Com. v. Jones, I. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
ISAAC LAMONT JONES
Appellant No. 729 WDA 2013
Appeal from the Judgment of Sentence January 25, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002958-2012
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED June 1, 2015
Appellant, Isaac Lamont Jones, appeals from the judgment of sentence
entered after he was convicted of robbery – serious bodily injury and
conspiracy to commit robbery. Jones argues that the verdicts were against
the weight of the evidence and that the trial court erred in failing to grant a
mistrial after the Commonwealth used leading questions during direct
examination of the victim. We affirm.
At trial, the victim, Alvester Clay, testified that during the morning of
December 24, 2011, he was preparing to open the bar and restaurant he
owned. At around noon, the door buzzer rang, and he allowed a young, tall
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S22002-15
man into the bar. The man requested a drink, and as Clay turned to get
one, the man produced a gun.
The young man pointed the gun at Clay and told him to get on the
floor. As Clay complied with the order, the young man opened the door and
allowed another man to enter. This man had his face partially covered, but
at some point the covering shifted, and Clay was able to recognize him as a
former employee and regular patron at the bar: Jones.
Jones demanded that Clay give him the keys to Clay’s upstairs
apartment. When Clay refused, Jones retrieved a knife from the kitchen and
held it to Clay’s neck. Clay relented and opened the door to the upstairs
apartment.
The two assailants escorted Clay upstairs to his apartment, where they
bound Clay’s hands and feet with duct tape, before locking him in a closet.
Jones and his accomplice then proceeded to ransack Clay’s apartment. After
over an hour in the closet, Clay was able to free himself and contacted
police. He immediately identified Jones as one of his assailants.
In contrast, two alibi witnesses testified that Jones was otherwise
occupied at the time of the robbery. Tracee Russell, Jones’s girlfriend and
mother of his child, testified that Jones was home all day playing a video
game. Marcus Lewis, a friend of Jones, testified that he was playing a
videogame over the internet with Jones from approximately 8:30 that
morning until noon or 1:00 p.m.
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The jury subsequently returned a guilty verdict on charges of robbery
– serious bodily injury and conspiracy to commit robbery. The trial court
sentenced Jones to a term of imprisonment of five to ten years. Jones filed
post-sentence motions, which the trial court denied, and this timely appeal
followed.
On appeal, Jones first argues that the verdict was against the weight
of the evidence. Our standard of review applicable to a challenge to the
weight of the evidence, is as follows.
[A] verdict is against the weight of the evidence only when the
jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice. It is well established that a weight of the
evidence claim is addressed to the discretion of the trial court. …
The role of the trial court is to determine that notwithstanding all
the evidence, 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. A motion for a new trial on the grounds that the
verdict is contrary to the weight of the evidence concedes that
there is sufficient evidence to sustain the verdict; thus the trial
court is under no obligation to view the evidence in the light
most favorable to the verdict winner.
Significantly, in a challenge to the weight of the evidence, the
function of an appellate court … is to review the trial court's
exercise of discretion based upon a review of the record, rather
than to consider de novo the underlying question of the weight
of the evidence. In determining whether this standard has been
met, appellate review is limited to whether the trial judge’s
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion. It is for this reason that the trial court’s
denial of a motion for a new trial based on a weight of the
evidence claim is the least assailable of its rulings.
Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal
citations and quotation marks omitted).
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Jones argues that Clay’s testimony was contradictory, that Clay’s age
impacted his credibility, and that the testimony of his alibi witnesses was
contradicted. In response, the trial court observes:
Here, the jury found the Defendant guilty of all charges after
hearing strong direct evidence of the Defendant’s involvement in
this armed robbery, namely, the testimony of the victim of the
robbery. Although the Defendant attempts to argue that the
direct evidence provided by Mr. Clay was weak or incredible, the
jury clearly found the testimony of Mr. Alvester Clay to be
compelling. He was the sole eyewitness to, and victim of, the
events of December 24, 2011, and he was able to describe what
he saw, heard and experienced to the jury in great detail. Even
though defense counsel engaged in a lengthy cross-examination
of Mr. Clay in an attempt to discredit him and sully his
credibility, the jury chose to believe his version of what
happened that day, which is well-within their province. As this
court stated earlier, Mr. Clay was a compelling witness. It
certainly does not shock this court’s conscience or sense of
justice that the jurors found him to be credible. In fact, this
court found him to be credible and truthful as well.
…
In terms of the allegations that Mr. Clay’s testimony was
confusing and contradictory, that certainly was not the case. Mr.
Clay was clear and consistent on all of the main facts in this
case, including the identity of the Defendant as the perpetrator,
the description of the co-Defendant, the manner and order in
which the Defendants entered the bar, the fact that the
Defendants were armed, the use of the knife by the Defendant,
the fact the the Defendant was in charge of the robbery, and the
fact that a large sum of money was taken from him. His trial
testimony was consistent even during aggressive cross-
examination. If there was a discrepancy between trial testimony
and facts related in police reports, the jury was certainly aware
that Mr. Clay did not write the police reports, could only provide
answers to questions asked of him and was in an agitated,
excited state when questioned by officers.
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Trial Court Opinion, at 5-6; 8-9. We can discern no abuse of discretion in
this reasoning, and therefore conclude that Jones’s first issue on appeal
merits no relief.
In his final issue on appeal, Jones contends that the trial court erred in
allowing the Commonwealth to use leading questions during the direct
examination of Clay. Our standard when reviewing a trial court’s evidentiary
rulings is well-settled: we will not disturb the lower court’s rulings absent an
abuse of discretion. See Commonwealth v. Einhorn, 911 A.2d 960, 967
(Pa. Super. 2002). “The trial court abuses its discretion if ‘it misapplies the
law or [rules] in a manner lacking reason.’” Id. (citation omitted).
Ordinarily, the use of leading questions during direct examination is
prohibited. See Pa.R.E. 611(c). Jones objected to the leading nature of the
Commonwealth’s questioning five times during the direct examination of
Clay; the trial court sustained four of those objections. In response to the
fifth objection, the trial court determined that the question was not leading
in nature and overruled it.
Jones provides no argument that the trial court erred in overruling his
fifth objection. Rather,
Jones merely asks this Court to review the testimony of Mr. Clay,
the main prosecution witness. The conviction of Mr. Jones can
only stand if Mr. Clay was able to provide competent testimony
of Mr. Jones’s involvement in the robbery without the use of
leading questions. The leading questions in this case were too
extensive to permit such a finding. At several points, Mr. Clay
wasn’t testifying, the Assistant District Attorney was.
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Accordingly, it was error to permit such prejudicial testimony to
stand at trial.
Appellant’s Brief, at 32.
To the extent that Jones is arguing that the trial court erred in not
sustaining objections that were never made, we note that such an argument
is waived. See Pa.R.A.P. 302. Furthermore, our review of the record can
locate no instance where Jones requested a mistrial due to the leading
nature of the Commonwealth’s questions. Jones’s appellate brief does not
explicitly identify any, either. “Even where a defendant objects to specific
conduct, the failure to request a remedy such as a mistrial or curative
instruction is sufficient to constitute waiver.” Commonwealth v. Strunk,
953 A.2d 577, 579 (Pa. Super. 2008).
In any event, we cannot conclude that the trial court’s sole decision to
overrule Jones’s objections to the leading nature of the Commonwealth’s
questioning of Clay constituted an abuse of discretion. Nor do we agree with
Jones’s characterization of Clay’s testimony. For the vast majority of the
relevant testimony, Clay was responding to open-ended questioning, and
was not led in a manner indicating improper influence by the prosecuting
attorney. We therefore conclude that Jones’s final issue on appeal merits no
relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2015
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