Com. v. Schwenk, C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER LEE SCHWENK :
:
Appellant : No. 1912 MDA 2017
Appeal from the Judgment of Sentence October 8, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000656-2014
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 06, 2019
Christopher Lee Schwenk appeals from the judgment of sentence
imposed on October 8, 2015, in the Court of Common Pleas of York County
following his conviction by jury of third-degree murder.1 The jury acquitted
him of first-degree murder and voluntary manslaughter. Schwenk received a
sentence of 20 to 40 years’ incarceration. In this timely appeal, Schwenk
raises four issues: (1) the trial judge erred in failing to recuse himself based
on repeated conflicts with defense counsel; (2) the trial court erred in denying
Schwenk’s motion to suppress evidence as untimely; (3) the trial court erred
in failing to preclude the statements of Roque Castro, a witness to the crime
who did not testify at trial, as hearsay; and (4) the trial court erred in failing
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2502(c).
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to grant a new trial or dismissal based upon the insufficiency of the evidence.
After a thorough review of the submissions by the parties, relevant law, and
the certified record, we affirm.
For a full recitation of the underlying facts of this matter, we refer to
and incorporate pages 4 – 15 of the trial court’s Pa.R.A.P. 1925(a) opinion,
dated April 5, 2018. For ease of reference, we note the following.
In the early morning hours of November 6, 2013, Ashley Rodriguez got
into an altercation with Eddie Gallon.2 Schwenk, a current paramour of
Rodriguez, came to her aid. Gallon left the scene but returned shortly
thereafter and threw a rock through one of Rodriguez’s mother’s windows.
Schwenk obtained Rodriguez’s 9mm Smith and Wesson semi-automatic
handgun, chased Gallon for a brief distance and fired seven shots at him. All
the bullets missed the intended target, but one of them struck the victim,
Monique Nixon, who died from the gunshot wound.
When the police arrived at the scene of the crime, Roque Castro
informed them he witnessed a black male attempting to pick up shell casings
before running into a nearby apartment. He also informed the police he heard
an argument and glass breaking at that apartment prior to hearing gunshots.
The police recovered several 9mm shell casings from the crime scene.
Detective First Class Jeffrey Spence was the detective supervisor for the crime
____________________________________________
2The nature of their relationship is not clear. Gallon testified he and Rodriguez
were in an ongoing, though tumultuous, relationship while Rodriguez testified
the relationship had ended sometime earlier.
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and sought to enter the apartment indicated by Castro. Rodriquez answered
the door and refused warrantless entry to the police. After 10 to 20 minutes
passed, Detective Spence believed the situation had become unsafe. He then
decided to, and did, enter the apartment without a warrant. Inside, Schwenk
was found, naked on the bed. A 9mm Smith & Wesson semi-automatic
weapon was also located near the bed. Subsequent forensic analysis
determined the fatal bullet and the shell casings found at the crime scene were
all fired by the handgun found in the Rodriguez apartment. Forensic analysis
also determined Ashley Rodriguez’s DNA was on the handgun, but Schwenk’s
DNA was not. However, Schwenk had gunshot residue on his hands, while
Rodriguez did not.
Although all inhabitants of the apartment were taken into custody for
questioning, only Schwenk was ultimately arrested. While in custody and
awaiting trial, a jailhouse informant told the authorities Schwenk had admitted
to the shooting, claimed to have had sex with Rodriguez after the shooting,
and that Rodriguez had taken the handgun, wiped it off and hidden it in the
bedroom, where it was ultimately found.
No witnesses to the surrounding events claimed to have seen Rodriguez
pursue Gallon or shoot at him.
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Schwenk’s first claim is the trial judge erred in failing to recuse himself
after a series of conflicts between the judge and defense counsel. 3 Initially,
we note,
Our standard of review of a trial court’s determination not to
recuse from hearing a case is exceptionally deferential. We
recognize that our trial judges are “honorable, fair and
competent,” and although we employ an abuse of discretion
standard, we do so recognizing that the judge himself is best
qualified to gauge his ability to preside impartially. Bonds, 890
A.2d at 418 (citing Commonwealth v. Abu-Jamal, 553 Pa. 485,
720 A.2d 79, 89 (1998)).
The party who asserts that a trial judge should recuse
bears the burden of setting forth specific evidence of bias,
prejudice, or unfairness. See Commonwealth v. Perry,
468 Pa. 515, 364 A.2d 312, 318 (1976). “Furthermore, a
decision by the trial court against whom the plea of
prejudice is made will not be disturbed absent an abuse of
discretion.” Commonwealth v. Buehl, 540 Pa. 493, 658
A.2d 771, 782 (1995).
Commonwealth v. Stafford, 749 A.2d 489, 501 (Pa. Super.
2000). See also Commonwealth v. Tedford, 598 Pa. 639, 713,
960 A.2d 1, 55-56 (2008). (“[I]t is the burden of the party
requesting recusal ‘to produce evidence establishing bias,
prejudice or unfairness which raises a substantial doubt as to the
jurist's ability to preside impartially.’ ”).
Commonwealth v. Harris, 979 A.2d 387, 391-92 (Pa. Super. 2009).
Although Appellant’s brief mainly addresses confrontational encounters
between defense counsel and the trial judge, the only request we can find for
for recusal was made pre-trial resulting from the denial of a motion for
____________________________________________
3 The trial judge, the Honorable Thomas H. Kelley, retired in October, 2015,
shortly after sentencing Schwenk. The Honorable Harry M. Ness was assigned
to this case thereafter.
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continuance. At the final pre-trial conference on July 16, 2015, the trial judge
denied Schwenk’s counsel’s request for a continuance. Schwenk was not
present in the courtroom. Trial counsel noted that Schwenk would be
concerned regarding the trial judge’s ability to be fair and impartial, a concern
the trial judge found to be meritless. Nonetheless, trial counsel stated the
recusal issue would be raised again prior to trial when Schwenk was present.
On July 20, 2015, this exchange took place:
[Defense Counsel]: Yes, Your Honor. Again, last week we
had raised some motions, and Your Honor did deny them. I did
explain what occurred to Mr. Schwenk. Mr. Schwenk is concerned
about Your Honor’s ability to be fair and impartial and act without
animosity, even if it’s towards Defense Counsel, and he does
believe that that is going to prevent him from being or having a
fair trial and exercising full due process, so he is asking Your Honor
to recuse himself, yourself.
I do have a case here which does speak to if there’s even –
first of all, if there is actual animosity, then there should be
recusal, and even if there’s a perception of it, then there should
be recusal to affect the fair administration of justice as well as
respect, maintaining the respect for the impartiality of the Courts.
So I do have that case, I can pass up to Your Honor.
THE COURT: Okay. Okay. All right, well, I’m aware of the
case law. Under the circumstances – and I know that this matter
was initially raised at the conclusion of last week’s hearing, it was
raised for the first time. When was an information filed in this
case? I shouldn’t say information, Complaint.
[Prosecutor]: The formal arraignment was on March 3,
2014.
THE COURT: Okay. Well, I note that it was raised last week
for the first time. The formal arraignment was March of 2014, a
year and four months ago. We’ve had a number of hearings,
status conferences, et cetera.
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I denied Counsel’s request for a continuance in part. Well,
I guess the request for the continuance was in toto, but I did
conduct a hearing as to the basis for the continuance request. At
the conclusion of that hearing was the first time that it [recusal]
was raised by Defense Counsel, and that is not indicative of any
animosity. It just simply means that I found that the request for
continuance was patently without merit.
So motion to recuse is denied. The Court can be fair and
impartial. The Court directs no animosity towards either Defense
Counsel or the Defendant.
N.T. Vol. 1, 7/20-21/2015, at 5-7.
Although there are vague references to prior adverse rulings, the only
issue brought before the trial court was the denial of a motion for continuance
that was raised mere days before the trial was scheduled to start. After being
asked to recuse, the trial court properly explained that an adverse ruling on
the merits was not indicative of animosity and that the trial judge could be
both fair and impartial. We have reviewed the certified record including the
relevant notes of testimony and see no evidence that the trial court bore
animosity to the defendant or defense counsel in the denial of the motion for
continuance. Accordingly, there was no abuse of discretion in denying the
motion for recusal.
On July 22, 2015, after contentious exchanges between the trial judge
and defense counsel, a hearing was held in chambers during which defense
counsel was told not to continually question the trial court’s rulings in front of
the jury. In doing so, the trial judge reminded defense counsel she had, in a
prior trial, told the jury the trial judge had ruled incorrectly, and that such
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behavior was inappropriate and would not be tolerated. The notes of
testimony contain the following:
THE COURT: […] for instance, yesterday, I told you twice
that I had ruled. You continued to argue with me. You asked me
to approach sidebar. I denied that request because my ruling was
clear, it was unambiguous, and it was a solid ruling.
You had asked the same question a multitude of times. I
understand that you were dissatisfied with the answer, but that
was the answer you got, okay. I think, to the extent possible, I
clarified the issue for you, and you continued to argue with me,
finally saying in front of the Jury, “Are you cutting me off?” I had
ruled, and I had told you I had ruled. I asked you to move on,
and you made the statement.
You can’t question my rulings. As soon as I’ve ruled, I’ve
ruled. I have never ever experienced this before except with you.
For instance, the time I told you I had ruled, you turned to the
Jury and said I was wrong. You told the Jury after I advised
them –
[Defense Counsel]: Was this this trial or another trial?
THE COURT: No, it’s another trial, but I’m telling you as an
example of my experience. You are not doing your client any
service. You are to argue to me, not with me, okay. It’s
completely inappropriate, and you do not have the last word when
I’ve ruled, okay. I have the last rule – word. I rule after I’ve
heard argument from both sides, okay.
And as I said, it doesn’t do your client any service to have
you engaging me rather than abiding by my rulings, okay,
because ultimately I’ve told them, and I’m going to tell them
again that I am the person who determines what the law is. So,
in that capacity, when I rule, you have to abide by that, okay. The
inference to the Jury is either, A, that I’m wrong, in which case
you have the appellate process, or, B, that somehow there’s
something different than my determination, that being your
determination, okay.
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So as I told you yesterday, I had warned you concerning
contempt. If, after I’ve ruled, you question one of my rulings, I
will find you in contempt. We’ll come back here and I’ll make that
determination, okay. There’s no question in my mind. This isn’t
open to discussion.
[Defense Counsel]: So there’s nothing I can say on the
record you’re saying?
THE COURT: That’s not what I’m saying at all. I’m saying
you can – here’s how I do it. This is the accepted practice. You
object or counsel for the Commonwealth objects. I ask for a
response, okay, from either side, whomever the responding
person is.
As soon as I’ve heard that, if I don’t ask additional
questions, I will tell you, as I did yesterday on two separate
occasions within the same objection, I’ve ruled. As soon as I’ve
ruled, I’ve ruled. Your opportunity to offer anything to me is when
I say, response, or when I say, if you’re objecting, basis for the
objections, okay. We don’t supplement things with ongoing
arguments. You put forth your best argument and I rule, okay.
This is not – this is not Greek. This is readily apparent from
how things work, how I was trained, how everyone else who goes
to law school was trained, okay. If you have an issue with one of
my rulings, you are to appeal my ruling to the Superior Court.
That is your avenue for redress under the circumstances.
N.T. Trial, Vol. 2, 7/22/2015, at 3-6.
Further,
THE COURT: […] So you make your objections or you
respond to your objections unless it’s patently obvious from the
record that something is objectionable. On a number of occasions
yesterday, I didn’t even ask the Commonwealth for a response to
your objection to leading questions. The one instance was where
I wanted to hone the issue in, and I said I’m going to allow it,
okay. I don’t need to hear argument on a leading question. I’m
listening to the questioning and I’m listening to the responses,
okay.
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All I’m telling you is, when I rule, regardless, I’ve ruled.
There’s no question. There’s no additional argument if I haven’t
asked for argument, okay. You can at any point in time respond
or state the basis for an objection if you’re objecting, okay.
Are there any questions from the Commonwealth?
[Prosecutor]: No, Your Honor.
[Defense Counsel]: Well, I just want to say on the record
that this is actually why we asked you to recuse yourself because,
again, you’re bringing up some long other time at trial. I haven’t
been in trial in front of you in years.
THE COURT: No, I’m giving you an example.
[Defense Counsel]: If I can just state – finish. And, you
know, when you do make your rulings, it’s not just a neutral
ruling. You know, you’re gesturing, I mean, you’re almost red in
the face.
THE COURT: I’m going to deny that on the record. I’m not
going to allow you to supplement this at all. You’re testifying at
this point.
[Defense Counsel]: I want to –
THE COURT: No, you are not going to – I’m telling you
you’re not going to supplement the record with your own
testimony. The reason why I responded yesterday – or today with
the example is because I needed to provide you an example with
how that behavior is unacceptable, okay. I am referring to
something before because it’s an example, and I’m also referring
to what occurred yesterday when you’re questioning my ruling,
including for instance, during voir dire. You asked a completely
inappropriate question, and four people responded. You asked
does anyone not wish to be here, and four people responded and
raised their hand. I interrupted and said, that is not an
appropriate question. It is not. It is obviously an inappropriate
question, and, thereafter, you turned to the Jury and said, well, I
usually get jokes out of that question. I don’t need your editorial
responses.
[Defense Counsel]: But, Your Honor, actually –
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THE COURT: No, that’s it. I’ve advised you. Katie [court
reporter], we’re off the record at this point.
Id. at 7-10.
The trial court appears to have accepted statement on July 22, 2015
(“this is actually why we asked you to recuse yourself”) as a second formal
request for recusal, based upon the trial court having commented on prior
problems with Defense Counsel. Unfortunately, when denying the second
request for recusal, the trial court did not affirmatively reassert the ability to
remain fair and impartial and did not specifically deny animosity toward
defense counsel or Schwenk. Nonetheless, the judge assigned to this matter
following the retirement of the original trial judge accurately noted the
certified record did not reflect improperly prejudicial actions taken by that
judge during trial. The original trial judge ruled against Schwenk and the
Commonwealth. We note that the trial judge may have exhibited frustration
with defense counsel over the continuing refusal to accept rulings and move
on, but such frustrations do not equate to the inability to preside over the trial
in an impartial manner. Accordingly, Schwenk is not entitled to relief on this
issue.
Next, Schwenk argues the trial court erred in failing to consider and rule
upon his motion to suppress evidence based upon his claim the warrantless
search of Rodriquez’s home was illegal. It is important to note the trial court
denied the motion on the purely procedural ground that it was untimely.
Therefore,
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The interpretation of procedural rules is a question of law, so our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Dowling, 598 Pa. 611, 959 A.2d 910, 913
(2008).
The rules for interpreting a Rule of Criminal Procedure in this Court
are well established:
When we interpret our Rules of Criminal Procedure, we
employ the same principles employed in the interpretation
of statutes. Pa.R.Crim.P. 101(C); Commonwealth v.
Cooper, 611 Pa. 437, 27 A.3d 994, 1003 (2011). The
object of interpretation of the criminal rules “is to ascertain
and effectuate the intention” of our Supreme Court, as the
rule-issuing body. “Every [rule] shall be construed, if
possible, to give effect to all its provisions.” 1 Pa.C.S. §
1921(a). “When the words of a [rule] are clear and free
from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.” 1 Pa.C.S. §
1921(b).
Commonwealth v. Noel, 53 A.3d 848, 855 (Pa. Super. 2012).
Commonwealth v. Phillips, 141 A.3d 512, 518 (Pa. Super. 2006).
It is undisputed that a motion to suppress evidence is subject to
Pa.R.Crim.P. 578 and 579. Rule 578 states:
Unless otherwise required in the interests of justice, all pretrial
requests for relief shall be included in one omnibus motion.
Pa.R.Crim.P. 578. The comments to the rule specifically list a motion for
suppression of evidence as being appropriate for inclusion in the omnibus
pretrial motion.
Rule 579 states, in relevant part:
Except as otherwise provided in these rules, the omnibus pretrial
motion for relief shall be filed and served within 30 days after
arraignment, unless opportunity therefor did not exist, or the
defendant or defense attorney, or the attorney for the
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Commonwealth, was not aware of the grounds for the motion, or
unless the time for filing has been extended by the court for cause
shown.
Pa.R.Crim.P. 579.
Schwenk was originally represented by different counsel than who tried
his case. He was arraigned on March 3, 2014. Original counsel did not file an
omnibus pre-trial motion. Original counsel was replaced by trial counsel on
November 21, 2014. Trial counsel ultimately filed an omnibus pre-trial
motion, including the suppression issue, on December 22, 2014, more than
eight months late. However, the trial court refused to consider the motion
due to its untimely filing.
The rule is clear, unless the opportunity to file the motion did not exist
or the grounds for the motion were unknown, a motion for suppression of
evidence SHALL be filed within 30 days of arraignment. There is nothing in
the certified record indicating that there existed no opportunity to file the
motion or that the alleged grounds for relief were unknown, nor does appellate
counsel make such claim. While the trial court could have entertained the
motion in the interests of justice, there is no requirement that the court do
so. Accordingly, having followed the rule, the trial court did not err in refusing
to hear the motion to suppress,4 and Schwenk is not entitled to relief on this
issue.
____________________________________________
4 Appellate counsel concedes in Schwenk’s brief that this issue may be
properly pursued in the context of a PCRA petition. Schwenk’s Brief at 23.
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In his third claim, Schwenk argues the trial court erred in failing to
suppress the statements of Roque Castro as inadmissible hearsay. This claim
is meritless.
Under the Pennsylvania Rules of Evidence, hearsay is defined as:
[A] statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the
statement.
Pa.R.E. 801.
Several witnesses from the police department testified that Roque
Castro informed them he witnessed a black male attempting to pick up shell
casings from the street and that the person had run into a specific apartment.
This information led the police to Rodriguez’s apartment where Schwenk was
ultimately located. When this testimony was offered, counsel dutifully
objected to its admission as hearsay. Each time, the Commonwealth
responded that the information was not being offered for the truth of the
statement, but rather to show why the police acted in the way they did. The
fact that the statements made by Castro were not admitted into evidence to
prove the truth of the matter asserted removes those statements from the
definition of hearsay. The trial court explained this limitation to the jury.
[Defense Counsel]: I’m going to object, Your Honor.
Hearsay.
THE COURT: Okay. Response?
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[Prosecutor]: I would note that we’re offering it solely for
the effect of the listener, not for the truth of the matter asserted,
so what he did with the information he received.
The Court: Okay. Ladies and gentlemen, what’s happening is
they’re going to ask for a statement made by another individual.
Okay. Generally speaking, that’s called hearsay. However, there
are certain exceptions to the hearsay rule, including when it’s
offered to explain what the officer may have done thereafter.
Okay. You’re not to accept the statement of the other individual,
Mr. Roque [sic], as being true. You’re simply to accept it as to
explain what this officer did next. Okay.
So I’ll overrule the objection and you may proceed.
N.T. Trial, V. 1, 7/20-21/2015, p. 110.
Additionally, defense counsel eventually agreed with this ruling.
[Prosecutor]: … And generally, what did he [Castro] tell
you?
[Defense Counsel]: Objection, Your Honor. Hearsay.
The Court: Okay. Response?
[Prosecutor]: It will be the same thing I noted yesterday,
not offering it for the truth of the matter asserted, but what the
police did with that information.
THE COURT: To explain a course of conduct?
[Prosecutor]: Yes.
THE COURT: Okay. Any response to that?
[Defense Counsel]: If it’s limited to that, Your Honor.
THE COURT: Okay. I’ll overrule the objection.
Id. at 222.
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Because the statements complained of are not defined as hearsay and
because defense counsel ultimately agreed with the trial court’s ruling,
Schwenk is not entitled to relief on this issue.
Finally, Schwenk argues there was insufficient evidence to support his
conviction for third-degree murder. Basically, Schwenk argues there is so
much evidence pointing to Rodriguez as being the shooter, it renders the
evidence against him insufficient to support his conviction. The
Commonwealth has claimed this argument is waived because it was not
included in Schwenk’s Pa.R.A.P. 1925(b) statement. Our review of the
certified record confirms the Commonwealth’s assertion.
Schwenk filed his 1925(b) statement of matters complained of on appeal
on March 15, 2018. In it, he claimed the trial court erred in not granting a
new trial based on insufficient evidence “as proved by inconsistent verdict.”
Pa.R.A.P. 1925(b) Statement, ¶ 6. Schwenk’s current argument has nothing
to do with an inconsistent verdict; his current argument is simply an attempt
to implicate another person, specifically Ashley Rodriguez. Because his
current argument was not raised before the trial court, it has been waived.
“Issues not included in the [1925(b)] Statement and/or not raised in
accordance with the provision of this paragraph (b)(4) are waived.”
Commonwealth v. Peralta, 173 A.3d 813, 816 (Pa. Super. 2017).
Additionally, “[o]ur rules of appellate procedure provide that ‘[i]ssues not
raised in the lower court are waived and cannot be raised for the first time on
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appeal.’ Pa.R.A.P. 302(a).” Commonwealth v. Smith, 206 A.3d 551, 564
(Pa. Super. 2019).
In an abundance of caution, we note our agreement with the trial court’s
analysis of the sufficiency of the evidence, and substantively rely thereupon.
Briefly, the evidence showed, among other evidence: (a) Schwenk had
gunshot residue on his hands immediately after the shooting; (b) a man
matching his description was seen attempting to pick up shell casings at the
crime scene and subsequently ran into a nearby apartment where Schwenk
was located; (c) Schwenk was seen chasing after Gallon at which time
gunshots were heard; and (d) jailhouse informants claimed Schwenk admitted
to the shooting and sought to frame Rodriquez. There was sufficient evidence
for the jury to convict Schwenk.
Judgment of sentence affirmed. The parties are directed to attach a
copy of the trial court opinion in the event of further proceedings.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2019
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Circulated 07/08/2019 03:07 PM
IN THE COURT OF C01\1l.VION PLEAS OF YORK COUNTY,
PENNSYLVANIA
COMMONWEALTH OF No. CR-656·2014
PENNYSLVANIA
v.
CHRISTOPHER LEE SCHWENK
Appellant
OPINION IN SUPPORT OF ORDER
PURSUANT TO Pa.R.A.P. 1925(a)
of Pennsylvania from the Order of October 8, 2015 Sentencing
Appellant. On December 8, 2017, Appellant's PCRA petition was
granted and restored Appellant's direct appeal rights. On December 11,
2017, Appellant filed a Notice of Appeal. Appellant then filed a
Statement of Matters Complained on March 15, 2018 after the lower
court allowed Appellant additional time in preparing the statement.
The lower court now issues this l 925(a) Opinion.
PROCEDURAL HISTORY
Appellant had his formal arraignment on March 3, 2014. At this
time, Appellant was represented by court-appointed counsel, John M.
Hamme, Esquire. Sandra Thompson, Esquire then entered her
appearance on approximately November 21, 2015.
On July 27, 2015, a week long jury trial before Honorable Thomas
H. Kelley ("trial court") concluded.
During trial, on July 23, 2015, the trial court granted in part and
denied in part Appellant's proposed jury instructions. The trial court
denied 3 instructions: first, "Defendant's Statements or Expressions of
Willingness to Accept a Plea/Deal"; second, 2.07 "Significance of
Statements and Acts of Court and Counsel": and third, 3.21A "Failure
to Call Potential Witness."
The jury convicted Appellant of Third Degree Murder. On October
8, 2015, Appellant was sentenced to serve 20 to 40 years imprisonment.
Appellant was represented by Seamus D. Dubbs, Esquire for
purposes of appeal. Appellant filed a PCRA petition and hearing was
scheduled before Honorable Harry M. Ness ("the lower court"), who has
since been assigned this matter. The lower court found that Appellant's
appellate counsel was ineffective and restored Appellant's direct appeal
rights. Appellant is now represented by Christopher Moore, Esquire.
2
In his statement, Appellant alleges 6 issues to be considered by
this Court:
1) Whether the trial court erred in denying Appellant's motion to
recuse Judge Kelley;
2) Whether the trial court erred in denying Appellant's proposed
jury instructions;
3) Whether the trial court erred in denying Appellant's
suppression motion as being untimely;
4) Whether the trial court erred in admitting telephone records to
be played before the jury;
5)Whether the trial court erred in admitting the statements of
Roque Castro as not hearsay; and
6) Whether the trial court erred in weighing the sufficiency of the
evidence.
3
ISSUES FOR APPEAL
Whether the trial court erred in denying recusal when Judge
Kelley remained impartial without bias; in denying proposed
instructions when the standard instructions used were applicable
and efficient; in denying a suppression motion when that motion
was filed more than 30 days after formal arraignment; in
admitting telephone recordings when defense did not object
timely; in admitting out of court statements when the statements
were used to show a course of conduct; and in weighing the
sufficiency of the evidence when forensic records and testimony
revealed Appellant had possession of and used the murder
weapon.
FACTUAL BACKGROUND
At trial, Mary Sherman testified that she was delivering
newspapers in the early morning in York City on November 6, 2013
when she heard multiple gunshots and saw a body in the street.
Transcript of Trial, 7/20/2015, at 190.
York City Police Officer Christopher Roosen testified that he
responded to a shooting at approximately 3:37 in the morning. Id. at
108. Officer Roosen testified that there was an unconscious woman
lying in the street. Id. at 109. The victim was later identified to be
4
Monique Nixon. Id. at 114. Officer Roosen testified that he encountered
a Hispanic male, named Roque Castro. Id. at 110.
Officer Roosen testified that Castro stated to Officer Roosen that
Castro saw a black male "'attempting to pick up shell casings and run
into"' a nearby apartment. Id. at 111. Castro also stated to Officer
Roosen that Castro had overheard an argument and heard glass break
at that apartment before the shooting occurred. Id. Officer Roosen
testified that the victim was laying a city block away. Id. at 115. Officer
Roosen testified that he relayed this information to his supervisor. Id.
121.
Officer Roosen further testified that he had secured the crime
scene where 9 millimeter FC luger casings were recovered. Id. at 116.
Detective First Class Jeffrey Spence of the York City Police
Department testified that he was the detective supervisor and oversaw
other detectives at the time of this case. Transcript of Trial, 7/22/15, at
41. Detective First Class Spence testified that he was informed to go the
apartment at 230 South Queen Street to meet Officer Roosen who had
secured the perimeter of the apartment. Id. at 42. Detective First Class
Spence testified that he spoke to Ashley Rodriguez at the apartment
5
and that she would not allow the detectives to enter. Id. at 43. Detective
First Class Spence testified that he ordered everyone in the apartment
to come outside. Id. at 43.
Detective First Class Spence testified that Ashley Rodriguez
stated to him that her friend, Appellant, was inside and could not get
him up. Id. at 44. Detective First Class Spence testified that the
detectives waited outside the door for 10 to 20 minutes and that he felt
the situation had become unsafe. Id. at 56. Detective First Class Spence
testified that he made the "command decision" to enter the apartment
and make contact with Appellant. Id. at 44.
Detective Andy Baez of the York City Police Department testified
that he was with Detective First Class Spence when they were waiting
for Appellant to exit the apartment. Transcript of Trial, 7/21/15, at 226.
Detective Baez testified that from outside the apartment he could see
Ashley Rodriguez leaning into a bedroom from the kitchen and could
hear her talking with Appellant. Id. Detective Baez testified that when
they entered, they found Appellant naked laying on the bed. Detective
Baez testified that he handcuffed Appellant for officer safety reasons.
Id.
6
Detective Anthony Fetrow of the York City Police Department
testified he was with the other detectives at the apartment. Transcript
of Trial, 7/20/15, at 196. Detective Fetrow testified that he searched
Ashley Rodriguez's bedroom and found a 9 millimeter handgun. Id.
Detective Fetrow testified that the handgun was a Smith & Wesson
that was capable of holding 16 rounds, but was only loaded with 6
rounds. Id. at 199.
Detective First Class Spence further testified that everyone in the
apartment was taken to the police station. Transcript of Trial, 7/22/15
at 45. Detective First Class Spencer testified that he interviewed Ashley
Rodriguez 3 times and that it was not until the third interview that
Ashley Rodriguez mentioned that there was a man named Eddie Gallon
who held a gun to her head. Id. at 62.
The Affiant, Detective Travis Sowers of the York City Police
Department, testified that Appellant consented to collections for DNA
swabs and gunshot residue. Id. at 99. The Affiant testified that he
interviewed Appellant, Ashley Rodriguez, a man named Jose Rivera,
and his mother, Charlotte Hollinger. Id. at 98. The Affiant testified that
7
everyone stated that Ashley Rodriguez did not fire the handgun. Id. at
102.
The Affiant testified that he later interviewed Eddie Gallon and
collected DNA samples from him as well as Ashley Rodriguez. Id. at
104. The Affiant testified that he also interviewed a man named
Douglas Otteson, after an ATF firearm trace revealed Otteson to be the
original owner of the handgun. Id. at 105. The Affiant testified that
Otteson stated to the Affiant that Otteson did own the handgun and
that he sold it in 2013 to Benjamin Rodriguez for heroin. Id.
Ashley Rodriguez testified that she was in a sexual relationship
with Appellant. Transcript of Trial, 7/20/15, at 132. Ashley Rodriguez
testified that she and Appellant were drinking and celebrating a
birthday on the night of the shooting. Id. at 127. Ashley Rodriguez
testified that she and Appellant went to McDonalds and then returned
to her mother's apartment at 230 South Queen Street. Id. at 128.
Ashley Rodriguez testified that when she returned home, she was
approached by her ex-boyfriend, Eddie Gallon after she got out of the
car. Id. at 129. Ashley Rodriguez testified that Appellant got out of the
car when Eddie Gallon pulled a gun on Ashley Rodriguez's head. Id. at
8
130. Ashley Rodriguez testified that Appellant pushed Eddie Gallon and
that a struggle ensued between Appellant and Eddie Gallon. Id. Ashley
Rodriguez testified that Appellant and Eddie Gallon went down to the
corner from where she could hear arguing and yelling, and ultimately
gunshots. Id. at 131. Ashley Rodriguez testified that she and Appellant
then proceeded into the apartment to have sex. Id. at 132. Ashley
Rodriguez testified that at some point later, the window to the living
room was broken. Id. at 157.
Ashley Rodriguez testified that when the police arrived, Appellant
was knocked out from being drunk. Id. at 133.
Eddie Gallon testified that at the time of the incident, Ashley
Rodriguez was her girlfriend and that she lived at his residence.
Transcript of Trial, 7/21/15, at 261. Eddie Gallon testified that on the
night of the shooting that Ashley Rodriguez kept calling him and
cursing at him. Id. Eddie Gallon testified that he walked over to Ashley
Rodriguez's mother's house when he encountered Appellant get of the
car. Id. at 262. Eddie Gallon testified that he had never seen Appellant
before. Id. at 263. Eddie Gallon testified that Appellant began arguing
with him outside of the apartment. Id. at 264.
9
Eddie Gallon testified that he started walking away but stopped
when Appellant continued yelling at him. Id. at 267 - 268. Eddie Gallon
testified that he had walked past an older lady walking on the street.
Id. Eddie Gallon testified that he picked up a couple of rocks to throw at
Appellant, but he had lost sight of Appellant. Id. at 270. Eddie Gallon
testified that he went back to Ashley Rodriguez's mother's house and
broke a window. Id. Eddie Gallon testified that he was jogging away
when he heard gunshots, but didn't see anyone else. Id. at 271.
Eddie Gallon testified that there was a PFA against him from
Ashley Rodriguez that had expired in September of 2013, but that their
relationship was still ongoing. Id. at 276. Eddie Gallon testified that he
did not have a gun and that he was not sure Appellant had a gun. Id at
282- 285.
Charlotte Hollinger testified that she is the mother of Ashley
Rodriguez and that the apartment was Ashley Rodriguez's and not her
own. Transcript of Trial, 7/23/15, at 98. Hollinger testified that she was
living with Ashley Rodriguez temporarily because of prior incidents
with Eddie Gallon. Id. Hollinger testified that Eddie Gallon and Ashley
Rodriguez broke up 6 months before the shooting occurred. Id. at 100.
10
Hollinger testified that Eddie Gallon had previously threatened the
whole family and had previously tormented Ashley Rodriguez. Id. at
103. Hollinger further testified that she did not hear the shooting in
question. Id. at 106.
Jose Rivera testified that he was living with her sister, Ashley
Rodriguez, at the time of the shooting. Id. at 107. Rivera testified that
Eddie Gallon had previously flashed a gun towards him. Id. at 109.
Rivera testified that he did not hear the shooting in the question. Id. at
108. Rivera testified that he did not shoot at Eddie Gallon. Id. at 115.
The Affiant further testified that Ashley Rodriguez told him that
she was standing by her car when the "gunshot went off." Transcript of
Trial, 7/22/15, at 123. The Affiant testified that Ashley Rodriguez never
even mentioned Eddie Gallon was at the scene in her first interview. Id.
Douglas Otteson testified that he sold his Smith & Wesson 9
millimeter handgun to a friend of Benjamin Rodriguez. Transcript of
Trial, 7/23/15, at 18. Otteson testified that Benjamin Rodriguez helped
Otteson sell the handgun. Id. Otteson testified that he sold the handgun
to a black male, about 6 feet tall. Id. at 20. Otteson testified Benjamin
Rodriguez gave him heroin in return. Id. at 23.
11
Benjamin Rodriguez testified that his niece is Ashley Rodriguez.
Id. at 30. Benjamin Rodriguez testified that he helped Otteson sell
firearms while he sold Otteson drugs. Id. at 32.
The Commonwealth and Appellant agreed to a stipulation that
Dr. Bollinger conducted an autopsy on the victim and determined that
the victim died from one gunshot wound. Transcript of Trial, 7/22/15, at
12.
Officer Ryan Anderson of the York City Police Department
testified that he witnessed the autopsy and obtained the bullet.
Transcript of Trial, 7/21/17, at 251. Officer Anderson testified that the
bullet was submitted to the Pennsylvania State Police Forensic Lab for
testing. Id. at 254.
Pennsylvania State Police Sergeant David Krumbine testified that
he performed forensic tests on the Smith & Wesson handgun, the
ammunition found inside the handgun, the bullet from the victim, and
the spent shell casings from the scene of the shooting. Id. at 316. Sgt.
Krumbine testified that the handgun was functional and capable of
firing the type of ammunition that was found. Id. at 319. Sgt. Krumbine
12
testified that the spent shell casings and the bullet were fired by the
Smith & Wes son 9 millimeter handgun. Id. at 323.
Jillian Fesolovich, a forensic biologist of NMS Labs testified that
she tested the handgun and the loaded ammunition for DNA. Id. at 330.
Fesolovich testified that Ashley Rodriguez "could not be excluded as the
potential major source contributor" to the DNA found. Id. at 332.
Fesolovich testified that a major contributor does not necessarily mean
that they were the last person to touch something. Id. at 334.
Stephanie Horner, a forensic scientist of RJ Lee Group, testified
that she tested samples from Appellant's hands for gunshot residue. Id·
at 393. Horner testified that there was gunshot residue on these
samples. Id. at 400.
Christopher Harris testified that he was imprisoned in the same
jail cell as Appellant in 2014. Transcript of Trial, 7/22/15, at 16. Harris
testified that Appellant told him that Appellant chased Eddie Gallon
and shot at him and then went back inside and had sex with Ashley
Rodriguez. Id. at 20. Harris testified that Appellant told him that
Ashley Rodriguez wiped the handgun clean after they had sex and then
hid the handgun. Id. at 21 - 22.
13
Brandon Dawson testified that he was imprisoned with the
Appellant and that Appellant told him that Appellant shot at Eddie
Gallon. Id. at 78. Dawson testified that Appellant wanted to
"undermine the system by having a guy by the name of Glenn Jones
come in and testify that he was at the gun range with [Appellant] that
day." Id. at 79. Dawson testified that Appellant asked Dawson to testify
and say that Benjamin Rodriguez gave the handgun to Dawson and
that Dawson sold the handgun to Ashley Rodriguez. Id. at 80. Dawson
testified that Appellant said that there was a facebook picture with
Ashely Rodriguez holding the handgun and that Appellant could frame
the shooting on her. Id. Dawson said he did agree to this and told the
authorities, which led to his current firearm charges. Id.
Anthony Rankins testified that he met Harris while incarcerated
in the York County Prison. Id. at 141. Rankins testified he had known
Dawson for 20 years. Id. Rankins testified that Harris and Dawson
approached him with a plot to make up testimony to enable better plea
agreements. Id. Rankins testified that Dawson believed he was the
mastermind. Id. Rankins testified that he declined joining the plot. Id.
at 143. Rankins testified that he was friends with Appellant's brother.
14
Id. at 146. Rankins testified that he told Appellant of this plot. Id. at
150.
Brandon Elliot testified that he was friends with Appellant and
was incarcerated at the same time as Dawson. Transcript of Trial,
7/23/15 at 5. Elliot testified that Dawson was going around telling
everyone that he was going to "tell on people." Id. at 10.
The Affiant further testified that he collected phone calls made by
Appellant to Maria Nicholas, who was Appellant's "baby's mom."
Transcript of Trial, 7/22/15, at 107.
Maria Nicholas testified that she is the mother of Appellant's
children. Transcript of Trial, 7/23/15 at 50. Nicholas testified that she
did not want to see Appellant get in trouble and that Appellant had not
admitted to the charges in her phone conversation. Id. at 52 - 55.
15
DISCUSSION
The trial court did not err because Judge Kelley was
impartial; the necessary, standard jury instructions were used;
the suppression motion was untimely; the objection to the
telephone recordings was not properly preserved; the statements
of Roque Castro were not hearsay; and there was sufficient
evidence to convict Appellant with Third Degree Murder.
I. Denial of the Recusal Motion.
The Code of Judicial Conduct states that a:
judge shall disqualify himself or herself in any proceeding in
which the judge's impartiality might reasonably be questioned,
including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a
party or a party's lawyer ...
PA ST CJC Rule 2.ll(A)(l).
There is a presumption that judges are "'honorable, fair and
competent,"' and ... have the ability to determine whether they can rule
impartially and without prejudice." Commonwealth v. Druce, 589, 848
A.2d 104, 108 (Pa. 2004) (citations omitted). The moving party in a
recusal motion bears the burden of producing evidence showing bias,
prejudice, or unfairness necessitating recusal, and that the "decision by
a judge against whom a plea of prejudice is made will not be disturbed
except for an abuse of discretion." Id.16
A judge has to determine if there is a personal bias or interest
which would preclude an impartial review. Goodheart v. Casey, 565
A.2d 757, 764 (Pa. 1989). This is a personal and unreviewable decision
that only the jurist can make. Id. A judge must also satisfy the
appearance of justice. Id.Appellant argues that Judge Kelley failed to be impartial and was
biased against his counsel, Sandra Thompson, Esquire. Judge Kelley
warned Thompson to not talk over him several times during status
hearings leading up to trial, however Judge Kelley stated that his pre·
trial rulings were on the merits and not indicative of any animosity ..
While Judge Kelley later proceeded to warn Attorney Thompson
several times out of the presence of the jury, Appellant's pre·trial
motion lacked evidence of bias and prejudice to disturb the presumption
of Judge Kelley's ability to be impartial. Ultimately, no contempt
hearing was held, and Judge Kelley ruled in favor of both parties at
various times during the jury trial.
Therefore, Judge Kelley was impartial and lacked any bias
against Appellant or Attorney Thompson to warrant a recusal.
17
II. Denial ofAppellant's proposed jury instructions.
The trial court denied 3 instructions: first, "Defendant's
Statements or Expressions of Willingness to Accept a Plea/Deal";
second, 2.07 "Significance of Statements and Acts of Court and
Counsel": and third, 3.21A "Failure to Call Potential Witness."
Appellant first argues that Rule 410 of the Pennsylvania Rules of
Evidence should have been instructed to the jury in regards to
Appellant's telephone call with Maria Nicholas and their discussions of
potential plea agreements between Appellant and the Commonwealth.
Rule 410 states that evidence of participating in plea discussions is not
admissible against the defendant. Pa.R.E. Rule 410(a). Appellant freely
entered into a recorded telephone conversation with Maria Nicholas,
not with the Commonwealth for the specific purpose of plea bargaining.
See Commonwealth v. Calloway, 459 A2d 795, 801 (Pa. Super. 1983).
Because an additional jury instruction to address how the jury
should perform its role was redundant, this proposed instruction did not
need to be granted.
18
Appellant argues that 2.07 of the standard jury instructions
should have been granted to remind the jury to not accept what
attorneys or the judge says as testimony. The jury was given this
instruction by the court when the trial began. The trial court did not
believe it was necessary to give it again after the trial, in addition to the
other numerous instructions. Because, the instruction was already
given, this proposed instruction did not need to be granted.
Appellant argues that 3.21A of the standard jury instructions
should have been granted because of the admissibility of Roque Castro's
statements as an exception to hearsay. 3.21A requires the jury to find 3
conjunctive elements in order to draw inferences about the failure to
call a potential witness:
First, the person is available to that party only and not to the
other; Second, it appears the person has special information
material to the issue; and Third, the person's testimony would not
be merely cumulative.
3.21A (Crim) Failure to Call Potential Witness, Pa. SSJI (Crim), §3.21A
(2016).
Roque Castro's identity and address was made known to
Appellant prior to trial. The Commonwealth did not prevent Castro
from being unavailable to Appellant. Because the jury should not have
19
been given the opportunity to draw any inferences, this proposed jury
instruction could not have been granted.
Therefore, the trial court did not abuse its discretion in denying
these proposed jury instructions.
III. Denial ofAppellant's suppression motion.
Unless the opportunity did not previously exist, or the interests of
justice otherwise require, a suppression motion can only be made in the
omnibus pretrial motion as set forth in Rule 578. Pa. R. Crim. P. 581(B).
If a timely motion is not made, "the issue of suppression of such
evidence shall be deemed to be waived." Id.
The omnibus pretrial motion must be filed within 30 days after
formal arraignment, "unless opportunity therefor did not exist, or the
defendant or defense attorney, or the attorney for the Commonwealth,
was not aware of the grounds for the motion, or unless the time for
filing has been extended by the court for cause shown." Pa. R. Crim. P.
579(A).
20
Attorney Thompson filed two suppression motions as part of the
omnibus motion on December 22, 2014. Appellant's formal arraignment
occurred on March 3, 2014. The trial court did not allow a suppression
hearing on matters that involved discovery while Appellant was
previously represented by Attorney Humme. Attorney Humme did not
file the suppression motion in question within 30 days of formal
arraignment. A hearing was held on the other motions because they
involved issues that arose after Attorney Thompson entered her
appearance on behalf of Appellant.
Nothing has been provided to show that any party or any attorney
was unaware of the grounds for a suppression motion of the initial
search at Ashley Rodriguez's apartment. Nothing has been provided
that the motion could not have been filed sooner ..
Therefore, Appellant's motion to suppress is waived because the
motion was filed after the 30 day deadline without exception.
21
IV. Admissibility of telephone records.
Each error "identified in the [concise statement] will be deemed to
include every subsidiary issue contained therein which was raised in
the trial court." Pa.R.A.P. 1925. (b)(4)(v).
Issues must be raised "prior to trial, during trial, or in a timely
post-sentence motion to be preserved for appeal." Commonwealth v.
Tejada, 107 A.3d 788, 799 (Pa. Super. 2015).
Appellant argues that the phone call between Appellant and
Maria Nicholas should not have been played to the jury. When the
Commonwealth introduced the recording, there was no objection by
Attorney Thompson. There was then a 14 minute recess without any
objections made. The entirety of the 20 minutes phone call was then
played to the jury without objection. Nothing in the record indicates
that after the trial that the jury replayed the phone call or that
Attorney Thompson objected to the jury having the phone call recording
with them for deliberations.
Therefore, the inadmissibility of the phone call was not preserved
for appeal when Attorney Thompson failed to object.
22
V. Admissibility of statements ofRoque Castro.
The admissibility of evidence is held to an abuse of discretion
standard. Commonwealth v. Dent, 837 A.2d 571, 577 (Pa. Super. 2003)
(citations omitted). Hearsay is a statement that the declarant does not
make while testifying at trial; and "a party offers in evidence to prove
the truth of the matter asserted in the statement." Pa.R.E. 801(c).
Testimony to prove a course of conduct is not hearsay. Id.Roque Castro did not testify at trial, however his testimony
directly led York City Police detectives to Ashley Rodriguez's apartment
where Appellant was located and arrested. Several officers and
detectives testified to what Castro said and to how they responded in
their investigative efforts to pursue Appellant.
Attorney Thompson made the hearsay objection each time a
witness described this interaction with Castro. The trial court made it
clear to the jury that the testimony of Castro was to be used for only for
the limited purpose of describing why the police arrived at Ashley
Rodriguez's apartment.
Therefore, Castro's statements were admissible as not hearsay.
23
VI. Sufficiency of the Evidence.
Finally, Appellant raises a sufficiency of the evidence claim. The
standard for reviewing the sufficiency of the evidence is=
"whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond a
reasonable doubt."
Commonwealth v. Charlton, 902 A.2d 554, 563 (Pa. Super. 2006)
(citations omitted).
The Commonwealth may sustain its burden of proving every
element of the crime "beyond a reasonable doubt by means of wholly
circumstantial evidence." Id.Murder is categorized as:
(a) Murder of the first degree. --A criminal homicide constitutes
murder of the first degree when it is committed by an intentional
killing.
(b) Murder of the second degree.--A criminal homicide constitutes
murder of the second degree when it is committed while defendant
was engaged as a principal or an accomplice in the perpetration of
a felony.
(c) Murder of the third degree. ··All other kinds of murder shall be
murder of the third degree. Murder of the third degree is a felony
of the first degree.
18 Pa.C.S.A. § 2502.
24
"Although the statute itself only defines third-degree murder as a
catch-all without describing the elements of the offense, third degree
murder is 'an unlawful killing with malice but without specific intent to
kill."' United States v. Marrero, 743 F.3d 389, 397 (3d Cir. 2014 quoting
Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011)).
"Malice" is defined as:
'wickedness of disposition, hardness of heart, cruelty, recklessness
of consequences, and a mind regardless of social duty, although a
particular person may not be intended to be injured,' [and] malice
may be found where the defendant consciously disregarded an
unjustifiable and extremely high risk that his actions might cause
serious bodily injury.
United States v. Marrero, 743 F.3d 389, 397 (3d Cir. 2014) (citations
omitted).
The 9 millimeter Smith & Wesson handgun that fired the bullet
that killed Monique Nixon was found near Appellant in Ashley
Rodriguez's bedroom not long after the shooting. The ATF firearm trace
revealed that the handgun transferred from Douglas Otteson to his
drug dealer, Benjamin Rodriguez, and then to Benjamin Rodriguez's
niece's friend, Appellant. The gunshot residue samples were taken from
Appellant's hands not long after the shooting. While DNA evidence
25
shows Ashley Rodriguez touched the handgun at some point, all the
testimonial evidence points to Appellant being the shooter.
Ashley Rodriguez, her brother and mother, and Appellant all told
the Affiant that Ashley Rodriguez was not the shooter. Yet, no one
stated that Appellant was not the shooter.
Ashley Rodriguez gave inconsistent accounts of Eddie Gallon
being at the scene and having a firearm. Ashley Rodriguez testified at
trial that the window breaking occurred after the shooting, while Eddie
Gallon testified that he broke the window before hearing gunshots.
Ashley Rodriguez also testified at trial that she knew Appellant had
pursued Eddie Gallon down the street and heard gunshots, then
promptly returned to her bedroom to have sex, seemingly shocked and
angered that the police show up soon afterwards. Appellant was then
found intoxicated in bed.
The testimony of the inmates puts 2 unassociated inmates against
2 other inmates who were friends with or somehow associated with
Appellant. Overall, the 4 inmates' testimony was indicative of some sort
of cover-up plan by Appellant to shift blame on Ashley Rodriguez. The
26
testimony of inmate Christopher Harris revealed an admission of guilt
by Appellant.
All of the evidence shows that Eddie Gallon and Ashley Rodriguez
were in the process of ending a tumultuous relationship and that after a
night of drinking, Eddie Gallon attempted to confront Ashely Rodriguez
in the middle of the night. This confrontation led to Appellant
intervening against Eddie Gallon with an intense argument before
Eddie Gallon attempted to walk off. Appellant provoked Eddie Gallon to
return with a last ditch effort to give the final word by breaking a
window. This led Appellant to run outside and fire his Smith & Wesson
handgun, which he had received from Ashley's uncle, and fire it at or in
the direction of the first person he saw in the night.
Eddie Gallon had already retreated from breaking the window
while Monique Nixon was unfortunately walking on Queen Street
where Appellant had last seen Eddie Gallon.
Appellant escalated the argument by bringing a firearm, showing
a mindset regardless of social duty. Appellant's firing of the handgun
was reckless of the consequences of who was outside walking on the
street or who was inside any building nearby. Appellant may or may not
27
have intended to shoot Eddie Gallon and most certainly did not intend
to shoot an innocent bystander. However, malice existed because
shooting into the dark was a conscious disregarded of an unjustifiable
and extremely high risk that might cause serious bodily injury in a
needless effort to escalate an argument over a woman.
Thus, the trial court found Appellant was guilty of Third Degree
Murder with sufficient evidence beyond a reasonable doubt.
CONCLUSION
In conclusion, the lower court respectfully requests that this Court
affirm the trial court's denial of Appellant's motions and affirm the trial
court's sentence.
Harry M. Ness
Judge of the Court of Common Pleas
28