
feet from behind with an electrical cord from a vacuum sweeper. The children
were then escorted from the second floor bedroom to the basement and placed in a
furnace room a short distance away from their parents, whom they observed bound
and face down on the basement floor. Shortly thereafter, Shealey shot Richard in
the head and Burgess shot Demetria in the head. The children heard the two shots
from their location in the furnace room and also their father groaning from his
wound. Burgess and Shealey retrieved the box containing the marijuana and
departed, returning to Pittsburgh. The children remained in the furnace room the
entire night until approximately 11 :00 a.m. on July 1, 2008, when their aunt,
Joanne Vaughn (Vaughn), the sister of Richard, arrived at the house after spotting
Richard's vehicle outside the residence at a time when he should have been at
work. Richard and Demetria were deceased when discovered by Vaughn who
called police. Within days of the killings, Cheryl Chambers (Chambers) and her
daughter, Rachel Harden (Harden), a girlfriend of Shealey and mother of his child,
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observed Shealey in the possession of marijuana with an odor of gasoline
attempting to remove the moisture and gasoline odor of the marijuana using a
hairdryer.
Tyrone Beasley, Jr., who is the first cousin of Burgess, testified on behalf of
the Commonwealth indicating that he and Burgess were very close having known
each other their entire lives; were residents of the same neighborhood; and saw
each other on a daily basis during 2008. Burgess had provided a cellular
telephone, for which he was the subscriber, to Beasley for his use. Burgess
informed Beasley that he would be traveling to Baltimore to visit a female
acquaintance at the end of June, 2008. Upon the defendant's return from
Baltimore on June 30, 2008, he directed Beasley to exchange the cellular telephone
that Beasley was using for the cellular telephone Burgess possessed, and instructed
Beasley not to answer any calls he received on Burgess' cellular telephone unless
he could identify the caller. When Beasley inquired as to the reason for swapping
telephones, Burgess replied that "somebody got out on him on some money." In
the early morning hours of July I, 2008, Beasley and his wife, Dara, had an
argument, and Beasley went to the home of Burgess to spend the night. Later that
morning, Beasley inquired of Burgess as to whether he wanted to walk their dogs,
and Burgess replied that "something just went down", and he was required to
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obtain his vehicle in Beaver Falls. Beasley was employed at Community College
of Allegheny County in the housekeeping department and worked the 11:00 P.M.
through 7:30 A.M. shift, Tuesday through Saturday. While at work from 11 :00
P.M., Tuesday, July 1, 2008, through 7:30 A.M., Wednesday, July 2, 2008, he
learned of the double homicide in Beaver Falls while watching the news on
television. After completing his shift, Beasley met Burgess, informed him of the
news item, and inquired of Burgess whether Burgess obtaining his automobile in
Beaver Falls had anything to do with the double homicide. Burgess put his head
down to his chest and nodded in the affirmative. Burgess advised Beasley that a
person had "got out on him over money and he had to get his". Burgess provided
additional details of arriving at the Harper residence and admitted to participating
in the shootings.
Testimony was elicited by the Commonwealth from Cheryl Chambers and
her daughter, Rachel Harden, that in the summer of 2008 they had met Burgess
through the co-defendant, Shealey, who fathered a child with Rachel Harden.
Shealey was a daily visitor to the Harden residence along with Burgess. Chambers
testified that she knew that Burgess had a girlfriend in Baltimore and had gone to
visit her with Shealey at the end of June, 2008. In November, 2008, as a result of
reviewing various telephone records, Detective Sergeant Michael Kryder of the
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Beaver Falls Police Department called Harden's cellular telephone number which
was subscribed to Chambers. Upon learning that Harden was a minor, Detective
Sergeant Kryder requested that she have Chambers return his call. Upon
contacting the Beaver Falls police, Chambers was advised that they wanted to
speak with Harden and Chambers, and a meeting was scheduled for the Eat N'
Park Restaurant in Bellevue, Allegheny County. Immediately after scheduling the
meeting, Chambers contacted Burgess who met Chambers and Harden at their
residence. Burgess informed them that he knew that the subject of the police
inquiry was regarding a bad drug deal and instructed them to inform police that the
reason that his telephone number appeared on their telephone records was because
he was dating Chambers' older daughter, Rochelle. Burgess also informed them
that he would have someone observing the meeting, and that if they did not follow
his instructions that there would be consequences. Chambers and Harden met with
Detective Kryder and Detective Timmie Patrick of the Beaver County District
Attorney's Office Detective Bureau at the Eat N' Park as scheduled and were
shown two photographs, one of which was of Burgess who they both identified.
When Chambers inquired regarding the subject of the investigation, she was
informed that a double homicide had occurred in Beaver Falls. At the conclusion
of the meeting, Chambers and Harden departed, and on the way home, telephoned
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Burgess who met them at their residence. Chambers informed Burgess that the
police were investigating the double homicide in Beaver Falls and not a bad drug
deal. During this period of time, the co-defendant, Shealey, was being held in the
Allegheny County Jail on an unrelated homicide . charge. Burgess expressed
concern regarding Shealey "running his mouth" and directed Harden to inquire of
Shealey as to whether the Beaver Falls police had contacted him. Chambers and
Harden also indicated that Shealey had access to the cellular telephone in the
possession of Harden. The telephone records disclosed contact between Demetria
and Harden's telephone number. Both Chambers and Harden denied that they had
ever been in contact with Demetria. Burgess also advised Chambers and Harden
that he had an alibi for his whereabouts at the time of the double homicides.
Harden further indicated that Burgess was overly concerned with the Beaver
County situation.
Isaiah Paillett provided testimony on behalf of the Commonwealth that he
had known the defendant since 1993 as friends from the North Side of Pittsburgh.
He was aware that Burgess and Shealey knew each other, since he had introduced
them during the summer of 2007. As a result of being indicted by the Federal
authorities, Paillett, Shealey and Burgess were incarcerated in 2010 at the
Northeastern Ohio Correctional Facility on the same cell block with free access to
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one another from April 28, 2010 through May 12, 2010, at which time Burgess
provided specific details of his participation together with Shealey in committing
the murders of the Harpers. Burgess confirmed that Shealey shot Richard and that
he shot Demetria.
As a basis for his assertion that the above evidence was insufficient to link
the defendant to the homicides, Burgess submitted solely the following statement
in the brief in support of his post-sentencing motion:
The Commonwealth failed to prove beyond a reasonable doubt that
the defendant committed all of the crimes to which he was charged
even when the evidence is viewed in the light most favorable to the
Commonwealth.
Burgess failed to delineate which evidence was insufficient or the reasons for the
insufficiency of the evidence as to the identity of the defendant as the perpetrator.
Furthermore, the defendant failed to set forth any authority for his position.
Upon careful review of all of the evidence presented in the case, the court
finds that the Commonwealth established beyond a reasonable doubt that Burgess
was the perpetrator of the crimes of which he was convicted.
SUFFICIENCY OF EVIDENCE OF ELEMENTS FOR TWO COUNTS OF
RECKLESSLY ENDANGERING ANOTHER PERSON
Burgess contests that the minor victims. were placed in danger of death or
serious bodily injury when Burgess and Shealey shot the adult victims in the
14
basement of the residence while the children were located in the furnace room of
the basement, and therefore, the Commonwealth failed to establish the elements of
the two counts of recklessly endangering another person.
As noted above, the episode initiated on the second floor of the Harper
home. When the minor victims attempted to enter their parents' bedroom, they
encountered Burgess (the taller individual) and Shealey, one of whom closed the
door on the head of Iyana, who began to cry. Both minor victims were then forced
into the bedroom, with Burgess grabbing lyana and placing a gun to her head while
telling her to shut up. After both parents were taken to the basement, Burgess
returned to the second floor bedroom and escorted the minor victims at gunpoint to
the basement and placed them in the furnace room adjacent to where their parents
were lying on the floor face down and hog-tied from behind. Both minor victims
described the location of their parents on the floor as being "right. in front of the
furnace room".
Detective Timothy Staub characterized the Harper home as an
approximately 100 year-old, two-story structure. The basement of the residence
was described as being relatively small with sandstone walls and exposed rough
cut timber joists in the low ceiling. He detailed his extensive and unsuccessful
efforts in attempting to find the bullet which had entered and exited Richard
15
Harper's head. Detective Sergeant Kryder recounted that the furnace room was a
small square area that occupied approximately one-fourth of the total basement.
The court, in Commonwealth v. Hopkins, 747 A.2d 910, 915-916 (2000)
summarized the requirements to prove the offense of recklessly endangering
another person, as follows:
A person commits the crime of recklessly endangering another person
if he engages in conduct which places or may place another person in
danger of death or serious bodily injury. 18 Pa.C.S.A. § 2705. Our
law defines "serious bodily injury" as "bodily injury which creates a
substantial risk of death or which causes serious, permanent
disfigurement or protracted loss or impairment of the function of any
bodily member or organ." Id. § 2301; Commonwealth v. Rochon, 398
Pa.Super. 494, 581 A.2d 239, 243 (1990). To sustain a conviction
under section 2705, the Commonwealth must prove that the defendant
had an actual present ability to inflict harm and not merely the
apparent ability to do so. In re Maloney, 431 Pa.Super, 321, 636 A.2d
671, 674 (1994). Danger, not merely the apprehension of danger,
must be created. Id. The mens rea for recklessly endangering another
person is "a conscious disregard of a known risk of death or great
bodily harm to another person." Commonwealth v. Peer, 454
Pa.Super, 109, 684 A.2d 1077, 1080 (1996). Brandishing a loaded
firearm during the commission of a crime provides a sufficient basis
on which a factfinder may conclude that a defendant proceeded with
conscious disregard for the safely of others, and that he had the
present ability to inflict great bodily harm or death. Id. at 1080-1081.
The defendant asserts that the children were protected in the furnace room
and thus not in danger of death or serious bodily injury. This argument fails for
two reasons. Initially, the children were subjected by the defendant to a loaded
16
firearm pointed at or toward them in the second floor bedroom of their parents and
again as they were taken to the basement. Secondly, in view of the fact that the
bullet that killed Richard Harper was never found, a reasonable inference can be
drawn that the bullets that killed the Harpers may have ricocheted from the floor or
the walls of the basement and into the furnace room. In both instances, the
defendant had actual present ability to inflict harm and created a danger sufficient
to consciously disregard a known risk of death or serious bodily injury to the
children.
The defendant cites Commonwealth v. Hopkins, supra, and Commonwealth
v. Peer, 454 Pa. Super. 109, 684 A.2d 1077 (1996), in an effort to distinguish the
facts in those cases from those in the instant case. However, the defendant's
distinctions fail. In both Hopkins and Peer, the court held that the brandishing of a
loaded firearm during the commission of a crime provides sufficient basis on
which a factfinder may conclude that a defendant proceeded with conscious
disregard for the safety of others, and that he had the present ability to inflict great
bodily harm or death. The Peer court upheld a conviction for recklessly
endangering another person where the defendant possessed a gun at a party at
which he consumed alcohol, brandished the gun during a melee, struggled over
control of the gun, and threatened to kill two people. In Hopkins, the court held
17
that the evidence was sufficient to support convictions for recklessly endangering
another person with respect to two victims, where the defendant was .in visible
possession of a gun, the gun was loaded, the defendant used the gun to pistol whip
a victim while another victim was less than five feet away during the pistol
whipping, and the defendant carried the gun as he took money from a victim. In
neither of the cases was the weapon actually fired. In the present case, not only did
Burgess place a weapon to the head of one of the minor victims and escort the
minor victims at gunpoint to the basement, he participated in shooting and killing
the adult victims while the children were in close proximity in the furnace room.
Based upon the above facts, the court determines that the Commonwealth
produced evidence sufficient to convict Burgess of the two counts of recklessly
endangering another person as to the two minor children.
ALLEGED VIOLATION OF RULE 615 OF THE
PENNSYLVANIA RULES OF EVIDENCE
Burgess alleges a violation of Rule 615 of the Pennsylvania Rules of
Evidence as an error and/or abuse of discretion on the part of the trial court in
permitting the three co-affiants to remain present during the entire trial. Prior to
the commencement of the trial, defense counsel argued that Rule 615 permitted
only one affiant to remain in the courtroom during the trial and relied on the cases
18
of Commonwealth v. Turner, 371 Pa. 417, 88 A.2d 915 (1952) and
Commonwealth v. Fant, 480 Pa. 586, 391 A.2d 1040 (1978). The defendant's
brief further cited the former comment to Rule 615 which stated "in a criminal
case, the prosecution has a right to have the law enforcement agent primarily
responsible for investigating the case at the counsel table to assist in presenting the
case, even though the agent will be a witness."
Prior to the commencement of the trial, defense counsel requested
sequestration of all but one affiant. The Commonwealth responded that Detective
Sergeant Kryder of the Beaver Falls Police Department, Detective Patrick of the
Beaver County District Attorney's Office Detective Bureau and Agent Maurice
Ferentino, Senior Special Agent with the Bureau of Alcohol, Tobacco, Firearms
and Explosives had all executed the affidavit in support of the criminal complaint
as co-affiants. The assistant district attorney also advised the court that Agent
Ferentino had been specifically sworn in as a special task force officer by the
district attorney, providing him with state authority to execute the affidavit.
Rule 615 of the Pennsylvania Rules of Evidence, 42 Pa. C.S., governing
sequestration of witnesses provides, in pertinent part, as follows:
At a party's request the court may order witnesses sequestered so that
they cannot learn of other witnesses' testimony. Or, the court may do
so on its own. But this rule does not authorize sequestering: (b) an
officer or employee of a party that is not a natural person (including
19
the Commonwealth) after being designated as the party's
representative by its attorney.
An appellant must demonstrate that he was actually prejudiced by a trial
judge's sequestration order before any relief may be warranted. Commonwealth v.
Stevenson, 894 A.2d 759, 767 (Pa. Sup'!r. 2006) (Citation omitted). A request for
sequestration must be specific and supported by a showing· that the interests of
justice require it. Commonwealth v. Counterman, 553 Pa. 370, 399, 719 A.2d
284, 299 (1998) (Citation omitted). The purpose of sequestration is to prevent a
witness from molding his testimony with that presented by other witnesses. Id.Burgess asserts that Rule 615 never envisioned that the Commonwealth
would be permitted to allow for three law enforcement officers to sit at counsel
table, however, his argument lacks any supporting authority. Rule 615, on its face,
does not limit the Commonwealth to one law enforcement officer to remain as the
only representative of the Commonwealth during trial. Furthermore, the
defendant's averment that the testimony of the three officers supported and
overlapped one another, thus resulting in prejudice, fails to establish the specificity
required to support a showing that the interests of justice required sequestration.
The defendant has failed to indicate how any of the officers' testimony was molded
by the testimony of each of the other officers. Without proof of specific evidence
20
justifying sequestration or the demonstration of actual prejudice, the defendant's
argument as to a violation of Rule 615 fails.
The defendant's reliance on Commonwealth v. Turner, supra, and
Commonwealth v. Fant, supra, is of no benefit. The Turner court determined that
in a murder prosecution, the refusal of the trial court to grant a request for
sequestration of two detectives whose testimony, relating to an inculpatory
statement made by the defendant in supposed secrecy to a fellow prisoner, had a
critical bearing on the defendant's guilt or innocence, and whose credibility was
consequently of paramount importance, was an abuse of discretion. In Fant, the
defendant was convicted of two counts of third degree murder after never having
been identified prior to trial and whose conviction was based almost entirely on
eyewitness testimony. The denial of his request to sequester the prosecution's
witnesses, who either placed the defendant at the scene of the killings or testified
that they witnessed the defendant commit the shooting, was held to be an abuse of
discretion denying the defendant due process. The factual situations in Turner and
Fant are clearly distinguishable from those of the case at bar.
The record reveals that the case against Burgess initially was investigated by
the Beaver Falls Police Department and the Beaver County District Attorney's
Office Detective Bureau, was subsequently referred to the United States Attorney's
21
Office as a result of a Federal grand jury investigation, and then returned to the
Beaver County District Attorney's Office for prosecution. Therefore, the three
separate agencies were jointly cooperating in the investigation leading to the
charges filed against the defendant and justified the three co-affiants remaining
present during the entire trial. In addition, the testimony of the officers in the
instant case was not so critical to the Commonwealth's case as in Turner and
Fant, in light of the evidence from other witnesses produced by the
Commonwealth to establish the defendant's guilt.
ALLEGED DUE PROCESS VIOLATION DUE TO
ALLEGED CAJOLING/THREATENING OF WITNESSES
The defendant asserts that Detective Patrick's interactions with three
Commonwealth witnesses, Tyrone Beasley, Jr. (Beasley), Antionette Smothers
(Smothers) and Shavon Hampton (Hampton), constituted outrageous government
misconduct resulting in a violation of due process. Specifically, the defendant
alleges that Detective Patrick cajoled and/or threatened these witnesses to testify
favorably for the Commonwealth. In response, the Commonwealth initially argues
that the failure of the defendant to raise the due process issue at the pre-trial stage
or during trial results in a waiver of this claim.
22
A review of the entire record confirms the Commonwealth's position.
Neither prior to nor during the trial did the defendant challenge Detective Patrick's
conduct as a violation of due process. The defendant first made this claim in his
post-sentence motion. Rule 720(B) of the Pennsylvania Rules of Criminal
Procedure, 42 Pa. C.S., provides that only issues raised before or during trial are
deemed preserved for appeal. Absent a contemporaneous objection, the issue is
not properly preserved on appeal. Commonwealth v. Melendez-Rodriguez, 856
A.2d 1278, 1287 (Pa. Super. 2004). A criminal defendant cannot assert a claim in
a post-sentence motion for a new trial that evidence was erroneously admitted
during his trial if he had not lodged an objection during the trial when the evidence
was admitted. Commonwealth v. Kohan, 825 A.2d 702, 706 (Pa. Super. 2003).
Failure to object results in a waiver of the claim. Id. Although the Kohan
decision was superseded by the 2005 amendments as to paragraphs (A) and (C) of
Rule 720 regarding after discovered evidence, its ruling as to raising issues prior to
or at trial in order to preserve them on appeal pursuant to paragraph (B) of the Rule
remains applicable.
The defendant, having failed to raise the issue of Detective Patrick's conduct
with the three witnesses prior to or at trial, this claim has not been preserved and is
thus waived.
23
Assuming arguendo that waiver is inapplicable, the defendant's allegation of
coercing the witnesses is not supported by the record and thus fails to meet the
requirements for a violation of due process based upon outrageous government
misconduct.
To establish a due process violation on the basis of outrageous government
misconduct, the defendant must prove that such conduct was so grossly shocking
and so outrageous as to violate the universal sense of justice. Commonwealth v..
Benchino, 399 Pa. Super. 521, 526, 582 A.2d 1067, 1069 (1990). (Citations
omitted). The conduct of the government in conducting criminal investigations
will be found to violate due process only in the rarest and most outrageous
circumstances. Id. (Citations omitted).
In regard to Commonwealth witness Beasley, the defendant claims that
Beasley was threatened by Detective Patrick by kicking him under the table in the
interview room resulting in Beasley being hospitalized for a significant time.
Burgess also avers that Detective Patrick testified that Beasley was "a project" that
needed to be talked to in rough fashion to get him to say what police wanted from
him during a lengthy interview with only one pause in the questioning.
A review of the record reveals that Beasley testified that on August 4, 2008,
approximately one month following the murders, at approximately 1 :00 P.M.,
24
(
Detective Patrick, Detective Sergeant Kryder and Detective Robert Chamberlain
proceeded to his residence as a result of viewing the telephone number of
Beasley's wife on the defendant's telephone records. Beasley voluntarily
consented to meet the officers at the Pittsburgh police headquarters on Western
Avenue. Beasley drove himself to the police station where the officers met with
him in an interview room and commenced questioning him regarding his
knowledge of the defendant and the defendant' s involvement in the Harper
murders. Beasley remained with the officers at the police department until 5:43
P.M. at which time he provided a tape-recorded statement. During the course of
the interview, the parties took a break when they ate snacks and consumed liquids.
Beasley provided the officers with the name of his girlfriend, Annette Jackson, to
corroborate that he and Beasley had exchanged telephones upon the defendant's
return from Baltimore. Beasley indicated that he suffers from Type I Diabetes,
however, he did not inform the police of his condition and exhibited no signs of
distress or confusion. He remained coherent during the interview, corrected the
officers regarding some details of information and confirmed that he was not
bullied by the police. Upon conclusion of the interview, Beasley's wife, Dara,
arrived at the police station concerned that Beasley had not taken his prescribed
medication and drove him to the hospital where they arrived at 8 :03 P.M. His
25
blood glucose level was slightly elevated, he was given medication and released
from the hospital the next day. While in transport to the hospital, Dara advised that
Beasley was not confused and that he informed her that he was kicked under the
table by one of the officers in the interview room. Beasley did not mention to his
wife that he was bullied by the officers. Beasley continued to remain in contact
with Detective Patrick throughout their entire investigation to the time of trial and
remained cooperative. Detective Patrick described Beasley's interview as "a
process", because he was uncertain as to the information the officers were
attempting to obtain and was told to slow down in order for the officers to get the
details he was providing "bit by bit", as he had "a lot of information to give".
Detective Patrick was unaware of Beasley's medical condition until much later in
the investigation. Detective Patrick further related that Beasley remained coherent
and even corrected officers on some of the information.
Smothers, who is the defendant's fiance, resided in Baltimore, Maryland. In
March, 2012, Detective Patrick and Detective Kim Clements of the Beaver County
District Attorney's Office Detective Bureau proceeded to Baltimore to interview
Smothers. The defendant alleges that Smothers had previously testified before the
grand jury and that the detectives were hoping to obtain her testimony against him.
Detective Patrick had Smothers listen to tape recordings of various telephone calls
26
(
between her and the defendant, and also between Hampton, the defendant's
girlfriend in Pittsburgh, and the defendant, resulting in Smothers changing her
statement to assist the investigation.
Detective Patrick related that Smothers was combative from the initial
contact and confirmed that he had her listen to the telephone calls between her and
the defendant to demonstrate to her that investigators were aware of the telephone
communications. Detective Patrick further testified that he had Smothers listen to
telephone calls between the defendant and Hampton in which he spoke about
having a life together with Hampton at the same time he was talking about having
a life with Smothers. Detective Patrick further indicated that despite Smothers
telling him that she had testified before the grand jury, he informed her that the
police had follow-up questions to ask. Detective Patrick also displayed a
photograph of the crime scene to emphasize that the police intended to continue
their investigation into the Harper murders. In his testimony, Detective Patrick
verified that Smothers confirmed her grand jury testimony as to the defendant and
co-defendant visiting her at the end of June, 2008 and immediately departing after
Burgess received a telephone call at which time the defendant said to her "Hey,
Babe, I got to go home. I got to get my money. They're messing with my
27
( (
money". At no time did Smothers indicate that she was threatened or coerced in
any manner.
With respect to the Commonwealth witness Hampton, who was the mother
of the defendant's child, the defendant avers that Hampton changed her story and
gave information to the police that they wanted after the detectives once again had
her listen to telephone calls between her and the defendant, as well as between
Smothers and the defendant, and showed her a photograph of the crime scene.
Detective Patrick advised that he interviewed Hampton immediately after
arriving in Pittsburgh from the Smothers meeting in Baltimore in March, 2012.
Detective Patrick advised that Hampton was cooperative to a point, however, she
was reluctant since she and the defendant were parents of a daughter. Detective
Patrick further testified that he met on several occasions with Hampton. In her
testimony, Hampton stated that she felt pressured by Detective Patrick and felt she
was being harassed because he talked to her a number of times. She admitted that
the tape recordings of the telephone calls angered her. Burgess directed Hampton
to file harassment charges against Detective Patrick. Hampton's statements to
Detective Patrick were consistent with what she had previously indicated to Agent
Ferentino on December 2, 2011.
28
The record is devoid of any threats, false representations, deception or
trickery used by Detective Patrick in interviewing Beasley, Smothers and
Hampton. All three witnesses voluntarily agreed to speak with the officers. The
court determines that Detective Patrick's conduct in interviewing the witnesses
was within the normal course of a criminal investigation and did not constitute
outrageous government misconduct so as to establish a violation of the defendant's
due process rights.
ALLEGED ERROR/ABUSE OF DISCRETION IN REFUSING REQUEST
FOR MISTRIAL BY REASON OF ALLEGED REFERENCE
TO DEFENDANT AS GANG MEMBER
The defendant next alleges that the court abused its discretion in refusing to
grant a mistrial on the basis that Agent Maurice Ferentino testified the defendant
was a gang member or associated with a gang, and that such testimony violated
Rule 404(b) of the Pennsylvania Rules of Evidence, 42 Pa. C.S., prohibiting
· evidence of a crime, wrong or other acts and requiring notice from the
Commonwealth of its intended use of such evidence.
In response to the assistant district attorney's mquiry regarding the
significance of the user name of "raw 1728" on the defendant's computer from
which the airline ticket was purchased for Demetria to travel to El Paso, Texas to
29
obtain marijuana, the following direct testimony and cross-examination of Agent
Ferentino reveals evidence contrary to the defendant's allegations:
BY MS. POPOVICH:
Q. Now, you were also present for the testimony involving the
purchasing of the plane ticket; is that correct?
A. The plane ticket?
Q. To Texas.
A. Oh, yes.
Q. And the use of the computer that we have as Commonwealth's
Exhibit No. 74?
A. Yes.
Q. And you heard that the user account was "rawl 728"?
A. Yes.
Q. Does that have any significance to you?
A. Yes.
Q. Okay. First of all, the "raw" part?
A. The "raw" being Mr. Burgess.
Q. Okay. What does 1728 mean to you?
A. 1 728 is, I know I just spoke to the jury regarding the gang
members that we, as ATF, indicted in 2010. 1728 or 28 was
30
popular among the gang members. They would wear tattoos
that. said 1728 or 28.
I know this from both the gang members that were indicted
and cooperating informants in that investigation that 1728
referred to an abandoned house on Brighton Place, a street in
the North Side of Pittsburgh where gang members would
congregate, fight dogs, stash drugs, and weapons.
MR. SHAHEN: Objection, Your Honor. May we approach
side bar?
(WHEREUPON, the following proceedings were had at side
bar:)
MR. SHAHEN: Your Honor, I, at this point my objection is
based upon the answers given by the agent whereas a reference
to gangs and gang related symbols. I don't know, first off,
based upon the fact that that, that he is now associating Mr.
Burgess with a gang under the circumstances where I was
never given a definition of Rule 7 what 1728 is.
I don't, even if I was, Your Honor, by asking that question and
taking that information and putting it before the jury I think we
have created a situation now of the jury knowing or believing
or being told that my client is a member of a gang warrants a
mistrial, and for that reason, Your Honor, I would ask for a
mistrial.
MS. POPOVICH: Your Honor, I am not illiciting the
testimony to say he was part of a gang. My next question was
going to be we are not here saying he was part of a gang.
However, there was testimony, and this was all brought out
through cross-examination of Margarette Moore, that the other
individuals that he associates with, Devon Shealey, the tall
dark individual, that they were gang members. They are
serious. They are gang members. That all came out through
Margarette Moore's testimony. This is just showing
31
knowledge of Shealey, and it goes with his knowledge of
Devon Shealey.
MR. FARRELL: So Shealey is part of RICO?
THE COURT: What are you intending to do next?
MS. POPOVICH: Actually my next question is we are not
here saying that Robert Burgess is a member of the gang.
MR. QUINN: It may even lead into, because Shealey was a
part of RICO that this affiliates him with the RICO, this 1728.
MR. SHAREN: Your Honor, my fellow wasn't even
charged.
MR. QUINN: I didn't mean affiliated. Burgess, it shows him
that he's aware of the gang members. As she said Shealey is a
part of RICO, being a part of the gang member, and-
THE COURT: Well, whether Shealey is a part of gang
members or not I don't think is relevant, so I don't know that
I'm going to let you get into that. The question you indicated
you are going to ask I will permit.
MS. POPOVICH: Um-hum.
THE COURT: Your motion for mistrial is denied.
(WHEREUPON, the side bar proceedings were concluded, and
thereafter the following proceedings were had in open Court:)
THE COURT: Miss Popovich.
BY MS. POPOVICH:
Q. And, Agent Ferentino, just to clarify we are not here testifying
today that Mr. Burgess was part of a gang?
32
A. No. You asked me if the number 1728 had any significance to
me, and I answered your question.
Q. Okay.
CROSS-EXAMINATION BY MR. SHAHEN:
Q. Good morning, Agent Ferentino.
A. Good morning.
Q. I want to make it clear for everybody that you're speaking to in
this courtroom that when you mentioned 1728 and what it
stands for, you in no way and in no manner intended to tell this
jury that Mr. Burgess was a member of any gang, is that true?
A. Miss Popovich asked the question if 1728 had any significance
to me, and I answered the question.
(T.T. Volume XII, Pages 109-114)
Rule 605 of the Pennsylvania Rules of Criminal Procedure, 42 Pa. C.S., sets
forth the requirements for a mistrial, as follows:
(B) When an event prejudicial to the defendant occurs during
trial only the defendant may move for a mistrial; the
motion shall be made when the event is disclosed.
Otherwise, the trial judge may declare a mistrial only for
reasons of manifest necessity.
A mistrial is an extreme remedy and is required only when the incident is of such
nature that the unavoidable effect is to deprive the defendant of a fair trial.
Commonwealth v. Montalvo, 434 Pa. Super. 14, 38, 641 A.2d 1176, 1188 (1994)
33
(Citations omitted). "Prejudicial", in the context of a motion for mistrial, denotes
an event which may reasonably be said to have deprived the defendant of a fair and
impartial trial. Id., citing Commonwealth v. Larkin, 340 Pa. Super. 56, 63, 489
A.2d 837, 840-841 (1985). The specific test to be applied upon a motion for
mistrial is whether improper evidence was admitted at trial, such as would so
compromise the fact-finder that it would be unable to remain impartial, thereby
prejudicing the defendant beyond a reasonable doubt. Id., citing Commonwealth v.
Dean, 300 Pa. Super. 86, 91, 445 A.2d 1311, 1313 (1982). A mistrial may be
granted only where the incident upon which the motion is- based is of such a nature
that its unavoidable effect is to deprive the defendant of a fair trial by preventing
the jury from weighing and rendering a true verdict. Commonwealth v. Rega, 593
Pa. 659, 692, 933 A.2d 997, 1016 (2007), Commonwealth v. Simpson, 562 Pa.
255, 754 A.2d 1264, 1272 (2000).
In the present case, Agent Ferentino clearly testified on both direct and
cross-examination that he was not indicating that Burgess was a gang member.
The defendant has therefore failed to demonstrate the prejudice required to deprive
him of a fair and impartial trial to warrant the extreme remedy of a mistrial.
34
ALLEGED ABUSE OF DISCRETION IN REFUSING
REQUEST FOR MiSTRIAL BY REASON OF REFERENCE
TO DEFENDANT BEING ON PAROLE
The defendant further argues that the court abused its discretion in denying
his request for a mistrial upon the Commonwealth witness, Margarette Moore,
testifying on direct examination that the defendant was on parole.
Moore, in cooperation with the police, had arranged to return the defendant's
car to him in Ambridge, Beaver County. Moore indicated that the· defendant
wanted to meet in Leetsdale, Allegheny County. In response to the assistant
district attorney's question as to the reason that the defendant desired to meet in
Leetsdale rather than Ambridge, Moore testified "I guess because he was on parole
or something. He wasn't allowed out of Allegheny County." Defense counsel
objected and at side bar requested a mistrial which the court denied on the basis
that extensive relevant testimony was anticipated to be subsequently elicited
regarding the defendant's incarceration. on various other charges. In addition, the
court refused the Commonwealth's suggestion for a cautionary instruction based
upon the brief reference to the defendant being on parole as not being prejudicial to
the defendant, and that giving such an instruction to the jury would only emphasize
the passing remark. (T.T., Volume X, Pages 89-92).
35
Not all references which may indicate pnor criminal activity require
reversal. Commonwealth v. Blystone, 555 Pa. 565, 580, 725 A.2d 1197, 1204
(1999) (Citation omitted). Mere passing references to criminal activity will not
require reversal unless the record indicates that prejudice resulted from the
reference. Id. In view of the fact that subsequent relevant testimony revealed that
the defendant had been incarcerated both at the Allegheny County Jail and the
Northeast Ohio Correctional Facility for offenses unrelated to the instant charges,
the passing reference of the defendant being on parole lacked the prejudice
required to deny the defendant a fair trial and thus warrant a mistrial.
ABUSE OF DISCRETION IN ADMISSION
OF ALLEGED HEARSAY EVIDENCE
The defendant claims that the trial court abused its discretion in admitting
hearsay testimony of Commonwealth witness Paillett that the co-defendant;
Shealey, asked Paillett to have Burgess moved to the section of the jail where
Paillett and Shealey were located while all of them were incarcerated at the
Allegheny County Jail.
During discussions in chambers prior to Paillett testifying, the assistant
district attorney indicated that Paillett would be questioned regarding his
unsuccessful attempt to have Burgess moved to the same pod in the Allegheny
County Jail where Paillett and Shealey were housed in November, 2008. (See
36
T.T., Volume XII, Pages 250-255). The court, over the defendant's hearsay
objection, authorized the Commonwealth to examine Paillett as to his efforts to
have Burgess relocated to their area of the Allegheny County Jail.
In his initial testimony, Paillett indicated that he had known Burgess and
Shealey since the 1990's, and introduced Burgess and Shealey to one another in
2007. All three individuals were from the Northside neighborhood of Pittsburgh
and were often in daily contact and in the company of each other in 2007 and 2008.
The Commonwealth's examination of Paillett by the assistant district attorney
concerning the three of them while inmates in the Allegheny County Jail consisted
of the following:
ISAIAH PAILLETTBY MS. POPOVICH
Q. Now, I'm going to move on now to November of 2008. Do
you remember that timeframe?
A. Yeah.
Q. Where were you then?
A. Allegheny County Jail.
Q. And during that time period was Devon Shealey also
incarcerated at the Allegheny County Jail?
A. Yes.
Q. And were you cellmates?
37
A. Yes, we were.
Q. How did that come to be?
A. Well, he was on the pod that I, you know, later got to, 7, 7E,
and I had asked a friend of mine to get me moved down there
to the pod where he was at.
I got there. He had a celly in there with him at the time. You
know, we made him move. I moved in, and we cellies for
about close to, close to a year.
Q. Okay. And what is a celly?
A. · Me and another guy living together, bunking up.
Q. So --
A. Bunkbed.
Q. - - you and Mr. Shealey lived in the same cell?
A. Right, bunkbed, desk, toilet, sink, that's it.
Q. Okay. During that time period in early November, or after,
while you're cellmates with Devon Shealey, do you learn that
Robert Burgess ends up in the Allegheny County Jail?
A. Yeah. I heard he was in the jail, and.
Q. And at that point do you try to have him moved onto your pod?
A. Yeah, I asked somebody to get him moved up, check the
computer, see where he was at first, and she said that he was in
the shoe. That's like the clinic. Everybody goes through there
when you first come in. I asked her to get him moved up.
38
Q. But you ultimately learn that he is then later released from the
Allegheny County Jail, and you weren't able to have him
moved?
A. Yeah, later that day.
(T. T., Volume XIII, Pages 122-123).
The defendant avers that Paillett was permitted to testify that Shealey expressed to
him that Shealey wanted Burgess to be moved closer to them in the Allegheny
County Jail. However, during the Commonwealth's direct examination of Paillett,
the assistant district attorney refrained from any reference that Shealey requested
that Burgess be relocated to the cellblock in which Paillett and Shealey were
inmates nor did Paillett indicate that Shealey wanted the defendant moved close to
them. The assistant district attorney inquired of Paillett as to whether he learned
that the defendant had been incarcerated in the Allegheny County Jail, and the
subsequent actions he took in response to becoming aware of the defendant's
incarceration. An out-of-court statement offered to explain a course of conduct is
not hearsay. Commonwealth v. DeHart, 512 Pa. 235, 254, 516 A.2d 6565, 666
(1986) (prosecutor merely eliciting information as to the reason for a telephone call
being made was not hearsay); Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d
1032 (1980) (evidence of a police radio call offered to show how a police officer
giving testimony came into contact with the defendant was admissible as not being
hearsay since it was an out-of-court statement offered to explain a course of
39
conduct). Paillett learning of the defendant's admission to the Allegheny County
Jail and his response in attempting to have the defendant moved to the same area as
Paillett and Shealey do not constitute hearsay, and therefore, the defendant's
argument is without merit.
ALLEGED ERROR IN REFUSING TO CHARGE JURY
ON DEFENSE OF DURESS
The defendant argues that the trial court erred in refusing to instruct the jury
as to the defense of duress. In particular, Burgess alleges that Paillett testified that
the co-defendant, Shealey, pointed a gun at him to force him to kill the female
victim, Demetria.
The Crimes Code, 18 Pa. C.S. §309, sets forth the requirements for duress:
(a) General Rule. It is a. defense that the actor engaged in the
conduct charged to_ constitute an offense because he was
coerced to do so by the use of, or a threat to use, unlawful
force against his person or the person of another, which a
person of reasonable firmness in his situation would have been
unable to resist.
The elements necessary to establish the duress defense are immediate or imminent
threat of death or serious bodily injury; well grounded or reasonable fear that the
threat will be carried out; and no reasonable opportunity to escape threatened harm
except by committing the criminal act. Commonwealth v. Baskerville, 452 Pa.
Super. 82, 681 A.2d 195 (1996), appeal denied 547 Pa. 723, 689 A.2d 230 (1997).
40
In determining whether there is sufficient evidentiary support for a jury instruction
on the defense of duress, a trial court considers all evidence presented, whether
adduced by the defendant as part of his case in chief, through cross-examination,
or, conceivably, in the Commonwealth's own case in chief. Commonwealth v.
Markman, 591 Pa. 249, 916A.2d 586 (2007).
Contrary to the defendant's assertion, the following examination of Paillett
fails to demonstrate that Paillett testified Shealey pointed the gun at Burgess and
forced him to kill Demetria:
ISAIAH PAILLETT BY MS. POPOVICH
Q. Now, did he tell you specifically what was supposed to happen
with drugs or money?
A. Well, they did something once he said. Everything was good,
something like just to see, you know, how it was going to go,
and he gave him, he gave her a large amount of money and
nothing came back, the money, the drugs, nothing.
Q. Did he tell you where the drugs were supposed to come from?
A. Texas.
Q. So after he tells you that they have them lined up in the
basement, what else does he tell you?
A. Well, he said he was confronting her, and one of the kids had
peaked out the door to see what was going on with their
family. He said that Shealey told one, you know, the kid go
back in there, everything will be already,just go back in, shut
41
the closet, and Shealey had lifted his mask up. That's basically
a sign that, you know, let you know that you about to die, and.
Q. How do you know that?
A. Burgess told me that, told me he lifted his mask up.
Q. Now, you testified that you raised Shealey in the streets?
A. Right.
Q. You taught him how to be a thug?
A. Right.
Q. So to you, what does taking the mask off mean?
A. See my face, so you know, can't let you, can't, it's impossible
to let you live.
Q. So after Burgess tells you that Shealey took off his mask, what
does he tell you next?
A. He says Shealey shot him, shot the male, looked at Burgess
while Burgess still had the lady at gun point, you know, as to
say like, you know, what is.you waiting on. Put him under the
gun, so he shot her, and as they was exiting the house, he said,
they was coming down the steps or whatever of the house,
looked up. There was somebody looking out the window. I
guess they heard the shot, and they just ran to the car.
(T.T., Volume XIII, Pages 128 - 130)
ISAIAH PAILLETT BY MR. FARRELL
Q. And Burgess is telling you that these two people are standing
there; right?
A. Right.
42
Q. And he's saying something to them?
A. Yes, he is.
Q. What is he saying when they're standing there according to
him?
A. His words was, "You thought you was· gonna get out on me for
my stuff," his words.
Q. All right. And nobody said anything to them, did they?
A. Towho?
Q. To Burgess.
A. He didn't say what they said back then the response.
Q. Well, he said he was doing all the talking, didn't he?
A. Exactly.
Q. And nobody else was talking? Shealey wasn't talking;
correct?
A. Not at all.
Q. And the two people weren't talking; correct?
A. He didn't tell me what the people was saying in response. He
told me what he was saying to them.
Q. Okay. And did he say Shealey got angry and pulled up his
mask?
A. Yes.
Q. Enough is enough, I'm pulling up my mask?
43
A. Enough talking.
Q. Enough talking?
A. Yeah.
Q. Okay. And he says, Burgess says he pulls up his mask and
Shealey pulls out that gun and shots them?
A. Well, one of the kids had came out.
Q. Okay. Yeah, you did say that.
A. Um-hum.
Q. Down in the basement one of the kids came out and they said
go back in?
A. Right.
Q. And once that went in, once the mask went up, everybody
knew what that meant?
A. .Exactly.
Q. Lights are out?
A. Lights wear out.
Q. Shealey pulls out the gun, shoots them?
A. Shoots the man.
Q. Shoots the man?
A. Right.
44
Q. Did Burgess tell you why he shot the man?
A. That's what they were there for.
Q. For the man, shooting the man?
A. To both of them, that's what they were there for.
Q. The man was involved in this, both of them, both the male and
the female were involved in this drug deal?
A. They wasn't gonna go up there and kill the lady that's for sure.
Q. Okay.
A. You know, if the kids was a little older, I'm pretty sure that
something would have happened to them, too.
Q. So Shealey shoots the man?
A. Right.
Q. Shoots him in the head?
A. Right.
Q. As Shealey is looking at him, as I'm looking at this poor
officer right here, eyeball to eyeball; right?
A. Eyeball to eyeball.
Q. And that's,what he said?
A. Yep.
Q. And you remember that for sure?
A. Exactly.
45
Q. And he pulls the trigger and he shoots him?
A. Right.
Q. Right in the head, boom?
A. Yep.
Q. How many times did he shoot him according to my client?
A. Once.
Q. Once?
A. Um-hum.
Q. Did you, did Shealey tum over and shoot the woman?
A. No, sir.
Q. No. Then what happened?
A. It was Burgess' tum.
Q. Burgess' turn?
A. Yep.
Q. Oh, ifs your tum?
A. It's his tum.
Q. Okay. You understand what's what this, I mean you sound
like you, you know?
A. It was Burgess' problem from the start, you know.
Q. All right.
46
A. So can't come this far and don't do nothing.
Q. Okay.
A. Yeah.
Q. So does Shealey give him that gun?
A. Yes, sir.
Q. Does Burgess have his gun out already?
A. Yes, sir.
Q. Okay. And did Burgess say he shot the woman?
A. Yes, he did.
Q. Did he say anything happened, he just shot her?
A. Well, Shealey, he said that Shealey, he said that, you know, he
looked at him as to say, like, what are you waiting for, and-
Q. So it was-
A. -- put him under the gun.
Q. So there was some time period?
A. Right. Put him under the gun, and he shot her.
Q. It wasn't like a pow, pow. It was a pow, hey, let's talk about
this. I really don't want to do this?
A. I know he didn't want to do it.
Q. You know Burgess didn't want to do it?
47
A. He's soft and he was put under the gun and he did it.
Q. He's soft?
A. Yeah, he's soft.
Q. You know that?
A. I know that for a fact.
Q. These two people who were standing are now dead?
A. Right.
(T.T., Volume XIII, Pages 151-156).
ISAIAH PAILLETT BY MS. POPOVICH
Q. Now, you and Mr. Farrell spent some time talking about the,
let's go back to when Shealey took his mask off?
A. Right.
Q. And Burgess told you that Shealey looked at him like it's your
tum?
A. Right.
Q. Did he tell you why it was his tum?
A. Because Shealey had did what he did, had to do, and you
know, he was just basically waiting on him.
Q. And did Burgess tell you basically how they got into that
situation?
A. Money that, with the lady?
Q. Yeah.
48
A. To buy some drugs. Nay-Nay had introduced the two, said she
was from Texas, and she could make something happen for
him.
(T.T., Volume XIII, Pages 167, 168).
In reviewing all of the evidence presented, although the co-defendant, Shealey,
was an active participant in the drug transaction and the murders, Burgess was
clearly the leader. Burgess initially discussed with Demetria obtaining marijuana
from Texas; permitted Demetria to utilize his computer to purchase the airline
tickets; provided the funds to Demetria to purchase the marijuana; and maintained
constant contact with Demetria while she was in Texas. Upon learning that a
package had been delivered to Demetria's home, Burgess immediately departed
from Baltimore with Shealey after telling his girlfriend, Smothers, "Babe, I got to
go cause they ring up my money" (T.T., Volume XV, Pages 134-135). Burgess
returned to Pittsburgh together with Shealey. Later that night, Burgess and Shealey
drove to Beaver Falls and committed the homicides. As Paillett indicated, the
situation with Demetria was the defendant's problem. Burgess and Shealey were
friends. There was no evidence to indicate that Burgess feared Shealey, was
controlled by him or was threatened in any way by Shealey. In addition, when
questioned by Paillett at the Northeastern Ohio Correctional Facility about being
scared, Burgess denied being afraid at the time of the shootings. There was no
evidence demonstrating that Burgess was coerced by Shealey to shoot Demetria.
49
Under these circumstances, the court determined that the evidence did not support
an instruction on duress (T.T., Volume XIII, Pages 126-127).
ALLEGED ERROR IN REFUSING TO ALLOW
WRITTEN JURY INSTRUCTIONS ON ALLEGED DEFENSES
The defendant claims error on the part of the trial court for denying his
request to provide the jury with written instructions on alleged defenses.
Prior to charging the jury, the trial court advised counsel in chambers that
due to the large number of charges contained in the information, the court intended
to furnish each juror with a copy of the written instructions for each offense, to
which both parties agreed. The defendant further requested that written
instructions regarding the (1) defendant's statements, (2) credibility of witnesses
and (3) corrupt and polluted source be given to the jurors, as they constituted
defenses. The Commonwealth objected arguing that the above instructions were
not defenses. Upon review of the language of Rule 646 (B)(l), the court denied
the defendant's request on the basis that the instructions requested were evidentiary
in nature and not defenses.
Rule 646 (B)( 1) governing· material permitted in the possession of the jury,
provides as follows:
(B) The trial judge may permit the members of the jury to have for
use during deliberations written copies of the portion of the judge's
50
charge on the elements of the offenses, lesser included offenses,
and any defense upon which the jury has been instructed.
( 1) If the judge permits the jury to have written copies
of the portion of the judge's charge on the elements of
the offenses, lesser included offenses, and any defense
upon which the jury has been instructed, the judge
shall provide that portion of the charge in its entirety.
The court charged the jury on the manner in which to treat the defendant's
statements, the general credibility of witnesses and specifically the corrupt and
polluted source instruction but did not provide the jury with written instructions as
to these evidentiary matters. Other than stating that the court's action was
reversible error, the defendant has cited no authority for his position that the items
he requested to be provided to the jury in writing constituted recognized defenses
and the court has found none. The defendant's claim is therefore without merit.
BY THE COURT
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