Com. v. Matthews, J. ( 2016 )

J. S63003/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMAR MATTHEWS, : No. 2468 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, June 26, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003979-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 16, 2016
Jamar Matthews appeals from the June 26, 2015 aggregate judgment
of sentence of 13 to 26 years’ imprisonment imposed after he was found
guilty of attempted murder, criminal conspiracy to commit murder,
aggravated assault, possession of a firearm, carrying a firearm without a
license, carrying a firearm on public streets or public property in
Philadelphia, and possessing instruments of crime (“PIC”).1 After careful
review, we affirm.
The trial court summarized the relevant facts of this case as follows:
[O]n November 29, 2013, at approximately
9:45 p.m., [Philadelphia Police Officer Milord Celce]
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 901, 903, 1102(c), 2702, 6105, 6106, 6108, and 907,
respectively.
J. S63003/16
received a radio call for a shooting and person with a
gun at 2603 West Harold Street in Philadelphia.
Officer Celce, who was approximately four (4) blocks
away at the time, promptly arrived at the above
location, where he observed bullet holes in the
windows and encountered the complainant,
Enoch Carter. Based on his conversation with
Mr. Carter, they proceeded to 2642 North 26th Street
-- literally just around the corner, not even
30 seconds later --where they met Highway Patrol
Officer Reid, and knocked on the door. Appellant,
who was in a wheelchair, answered the door; his
cohort, Co-Defendant Karie Dozier (hereinafter
“Dozier”), was seated on a couch directly facing the
front door of the residence. As soon as Mr. Carter
saw Dozier, he yelled and pointed to him, [t]hat’s
the guy.
Officer Celce placed Dozier on the floor to
detain him. He lifted the cushion where Dozier was
sitting and recovered a handgun; Dozier was sitting
on the gun. Officer Celce escorted Dozier outside,
where he was positively identified by Mr. Carter, and
took him into custody. Mr. Carter also was
transported to Central Detectives for an interview,
during which Officer Celce learned of [a]ppellant’s
involvement; he then went back to the residence and
placed [a]ppellant under arrest at 12:15 a.m.
. . . . Mr. Carter testified that, prior to the shooting,
he had lived around the corner from [a]ppellant for
approximately one and one-half (1½) years and was
friends with him. Mr. Carter used to hang out with
[a]ppellant frequently, and also helped him with
chores such as laundry and grocery shopping.
Several weeks before the shooting, on October 17,
2013, [a]ppellant was driving a van (with
handicapped hand controls) in which Mr. Carter and
a female friend of [a]ppellant were riding as
passengers. Approaching a red light, [a]ppellant
mistook the accelerator for the brakes, and crashed
into a building, injuring Mr. Carter and the female.
Appellant was arrested at the scene for his
involvement in the crash. Mr. Carter was
-2-
J. S63003/16
transported to the hospital via ambulance for
treatment and subsequently required physical
therapy for his injuries. Several weeks later,
Mr. Carter commenced a personal injury lawsuit
against [a]ppellant, which [a]ppellant took to heart.
Appellant thereafter had several different individuals
approach Mr. Carter to persuade him to “drop” the
lawsuit, including a younger gentleman earlier on the
day of the shooting, who proposed a fistfight in front
of [a]ppellant’s residence. Mr. Carter declined the
proposal and went home.
Later that evening, at approximately
9:40 p.m., Co-Defendant Dozier knocked on
Mr. Carter’s door. Mr. Carter stuck his head out of
his second-story window to see who it was. Dozier
asked him why he had a beef with [a]ppellant;
Mr. Carter explained that he did not have a problem
with [a]ppellant, it was [a]ppellant who had a
problem with him due to the lawsuit. After speaking
with Dozier for five (5) to seven (7) minutes,
[a]ppellant approached on his wheelchair and parked
it next to Dozier. Dozier then asked [a]ppellant,
“what do you want me to do[?]” at which point
[a]ppellant said “go ahead[.]” Right on cue, Dozier
retrieved a black handgun, pointed it at Mr. Carter
and opened fire. Mr. Carter saw the flash from the
gun, and a bullet went through his window; he fell
back into the home. As he was falling, Dozier fired
several more shots at him. Fortunately, none of the
bullets struck Mr. Carter, who immediately dialed
911 to summon police. During the call, he provided
a physical description of Dozier and reported
[a]ppellant’s involvement. A few minutes later, he
accompanied police to [a]ppellant’s residence, where
Dozier and the handgun were taken into custody
following Mr. Carter’s positive identification.
. . . . [Ballistics expert and] Philadelphia Police
Officer Jesus Cruz testified that he test-fired the
handgun that Dozier was sitting on and compared
the fired cartridge casing (“FCC”) with the five (5)
FCCs recovered in front of Mr. Carter’s residence.
Based on his analysis, which was peer-reviewed, he
-3-
J. S63003/16
concluded to a reasonable degree of scientific
certainty that each of the five (5) FCCs recovered at
the scene was, in fact, fired from Dozier’s handgun.
. . . Philadelphia Police Detective Michael Repici . . .
testified that, on November 29, 2013, he was
assigned to investigate this matter. At
approximately 11:35 p.m., he interviewed Mr. Carter
at Central Detectives. When Mr. Carter described
[a]ppellant’s involvement, Detective Repici asked
Officer Celce -- who was present -- if he knew where
this guy is? Officer Celce responded, [y]eah, he’s
still back there, at which point Detective Repici
directed him to arrest [a]ppellant. Officer Celce
embarked on this quest a few minutes prior to
12:00 a.m.
Detective Repici then went to the crime scene,
2603 Harold Street, which was being held, or
secured, by fellow officers. There, he recovered
under property receipt four (4) FCCs on the
pavement and one (1) FCC in the street, all in close
proximity to each other in front of Mr. Carter’s
residence. He also took photographs of all the
evidence, including the bullet holes in the windows
and inside the residence, which he described as the
photos were displayed to the jury. Detective Repici
then proceeded to 2642 North 26th Street, where he
took photographs of the couch and black handgun,
the latter of which he recovered under property
receipt.
Finally, the Commonwealth introduced via
stipulation: (a) certificates of non-licensure with
respect to both [a]ppellant and Dozier, establishing
that neither male was licensed to carry a firearm and
thus not permitted to carry a firearm in
Pennsylvania; (b) authenticity of prison phone call
records between [a]ppellant and Dozier, in which
they discuss methods to prevent the case from going
forward -- which recordings were played for, and
their transcripts displayed to, the jury.
-4-
J. S63003/16
Trial court opinion, 12/24/15 at 2-5 (citations to notes of testimony,
footnotes, and some internal quotation marks omitted).
Appellant was arrested in connection with this incident and charged
with the aforementioned offenses on April 15, 2014. On April 21, 2015,
appellant proceeded to a jury trial alongside co-defendant Dozier.2 Following
a three-day trial, the jury found appellant guilty of attempted murder,
criminal conspiracy to commit murder, aggravated assault, carrying a
firearm without a license, carrying a firearm on public streets or public
property in Philadelphia, and PIC. That same day, the trial court found
appellant guilty of possession of a firearm. Following the completion of a
pre-sentence investigation (“PSI”) report, the trial court sentenced appellant
to 13 to 26 years’ imprisonment on June 26, 2015. On July 6, 2015,
appellant filed post-sentence motions for judgment of acquittal and for
reconsideration of his sentence. The trial court denied appellant’s
post-sentence motions on July 8, 2015. This timely appeal followed on
August 6, 2015.3
On appeal, appellant raises the following issues for our review:
I. Did the admission of a statement by a
non-testifying co-defendant implicate
[a]ppellant in the shooting for which he was
charged, thereby violating [a]ppellant’s right of
confrontation, and was the error in admitting
the statement not harmless?
2
Dozer has also filed an appeal to this court at No. 2171 EDA 2015.
3
Appellant and the trial court have complied with Pa.R.A.P. 1925.
-5-
J. S63003/16
II. Was the evidence insufficient to prove that
[a]ppellant had the specific intent to kill, which
was required to prove him guilty of either
attempted murder or conspiracy to murder?
III. Did the trial court abuse its discretion by
imposing a sentence that was above the
aggravated range of the sentencing guidelines
absent aggravating factors not already
included in the sentencing guidelines?
Appellant’s brief at 5.
Appellant first argues that his rights under the Confrontation Clause4
were violated when the trial court permitted the Commonwealth to introduce
a statement of Dozier that implicated him in the shooting. (Id. at 12.)
Specifically, at trial, the Commonwealth introduced recordings of Dozier’s
prison telephone conversations with appellant wherein they discuss bribing
Carter so he would not testify against them. (See Commonwealth’s Exhibit
24.) During the course of these conversations, Dozier stated to appellant as
follows:
Yea, but listen though, like you know what I’m
saying, but listen like tell that n***a like we waving
the white flag man like, tell that n***a like he got to
check whatever dawg.
Id. at 3. Appellant challenges the admission of this statement on the
grounds it violated the United States Supreme Court’s decision in Bruton v.
4
The Confrontation Clause of the Sixth Amendment, made applicable to the
States via the Fourteenth Amendment, provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI.
-6-
J. S63003/16
United States, 391 U.S. 123 (1968), and its progeny. (Appellant’s brief at
13-14.) This claim is meritless.
In the seminal case of Bruton, the United States Supreme Court
recognized a narrow exception to the general rule that cautionary
instructions are sufficient to eradicate any potential prejudice in joint trials.
Bruton, 391 U.S. at 124-126. The United States Supreme Court held that a
defendant is deprived of his rights under the Confrontation Clause when his
non-testifying co-defendant’s confession naming him as a participant in the
crime is introduced at trial, even if the jury is instructed to consider that
confession only against the co-defendant. Id. at 135-136.
Our supreme court has recently summarized Bruton and its progeny
as follows:
The general rule in a joint trial of
co-defendants is that the law presumes that the jury
can follow an appropriate instruction, which explains
that evidence introduced with respect to only one
defendant cannot be considered against other
defendants. Bruton departed from this salutary
general rule only by concluding that where there are
“powerfully incriminating statements” admitted
against a non-testifying co-defendant who stands
side by side with the accused, such statements can
be devastating as well as inherently suspect when
they shift the blame to the accused. Following
Bruton, the U.S. Supreme Court has approved
redaction and a limiting instruction as a means of
eliminating the possible spillover prejudice arising
from the admission of a non-testifying
co-defendant’s confession against that co-defendant
at a joint trial. Bruton and its progeny establish
Sixth Amendment norms governing state criminal
trials, and this Court has had ample opportunity to
-7-
J. S63003/16
consider and apply the precepts. In our own
implementation of this federal law, we have
explained that the challenged co-defendant’s
statement must be incriminating on its face and that
redactions involving the substitution of neutral
pronouns . . . instead of names or other obvious
methods of deletion, do not obviously identify the
other co-defendants.
Commonwealth v. Daniels, 104 A.3d 267, 294 (Pa. 2014) (citations
omitted).
Applying these well-settled principles, we conclude that Dozier’s
statement did not give rise to a Bruton violation because it did not explicitly
reference or facially incriminate appellant in any way. As the trial court
recognized in its opinion, Dozier’s statement “is a vague statement that does
not even rise to being an admission or a defense strategy” and “can have
multiple interpretations [] depending upon [] Dozier’s state of mind, which is
not of record.” (Trial court opinion, 12/24/15 at 7.) Accordingly, Bruton
and its progeny are not applicable to the case sub judice and appellant’s
claim of trial court error must fail.
Appellant next argues that the evidence was insufficient to support his
convictions for attempted murder and criminal conspiracy to commit murder,
as the Commonwealth failed to prove he and his co-defendant Dozier shared
a specific intent to kill Carter. (Appellant’s brief at 15.) Appellant maintains
that “[a]t best, the evidence supports the inference that [he] solicited Dozier
to engage in some form of retaliation against Carter.” (Id. at 16.) We
disagree.
-8-
J. S63003/16
In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted
at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to
prove every element of the offense beyond a
reasonable doubt. As an appellate court, we may
not re-weigh the evidence and substitute our
judgment for that of the fact-finder. Any question of
doubt is for the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no
probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal
denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).
“A person commits an attempt when with intent to commit a specific
crime, he does any act which constitutes a substantial step towards the
commission of the crime.” 18 Pa.C.S.A. § 901(a). A conviction for
attempted murder requires the Commonwealth to prove beyond a
reasonable doubt that the defendant “t[ook] a substantial step toward the
commission of a killing, with the specific intent in mind to commit such an
act.” Commonwealth v. Tucker, A.3d , 2016 WL 4035602, at *7
(Pa.Super. July 19, 2016) (citation omitted). Criminal conspiracy, in turn,
requires the Commonwealth to establish that appellant “(1) entered into an
agreement to commit or aid in an unlawful act with another person or
persons; (2) with a shared criminal intent; and (3) an overt act was done in
furtherance of the conspiracy.” Commonwealth v. Mitchell, 135 A.3d
1097, 1102 (Pa.Super. 2016).
-9-
J. S63003/16
It is the element of a willful, premeditated, and deliberate intent to kill
that distinguishes first-degree murder from all other types of criminal
homicide. “To convict a defendant of first-degree murder, the jury must find
that (1) a human being was unlawfully killed; (2) the defendant is
responsible for the killing; and (3) the defendant acted with a specific intent
to kill.” Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008),
cert. denied, 556 U.S. 1186 (2009) (citation omitted); 18 Pa.C.S.A.
§ 2502.
Viewing the evidence in the light most favorable to the
Commonwealth, the verdict winner, we find that there was ample evidence
for the jury to conclude that appellant possessed the specific intent to kill
Carter. The testimony presented at trial established that appellant was
angry with Carter for filing a lawsuit against him and made multiple attempts
to persuade him to forgo the suit. (Notes of testimony, 4/22/15 at 10-14,
22-23, 97.) On the day of the alleged incident, appellant recruited another
individual to challenge Carter to a fistfight in front of appellant’s residence,
to no avail. (Id. at 97.) Later that evening, appellant was observed
alongside Dozier when he was speaking with Carter about the “beef” he had
with appellant. (Id. at 15-18.) During the course of this conversation,
appellant expressly directed Dozier to “go ahead.” (Id. at 19.) The record
reveals that Dozier fired five gunshots at Carter’s head as he hung out of his
second-story window, narrowly missing him. (Id. at 19-20, 68-69.)
- 10 -
J. S63003/16
Philadelphia Police Officer Celce found appellant and Dozier sitting together
at appellant’s residence minutes after this incident. (Notes of testimony,
4/21/15 at 90-92.)
We note that “[t]he firing of a bullet in the general area in which vital
organs are located can in and of itself be sufficient to prove specific intent to
kill beyond a reasonable doubt.” Commonwealth v. Manley, 985 A.2d
256, 272 (Pa.Super. 2009), appeal denied, 996 A.2d 491 (Pa. 2010)
(citation omitted). Moreover, this court has recognized that, “all
conspirators are equally criminally responsible for the acts of their
co-conspirators committed in furtherance of the conspiracy regardless of
their individual knowledge of such actions and regardless of which
member of the conspiracy undertook the action.” Commonwealth v.
Figueroa, 859 A.2d 793, 798 (Pa.Super. 2004) (citation omitted; emphasis
added). Accordingly, appellant’s sufficiency claims must fail.
In his final claim, appellant challenges the discretionary aspects of his
sentence. Appellant argues that the trial court abused its discretion in
imposing an excessive sentence above the aggravated range of the
sentencing guidelines without considering any factors not already included in
the guidelines or any mitigating factors. (Appellant’s brief at 19.)
Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right. See Commonwealth v. Allen, 24 A.3d
1058, 1064 (Pa.Super. 2011). Rather, an appellant challenging the
- 11 -
J. S63003/16
discretionary aspects of his sentence must invoke this court’s jurisdiction by
satisfying the following four-part test:
(1) whether the appeal is timely; (2) whether
[a]ppellant preserved his issue; (3) whether
[a]ppellant’s brief includes a concise statement of
the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a
substantial question that the sentence is appropriate
under the sentencing code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Instantly, appellant filed a timely notice of appeal and preserved his
issue in his post-sentence motion, but failed to include a separate statement
of reasons relied upon for allowance of appeal in his brief, as required by
Pa.R.A.P. 2119(f). “A failure to include the Rule 2119(f) statement does not
automatically waive an appellant’s argument; however, we are precluded
from reaching the merits of the claim when the Commonwealth lodges an
objection to the omission of the statement.” Commonwealth v. Bruce,
916 A.2d 657, 666 (Pa.Super. 2007) (citation omitted), appeal denied, 932
A.2d 74 (Pa. 2007). Here, the Commonwealth has objected to the omission
of appellant’s Rule 2119(f) statement. (See Commonwealth’s brief at 19.)
Accordingly, we conclude that appellant has waived his challenge to the
discretionary aspects of his sentence.
Judgment of sentence affirmed.
- 12 -
J. S63003/16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2016
- 13 -