Com. v. Clark, J. ( 2015 )


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  • J-S45026-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    JUSTIN AHMAD CLARK
    Appellant                No. 2005 MDA 2014
    Appeal from the Judgment of Sentence of June 23, 2014
    In the Court of Common Pleas of Dauphin County
    Criminal Division at No.: CP-22-CR-0002723-2013
    BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*
    MEMORANDUM BY WECHT, J.:                               FILED JULY 21, 2015
    Justin Ahmad Clark appeals from the judgment of sentence entered on
    June 23, 2014. We affirm.
    In this case, Clark was charged with criminal homicide, 18 Pa.C.S.A.
    § 2501; attempted criminal homicide, 18 Pa.C.S.A. § 901 (§ 2501); and
    carrying a firearm without a license, 18 Pa.C.S.A. § 6106.        The trial court
    summarized the basic factual history of this case as follows:
    [On March 9, 2013,] Rob Burris was walking near the
    intersection of Mayflower and 14th Street, in the Allison Hill
    section of the City of Harrisburg, when he was struck and killed
    by a bullet to his head. Jonathan Ramsey (“Ramsey”) testified
    that Clark asked him for a ride to Vernon Street in Harrisburg,
    Pennsylvania, because he wanted to confront an individual
    named Bennie Chisolm. Ramsey drove with Clark in the front
    passenger seat to 14th and Vernon, at which point Clark
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    J-S45026-15
    indicated that he saw an individual known to associate with
    Chisolm, nicknamed “Mano.” Clark told Ramsey to “spin the
    block,” and Ramsey proceeded to drive down 14th Street, turn
    onto Market and then turn onto Mayflower. While Ramsey was
    driving around the block he saw Clark retrieve a gun from his
    clothing.   Clark instructed Ramsey to pull up at 14th and
    Mayflower and to stop. Clark then rolled down the window and
    started shooting towards a group of people. Rob Burris suffered
    a gunshot wound to the back of his head. Based on the location
    of the wound and the bullet’s trajectory, Rob Burris, most likely,
    died instantaneously.
    Trial Court Memorandum and Order (“T.C.M.”), 10/10/2014, at 1-2 (citations
    to record omitted).
    Clark was two weeks shy of his eighteenth birthday at the time of the
    shooting. A jury trial commenced on April 22, 2014.
    At trial, Chisholm testified that he and Clark had gotten into a physical
    fight late in the summer of 2012.      Notes of Testimony (“N.T.”), 4/21-
    25/2014, at 53-55. Chisolm testified that he and Clark had a verbal run-in
    in February 2013 when “[n]o guns were drawn, they were just shown.” 
    Id. at 60-63.
    Later, Chisholm shot at Clark’s brother with a 20-gauge sawed-off
    shotgun after striking Clark in the head with the same gun. 
    Id. at 64-72.
    On March 9, 2013, Chisholm was with Burris and others when the shots
    were fired from behind him. 
    Id. at 80-82.
    Aja Lewis knew Chisholm, Clark, Burris, and Clark’s brother.      
    Id. at 98-102.
    Lewis testified that she saw Clark in the passenger seat of a car on
    the day Burris was killed. 
    Id. at 103-04.
    Lewis called Chisholm because she
    knew he was in the area and she suspected that Clark was going after
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    Chisholm. 
    Id. at 105-06.
    About twenty minutes later, Lewis learned that
    Burris had been killed. 
    Id. at 107.
    Ramsey testified that he knew both Chisholm and Clark and knew
    about the problems between them. 
    Id. at 171-76.
    Ramsey testified that he
    was driving when Clark stopped him and asked for a ride to go fight
    Chisholm. 
    Id. at 186-87.
    At that point, Ramsey did not know Clark had a
    gun.   
    Id. at 194.
      Clark told Ramsey to pull the car over, and then Clark
    rolled down the window and started shooting into a group of people. 
    Id. at 195-96.
    Ramsey drove home with Clark and Clark decided that they should
    go to a basketball game to establish an alibi.   
    Id. at 197-99.
       They saw
    Devacio McGowan, picked him up, and then switched to Clark’s car. 
    Id. at 101-02.
      McGowan told them that someone had been shot so they drove
    over to see what happened.      
    Id. at 205.
      While they were watching the
    scene, Clark told McGowan that he was the shooter. 
    Id. at 206-07.
    The three men then went to the basketball game. 
    Id. at 208.
    At the
    basketball game, they found out that Burris had been killed.      
    Id. at 209.
    After the game, Clark dropped McGowan and Ramsey off, and told Ramsey
    that he was going to Lancaster. 
    Id. at 211-12.
    McGowan confirmed that he went to a basketball game with Ramsey
    and Clark.   
    Id. at 286.
      Because McGowan’s testimony differed from      his
    prior statement to police, McGowan read portions of that statement in which
    he told police that Clark admitted to the shooting to the jury. 
    Id. at 303,
    305.    However, McGowan stated that he was high when he gave the
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    statement and had no memory of it.             
    Id. at 301-04.
    The Commonwealth
    then played McGowan’s recorded statement to the police for the jury. 
    Id. at 311.1
    Clark testified in his defense that he did not shoot Burris, but admitted
    that he disposed of the gun that was used in the shooting.          
    Id. at 473.
    Clark testified that he was at the basketball game when his brother
    approached him and asked Clark to dispose of a gun. 
    Id. at 474-76.
    Clark
    also said that his brother was carrying Clark’s phone at the time of the
    shooting. 
    Id. at 478.
    Clark testified that, after he received the gun from his
    brother, he drove into Harrisburg to sell drugs and get some money, and
    then he drove to Lancaster. 
    Id. at 479-81.
    Clark claimed that he sold the
    gun to someone named Kurt in Lancaster. 
    Id. at 483-84.
    On April 25, 2014, the jury found Clark guilty of first degree murder,
    attempted murder, and carrying a firearm without a license. The trial court
    requested a pre-sentence investigation report (“PSI”) and a sentencing
    memorandum from Clark and the Commonwealth. On June 23, 2014, the
    trial court sentenced Clark to life without parole on the homicide conviction.
    ____________________________________________
    1
    The Commonwealth also presented the testimony of various police
    officers who detailed the circumstances of the arrests of and statements
    from the various individuals involved, testimony regarding ballistics and the
    recovery of the gun used in the shooting, testimony regarding Clark’s
    cellphones and the discovery of information that showed the location of the
    phones, and medical testimony about the cause and manner of Burris’
    death.
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    Clark also was sentenced to twenty to forty years in prison for attempted
    homicide and three to six years’ incarceration for the carrying a firearm
    without a license conviction. All sentences were ordered to run concurrently.
    On June 26, 2014, Clark timely filed a post-sentence motion in which
    he challenged the discretionary aspects of his sentence and the weight of the
    evidence. After briefing, on October 8, 2014, the trial court heard argument
    on the motion. On October 10, 2014, the trial court denied the motion. No
    direct appeal was filed.
    On November 12, 2014, Clark filed a petition for relief pursuant to the
    Post Conviction Relief Action (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.        In his
    petition, Clark sought reinstatement of his direct appeal rights, alleging that
    his counsel was per se ineffective for failing to file an appeal.          The
    Commonwealth did not object to reinstatement of Clark’s appellate rights.
    On November 18, 2014, the PCRA court granted Clark’s PCRA petition.
    On November 25, 2014, Clark timely filed a notice of appeal.          On
    December 1, 2014, the trial court ordered Clark to file a concise statement
    of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Clark
    timely complied.
    Clark raises three issues for our review:
    I.    Whether the trial court abused its discretion in refusing to
    allow Commonwealth’s Exhibit 47 – a prison note written
    by [Clark] – and Defense Exhibit 2 – a witness’ recantation
    letter – to go out with the jury during its deliberations?
    II.   Whether the trial court erred in denying [Clark’s] Post-
    Sentence Motion where [Clark’s] convictions were against
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    the weight of the evidence so as to shock one’s sense of
    justice as [Clark] was never shown to have committed the
    crimes alleged?
    III.   Whether the trial court erred in denying [Clark’s] Post-
    Sentence Motion where [Clark’s] sentence was excessive
    and unreasonable as the trial court failed to consider
    statutorily prescribed factors pursuant to 18 Pa.C.S.A.
    [§] 1102.1(d)?
    Clark’s Brief at 6.
    Clark first challenges the trial court’s decision not to allow certain
    exhibits to be viewed by the jury during its deliberations. Clark asserts that
    the trial court erred when it did not allow the jury to take with it during
    deliberations a note written by Clark to Ramsey and a letter purportedly
    written by Ramsey in which he recanted his statements about Clark’s
    involvement in the crime. Clark argues that both exhibits speak to Clark’s
    and Ramsey’s credibility, which were paramount in this case. Clark’s Brief at
    16-18.
    We review a trial court’s decision regarding which exhibits go with a
    jury for an abuse of discretion. Commonwealth v. Bango, 
    685 A.2d 564
    ,
    565 (Pa. Super. 1996). By rule, “the jury may take with it such exhibits as
    the trial judge deems proper.”     Pa.R.Crim.P. 646(A).     However, certain
    exhibits, such as transcripts of testimony, written confessions, and the
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    criminal information or indictment, are not permitted to go with the jury.2
    Pa.R.Crim.P. 646(C).
    In a similar case, a defendant asked the trial court to provide the jury
    with a letter written by a Commonwealth witness that cast doubt on his
    credibility.   Commonwealth v. Bridges, 
    757 A.2d 859
    , 877 (Pa. 2000),
    abrogated on other grounds by Commonwealth v. Freeman, 
    827 A.2d 385
    , 412 (Pa. 2003). The trial judge refused to do so, holding that the letter
    would have unnecessarily highlighted that piece of evidence. 
    Id. at 877-78.
    Our Supreme Court found no abuse of discretion based upon that reason and
    also because “the jury was well aware of the letter” as the witness had been
    cross-examined about the letter, the contents had been read into evidence,
    and it was part of closing arguments. 
    Id. at 878.
    Here, the jury asked to see three exhibits: the two at issue on appeal
    and the text messages from Clark’s phone, a defense exhibit. N.T., 4/21-
    25/2014, at 624-25.        The parties and the trial court agreed that the text
    messages could go out with the jury. 
    Id. at 625.
    However, the trial court
    did not allow the other two exhibits because “[t]hey’re formal statements
    which the [trial court] typically does not send out to the jury. The parties
    both emphasized and displayed portions that they wanted the jury to
    consider.” Id.
    ____________________________________________
    2
    The jury charge also is not permitted to go with the jury, subject to
    certain exceptions. See Pa.R.Crim.P. 646(B), (C).
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    The letter written by Clark was read to the jury by Ramsey and the
    Commonwealth published a copy to the jury.             
    Id. at 219-21.
        The
    Commonwealth examined Ramsey about the letter. 
    Id. at 221-24.
    Ramsey
    was cross-examined about the letter.     
    Id. at 226-27.
      Clark also testified
    about the letter and what he meant in the letter. 
    Id. at 469-73.
    Clark was
    also cross-examined about the letter. 
    Id. at 502-05.
    Ramsey also was questioned about the recantation letter which Clark
    introduced during Ramsey’s cross-examination.      Ramsey denied writing or
    signing the letter. 
    Id. at 252-53,
    254-56. Clark later introduced the letter
    through Ramsey’s former cellmate, Raymond Jones, who testified that he
    witnessed Ramsey write the recantation letter and that he signed the letter
    as a witness. 
    Id. at 425-26.
    Jones read the letter into evidence.       
    Id. at 426-27.
    Clearly, both pieces of evidence were highlighted to the jury. As with
    Bridges, both letters were read into evidence. Both letters were covered in
    direct and cross-examination.    Based upon Bridges, we find no abuse of
    discretion by the trial court in refusing to permit the letters to go out with
    the jury.
    Clark next challenges the weight of the evidence supporting his
    conviction and the trial court’s denial of his post-sentence motion.      Our
    standard of review on a challenge to the weight of the evidence is entwined
    with the trial court’s review of the same challenge:
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    A motion for a new trial based on a claim that the verdict is
    against the weight of the evidence is addressed to the discretion
    of the trial court. Commonwealth v. Widmer, 
    744 A.2d 745
    ,
    751–52 (Pa. 2000); Commonwealth v. Brown, 
    648 A.2d 1177
    ,
    1189 (Pa. 1994). A new trial should not be granted because of a
    mere conflict in the testimony or because the judge on the same
    facts would have arrived at a different conclusion. 
    Widmer, 744 A.2d at 752
    . Rather, “the role of the trial judge is to
    determine that ‘notwithstanding all the facts, certain facts are so
    clearly of greater weight that to ignore them or to give them
    equal weight with all the facts is to deny justice.’” 
    Id. at 752
         (citation omitted). It has often been stated that “a new trial
    should be awarded when the jury’s verdict is so contrary to the
    evidence as to shock one’s sense of justice and the award of a
    new trial is imperative so that right may be given another
    opportunity to prevail.” 
    Brown, 648 A.2d at 1189
    .
    An appellate court’s standard of review when presented with a
    weight of the evidence claim is distinct from the standard of
    review applied by the trial court:
    Appellate review of a weight claim is a review of the
    exercise of discretion, not of the underlying question of
    whether the verdict is against the weight of the evidence.
    
    Brown, 648 A.2d at 1189
    . Because the trial judge has
    had the opportunity to hear and see the evidence
    presented, an appellate court will give the gravest
    consideration to the findings and reasons advanced by the
    trial judge when reviewing a trial court’s determination
    that the verdict is against the weight of the evidence.
    Commonwealth v. Farquharson, 
    354 A.2d 545
    (Pa.
    1976). One of the least assailable reasons for granting or
    denying a new trial is the lower court’s conviction that the
    verdict was or was not against the weight of the evidence
    and that a new trial should be granted in the interest of
    justice.
    
    Widmer, 744 A.2d at 753
    (emphasis added).
    This does not mean that the exercise of discretion by the trial
    court in granting or denying a motion for a new trial based on a
    challenge to the weight of the evidence is unfettered.        In
    describing the limits of a trial court’s discretion, we have
    explained:
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    The term “discretion” imports the exercise of judgment,
    wisdom and skill so as to reach a dispassionate conclusion
    within the framework of the law, and is not exercised for
    the purpose of giving effect to the will of the judge.
    Discretion must be exercised on the foundation of reason,
    as opposed to prejudice, personal motivations, caprice or
    arbitrary actions. Discretion is abused where the course
    pursued represents not merely an error of judgment, but
    where the judgment is manifestly unreasonable or where
    the law is not applied or where the record shows that the
    action is a result of partiality, prejudice, bias or ill-will.
    
    Widmer, 744 A.2d at 753
    (quoting Coker v. S.M. Flickinger
    Co., 
    625 A.2d 1181
    , 1184–85 (Pa. 1993)).
    Commonwealth v. Clay, 
    64 A.3d 1049
    , 1054-55 (Pa. 2013) (citations
    modified).
    Clark makes the same claims here as he did in his post-sentence
    motion, namely that Ramsey’s testimony and McGowan’s prior statement
    that Clark was the shooter were unreliable.        In response, the trial court
    stated:
    Here, in addition to the eye witness testimony of Jonathan
    Ramsey and the prior statement given by Devacio McGowan, the
    facts supporting Clark’s conviction were substantial.          The
    Commonwealth presented testimony from Bennie Chisolm that
    Clark had a motive to kill Bennie, and that Rob was with Bennie
    when Rob was shot and killed. Aja Lewis testified for the
    Commonwealth that she saw Clark in a car in the vicinity of the
    shooting at the time of the shooting, that she warned Bennie
    that Clark was in the area, and that Bennie called her later to tell
    her that the people she warned him about killed Rob. The
    Commonwealth also presented evidence that a cellphone linked
    to Clark was in the vicinity of the shooting around the time the
    shooting happened, then was taken to Hershey, and finally taken
    to Lancaster.     The location of the cell phone at the times
    specified correlated with Jonathan Ramsey’s account of where he
    went with Clark after the shooting, and where Clark said he was
    going to dispose of the gun.
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    The only evidence presented that Clark was not the shooter was
    his own testimony. [The trial court found] that Clark’s testimony
    was not credible, and that it should certainly not be given
    greater   weight   than   the    overwhelming evidence        the
    Commonwealth presented of Clark’s guilt.
    T.C.M. at 3.
    As the trial court noted, there was evidence that corroborated
    Ramsey’s testimony and that the testimony supported the verdict. The trial
    court found that the jury’s verdict did not shock its conscience.    We must
    give the utmost deference to the trial court’s conclusions regarding the
    weight of the evidence. See 
    Clay, supra
    . We find no reason in the record
    to determine that the trial court abused its discretion in reaching that
    conclusion.
    Finally, Clark challenges the discretionary aspects of his sentence.
    “It is well-settled that, with regard to the discretionary aspects
    of sentencing, there is no automatic right to appeal.”
    Commonwealth v. Austin, 
    66 A.3d 798
    , 807–08 (Pa. Super.
    2013).
    Before [this Court may] reach the merits of [a challenge to
    the discretionary aspects of a sentence], we must engage
    in a four part analysis to determine: (1) whether the
    appeal is timely; (2) whether Appellant preserved his
    issue; (3) whether Appellant’s brief includes a concise
    statement of the reasons relied upon for allowance of
    appeal with respect to the discretionary aspects of
    sentence [see Pa.R.A.P. 2119(f)]; and (4) whether the
    concise statement raises a substantial question that the
    sentence is appropriate under the sentencing code. . . .
    [I]f the appeal satisfies each of these four requirements
    we will then proceed to decide the substantive merits of
    the case.
    
    Id. (brackets in
    original).
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    Commonwealth v. Antidormi, 
    84 A.3d 736
    , 759 (Pa. Super. 2014).
    Here, Clark has filed a timely notice of appeal and has preserved the
    issue in his written post-sentence motion.   Clark also has included a Rule
    2119(f) statement in his brief. Clark’s Brief at 13-15. Our next step is to
    determine whether Clark has raised a substantial question.
    In his Rule 2119(f) statement, Clark argues that his life sentence is
    excessive and asserts that there were factors that the court did not consider
    adequately. Clark’s Brief at 13-15. We have held previously that a similar
    claim of failure to consider sentencing factors in a challenge to a life
    sentence for a juvenile raised a substantial question.   Commonwealth v.
    Seagraves, 
    103 A.3d 839
    , 842 (Pa. Super. 2014). Likewise, we find that
    Clark has raised a substantial question.
    Clark argues that the court did not consider the statutory factors in
    sentencing him to life in prison. Clark also suggests that certain mitigating
    factors, such as his lack of familial support, his upbringing in a rough
    neighborhood, his lack of criminal sophistication, his lack of a history of
    violence, and his amenability to rehabilitation, should have been given more
    weight. Clark’s Brief at 22-24.
    We review a challenge to the discretionary aspects of sentence for an
    abuse of discretion. 
    Seagraves, 103 A.2d at 842
    . Further, when a PSI is
    available to the trial court, we presume that the trial court “was aware of
    relevant information regarding the defendant’s character and weighed those
    considerations along with any mitigating factors.” 
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    J-S45026-15
    The General Assembly set forth the following factors to be considered
    when a trial court must sentence a defendant convicted of homicide who was
    a juvenile at the time the crime:
    (1) The impact of the offense on each victim, including oral and
    written victim impact statements made or submitted by family
    members of the victim detailing the physical, psychological and
    economic effects of the crime on the victim and the victim’s
    family. A victim impact statement may include comment on the
    sentence of the defendant.
    (2) The impact of the offense on the community.
    (3) The threat to the safety of the public or any individual posed
    by the defendant.
    (4) The nature and circumstances of the offense committed by
    the defendant.
    (5) The degree of the defendant’s culpability.
    (6) Guidelines for sentencing and resentencing adopted by the
    Pennsylvania Commission on Sentencing.
    (7) Age-related characteristics of the defendant, including:
    (i) Age.
    (ii) Mental capacity.
    (iii) Maturity.
    (iv) The degree of criminal sophistication exhibited by the
    defendant.
    (v) The nature and extent of any prior delinquent or
    criminal history, including the success or failure of any
    previous attempts by the court to rehabilitate the
    defendant.
    (vi) Probation or institutional reports.
    (vii) Other relevant factors.
    18 Pa.C.S.A. § 1102.1.
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    The trial court stated that it considered the PSI, testimony, and the
    pre-sentence memoranda submitted by the parties, along with all the
    statutory factors. T.C.M. at 4; N.T., 6/23/2014, at 55-56. The court also
    reviewed each of the section 1102.1 factors.      N.T., 6/23/2014, at 56-59.
    The trial court particularly noted the impact on the victim’s family, several of
    whom provided victim impact statements at sentencing, the fact that Clark
    fired up to eleven shots into a group of people, that Clark intended to kill
    Chisholm and was not acting impulsively or recklessly, that Clark was almost
    eighteen at the time of the shooting, that Clark had a prior record related to
    drugs, and that rehabilitation thus far had been unsuccessful. Based upon
    these factors and the other considerations, the trial court sentenced Clark to
    life in prison. The trial court considered all the factors that were required
    and did not abuse its discretion in concluding that a life sentence was
    appropriate. Therefore, this issue does not merit relief.
    Judgment of sentence affirmed.
    Judge Bowes joins the memorandum.
    Justice Fitzgerald concurs in the result.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 7/21/2015
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