Com. v. Davis, G. ( 2016 )

J-S70034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GARY DAVIS, :
:
Appellant : No. 238 EDA 2016
Appeal from the Judgment of Sentence August 18, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0002634-2013
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 19, 2016
Gary Davis (“Davis”) appeals the judgment of sentence imposed
following his conviction of murder of the third degree and possessing an
instrument of crime.1 We affirm.
In its Opinion, the trial court set forth in detail the relevant factual and
procedural history, which we adopt for the purpose of this appeal. See Trial
Court Opinion, 3/4/16, at 2-21.
On appeal, Davis raises the following issues for our review:
I. Did the lower court err in permitting the Commonwealth to
introduce evidence that members of [Davis’s] and [Irving
Vaughn’s (“Vaughn”)] families were involved in an ongoing
dispute arising out of alleged drug dealing activities[,]
where this evidence failed to satisfy the admissibility
requirements of Pa.R.E. 403 and 404?
1
See 18 Pa.C.S.A. §§ 2502(c), 907(a). Although Davis was convicted of
additional related offenses, he does not challenge those convictions in this
appeal.
J-S70034-16
II. Was the evidence sufficient to support [Davis’s]
convictions for third-degree murder and possessing an
instrument of crime[,] where the Commonwealth failed to
prove beyond a reasonable doubt that [Davis] did not
justifiably act in self-defense at the time of the shooting?
III. Did the lower court abuse its discretion in sentencing
[Davis] to a manifestly excessive aggregate sentence of 30
to 60 years imprisonment[,] where the court based its
sentence solely on the seriousness of the offense and its
impact on [Vaughn’s] family[,] and failed to consider all
relevant sentencing factors, including [Davis’s] serious
mental health issues, lack of a criminal record for violent
offenses, and his expressions of remorse?
Brief for Appellant at 5 (capitalization omitted).
In his first issue, Davis contends that the trial court erred by ruling
that the Commonwealth could elicit testimony at trial that Davis and Vaughn
were members of rival drug dealing groups. Id. at 11. Davis points to the
trial court’s determination that the evidence was admissible because
“[Davis’s] motive to kill Vaughn grew out of the longstanding hostility and
prior acts of violence resulting from drug dealing between the two families …
much as it would have been had [Davis] and Vaughn simply been in more
formal gang organizations.” Id. at 13 (citing Trial Court Opinion, 3/4/16, at
25). Davis asserts that none of the evidence introduced at trial supports this
theory. Brief for Appellant at 13. Davis points to the testimony of LeShay
Hague (“Hague”), a cousin of Davis and a friend of Vaughn, that she did not
sense any tension between the two men and that they “[didn’t] have no
beef.” Id. (citing N.T., 2/11/15, at 168). Davis also points to his own
testimony that he was not involved in any dispute with Vaughn or Vaughn’s
-2-
J-S70034-16
family over drug-dealing territory. Brief for Appellant at 13. Based on this
evidence, Davis argues, “there was no logical connection between [his] drug
dealing activities and the shooting of [] Vaughn, and the contested evidence
should have been deemed inadmissible.” Id.
Davis contends that “the evidence was introduced solely to show his
propensity for criminal activity and to invite the jury to speculate that[,]
because he was involved in drug trafficking activity, he must be guilty of the
charged crimes.” Id. at 15. Davis asserts that such a basis for admissibility
is prohibited by Pa.R.E. 404(b). Brief for Appellant at 15. Additionally,
Davis claims that “the potential for unfair prejudice resulting from the
admission of the evidence was high, as the trial court failed to instruct the
jury on how to properly consider evidence of [Davis’s] drug trafficking
activity.” Id. Davis argues that, rather than instructing the jury to consider
the evidence as probative of the issue of motive, the trial court told the jury
“only to consider the evidence as proof that [Davis] was selling drugs on the
night of the shooting.” Id. at 16.
The trial court set forth the relevant law, addressed Davis’s first issue,
and concluded that it lacks merit. See Trial Court Opinion, 3/4/16, at 22-
26. We agree with the reasoning of the trial court and affirm on this basis
as to Davis’s first issue. See id.
In his second issue, Davis contends that his convictions for third-
degree murder and possessing an instrument of crime cannot stand because
-3-
J-S70034-16
the Commonwealth failed to establish beyond a reasonable doubt that he did
not act in self-defense during the confrontation with Vaughn. See Brief for
Appellant at 17, 19-21. Davis maintains that he shot Vaughn in self-defense
after unsuccessfully attempting to leave the restroom, and after Vaughn had
pinned him against a wall. Id. at 17. Davis asserts that, as Vaughn was
reaching for his gun, Davis noticed that Vaughn had a second gun, which
Davis then grabbed and used to shoot Vaughn. Id. at 21. Davis claims that
his “account of the incident dovetailed with the statement of [] Hague, who
told Detective [Gregory] Santamala that …[w]hen the bathroom door flew
open, [] Hague looked inside and saw [] Vaughn had [Davis] ‘grabbed up by
his collar in the corner of the bathroom, and he was reaching in his
waistband for a gun.’” Id. at 21-22 (citing N.T., 2/12/15, at 23). Davis
argues that the trial court erred by relying on the testimony of Albert Chu,
M.D., an assistant medical examiner, that Vaughn would have been
immediately paralyzed by the initial gunshot to the back of his neck, and
that Davis’s further use of deadly force against Vaughn was not necessary
due to Vaughn’s paralysis. Id. at 22. Davis contends that a claim of self-
defense cannot be defeated “by showing that he delivered more blows than
necessary as long as he was in the heat of conflict and reasonably believed
he was fighting for his life.” Id. (citing Commonwealth v. Fisher, 420
A.2d 427 (Pa. 1980)). According to Davis, Vaughn’s provocation and the
circumstances surrounding the altercation must also be considered when
-4-
J-S70034-16
determining whether Davis’s belief as to the amount of force used was
justified. Brief for Appellant at 24; see also id. (wherein Davis emphasizes
that he was unarmed, had unsuccessfully tried to leave the bathroom, was
being held by the neck by Vaughn, Vaughn was reaching for his gun, and
that Davis fired the gunshots in rapid succession after managing to get a
hold of Vaughn’s second gun).
The trial court set forth the relevant law, addressed Davis’s second
issue, and concluded that it lacks merit. See Trial Court Opinion, 3/4/16, at
28-32. We agree with the reasoning of the trial court and affirm on this
basis as to Davis’s second issue. See id.In his third claim, Davis contends that the trial court abused its
discretion by sentencing him to an aggregate sentence of 30 to 60 years in
prison based “solely on the seriousness of the crime and the impact on
[Vaughn’s] family, while ignoring substantial evidence that would have
supported the imposition of a mitigated sentence.” Brief for Appellant at 27.
Davis challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] a four part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
-5-
J-S70034-16
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, [see] 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
The determination of whether a particular issue constitutes a
substantial question must be evaluated on a case-by-case basis.
Commonwealth v. Roden, 730 A.2d 995, 997 (Pa. Super. 1999).
However, we will be inclined to allow an appeal where an appellant advances
a colorable argument that the trial judge’s actions were (1) inconsistent with
a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process. Id.In the instant case, Davis filed a timely Notice of Appeal. However,
Davis preserved only a limited number of claims in his timely post-sentence
Motion; namely, whether the trial court, in fashioning Davis’s sentence, did
not adequately consider (1) his history of mental illness; (2) that he acted
under strong provocation; and (3) his lack of a criminal record for violent
offenses. See Motion for Reconsideration of Sentence, 8/27/15, at 1-2.
Although Davis included in his appellate brief a separate Rule 2119(f)
statement, the only claims that were raised in that statement, which were
also included in his post-trial Motion, were his claims that the trial court, in
fashioning his sentence, failed to consider (1) his psychiatric history; and (2)
-6-
J-S70034-16
lack of a history for violent crimes.2 See Brief for Appellant at 26. As such,
Davis is in technical compliance with the requirements to challenge the
discretionary aspects of a sentence with regard to these latter two claims.
Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010). Thus,
we will proceed to determine whether these two claims present a substantial
question for our review.
Davis first argues that the trial court failed to adequately consider his
mental health issues. See Brief for Appellant at 29 (noting his difficult
childhood, psychological problems, anger management issues and manic
depression). Notably, Davis does not allege that the trial court was unaware
of his mental health issues. Indeed, Davis indicates that, at the sentencing
hearing, his counsel “highlighted [Davis’s] lengthy history of documented
mental health issues, including childhood depression and manifestations of
bipolar disorder.” Id. at 28.
This Court has held on numerous occasions that a claim of inadequate
consideration of mental health issues does not raise a substantial question
for our review. See Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa.
Super. 2015); see also Commonwealth v. Diaz, 867 A.2d 1285, 1287
2
To the extent that Davis attempts to raise additional discretionary aspects
claims for the first time on appeal, we decline to review them. See
Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005)
(declining to address the merits of the appellant’s challenges to the
discretionary aspects of his sentence where such challenges were not
specifically preserved in his motion to modify sentence).
-7-
J-S70034-16
(Pa. Super. 2005) (noting that, although “[m]ental illness is clearly a factor
that may be considered in sentencing … it does not mandate a modification
or reduction in any sentence that would or could be imposed.”).
Moreover, the trial court had the benefit of a pre-sentence
investigation report (“PSI”). See Trial Court Opinion, 3/4/16, at 35. Where
a sentencing court is informed by a PSI, “it is presumed that the court is
aware of all appropriate sentencing factors and considerations, and that
where the court has been so informed, its discretion should not be
disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.
2009) (citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
Thus, we conclude that this claim fails to present a substantial question for
review.
Davis also claims that the trial court failed to adequately consider that,
prior to the incident in question, he had never been convicted of a crime of
violence. Brief for Appellant at 29.
As noted above, a claim that a sentencing court failed to consider or
did not adequately consider certain mitigating factors does not raise a
substantial question that the standard-range sentence was inappropriate.
See Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super. 2006); see
also Ventura, supra. Thus, we conclude that this claim fails to present a
-8-
J-S70034-16
substantial question for review.3 Accordingly, we cannot address Davis’s
sentencing claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
3
Notably, with regard to his discretionary aspects of sentencing claim, Davis
has not raised an issue that his sentence is “(1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Roden, 730 A.2d at 997.
-9-
Circulated 09/27/2016 09:44 AM
.•. FILED
IN THE COURT OF COMMON PLEAS MAR O 4 2018
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION . Crimlfl5! i-l~p:2is iJn!t
First JudicialOjSUiCt Of PA
COMMONWEALTH CP-51-CR-0002634-2013
vs.
SUPERIOR COURT
GARY DAVIS 238 EDA 2016
BRINKLEY, J. MARCH 4, 2016
OPINION
Defendant Gary Davis appeared before this Court for a jury trial and was found guilty of
third-degree murder, violations of the Uniform Firearm Act (VUFA) 6105 and 6106, possession
of an instrument of crime (PIC), and recklessly endangering another person (REAP). This Court
sentenced Defendant to 20 to 40 years state incarceration on the third-degree murder charge, 5 to
IO years state incarceration on the VUFA 6 I 05 charge, 3 to 6 years ~tate incarceration on the
VUFA 6106 charge, and 2 to 4 years state incarceration on the PIC charge. This Court imposed
no further penalty on the REAP charge. The sentences on all charges were to run consecutive to
one· another, for a total aggregate sentence of 30 to 60 years state incarceration. Defendant
appealed the judgment of sentence to the Superior Court and raised the following issues on
appeal: (1) Whether this Court erred when it allowed the Commonwealth to introduce other acts
evidence; (2) Whether the evidence was sufficient to find Defendant guilty of third-degree
murder and PIC; and (3) Whether the aggregate sentence imposed by this Court was excessive.
PROCEDURAL HISTORY
Ori December 20, 2012, Defendant was arrested and charged with murder, VUFA 6105
and 6106, PIC;and REAP. From February 10 to February 17, 2015, a trial was held in the
presence of a jury. On February 23, 2015, the jury found Defendant guilty of third-degree
murder, VUFA 6106, PIC and REAP. On that same day, Defendant executed a valid waiver of
his right to a jury trial and this Court found him guilty of VUFA 6105. On August 18, 2015, this
Court sentenced Defendant to 20 to 40 years state incarceration on the third-degree murder
charge, 5 to 10 years state incarceration on the VUF A 6105 charge, 3 to 6 years state
incarceration on the VUF A 6106 charge, and 2 to 4 years state incarceration on the PIC charge.
This Court imposed no further penalty on the REAP charge. The sentences on all charges were to
run consecutive to one another, for a total aggregate sentence of 30 to 60 years state
incarceration. On August 27, 2015, Defendant filed a motion for reconsideration of sentence,
which was denied by operation of law on December 28, 2015. On January 6, 2016, Defendant
filed a Notice of Appeal to the Superior Court. On February 8, 2016, after receiving the complete
notes of testimony, this Court ordered Defendant to file a Concise Statement of Errors pursuant
to Pa.R.A.P. 1925(b), and Defendant did so on February 19, 2016.
FACTS
Trial began in this matter on February 10, 2015. Defendant was represented at trial by
John McMahon, Esquire, while the attorney for the Commonwealth was Alisa Shver, Esquire.
The Commonwealth called Officer Jason Wentzell ("Wentzell") as its first witness. Wentzell
testified that he had been a police officer for 18 years and had .been assigned to the l 61h District
throughout his career. Wentzell further testified that, on December 8, 2012, he was by himself
when he got a call to respond to a shooting at a bar on 537 North 35th Street. Wentzell stated that
2
I.. ·'
he was roughly three minutes away from the location and that, when he arrived on location, two
police cars and three officers were already at the bar. Wentzell testified that, as soon as he
entered the bar, the manager approached him and told him that the entire incident had been
caught on videotape. Wentzell further testified that the manager showed him roughly 5 minutes
of the footage and that he was able to identify Defendant as the shooter. Wentzell stated that he
recognized Defendant from the area he patrolled and that he put Defendant's description over the
police radio. Wentzell further stated that he left the bar and went to a nearby area Defendant
frequented, but Defendant was not there. Wentzell testified that the area was right around the
corner from the bar and that he arrived there in less than a minute. Wentzell further testified that
he continued to look for Defendant during his shifts following the shooting, but was unable to
find him. The Commonwealth then played Commonwealth Exhibit C-39 for Wentzell. Wentzell
testified that the video depicted the bathroom area in the rear of the Easy Corner Bar. Wentzell
further testified that he recognized Defendant and LeShay Hague ("Hague") in the video. (N.T.
2/10/2015 p. 96-112).
The Commonwealth called Albert Chu ("Chu") as its. next witness. Chu testified that he
had worked at the Philadelphia Medical Examiner's Office since July 2014 and previously had
worked as an Assistant Medical Examiner at the Harris County Institute of Forensic Science in
Houston for 9 years. Chu further testified that he completed a one-year forensic pathology
fellowship at the Office of the Chief Medical Examiner for the State of Maryland, medical
school at the State University of New York in Buffalo, and a residency training program in
anatomic and clinical pathology at the Hospital -of the University of Pennsylvania. Chu stated
that he had performed over two thousand autopsies in his career and testified as an expert in the
field of forensic pathology nearly one hundred times. The Commonwealth subsequently offered,
. 3
and this Court accepted, Chu as an expert in the field of forensic pathology. Id. at 121-24.
Chu testified that he did not perform the autopsy on the decedent, Irving Vaughn
("Vaughn'') but had reviewed the report prepared by Dr. Gary Collins ("Collins") and was able
to confirm the findings of the report, although he did not agree with all of its findings. Chu stated
the first injury described was a perforating gunshot wound to the neck which injured the voice
box, fifth cervical vertebrae, and spinal cord, as well as the skin and soft tissue. Chu further
stated that the injury was potentially fatal and that Vaughn would have suffered instantaneous
paralysis of all four limbs. Chu testified that Collins concluded that the entrance wound was on
the front of the neck and the exit wound was on the back, but he did not agree with this finding.
Chu further testified that, based on the photographs taken at the autopsy and the video of the
incident, he believed that the bullet likely entered from the back and exited through the front of
the neck. Chu stated that, based on the photographs from the autopsy alone, it was difficult to tell
which wound was the entrance and exit wound and that it was his review of the video which
made him believe that the entrance wound was on the back. Id. at 124-35.
Chu testified that the second injury was a gunshot wound to the left side of the back,
while the third injury was another gunshot wound to the back which was lower than the second
injury. Chu further testified that both wounds appeared to be entrance wounds and that there
were corresponding exit wounds on the front of the chest. Chu stated that Vaughn had an
additional gunshot wound to the left shoulder from which a bullet wasrecovered. Chu further
stated· that the wound was an atypical gunshot wound, based on its irregular abrasion and hole,
and that something would have interfered with the bullet before it entered the body. Chu testified
that Vaughn also had a perforating wound on the middle finger of his right hand. Chu further
testified that the wound on Vaughn's finger had gunpowder stippling, which indicated that the
4
• I
gun was within two feet of him when it was fired. Chu stated that, based on the atypical nature of
the shoulder wound, it was possible that the bullet passed through Vaughn's finger and then went
into his shoulder. Chu further stated that Vaughn had an abrasion of the skin on his forehead. Id.
at 136-43.
Chu testified that Vaughn was 5' 1 O" tall and weighed 170 pounds. Chu further testified
that Vaughn tested positive for Promethazine and Codeine, which were commonly seen in
prescription cough syrup, and ethanol. Chu testified that Vaughn's blood-alcohol content was
.06; which was below the legal limit to drive. The Commonwealth then played Commonwealth
Exhibit C-39 for Chu. Chu testified that he observed Vaughn walk out of the bathroom under his
own power, which indicated that he could not have suffered the wound to his neck already,
which resulted in instant paralysis. Chu further testified that, shortly after Vaughn exited the
bathroom, he suddenly collapsed face forward and the gun appeared to be behind his head. Chu
stated that the most likely explanation for Vaughn's collapse was that he had just received the
neck wound and that the bullet had come from behind. Chu testified that the official cause of
death was multiple gunshot wounds. Chu further testified that the two gunshot wounds to
Vaughn's chest were life threatening and would have created internal and external bleeding that
would have prevented Vaughn's left lung from functioning correctly. Chu stated that the wounds
would have resulted in death within minutes. Chu further stated that neither the gunshot wound
to the shoulder nor the wound to the right hand were immediately life-threatening. Id. at 154-63.
The Commonwealth called Officer Terry Tull ("Tull") as its next witness. Tull testified
that he had been a police officer for 18 years and had been assigned to the crime scene unit for 6
years. Tull further testified that he responded to the Easy Comer Bar on December 8, 2012. Tull
stated that he recovered a .45-caliber Winchester fired cartridge casing and a .45-caliber PMC
5
I \ i I
fired cartridge casing in the vicinity of a pinball machine near the rear of the property. Tull
further stated that he collected two blood samples and recovered a copper jacket from a bullet in
the vicinity of the bathroom. Tull testified that he recovered the lead core of a bullet, another .45-
caliber fired cartridge casing and another copper jacket in the hallway near the bathroom and a
bullet from the women's bathroom. Tull further testified that the bathroom was approximately
three-feet wide and five-feet long. Tull stated that one shell-top Adidas sneaker was found on the
floor next to the very edge of the bar while a cell-phone protective frame was found near the
opening of the bar. Tull further stated that he never recovered a second shoe or a cell phone. Tull
testified that he submitted the blood swabs to Criminalistics and the ballistic evidence to the
Firearms Identification Unit. (N.T. 2/11/2015 p. 9-36).
The Commonwealth called Officer William Kozlowski ("Kozlowksi") as its next witness.
Kozlowski testified that he had been a police officer for 10 years and had been assigned to the
l 61h District for 8 years. Kozlowski further testified that he responded to the Easy Comer Bar on
December 8, 2012 for a shooting. Kozlowski stated that he was in a radio patrol car about a
block-and-a-half away with his partner, Officer McGinnis ("McGinnis"), when they received the
call. Kozlowski testified that he stopped the vehicle approximately two houses away from the bar
and, as he and McGinnis approached the bar, he saw people walking very fast out of it.
Kozlowski further testified that he and McGinnis entered the bar and stopped people from
exiting it. Kozlowski stated that he went to the rear of the bar and saw Vaughn lying face down
ori the floor near the bathrooms. Id. at 50-55.
Kozlowski testified that he did not recognize Vaughn and noticed that Vaughn had been
shot approximately three times in the torso area. Kozlowski further testified that he immediately
radioed for medics and additional patrol cars. Kozlowski stated that medics were on the scene
6
' .
immediately, as their station house was next door to the bar, and they flipped Vaughn over.
Kozlowski furth~r stated that he put his hand near Vaughn's nose area to see if he was breathing
but he did not feel any breath. Kozlowski also stated that he did not see Vaughn move and that
Vaughn did not speak to him. Kozlowski testified that medics took Vaughn out through the back
of the bar and that McGinnis went with them. Kozlowski further testified that Wentzell had
arrived at the bar by that time and together they went with the manager of the bar to review the
surveillance video. Kozlowski stated that he watched the footage and recognized Defendant.
Kozlowski further stated that Defendant stayed in the area of 600 North 34th Street and he went
to that area the next day to look for him but did not find him. Kozlowski further stated that he
continued to look in that area for the 5 or 6 days following the shooting but did not find
Defendant. Kozlowski testified that, in addition to relaying Defendant's description over police
radio, he also relayed the description of a black female and another male who had approached
Vaughn while he was laying on the ground. Id. at 55-60.
The Commonwealth called McGinnis as its next witness. McGinnis testified that he had
been a police officer for 6Yl years and that he was working with Kozlowski on December 8, 2012
when they responded to a homicide at the Easy Corner Bar on 35th and Haverford. McGinnis
further testified that Vaughn was face down and unresponsive when they first saw him and that
medics turned him over. McGinnis stated that he went in the ambulance with Vaughn and that
medical personnel handed him a bullet projectile and empty shell casing from the inside of
Vaughn's jacket. McGinnis further stated that he placed thoseitems on a property receipt and
transported them to the Firearms Identification Unit. Id. at 67- 70.
The Commonwealth called Maurice McDonald ("McDonald") as its next witness.
Mclfonald testified that he was currently in custody for violating his probation and that he had an
7
,'j I • I
open case for drug possession. McDonald further testified that he was on probation for picking
up a handgun he found on Vaughn's body and giving it away. McDonald stated that he had
known Vaughn since he was 9 years old and that the two of them became friends as he got older.
McDonald further stated that he and Vaughn would hang out around 381h Street in West
Philadelphia every day. McDonald testified that, on December 8, 2012, he and Vaughn went to
the Easy Corner Bar at 35th and Haverford to get something to eat and drink. McDonald further
testified that he and Vaughn did not go to the bar with anyone else and that they were at the bar
for approximately 90 minutes. McDonald stated that he saw a couple women at the bar that he
knew and that Vaughn had a pleasant conversation with someone that McDonald did not know.
McDonald further stated that the-atmosphere was friendly. McDonald testified that he was sitting
in a chair eating when he heard a couple of gunshots. McDonald further testified that he jumped
up and ran to the back of the bar, where he saw Vaughn dying. McDonald stated that he saw a
gun hanging off Vaughn' s side, so he took it off him and left the bar. McDonald further stated
that he did not know that Vaughn had been carrying the gun and that he took it off Vaughn
because he did-not know that Vaughn was going to die and did not want Vaughn to get in trouble
for the gun. Id. at 74-86.
McDonald testified that he was subsequently picked up by police and willingly went with
them to the station for questioning. McDonald further testified that he remembered talking with
Hague on the night in question and that Vaughn spoke with her as well. McDonald stated that he
was sitting at the bar eating while Vaughn and Hague were talking and that, after she whispered
in Vaughn's ear, the two of them went to the back of the bar together. McDonald further stated
. that he remembered seeing a man wearing an izar at the bar, but he did not pay any attention to
· the man nor did he remember seeing the man speak to Vaughn. McDonald testified that he heard
8,
f I 1 }
four or five gunshots from the back of the bar and that the people in the bar left in a panic.
McDonald further testified that he assumed Vaughn was still in the back as he never saw Vaughn
return . McDonald stated that Vaughn was laying face down on his stomach and that Vaughn
turned his head towards him and moaned after he asked Vaughn if he was hit. McDonald further
stated that Vaughn's head was the only part of his body that moved and that Vaughn was trying
to nod his head. McDonald testified that it was around that time that he noticed the handle of a
gun hanging off of Vaughn's waistband. McDonald further testified that the gun was a black and
green semiautomatic. Id. at 86-99.
The Commonwealth then played Commonwealth Exhibit C-39 for McDonald. McDonald
testified that he recognized Vaughn and Hague on the video, and that there was a man with
cornrows wearing an izar that he did not recognize. McDonald further testified that Vaughn was
carrying a drink and eating a piece of.chicken. McDonald stated that Hague then grabbed
Vaughn with her right hand and together they walked towards the bathrooms with the other man.
McDonald further stated that, four minutes after Vaughn went towards the bathroom, he stood up
and Hague ran towards him. McDonald testified that Hague was jumping up and down as she
heard the gunshots. McDonald further testified that, thirty seconds later, he saw himself next to
Vaughn's body taking the gun from him. McDonald further stated that he was charged with
receiving stolen property and obstruction of law enforcement and that he pied guilty to the
obstruction charge. McDonald testified that he had never seen that gun in Vaughn's possession,
that he was not carrying a gun on himself that night, and that Vaughn did not seem to have any
problems with anyone in the bar. McDonald further testified that he gave a statement to police on
December 14, 2012 and that he identified a photograph of Hague at that time but was unable to
identify anyone else in the photographs he was shown. Id. at 101-13.
I 9
1
I
i' ' J
The Commonwealth called Officer Norman DeFields ("DeFields") as its next witness.
DeFields testified that he had been a police officer for 25 years and had been with the Firearms
Identification Unit for 9 years. DeFields further testified that he had completed an in-house
training program, and had gone to numerous armorer's courses, the New England manufacturers'
tour, the ATF Serial Number Restoration School, the FBI Bullet Trajectory Reconstruction
School and numerous Medical Examiners conferences. DeFields stated that he had been
qualified as an expert in firearms identification and ballistics in state and federal court in
Philadelphia. DeFields was subsequently offered and accepted by this Court as an expert in
firearms identification. Id. at 126-30.
DeFields testified that he examined the ballistic evidence recovered at the Easy Corner
Bar on December 8, 2012. De Fields further testified that he received four fired cartridge casings
and that all of the fired cartridge casings were .45-caliber automatic-type. DeFields stated that all
four fired cartridge casings were fired from the same gun, but he did not receive any firearm with
which to compare to the fired cartridge casings. DeFields further stated that he received a
copper-alloy full-metal jacketed bullet, B-1, which had a land and groove impression of six right.
DeFields testified that the bullet's nose area was flattened and blood and tissue-like materials
were attached to the base area. DeFields further testified that he received a second bullet from
the scene, B-2, which had a land and groove impression of six right. DeFields stated that he
received a third bullet, B-3, from the Medical Examiner's Office and that the bullet was a .45-
caliber copper alloy with a land and groove impression of six right and no major deformation.
De Fields further stated. that he received two bullet jacket fragments, BJF 1 and BJF2, which were
consistent with being from the same fractured bullet jacket. DeFields testified that bullets 1
10
' ..
through 3 and bullet jacket fragments 1 and 2 were all consistent with having been fired from the
same firearm. Id. at 131, 150-56.
The Commonwealth called Hague as its next witness. Hague testified that she was friends
with Vaughn and that Defendant was her cousin. Hague further testified that she was on
probation for forgery, theft by unlawful taking, receiving stolen property and access device
fraud, and that she pied guilty to those offenses in October 2013. Hague stated that, on December
8, 2012, she went to the Easy Corner Bar with a friend at around 11 p.m. to have a drink. Hague
further stated that the bar was busy that night and she recognized people from her neighborhood
there, including Defendant, Vaughn, and McDonald. Hague testified that she had a pleasant
conversation with Vaughn and McDonald but she could not remember whether Defendant and
Vaughn ever spoke to each other that night. Hague further testified that Defendant and Vaughn
were not friends but did not have any problems with each other. Hague stated that she did not
remember what time the shooting took place. Hague further stated that she did not remember
walking with Defendant andVaughn to the bathroom area in the back of the bar or seeing
Defendant and Vaughn together in the women's bathroom. Hague testified that she did not
remember seeing Vaughn's-body, hearing any gunshots or running out of the bar. Id. at 157-74.
Hague testified that police came to her house the next morning and brought her down to
the Homicide Division at gth and Race. Hague further testified that she watched the surveillance
video with the detectives and gave a statement. The Commonwealth then played· Commonwealth
Exhibit C-39 for Hague. Hague testified that she recognized herself and Defendant in the video.
Hague further testified that Defendant was wearing an izar and had a drink or cigarettes in his
hands. Hague stated that the video showed her having a conversation with Vaughn and whisper
something into his ear, but she could not remember what she said to Vaughn. Hague further
11
.,
stated that the video showed her standing with Defendant about 8 minutes after she spoke with
Vaughn, but she did not remember whether she spoke with Defendant. Hague testified that
Defendant then walked towards the back of the bar and that she followed him. Hague further
testified that, as she and Defendant walked to the back of the bar, she tapped Vaug~ on his
stomach and all three of them walked together towards the back of the bar. Hague stated that
Vaughn was eating at the time and there did not seem to be any tension betwee.n Defendant and
Vaughn. Hague further stated that there was no indication of any fight between them and neither
of them indicated that they did not want to go to the back of the bar. Id. at 174-93.
Hague testified that, approximately 20 seconds after she walked to the back of the bar
with Defendant and Vaughn, she walked away and began to talk with McDonald. Hague further
testified that, 15 seconds later, the video showed Defendant close the door to the bathroom and
her cousin, "Shi", enter the adjacent bathroom. Hague 'stated that, 100 seconds after Defendant
closed the door to the bathroom, the video showed her motion towards Shi, engage in a
conversation with.him.iand point in the direction of the bathroom. Hague further stated that, 30
seconds later, the door to the bathroom flew open and she looked into the bathroom. Hague
. .
testified that she saw Defendant and Vaughn fighting and ran. Hague further testified that she
saw a gun but was not sure who had the gun. Hague stated that she did not remember what the
gun looked like and that Vaughn was holding it up in the air as they were fighting. Hague further
stated that she did not leave the area, even though she saw the gun, because she thought the fight
would get broken up. Hague testified that, 4 seconds later, the video showed her jump up. Hague
further testified that she jumped because she heard the shots, but did not remember how many
shots she heard. Hague stated that it was at that point that she left the bar. Id. at 194-207.
12
,---
Hague testified that, when she gave her statement to the police, her answers were not
written down contemporaneously and she never reviewed her statement. Hague further testified
that she refused to sign and date her statement, but she did so after viewing the video. Hague
stated that she had not spoken to anyone in the courtroom about the case and had only seen her
statement for the first time when it was shown to her by defense counsel two days prior. The
· Commonwealth then showedHague the statement she gave to police. Hague testified that she
saw her handwriting and the date she gave the statement on each page of the statement and the
photographs attached to the statement. Hague further testified that the statement showed she was
brought into Homicide by police at 8:35 a.m. and that she gave her statement at 8:50 a.m. Hague
testified that the statement did not say anything about Vaughn holding a gun in the air nor had
she previously told the District Attorney's Office that Vaughn was holding a gun in the air.
Hague further testified that she was intoxicated and had not slept the night before when she gave
the statement. Hague testified that she identified Defendant as the shooter to police but she only
heard the gunshots arid never saw who was shooting. (N.T. 2/12/2015 p. 7-23).
The Commonwealth then played Commonwealth Exhibit C-39 for Hague. Hague
testified that the video showed her turn around with her hands in the air when Defendant fired at
least one shot at Vaughn. Hague further testified that she was near the deejay booth when
Vaughn collapsed and she was looking in the direction of Defendant, although she was unsure
where exactly she was looking. Hague testified that she did not remember seeing Vaughn
gripping Defendant by his shirt collar and did not remember what she saw when she looked at
them in the bathroom stall. Hague further testified that she did not remember when she first saw
the gun and that she had never seen a person carrying a gun before as she did not hang around
people who carried guns. Hague testified Shi's full name was Shi Tyler and that he was
13
I
·1
I I > ••
Defendant's half-brother. Hague further testified Shi and Defendant were not close, but had a
friendly relationship. Id. at 24-34.
• I Hague testified thatshe remembered police asking her why Defendant and Vaughn went
to the bathroom together and she gave the following answer, "to talk, it was a beef between
[Vaughn], young boys, and [Defendant]." Hague further testified that the video showed
Defendant standing in front of her and talking to someone in his vicinity shortly before walking
to the back of the bar. Hague testified that she did not know whether they had a conversation or
what that conversation would have been about. Hague further testified that the video showed
Defendant walk past Vaughn 30 seconds later and that she then grabbed Vaughn by his stomach.
Hague testified that she walked with Vaughn to the bathroom and that she stood in the doorway
of the bathroom as Vaughn and Defendant were in there together. Hague further testified that she
was talking to Vaughn at that time but she did not remember if Vaughn and Defendant were
talking to each other. Hague testified that Defendant never said anything to her while he was in
the bathroom with Vaughn and did not express any fear of being in the bathroom with Vaughn.
Hague further testified that Vaughn did not seem to be angry. Id. at 36-54.
Hague testified that she stayed near the bathroom while Defendant and Vaughn were
there and that Defendant's brother, Shi, at one point entered the bathroom next to them. Hague
further testified that Defendant never asked her to talk to Vaughn and that she did not remember
the content of her conversations with Vaughn or Defendant. Hague stated that she did not know
that Defendant and Vaughn were going to talk to each other and that she did not set Vaughn up.
Hague further stated that she did not speak to Defendant after talking to Vaughn and she did not
facilitate their conversation in the bathroom. Hague testified that she did not ensure that Vaughn
· went into the bathroom with Defendant and that she did not stand guard near the bathroom while
14
they were in there. Hague further testified that she never motioned towards the bathroom they
were in while she was speaking with Shi. Id. at 57-67.
The Commonwealth called Detective Robert Hesser ("Hesser") as its next witness.
Hesser testified that he hadbeen a police officer for 26 years and had been a detective with the
Homicide Division for 10 years. Hesser further testified that he was the assigned detective for
the killing of Vaughn and that he went to the scene after-receiving notification that Vaughn had
died. Hesser stated that he worked in conjunction with the Crime Scene Unit at the scene and that
they collected one jacket, one sneaker, video, one set of keys, ballistics, blood, photographs and
sketches from the Easy Comer Bar. Hesser further stated that the surveillance video was turned
over to Detective James Dunlap ("Dunlap"). Hesser testified that he interviewed between 15 to
. 20 witnesses, including Hague. Hesser further testified a quantity of narcotics were recovered
from the victim's body by officer DeJesus and placed on a property receipt. Hesser stated the
narcotics included a glass jar with a black lid containing a purple liquid alleged to be syrup, 26
small Ziploc packets containing an off-white chunky substance alleged to be crack cocaine,
seven small clear jars with yellow lids and a scorpion design with a green weed substance, and
one clear plastic baggie containing a greed weed substance alleged to be marijuana. Hesser
further stated that the crack cocaine was probably intended to be sold. Id. 100-10.
Hesser testified that Defendant was identified as the shooter and a warrant was issued for
his arrest on December 8, 2012. Hesser further testified that Defendant was ultimately arrested
on December 20, 2012 by the Homicide Division Fugitive Squad. Hesser stated that Defendant
was arrested at 5308 Magnolia Street in the Logan neighborhood of Philadelphia and that the gun
used to shoot Vaughn was notrecovered, Hesser further stated he was never contacted by
Defendant or anyone on Defendant's behalf in the time period between when the arrest warrant
15
' I
was issued and when Defendant was ultimately arrested. Hesser testified that Defendant was
5 '8" tall, weighed 15 5 pounds and listed his home address as 3223 Mount Vernon Street, which
was near the Easy Comer Bar. Hesser further testified that DNA swabs were taken from
Defendant and that he requested a comparison with the DNA samples collected from the scene.
Id. at 110-22.
The Commonwealth called Detective Gregory Santamala ("Santamala") as its next
witness. Santamala testified that he was present when Detective Jacobs conducted the interview
with Hague on December 8, 2012. Santamala further testified that Jacobs typed Hague's answers
verbatim and that Hague was given the opportunity to review her answers and make any
corrections. Santamala testified that the statement was three pages long, withthree photographs
attached, and that Hague signedher name and the date on the statement and on each photograph.
Id. at 143-49.
Santamala then read from the statement Hague gave to the police. Santamala testified
that, in response to the question, "Can you please state in your own words what occurred during
the shooting death of Irving Vaughn?" Hague gave the following answer,
"I was up front with [Vaughn], playing with [Vaughn]. I seen
[Vaughn] and [Defendant] walking off toward the bathroom. I
grabbed [V aughn' s] hand and started walking with him. As I was
still talking to him, lpeep in the bathroom while [Vaughn] and
[Defendant] wasstill in there, and I started playing with both of
them, and I walked off. I started playing with Shi. Shi ran in the
bathroom and waited until he came out and started talking to him.
As me and Shi was talking, then we both heard the bathroom door
fly open. We walk to the bathroom, and we peeped in, and I saw
[Vaughn] had [Defendant] gripped up by his collar in the comer
of the bathroom, and· he was reaching in his waistband for the
gun. They were tussling with a gun.
I ran out of the bathroom to get help. I peep back around and seen
[Defendant] halfway out of the bathroom, and shots were fired and
I jumped back and ran."
16
' .
Santamala further testified that Hague stated to the police that she saw Defendant shoot Vaughn
and heard about three gunshots. Santamala testified that Hague identified photographs of
Defendant, Vaughn, and Mcfronaldand that she did not appear to be intoxicated during her
statement. Id. at 149-55.
The Commonwealth called Dunlap as its next witness. Dunlap testified that he worked
for the Philadelphia Police Homicide Unit and did most of the cellphone and video work for the
unit. Dunlap further testified that he was part of a co-op with the FBI Digital Image and Video
Response Team and that he had training from the FBI Audio/Video Unit at Quantico and the
Law Enforcement Video Association out oflndianapolis University. Dunlap testified that he was
one of the teachers in the Digital Image and Video Response Team with the FBI and that he had
taught police officers from Baltimore, Boston and Seattle on best methods for recovery and
storage of video. Dunlap ·further testified that he previously had been-called as an expert in state
and federa_l court in Philadelphia. Dunlap was subsequently offered and accepted by this Court as
. .
an expert in forensic video recovery and securing of the video assigned to him. Id. at 160-63.
Dunlap testified that there were nine cameras at the Easy Comer Bar and that he received
video from.cameras 2, 3, 5, 6, 7, and 8. Dunlap further testified that the time-stamp on the videos
was running only 45 seconds fast and was therefore fairly accurate. Dunlap stated that he
reviewed the footage with the assigned detective and made a compilation of the video. Dunlap
further stated that he did not see any interactions between Defendant and Vaughn until the actual
incident: Id. at 163-69.
The Commonwealth then read a stipulation that, at the time of the incident, Defendant did
not have a valid license to carry a firearm in the city of Philadelphia. The Commonwealth further
stipulated that if Benjamin Levin ("Levin") was called to testify, he would testify that he was a
17
forensic scientist with the City of Philadelphia and that he conducted a DNA report for items
recovered from inside the bar and compared them to swabs taken from Defendant. Levin would
further testify that, to a reasonable degree of scientific certainty, Defendant was the major source
for the DNA found on the shoe, jacket, comb and hat recovered from the Easy Corner Bar. Id. at
173-75. After reading these stipulations, ·the Commonwealth rested. Id. at 176.
The defense called Gary Tyler ("Tyler") as its next witness. Tyler testified that he was
Defendant's father and that he.occasionally worked at the Easy Comer Bar. Tyler further
testified that he was working the door at the Easy Comer Bar on December 8, 2012 and that,
during that night, Defendant approached him and told him that he was worried about Vaughn's
presence at the bar. Tyler stated that he told Defendant not to worry and enjoy himself. Tyler
further testified that he had known Vaughn since he was a little kid and that he was friendly with
Vaughn's family. (N.T. 2/13/2015 p. 4-8).
The defense called Defendant as its next witness. Defendant testified that he resided at
3223 Mount Vernon with his grandfather and, at the time of the shooting, his mother lived on
Magnolia Street. Defendant further testified that he frequented the Easy Corner Bar on a regular
basis to drink, sell marijuana and spend time with his friends. Defendant stated that, on
December 8, 2012, he went to the bar by himself and arrived between 9:00 to 9:30 p.m.
Defendant further stated that he was wearing black jeans, an izar, white Adidas sneakers and a
black leather jacket. Defendant testified that he was carrying marijuana on the right side of his
izar and that he also had his phone, charger, cigarettes and kufi on his person. Defendant further
testified that he was not armed when he went to the bar and that he was not expecting any
problems at the bar. Defendant stated that the bar was having a fish fry that night and it was a
little busier than usual. Id. at 29-34.
18
Defendant testified ·that, once at the bar, he talked to people he knew, sold marijuana and
drank. Defendant further testified that he eventually noticed Vaughn at the bar, which was
unexpected as Vaughn and his friends usually drank at a bar on 37tti and Aspen. Defendant stated
that he was sitting at the front of the bar when Vaughn came in with McDonald, whom he did not
know. Defendant further stated that he felt uneasy when he saw Vaughn, as it was unusual for
him to be at the bar and because Vaughn was wearing at-shirt with a picture of his cousin on it.
Defendant testified that his friend had been charged with the murder of Vaughn's cousin but was
acquitted at trial. Defendant further testified that Vaughn's cousin had been killed at the Easy
Comer Bar. Defendant stated that he approached Tyler after he saw Vaughn and told him that he
felt worried that Vaughn and McDonald were there. Defendant further stated that Tyler told him
that it was alright. Id. at 35-42.
Defendant testified that there was a feud at that time between people who lived on 34tti
Street and people who lived on 381h Street. Defendant further testified that people who lived on
34tti Street tended to frequent the Easy Corner Bar while people who lived on 3gth Street tended
to go to Candy's on 37th and Aspen. Defendant stated that he was feeling good and enjoying
himself as the night wore on and was not looking for a confrontation with Vaughn. Defendant
further stated that he was 5'6" tall and weighed 145 pounds at the time. Defendant testified that
· he was talking with one of Hague's friends when Hague approached him and said that Vaughn
wanted to talk to him. Defendant further testified that he told her he did not want to talk with
Vaughn because he was uncomfortable doing so. Id. at 42-47.
Defendant testified that he went to the bathroom to roll a marijuana joint. Defendant
stated that he previously used the bathrooms at the bar to roll marijuana and that he used
whatever bathroom was available. Defendant further testified that he did not expect Vaughn to
19
: .
follow him to the bathroom and that he did not want to see Vaughn in the bathroom. Defendant
stated that he had his back towards the open bathroom door while he rolled his marijuana and the
music was too loud to hear anybody walking towards the bathroom. Defendant testified that he
spent approximately 35 seconds rolling the marijuana and, when he turned around to leave the
bathroom, he saw Vaughn standing near the sink. Defendant further testified that the bathroom
was small and he was worried when he saw Vaughn standing approximately two inches in front
of him. Defendant stated that he asked Vaughn, "What's up?" and Vaughn responded, "Close the
door." Defendant further stated that Vaughn appeared to be a little drunk and high. Id. at 47-55.
Defendant testified that he peeked out the door of the bathroom to make sure McDonald
was not outside waiting to jump him then shut the door. Defendant further testified that he did
not leave the bathroom because he thought that he and Vaughn were going to have a friendly
conversation. Defendant stated that he asked Vaughn, "What do you want to talk about?" and
Vaughn replied, "You know I don't fuck with y'all down here like that." Defendant testified that
Vaughn started making angry faces and balling up his fists so he tried to leave the bathroom but
was pushed back by Vaughn. Defendant further testified that he smacked Vaughn's hand away
from him and then a fight broke out between them. Defendant stated that Vaughn was bigger and
stronger than him, and was throwing him around the bathroom. Defendant further stated that no
punches were thrown, but they slammed each other against the walls. Id. at 55-59.
Defendant testified that, at one point during the fight, he was able to grab a hold of the
doorknob and tried to run out but was unable to because Vaughn was grabbing him. Defendant
stated that Vaughn had him gripped by his collar and pinned up against the wall. Defendant
further stated that Vaughn' s free hand was reaching for a _gun in his waistband so he put his hand
on Vaughn's wrist so he could not pull the gun out. Defendant testified that he could see the
20
• •
black and grey handle of the gun and he had not known Vaughn was carrying a gun until then.
Defendant further testified that he was scared that he was going to get killed when he saw the
gun. Defendant stated that he saw the handle of another gun on the other side of Vaughn's
waistband and he reached to grab that gun. Defendant further stated that on his second try he was
able to grab hold of the gun and pull it out. Defendant testified that Vaughn then pushed him
away" and he was able to raise his arm and fire the gun. Id. at 59-66.
Defendant testified that he fired the gun because he was afraid for his life and that he was
not aiming at any specific part of Vaughn's body. Defendant further testified that the time
between when he grabbed the gun and when he fired was very quick. Defendant stated that, after
he shot Vaughn, he concealed the gun in his izar, took three steps and then ran to the front door.
Defendant further stated that, as he ran to the front door, McDonald tried to grab his ankle, which
was how he lost his shoe. Defendant testified that he exited the bar and ran three block up
Haverford Avenue toward 31st Street. Defendant further testified that he walked over the bridge
towards North Philadelphia and threw the gun in the Schuylkill River. Defendant stated that he
went to North Philadelphia because he had friends in· the neighborhood. Defendant further stated
that he called his brother, who picked him up and took him to their mother's house at 53rd and
Magnolia in Germantown. Defendant testified that he found out that Vaughn died the next day
and he contacted an attorney but was unable to afford one at that time. Defendant further testified
that he was arrested on December 20, 2012 and did not resist when he was arrested. Id. at 66- 72.
After Defendant testified, the defense rested. ·
ISSUES
I. WHETHER THIS COURT ERRED WHEN IT GRANTED THE
COMMONWEALTH'S MOTION TO INTRODUCE OTHERACTS
EVIDENCE.
21
~---
.
II. WHETHERTHE EVIDENCE WAS SUFFICIENT TO FIND DEFENDANT
GUILTY OF THIRD-DEGREE MURDER AND POSSESSION OF AN
INSTRUMENT OF CRIME.
III. WHETHER THE AGGREGATE SENTENCE IMPOSED BY THIS
COURT WAS EXCESSIVE.
DISCUSSION
I. THIS COURT DID NOT ERR WHEN IT GRANTED THE
COMMONWEALTH'SMOTION TO INTRODUCE OTHER ACTS
EVIDENCE.
This Court did not err when it granted the Commonwealth's motion to introduceevidence
of other acts to show motive. It is well established that the admissibility of evidence is solely
within the discretion of the trial court and its decision will not be disturbed on appeal absent an
abuse of that discretion. An abuse of discretion is not merely an error of judgment, but is rather
the overriding or misapplication of the law or an exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of
record. Commonwealth v. Tyson, 2015 PA Super 138, 119 A.3d 353, 357-58 (2015) (citing
Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.Super.2005)).
Where the trial court has stated a "reason for its decision, the scope of review is limited to
an examination of the stated reason." Commonwealth v. Weakley, 2009 PA Super 74, 972 A.2d
1182, 1189 (quoting Commonwealth v. Strong, 825 A.2d 658, 665 (Pa.Super.2003)). An abuse
of discretion may not be found merely because an appellate court might have reached a different
conclusion. Commonwealth v. Perry, 612 Pa. 557, 32 A.3d 232, 236 (2011) (quoting
Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961 (2007)). To constitute reversible error,
an evidentiary ruling must not onJy be erroneous, but also harmful or prejudicial to the
complaining party. Commonwealth v. Lopez, 2012 PA Super 161, 57 A.3d 74, 81 (2012). An
evidentiary error of the trial court will be deemed harmless on appeal where the appellate court is
22
• I
convinced, beyond a reasonable doubt, that the error could not have contributed to the verdict.
Commonwealth v. Patterson, 625 Pa. 104, 91 A.3d 55 (2014) (citing Commonwealth v. DeJesus,
584 Pa. 29, 880 A.2d 608, 614 (2005)).
Evidence of a defendant's prior criminal activity is inadmissible to demonstrate his bad
character or criminal propensity. Commonwealth v, Cox, 2015 PA Super 103, 115 A.3d 333, 337
(2015) (citing Commonwealth v. Collins, 70 A.3d 1245, 1251-1252 (Pa.Super.2013)). The same
evidence may be admissible for various legitimate purposes, however, provided that its probative
value outweighs the prejudicial effect likely to result from its admission, and an appropriate
limiting instruction is given. Id. One such evidentiary purpose is to demonstrate the defendant's
motive for committing the crime charged. Id. To be admissible under this exception, there must
be a specific 'logical connection' between the other act and the crime at issue which establishes
that the crime currently being considered grew out of or was in any way caused by the prior set
of facts and circumstances. Id. (citing Commonwealth v. Ross, 57 A.3d 85, 100
(Pa.Super.2012)). Evidence that the defendant was involved in a drug distribution organization
and that victim was involved in a rival organization is not improper evidence of prior bad acts,
where it is relevant to show motive. See Commonwealth v. Collins, 2013 PA Super 158, 70 A.3d
1245, 1252 (2013) (citing Commonwealth v. Childress, 452 Pa.Super. 37, 680 A.2d 1184, 1187-·
88 (1996)): Although evidence of prior occurrences which is too remote is not properly
admissible, it is generally true that remoteness of the prior instances of hostility affects the
weight of that evidence and not its admissibility. Commonwealth v. Chamberlain, 612 Pa. 107,
30 A.3d 381, 420 (2011) (citing Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893, 905
(2002)).
23
r
. .
1. This Court did not err when it granted the Commonwealth's motion
to introduce evidence that Defendant's and Vaughn's families were in
an ongoing dispute arising out of drug dealing.
This Court did not err when it granted the Commonwealth's motion to introduce evidence
that Defendant's and Vaughn's families were in an ongoing dispute arising out of drug dealing.
Moreover, even if this Court had granting the motion, any such error was harmless. Prior to trial,
the Commonwealth filed a· motion to admit evidence that there had been prior, ongoing violence
between Defendant's and Vaughn's families arising out of drug dealing. The Commonwealth
argued that the evidence was relevant to prove Defendant's motive to kill Vaughn and to explain
why Vaughn and Defendant went to the bathroom to talk "about the young boys". The
Commonwealth further argued that the case law routinely allowed evidence of rival drug dealing
as a motive to commit murder. (N.T. 11/24/2014 p. 23-26). Defendant argued in response that
the evidence was too vague to be probative and that allegations of drug dealing would present an
extreme danger of unfair prejudice. Defendant further argued that, if the evidence of an ongoing
dispute were to be admitted, this Court should omit any references to drug dealing. Id. at 27-31.
This Court allowed the Commonwealth to introduce evidence that Defendant's and Vaughn's
families were in an ongoing dispute arising out of drug dealing and cited to the cases provided by
the Commonwealth in support. This Court noted that in Commonwealth v. Rogers, the Superior
Court allowed evidence that the defendant was affiliated with a drug gang and had been tasked
with watching the organization's drug houses where the defendant was on trial for murdering
two members of a rival drug gang. See Commonwealth v. Rogers, 615 A.2d 55 (Pa.Super. 1992).
This Court further noted that in Commonwealth v. Gwaltney, the Superior Court allowed
evidence that the decedent and the defendant were members of a rival gang to establish
defendant's motive for a stabbing and in Commonwealth v. Gelber, the Superior Court allowed
24
I IJ o )°
Gelber, the Superior Court allowed evidence of defendant's prior felony conviction for drugs to
establish motive. See Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982); see also
Commonwealth v. Gelber, 594 A.2d 672 (Pa.Super. 1991). This Court stated the case law
allowed evidence of rival gang activity so Jong as a cautionary instruction was issued. (N.T.
ll/24/2014p. 31-33).
This Court did not err when it granted the Commonwealth's motion to introduce evidence
that Defendant's and Vaughn's families were involved in an ongoing dispute arising out of drug
dealing. As this Court noted, the case law in Pennsylvania has consistently allowed evidence of
rival gang activity involving drug dealing when that gang activity provided the motive for the
defendant to murder the decedent. As the activities of the families in the instant case mirrored
gang activity insomuch as they involved participants in rival groups who were engaged in drug
dealing and occasional violence against members of the other group, the case law regarding rival
gang activity providing motive was instructive for the case at hand. As Defendant's motive to
kill Vaughn grew out of the longstanding hostility and prior acts of violence resulting from drug
· dealing between the two families, the evidence of such motive was admissible much as it would
have been had Defendant and Vaughn simply been in more formal gang organizations.
Moreover, even if this Court erred in granting the Commonwealth's motion to introduce the
evidence, any such error was harmless. Aside from Hesser's testimony that various drugs were
found on Vaughn's body, Defendant's own testimony that he was selling marijuana at the bar on
the night in question and that his friend had been accused but acquitted in the murder of
Vaughn's cousin, the jury heard no other evidence that Defendant or Vaughn were involved in
drug dealing or that there was an ongoing dispute between Defendant's and Vaughn's families
arising out of prior acts of violence and drug dealing. Furthermore, this Court instructed the jury
25
. .
that it was only to consider evidence that Defendant was selling drugs at the Easy Comer Bar to
showDefendant's activities at the bar and not to show criminal propensity or infer guilt.
Specifically, this Court instructed the jury,
"You have heard evidence tending to prove the. defendant was
guilty of selling drugs for which he is not on trial. I am speaking
of the testimony to the effect that the defendant was selling
drugs outside the Easy Comer Bar. This evidence is before you
for a limited purpose: that is, to show - partially show the
defendant's activities at the Easy Comer Bar.
This evidence must not be considered by you in any other way
other than the purposes I just stated. You must not regard the
evidence as tending to show that the defendant was a person
of bad character or criminal tendencies from which you may
be inclined to infer guilt."
(N.T. 2/17/2015 p. 52). Therefore, it is exceedingly unlikely that the evidence could possibly
have contributed to the jury's verdict, especially given the ample evidence which otherwise
implicated Defendant. Thus, even if this Court erred in granting the Commonwealth's motion,
any such error was harmless.
2. This Courtdid not err when it granted the Commonwealth's motion
to introduceevidence that Defendant threatenedVaughn several
months prior to the shooting.
This Court did not err when it granted the Commonwealth's motion to introduce evidence
that Defendant threatened to kill Vaughn at a murder trial several months prior to the shooting.
Moreover, even if this Court had erred in granting such motion, any such error was harmless.
Prior to trial, the Commonwealth filed a motion to admit evidence that Defendant said to
Vaughn, "you're next, nigga" during the trial of Defendant's friend, Tyree Berry, for the murder
of Vaughn's cousin, Ronald Saunders, seven months prior to the shooting in the instant case. The
Commonwealth argued that evidence that Defendant had threatened to kill Vaughn prior to the
shooting was relevant to show motive in the instant case as well as to rebut Defendant's self-
26
defense argument by showing that Defendant was the aggressor in the instant case. (N.T.
11/24/2014 p. 23-26). Defendant argued in response that the evidence was unduly prejudicial
given the spontaneous nature in which the shooting occurred as well as the fact that the threat
occurred seven months prior to the shooting and there appeared to be no animosity between the
two on the surveillance tapes. Id. at 27-31, 37-39, 41. This Court granted the Commonwealth's
motion to introduce the evidence as the threat was very specific and admissible under the case
law provided by the Commonwealth. Id. at 44-45.
This Court did not err when it granted the Commonwealth's motion to introduce evidence
that Defendant threatened to kill Vaughn several months prior to the shooting. Contrary to
Defendant's assertions, the threats Defendant made against Vaughn were highly probative of
Defendant's intent andmotive to kill Vaughn and rebutted Defendant's claims that the shooting
was a spontaneous act of self-defense rather than a planned ambush. Moreover, the seven-month
delay between when the threat was made and when the shooting occurred more properly went to
the weight that the jury placed upon the evidence as opposed to its admissibility, especially in
consideration of the fact that the threat was made in the context of an ongoing feud between
Defendant's and Vaughn's families dating back to 2004. Furthermore, even if this Court had
erred in granting the Commonwealth's motion to admit evidence that Defendant threatened to
kill Vaughn several months prior to the shooting, any such error was harmless as the
Commonwealth never actually introduced such evidence at trial. Therefore, the evidence could
not possibly have contributed to the jury's verdict as the jury never heard the challenged
evidence.
II. THE EVIDENCE WAS SUFFICIENT TO FIND DEFENDANT GUILTY
OF THIRD-DEGREE MURDER AND POSSESSION OF AN
INSTRUMENT OF CRIME.
27
I • ti • t
1. Sufficiency of the evidence.
A review of the sufficiency of the evidence to support a conviction requires that the
evidence be reviewed in the light most favorable to the Commonwealth as verdict winner.
Commonwealth v. Levy, 2013 PA Super 331, 83 A.3d 457, 461 (2013) (quoting Commonwealth
v. Williams, 871 A.2d 254, 259 (Pa.Super. 2005)). The Commonwealth is also entitled to all
favorable inferences which may be drawn from the evidence. Commonwealth v. Kelly, 2013 PA
Super 276, 78 A.3d 1136, 1139 (2013) (citing Commonwealth v. Hopkins, 67 A.3d 817, 820
(Pa.Super. 2013)). The evidence put forth by the Commonwealth will be considered sufficient if
it establishes each material element of the crime beyond a reasonable doubt, even if by wholly
circumstantial evidence. Commonwealth v. Franklin, 2013 PA Super 153, 69 A.34 719, 722
(2013) (citing Commonwealth v. Brewer, 876 A.2d·1029, 1032 (2001)).
When determining whether the evidence is sufficient to support a guilty verdict, the
appellate court must examine the entire trial record and consider all of the evidence actually
received. Commonwealth v. Graham, 2013 PA Super 306, 81 A.3d 137, 142 (2013) (quoting
Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa.Super 2011)). However, the trier of fact is
entitled to believe all, part or none of the evidence received at trial and the appellate court cannot
substitute its judgment for that of the fact-finder. Commonwealth v. Fabian, 2013 PA Super 6,
60 A.3d 146, 151 (2013) (quoting Commonwealth v. Jones, 886 A.2d 689, 704 (Pa.Super.
2005)). The facts and circumstances established by the Commonwealth need not eliminate any
possibility of the defendant's innocence; rather, any doubt is to be resolved by the fact-finder
unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact
could be concluded. Commonwealth v. Stays, 2013 PA Super 170, 70 A.3d 1256, 1266 (2013)
(citing Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa.Super. 2000)).
28
• • •
2. The evidence was sufficient to find Defendant guilty of third-degree
murder.
The evidence presented at trial was sufficient to find Defendant guilty of third-degree
murder. Third degree murder occurs when a person commits a killing which is neither intentional
nor committed during the perpetration of a felony, but contains the requisite malice.
Commonwealth v. Morris, 2008 PA Super 235, 958 A.2d 569, 576 (2008) (citing
Commonwealth v. Tielsch, 934 A.2d 81, 94 (Pa.Super.2007). Malice is not merely ill-will but,
rather, wickedness of disposition, hardness of heart, recklessness of consequences, and a mind
regardless of social duty. Id. (citing Commonwealth v. Hardy, 918 A.2d 766, 774
(Pa.Super.2007)). Malice may be found where the defendant consciously disregarded an
unjustified and extremely high risk that his actions might cause serious bodily injury.
Commonwealth v. Dunphy, 2011 PA Super 100, 20 A.3d 1215, 1219 (2011) (citing
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.2001)). Malice may be inferred by
considering the totality of the circumstances. Id. (citing Commonwealth v. Thomas, 440
Pa.Super. 564, 656 A.2d 514, 516 (1995)). Malice may be inferred from the use of a deadly
weapon on a vital part of the victim's body. Commonwealth v. Ventura, 2009 PA Super 96, 975
A.2d 1128, 1142 (2009) (citing Commonwealth v. Gooding, 818 A.2d 546, 550
(Pa.Super.2003)).
A defense of "imperfect self-defense" exists where the defendant actually, but
unreasonably, believed that deadly force was necessary. Commonwealth v. Truong, 2012 PA
Super 8, 36 A.3d 592, 599 (2012) (citing Commonwealth v. Marks, 704 A.2d 1095, 1100
(Pa.Super.1997)). When a defendant raises the issue of self-defense, the Commonwealth bears
the burden to disprove such a defense beyond a reasonable doubt. Ventura, 975 A.2d at 1143
(citing Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa.Super.2008)). The Commonwealth
29
. . .
sustains this burden if it establishes at least one of the following: ( 1) the accused did not
reasonably believe that he was in danger of death or serious bodily injury; (2) the accused
provoked or continued the use of force; or (3) the accused had a duty to retreat and the retreat
was possible with complete safety. Id. (citing Commonwealth v. McClendon, 874 A.2d 1223,
1230 (Pa.Super.2005)). The Commonwealth need only prove one of these elements beyond a
reasonable doubt to sufficiently disprove a self-defense claim. Id. (citing Commonwealth v.
Burns, 765 A.2d 1144, 1149 (Pa.Super.2000)).
In the case at bar, the evidence was sufficient to find Defendant guilty of third-degree
murder. Chu testified that Vaughn suffered five gunshot wounds, including two potentially fatal
wounds to the back of his torso and one to the back of his neck which resulted in immediate full-
body paralysis. Chu further testified that the video at the scene showed Vaughn walk out of the
bathroom under his own power, then a gun appeared behind his head and Vaughn collapsed
forward, which Chu testified was consistent with Vaughn receiving the paralyzing wound to the
back of his neck. Wentzell and Kozlowski each testified at trial that they viewed surveillance
footage of the shooting and immediately identified Defendant as the shooter. Hague testified that
she identified Defendant as the shooter to police. Moreover, the Commonwealth introduced
sufficient evidence to disprove Defendant's claims of self-defense. Chu testified that Vaughn
would have been paralyzed in all four limbs immediately after he received the gunshot wound to
the back of his neck. However, the surveillance footage from the bar showed Defendant fire two
additional shots into Vaughn's torso from behind. Chu testified that these two gunshots wounds
would have resulted in internal and external bleeding that would have caused death within
minutes. Furthermore, Defendant's own testimony belied his claims that Vaughn was the initial
aggressor as Defendant testified that Vaughn told him that he did not want any trouble when they
30
. ' '* , I
were in the bathroom together. Additionally, Defendant's testimony that he was intimidated by
Vaughn's presence at the bar was rendered incredible by surveillance footage of the incident as
well as Hague's and Santamala's testimony, which indicated that Defendant set up the meeting
in the bathroom. Thus, the Commonwealth provided sufficient evidence that Defendant killed
Vaughn with malice when he shot him in the neck from behind and that Defendant continued to
use deadly force against Vaughn after such force could not possibly have been necessary, due to
Vaughn's paralysis. Therefore, the evidence was sufficient to find Defendant guilty of third-
degree murder.
3. The evidence was sufficient to find Defendant guilty of possession of
an instrument of crime.
The evidence presented at trial was sufficient to find Defendant guilty of possession of an
instrument of crime (PIC). A person commits a misdemeanor of the first degree if he possesses
any instrument of crime with intent to employ it criminally. 18 Pa.C.S.A. § 907(a). An
instrument of crime is defined as "[a]nything specially made or specially adapted for criminal
use" or "[a]nything used for criminal purposes and possessed by the actor under circumstances
not manifestly appropriate for lawful uses it may have." Commonwealth v. Stokes, 2011 PA
Super 261, 38 A.3d 846, 854 (2011 ). It is undisputed that a gun can be an instrument of crime.
Id. Once the factfinder concluded that the defendant was the slayer and that the death resulted
from the infliction of a gunshot wound,. the factfinder could logically have concluded from all of
the evidence that the defendant had possession of a gun, that the gun was an instrument
commonly used for criminal purposes, and that his possession of the gun was, under the
circumstances, not manifestly appropriate for any lawful use that the gun may have had.
Commonwealth v. Buford, 2014 PA Super 224, 101 A.3d 1182, 1190 (2014) (citing
Commonwealth v. Woodbury, 329 Pa.Super. 34, 477 A.2d 890, 893-94 (1984)).
31
In the case at bar, the evidence was sufficient to find Defendant guilty of PIC. Wentzell
and Kozlowski each testified that they viewed surveillance footage of the shooting and
immediately recognized Defendant as the shooter. Hague testified that she identified Defendant
as the shooter to police. Chu testified that Vaughn died as a result of multiple gunshot wounds,
including gunshot wounds to the back of his neck and torso, and that the surveillance video
showed a gun behind Vaughn's head as he received the gunshot wound to the back of his head.
Tull testified that he recovered copper jackets, fired cartridge casings and a bullet from the area
in and around the bathroom. DeFields testified that the bullets and bullet jacket fragments
recovered from the scene were all consistent with having been fired from the same firearm. Thus,
there was sufficient evidence for the jury to conclude that Defendant had possession of a gun,
that the gun was an instrument commonly used for criminal purposes, and that his possession of
the gun was, under the· circumstances, not manifestly appropriate for any lawful use that the gun
may have had. Therefore, the evidence was sufficient to find Defendant guilty of PIC.
III. THE AGGREGATE SENTENCE IMPOSED BY THIS COURT WAS NOT
EXCESSIVE.
The aggregate sentence of 30 to 60 years state incarceration imposed by this Court was
not excessive. Sentencing is a matter vested in the sound discretion of the sentencing judge, and
a sentence will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth
v. Johnson, 2015 PA Super 221, 125 A.3d 822, 826 (2015) (citing Commonwealth v. Disalvo, 70
A.3d 900, 903 (Pa.Super.2013)). In this context, an abuse of discretion is not shown merely by
an. error in judgment. Rather, the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Id. The rationale
behind such broad discretion and the concomitantly deferential standard of appellate review is
32
. ..
~
that the sentencing court is "in the best position to determine the proper penalty for a particular
offense based upon an evaluation of the individual circumstances before it." Commonwealth v.
Williams, 2013 PS Super 151, 69 A.3d 735, 740 (2013) (citing Commonwealth v. Walls, 592 Pa.
557, 926 A.2d 957, 961 (2007)). The appellate court shall vacate the sentence and remand the
case to the sentencing court with instructions if it finds: (1) the sentencing court purported to
sentence within the sentencing guidelines but applied the guidelines erroneously; (2) the
sentencing court sentenced within the sentencing guidelines but the case involves circumstances
where the application of the guidelines would be clearly unreasonable; or (3) the sentencing
court sentenced outside the sentencing guidelines and the sentence is unreasonable. In all other
cases the appellate court shall affirm the sentence imposed by the sentencing court.
Commonwealth v. Dodge, 2013 PA Super 253, 77 A.3d 1263, 1274 (2013) (citing 42 Pa.C.S. §
9781(c)). In reviewing the record, the Superior Court considers: (1) The nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the
opportunity of the sentencing court to observe the defendant, including any presentence
investigation; (3) the findings upon which the sentence was based; and (4) the guidelines
promulgated by the commission. Id. (citing 42 Pa.C.S. § 9781(d)).
Where the trial court has the benefit of a pre-sentence report, the Superior Court
presumes that the court was aware of relevant information regarding the defendant's character
and weighed those considerations along with any mitigating factors. Johnson, 125 A.3d at 827
(citing Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa.Super.2014)). A pre-sentence report
constitutes the record and speaks for itself. Commonwealth v. Best, 2015 PA Super 151, 120
A.3d 329, 348 (2015) (citing Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, 18 (1988)).
Having been fully informed by the pre-sentence report, the sentencing court's discretion should
33
,·~ :, ....
not be disturbed. This is particularly true in those circumstances where it can be demonstrated
that the judge had any degree of awareness of the sentencing considerations, and there the
Superior Court will presume also that the weighing process took place in a meaningful fashion.
Id. at 348-49. Thus, when the trial court has a pre-sentence investigation report, there is no merit
to a defendant's assertion that the court did not consider his rehabilitative needs in imposing his
sentence. Id. at 349.
In the case at bar, the parties were in agreement that Defendant had a prior record score
of 4 (N.T. Sentencing 8/18/2015 p. 5). For the charge of third-degree murder with a deadly
weapon enhancement, the offense gravity score was a 14, making the guideline range 186
months to the statutory limit, plus or minus 12. For the charge of VUF A 6105, the offense
gravity score was a 10, making the guideline range 48 to 60 months, plus or minus 12. For the
charge ofVUFA 6106, the offense gravity score was a 9, making the guideline range 3 to 48
months, plus or minus 12. For the charge of PIC with a deadly weapon enhancement, the offense
gravity score was a 4, making the guideline range 12 to 23 months, plus or minus 3. For the
charge of REAP, the offense gravity score was a 2, making the guideline range 6 to 12 months,
plus or minus 3. Id. at 5-7. This Court subsequently sentenced Defendant to 20 to 40 years state
incarceration on the third-degree murder charge, 5 to 10 years state incarceration on the VUFA
6105 charge, 3 to 6 years state incarceration on the VUFA 6106 charge, 2 to 4 years state
incarceration on the PIC charge, and imposed no further penalty on the REAP charge.
Thus, Defendant's sentence was within the range established by the sentencing guidelines
and not unreasonable in light of the factors set forth in 42 Pa. C.S.A. § 9781 ( d). As this Court
noted in imposing the sentence, Defendant's crime had a uniquely grave impact on the victim's
family as Vaughn's and Defendant's families were related by blood and the woman who raised
34
... t!
Vaughn was in fact raising Defendant's close relative or child as well. Furthermore, this Court
stated that Defendant had a long history of anger management issues, beginning when he was
arrested at 16 for shoving a police officer at his school. This Court noted that, on January 25,
2009, Defendant was arrested for striking the mother of his child while she was holding their
one-year-old. This Court further noted that Defendant punched the victim in the face, causing her
to fall while holding the child, and continued to strike the victim despite his own family
members trying to pull him away. Moreover, Defendant's claim that this Court did not consider
his mitigating factors or rehabilitative needs is without merit as this Court had access to a pre-
sentence investigation report, along with the Commonwealth and the defense's sentencing
memos, and incorporated by reference those reports into the record. Therefore, the aggregate
sentence of 30 to 60 years state incarceration imposed by this Court was not excessive.
35
' ,,.. '; \• _ .......
CONCLUSION
After a review of the applicable rules of evidence, statutes, case law and testimony, this
Court committed no error. This Court did not err when it granted the Commonwealth's motion
to introduce other acts evidence.The evidence was sufficient to find Defendant guilty of third-
degree murder and possession of an instrument of crime. The total aggregate sentence imposed
by this Court was not excessive. Therefore, this Court's judgment of sentence should be upheld
on appeal.
36