Com. v. McDonald, V. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
VERNEL J. McDONALD, : No. 2909 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, September 16, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0011816-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 22, 2015
Vernel J. McDonald appeals from the judgment of sentence of
September 16, 2014. We affirm.
The facts of this matter have been aptly summarized by the trial court
as follows:
At approximately 5:20 p.m. on June 13th,
2012, Philadelphia Police Officer Kenneth Sherard
responded to a radio call at the 8400 block of
Lindbergh Boulevard, just north of Philadelphia
International Airport. Upon arrival, Officer Sherard
saw Tyrell Brown lying face down on the sidewalk, in
a large pool of blood that had accumulated around
his neck area. Brown was completely unresponsive,
and Officer Sherard could detect no signs of life.
Officer Sherard saw several fired cartridge casings
and a black wallet, all lying on the ground. The
wallet was lying near a blue Pontiac.
Police recovered a Glock 23 .40 caliber
handgun from the decedent’s body. Philadelphia
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Police Officer Khaliv Ivy and his partner spoke on the
scene with a man named Jamal, who would later be
identified as Jamal Gregory. Gregory was distraught
and said he was the decedent’s cousin. He said that
they had been approaching the scene of a
prospective drug deal when males from a Blue
Pontiac shot at them, killing Tyrell Brown.
Officer Ivy recovered $1,028 and a plastic baggie
containing thirty-one green tinted small Ziploc
baggies from Gregory.
Police recovered seven fired cartridge casings
at the scene. They also impounded the blue Pontiac,
a G6 GT, from which they later recovered a Sturm
Ruger Model P94, .40 caliber handgun. Police also
received a bullet fragment from the right upper chest
of the deceased, and a fragment from the left side of
his neck. All seven of the casings found at the
scene, as well as the bullet fragments found in the
decedent, were fired from the P94 found in the blue
Pontiac.
Detective James Crone took a statement from
the defendant on September 15th, 2012, in which the
defendant said that he met with the decedent and
Jamal Gregory, who he knew as “Mally,” on the night
of the shooting. He was meeting with them in order
to purchase Oxycontin, because his prescription pain
medicine had been stolen. He reported that they
robbed him at gunpoint, taking $1300 and his wallet.
According to the defendant’s statement, as the
decedent and “Mally” were leaving the scene of the
robbery, the defendant shot the decedent because
the decedent was pointing a gun at him. The blue
Pontiac G6 GT impounded from the scene belonged
to the defendant.
Dr. Marlon Osbourne, Associate Medical
Examiner, gave expert testimony that the decedent’s
death was caused by two bullet wounds to his back.
Jamal Gregory, the decedent’s cousin, testified
that he was present when the decedent was shot.
He said that the decedent and the defendant argued
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while in the defendant’s car, but that he was leaning
on the outside of the car and could not hear what
they were arguing about. When the defendant got
out of his car, Gregory took the defendant’s phone
and car keys. As he was walking away with them,
he looked at the decedent and heard a gunshot, and
then saw the decedent fall.
During the incident, the defendant was
accompanied by a Kimey Wong, who did not testify
at trial. Jamal Gregory testified that Kimey Wong
was armed and chased him at gunpoint from the
scene. Philadelphia Police Officer Torin Saunders
testified that he arrested Wong near the scene of the
shooting, and that employees of a local business
pointed him toward an object that Wong dropped in
a trash can, which turned out to be a gun.
The parties stipulated that the defendant did
not have a license to carry a gun and was not eligible
for such a license.
The defendant elicited character testimony
from Jonathan Koutcher, Esq., James Zergani,
Eugene Garfield, Kim Griffin, Stephen Troy,
Kendall Swain, and Keith Robinson. The Assistant
District Attorney asked Zergani, Garfield, Troy, and
Swain whether knowing that the defendant was
involved with a drug deal and had an illegal firearm
would change their opinion as to the defendant’s
character.
Trial court opinion, 12/3/14 at 2-4 (citations to the transcript omitted).
On July 2, 2014, following a jury trial, appellant was found guilty of
voluntary manslaughter, possession of an instrument of a crime, firearms
not to be carried without a license, and carrying a firearm on the public
streets of Philadelphia. Post-trial motions were denied. On September 16,
2014, the trial court imposed an aggregate sentence of 7½ to 15 years’
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incarceration. Post-sentence motions were denied on September 24, 2014.
Appellant filed a timely notice of appeal on October 20, 2014. Appellant
complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has
filed an opinion.
Appellant has raised the following issues for this court’s review:
[1.] Was the evidence insufficient to support the
charges because the Commonwealth failed to
disprove beyond a reasonable doubt that
appellant did not kill the victim in self-defense?
[2.] Did the trial court commit an abuse of
discretion by overruling objections to
testimony concerning an unrelated crimes [sic]
committed by Kimey or Kimmy Wong[?]
[3.] Did the trial court commit an abuse of
discretion by overruling objections to the
prosecution’s impeachment of appellant’s
character witnesses with the alleged facts of
the instant matter?
Appellant’s brief at 3 (capitalization omitted) (citation to the record omitted).
In his first issue on appeal, appellant argues that the Commonwealth
failed to disprove he was acting in self-defense when he shot Brown.
According to appellant, he had a reasonable belief that he was in mortal
danger when he shot Brown.
When reviewing a sufficiency of the
evidence claim, this Court must view the
evidence and all reasonable inferences to
be drawn from the evidence in the light
most favorable to the Commonwealth as
verdict winner, and we must determine if
the evidence, thus viewed, is sufficient to
prove guilt beyond a reasonable doubt.
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This Court may not substitute its
judgment for that of the factfinder. If
the record contains support for the
verdict, it may not be disturbed.
Commonwealth v. Smith, 710 A.2d 1218, 1219
(Pa.Super.1998) appeal denied, 557 Pa. 638, 732
A.2d 1209 (1998) (citations omitted). Moreover, a
jury may believe all, some or none of a party’s
testimony. See Commonwealth v. Purcell, 403
Pa.Super. 342, 589 A.2d 217, 221 (1991).
Commonwealth v. Burns, 765 A.2d 1144, 1148 (Pa.Super. 2000), appeal
denied, 782 A.2d 542 (Pa. 2001).
Where there is a claim of self-defense, the
Commonwealth has the burden to prove beyond a
reasonable doubt that the killing was not committed
in self-defense. See id. In order to disprove
self-defense, the Commonwealth must prove beyond
a reasonable doubt one of the following elements:
(1) that the defendant did not reasonably believe it
was necessary to kill in order to protect himself
against death or serious bodily harm, or that the
defendant used more force than was necessary to
save himself from death, great bodily harm, or the
commission of a felony; (2) that the defendant
provoked the use of force; or (3) that the defendant
had a duty to retreat and that retreat was possible
with complete safety. See 18 Pa.C.S.A.
§ 505(b)(2); see also Commonwealth v. Hill, 427
Pa.Super. 440, 629 A.2d 949, 952 (1993). If the
Commonwealth establishes any one of these three
elements beyond a reasonable doubt, then the
conviction is insulated from a defense challenge to
the sufficiency of the evidence where self-protection
is at issue. See Hill, 629 A.2d at 952.
Id. at 1148-1149.
In order to establish the defense of self-defense
under 18 Pa.C.S. § 505, the defendant must not only
show that he was protecting himself against the use
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of unlawful force, but must also show that he was
free from fault in provoking or continuing the
difficulty which resulted in the killing.
Commonwealth v. Serge, 837 A.2d 1255, 1266 (Pa.Super. 2003),
affirmed, 896 A.2d 1170 (Pa. 2006), cert. denied, 549 U.S. 920 (2006)
(footnote omitted) (citations omitted).
Appellant claims that Gregory was turning toward him and raising his
gun. (Appellant’s brief at 24.) This is based on appellant’s statement to
police, in which he related, “I proceed to get out of the car while their backs
were turned. Mally still had his gun in his hand and he started to turn
around. I pulled my gun. When Mally was pointing the gun at me, I shot.”
(Notes of testimony, 7/1/14 at 82.) However, this contradicts Gregory’s
testimony, in which he denied having a gun:
Q. Mr. Gregory, did you have a gun on you that
day?
A. No.
Q. Did you ever point any guns at anyone that
day?
A. No.
Id. at 143.
The jury was free to reject appellant’s statement and accept Gregory’s
testimony, that he was unarmed, as the truth. In addition, while Brown did
have a gun, it was recovered from his front pants pocket. (Id. at 222.)
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Brown was shot in the back, indicating that he was walking away from
appellant when he was shot. As the trial court remarks,
Thus, it is impossible to conclude otherwise than that
the danger to the defendant had passed at the
moment of the shooting, and that the shooting was
motivated by anger and fear at having been robbed
at gunpoint, rather than by any kind of reasonable
belief that his life was currently in danger.
Trial court opinion, 12/3/14 at 5.
Furthermore, appellant was not free from fault in provoking or
continuing the difficulty. Brown and Gregory were walking away when
appellant drew his weapon and exited the vehicle. The Commonwealth
successfully disproved appellant’s self-defense claim.
Next, appellant argues that the trial court abused its discretion in
permitting testimony regarding unrelated criminal acts of Kimey Wong.
Appellant claims that the testimony that Wong chased Gregory through a
parking lot, shooting at him, was irrelevant and highly prejudicial. Appellant
was not charged as an accomplice or co-conspirator of Wong’s, and
appellant argues that Wong’s actions could unfairly be imputed to him, since
they arrived together.
The admission of evidence is a matter
vested within the sound discretion of the
trial court, and such a decision shall be
reversed only upon a showing that the
trial court abused its discretion. In
determining whether evidence should be
admitted, the trial court must weigh the
relevant and probative value of the
evidence against the prejudicial impact of
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the evidence. Evidence is relevant if it
logically tends to establish a material fact
in the case or tends to support a
reasonable inference regarding a
material fact. Although a court may find
that evidence is relevant, the court may
nevertheless conclude that such evidence
is inadmissible on account of its
prejudicial impact.
Commonwealth v. Weakley, 972 A.2d 1182, 1188
(Pa.Super.2009) (quoting Commonwealth v. Reid,
571 Pa. 1, 811 A.2d 530, 550 (2002)). “An abuse of
discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or
the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will
or partiality, as shown by the evidence of record.”
Id. at 1188-89 (citing Commonwealth v. Carroll,
936 A.2d 1148, 1152-53 (Pa.Super.2007)). “An
abuse of discretion may result where the trial court
improperly weighed the probative value of evidence
admitted against its potential for prejudicing the
defendant.” Id. (quoting Commonwealth v. Viera,
442 Pa.Super. 348, 659 A.2d 1024, 1028 (1995)).
Commonwealth v. Antidormi, 84 A.3d 736, 749-750 (Pa.Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014).
The evidence was admissible to refute appellant’s self-defense claim.
Appellant alleged that Gregory was armed and pointing a gun at him when
he shot Brown. Evidence that Wong was chasing Gregory through the
parking lot, shooting at him, corroborates Gregory’s testimony that he was
unarmed. In addition, the evidence was admissible to explain the three fired
cartridge casings recovered from the middle school parking lot. They
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matched the firearm which Wong abandoned in a restaurant trashcan.
(Notes of testimony, 7/1/14 at 214-215.)
The evidence was also admissible as part of the natural development
of the facts of the case. See Commonwealth v. Burton, 770 A.2d 771,
778 (Pa.Super. 2001), appeal denied, 868 A.2d 1197 (Pa. 2005),
overruled on other grounds by Commonwealth v. Mouzon, 812 A.2d
617 (Pa. 2002) (evidence of other crimes, wrongs, or bad acts is admissible
where they were part of a chain or sequence of events which formed the
history of the case and were part of its natural development, also known as
the ‘complete story’ rationale (citations omitted)). Gregory testified that
someone other than appellant was shooting at him. (Notes of testimony,
7/1/14 at 145-147, 171.) According to Gregory, this other individual was
chasing him through the middle school parking lot, firing as he ran. (Id. at
145-147.) Officer Torin Saunders’ testimony concerning the apprehension of
Wong in a nearby restaurant and the recovery of a firearm from a trashcan
which matched the fired cartridge casings in the parking lot not only
corroborated Gregory’s testimony but also served to “complete the story” for
the jurors. Furthermore, we agree with the trial court that any prejudice to
appellant was minimal, where there was no allegation appellant told Wong to
chase Gregory and the charges against appellant, that he shot Brown in the
back multiple times, were far more serious than Wong’s conduct. The trial
court did not abuse its discretion in admitting this evidence.
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Finally, appellant argues that the trial court erred in allowing the
Commonwealth to cross-examine character witnesses about the allegations
in this case, i.e., that appellant was in possession of an illegal firearm and
was attempting to purchase narcotics. Appellant contends that this was
impermissible cross-examination.
In a criminal case, the defendant may offer character
witnesses to testify as to that defendant’s reputation
in the community regarding a relevant character
trait. See Pa.R.E. 404(a)(1); 405(a). Of course, the
Commonwealth may attempt to impeach those
witnesses. Commonwealth v. Hoover, 16 A.3d
1148, 1149 (Pa.Super.2011) (citing
Commonwealth v. Morgan, 559 Pa. 248, 739 A.2d
1033, 1035 (1999)). “For example, when
cross-examining character witnesses offered by the
accused, the Commonwealth may test the witnesses’
knowledge about specific instances of conduct of the
accused where those instances are probative of the
traits in question.” Hoover, 16 A.3d at 1149-50
(citing Pa.R.E. 405(a)). However, the
Commonwealth’s right to cross-examine character
witnesses is not unlimited: the Commonwealth may
not cross-examine a character witness about a
defendant’s uncharged criminal allegations, Morgan,
739 A.2d at 1035-36, or a defendant’s arrests that
did not lead to convictions. Commonwealth v.
Scott, 496 Pa. 188, 436 A.2d 607, 611-12 (1981).
Commonwealth v. Kuder, 62 A.3d 1038, 1057-1058 (Pa.Super. 2013).
Appellant called several witnesses who testified to his good reputation
in the community for being a law-abiding, non-violent, and peaceful person.
The Commonwealth could then cross-examine them regarding the facts of
this case, including that appellant was in possession of an illegal firearm and
was attempting to purchase prescription pain medication off the street.
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These allegations are not disputed. The Commonwealth did not ask the
witnesses about uncharged criminal conduct. In addition, appellant
effectively opened the door to such cross-examination by offering improper
character testimony, e.g., that his former employer considers him as a son
and “one of the best guys that we have.” (Notes of testimony, 7/2/14 at 38;
Pa.R.E. 405(a) (“Testimony about the witness’s opinion as to the character
or character trait of the person is not admissible.”).) See Kuder, 62 A.3d at
1058 (“Appellant opened the proverbial door and ‘cannot complain that the
Commonwealth chose to explore further what was behind that door.’ The
Commonwealth’s cross-examination was directed toward what might change
these personal opinions. This was a fair response to Appellant’s direct
examination.”), quoting Commonwealth v. Smith, 17 A.3d 873, 914 (Pa.
2011).
Appellant relies on Commonwealth v. Nellom, 565 A.2d 770
(Pa.Super. 1989), which is inapposite. There, this court held that it was
error to permit the Commonwealth to impeach the defendant’s character
witness as to her knowledge of the defendant’s robbery conviction, which
arose out of the same incident that gave rise to the charges for which the
defendant was on trial. The defendant had been convicted of robbery, but
the jury was deadlocked on the remaining charges, including rape. We held
the robbery conviction was irrelevant because, “Evidence of the subsequent
robbery conviction, however, would not in anyway [sic] call into question the
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reliability of the character witness’s testimony because, at the time the
sexual offenses were allegedly committed, his reputation did not include a
conviction for robbery.” Id. at 776. The relevant time period for reputation
evidence is at the time of or prior to the date of the offense for which the
defendant is on trial; convictions that occur subsequent to the offense
presently charged are irrelevant. Id.
Here, the Commonwealth was not cross-examining the witnesses
regarding a subsequent conviction. Rather, the Commonwealth questioned
the witnesses about the facts of this case, including that appellant was in
possession of an illegal firearm. This was an appropriate line of questioning
in response to the witnesses’ testimony that appellant had a good reputation
for being a peaceful and law-abiding person. The Commonwealth can
cross-examine the witnesses to show that their knowledge of appellant’s
reputation is unreliable or incomplete. There is no error here.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2015
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