Com. v. Fulton, I. ( 2016 )

J-A30032-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
I. DEAN FULTON :
:
Appellant :
: No. 1729 EDA 2014
Appeal from the Judgment of Sentence January 17, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s): CP-51-CR-0012441-2010
BEFORE: MUNDY, JENKINS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED April 27, 2016
Appellant, I. Dean Fulton, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas after a jury found
him guilty of third-degree murder1 and possessing an instrument of crime.2
He seeks relief based on the denial of his suppression motion, the failure of
the Commonwealth to disclose material evidence, the sufficiency of the
evidence, the trial court’s jury instruction on justification/self-defense, and
the trial court’s in limine ruling to admit evidence he previously carried a
firearm if he presented evidence of his good character. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(c).
2
18 Pa.C.S. § 907.
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In the early morning hours of June 15, 2010, Michael Toll (“Decedent”)
called 911 and reported he had been shot at 54th Street and Florence
Avenue in the City of Philadelphia. Decedent managed to drive two blocks to
56th Street before his vehicle came to a rest on the sidewalk. Police Officer
Steven Mitchell responded to the 911 dispatch and located Decedent inside
his vehicle. Decedent was still conscious and told the officer that “Jeff” had
reached through the passenger window of his vehicle and shot him.
Decedent was shot three times: once in his right armpit, once in his
right abdomen, and once in the lower right abdomen. Decedent was
transported to the Hospital of the University of Pennsylvania. He died two
days later on June 17, 2010, at 11:46 a.m. An autopsy revealed that
Decedent was shot with a 9-millimeter pistol. The shot to Decedent’s lower
right abdomen was a contact wound. The remaining two shots were fired
from between six inches to two-and-one-half feet away. Police officers
recovered Decedent’s cell phone, a 9-millimeter Cor-Bon shell casing, and a
9-millimeter Winchester shell casing from inside Decedent’s vehicle.
Decedent’s phone revealed that he made six calls to 267-206-7343 shortly
before he was shot. The 267-206-7343 number was stored in Decedent’s
phone under the name “Jeff.”
On June 17, 2010, at 11:48 a.m., Philadelphia Police Officers John
Krewer and Toren Saunders went to 6032 Lindberg Avenue to investigate a
report of a person with a gun. They detained several individuals in or near a
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Mercury Marquis vehicle, including Appellant, Randolph Bell, 3 Anthony Byrd,
and Eric Adams. When asked for his name and birth date, Appellant stated
his name was “Faheem Miller” and gave two different birth dates. Officer
Krewer recognized Appellant from a photograph previously shown to him by
homicide detectives. Appellant, Bell, and Byrd were taken to the Southwest
Detectives Division for a suspected firearms violation. Officer Krewer seized
an iPhone from Appellant while Appellant was in the backseat of the officer’s
vehicle.
While at the scene, officers observed a firearm inside the Mercury
Marquis. That same afternoon, at 3:40 p.m., Detective William Farrell
prepared an affidavit of probable cause to search the vehicle. Officers
executed the warrant at 4:50 p.m. and seized a firearm,4 a holster, and
three cellphones from the vehicle. The individuals and property were
transported from the Southwest Detectives Division to the Homicide Unit.
Homicide Detective John Harkins testified he received the phones and
they were “opened, powered up and the menu [was] searched for a phone
number corresponding to each phone.” N.T. Suppression Hr’g, 8/21/13, at
47. The detective discovered one of the phones, a Samsung flip phone, had
the number 267-206-7343, the same number stored in Decedent’s phone
3
The Mercury Marquis was registered to Randolph Bell, who was referred to
at trial as “Randy” or “J.R.”
4
The firearm in the Mercury Marquis was not related to the instant homicide.
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under the name “Jeff.” The detective retained possession of the phones, but
did not prepare property receipts for them.
The following day, June 18, 2010, at 5:30 p.m., Anthony Byrd gave
the following transcribed and signed statement to homicide detectives:
This was yesterday about 11:00—something in the
morning. Me and Eric were just hanging out. Basically the
boy Randy and his girl was there, too, but they was in her
car. We was in a drive behind Mark’s house.[5] Eric had
already mentioned something to me about Red Fox having
shot somebody a day or two earlier but didn’t really get
into any details about it. While we was hanging out, Red
Fox walked up to us and started hanging out.
We was just kicking back. Eric started asking Red Fox
what happened the other night. He (Red Fox) said he
went to meet some fiend at 54th and Beaumont. He said
he was going to serve the guy. Got in the guy’s car. He
said the guy then wouldn’t let him out of the car. He
thought the guy was getting ready to rob him. So he shot
the guy. . . .
N.T. Trial, 8/26/13, at 219-20. Byrd identified a photograph of Appellant as
“Red Fox” and initialed the photograph. Id. at 224. Byrd also indicated that
he previously saw Appellant in possession of a .32 revolver.
On June 19, 2010, at 7:05 a.m., Eric Adams gave the following written
and signed statement to homicide detectives when asked about a recent
shooting:
The young boy Red was telling me and my friend Byrd
about it. This was right before the cops grabbed us up in
5
Byrd identified a photograph of Clifford Jordan as “Mark.”
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the back of Lindbergh outside Mark’s houses.[6] . . . He
said he met up with this white guy to sell to him and got in
the boy’s car. He said he got in the passenger’s side of the
car. He said the guy kept reaching down next to the
driver’s seat and was making him nervous. He said the
boy looked like he was about to pull something out. So he
shot him. He said he was then trying to get out of the car
but the inside door wouldn’t open for him. So he climbed
out of the car window.
Id. at 238-39. Adams identified a photograph of Appellant as “Red” and
stated he stored “Red’s” phone number, 267-206-7343, in the contact list of
his phone under name “Redman.” Id. at 241, 243-44.
That same day, June 19, 2010, Detective Harkins, who had kept the
cell phones on his desk in the Homicide Unit, answered a phone call from
Heather Warrington to the Samsung flip phone with the number 267-206-
7343. N.T. Suppression Hr’g at 48-49. At that time, Warrington was a
heroin user, who used the 267-206-7343 number to purchase the drug. The
detective informed her he was a police officer and was investigating a
homicide. Warrington subsequently met the detective at a Seven-Eleven, at
which time she identified a picture of Appellant as “Jeff.” N.T. Trial,
8/21/13, at 85-86. The 267-206-7343 number was stored in her phone
under “Lil Jeff.” Id. at 51, 57-58. She stated that she mostly purchased
heroin from “Lil Jeff” and/or “J.R.” and that she previously purchased drugs
at 5513 Beaumont Street.
6
Adams also identified a photograph of Clifford Jordan as “Mark.”
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On June 20, 2010, officers executed a search warrant for a residence
at 5513 Beaumont Street and recovered, in relevant part, boxes for Cor-Bon
and Remington nine-millimeter ammunition. The officers also encountered
Sidi Camaras, who was renting a room at 5513 Beaumont Street. Camaras
was interviewed by detectives the following day, June 21, 2010, and stated
that (1) he lived at that residence for five months, (2) “Randy” lived at the
house, and (3) “Fox” lived there for two months while Camaras was there.
Camaras identified a picture of Appellant as “Fox.” The ammunition was in
the room in which “Randy” was residing.
Appellant, who was fifteen years old at the time, was charged with
homicide and related offenses on June 21, 2010. His biographical
information taken at the time of charging indicated Appellant’s cell phone
number was 267-253-1684. That number was attributed to the iPhone that
Officer Krewer took from Appellant on June 17, 2010—the day of his arrest
in the firearms investigation. See N.T. Trial, 8/27/13, at 118.
Prior to trial, Appellant filed motions seeking decertification to juvenile
court and suppression of all evidence obtained from the 267-206-7343 cell
phone. The trial court denied both motions and the case proceeded to a jury
trial.
During trial, Appellant orally moved to preclude Byrd’s statement that
Appellant previously possessed, or “showed off,” a .38 or .32 caliber firearm.
N.T. Trial, 8/22/13, at 6, 9. The trial court ruled that Byrd would not be able
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to testify regarding Appellant’s possession of that weapon, but that the
Commonwealth could reference Appellant’s prior possession of the unrelated
firearm if Appellant presented character evidence of his peacefulness. Id.
at 12.
During the Commonwealth’s case-in-chief, Byrd and Adams recanted
their prior statements to police. Their prior statements were subsequently
introduced as substantive evidence. As noted by the trial court:
In the instant case, the prior inconsistent statements of
Eric Adams . . . and Anthony Byrd . . . were relevant to
prove that the Appellant had indeed shot [Decedent], a
material fact in the case. Both Adams and Byrd had made
statements to Philadelphia Police regarding a conversation
they had with Appellant, wherein Appellant described the
events that lead to [Decedent’s] death and admitted his
role therein. The statements of both Byrd and Adams
described a conversation between Appellant, Adams, and
Byrd, where Appellant said . . . he was going to sell heroin
to someone and got into the buyer’s car. He continued by
saying that the buyer kept reaching down into the driver’s
side door, and this action made the Appellant nervous so
the Appellant shot the buyer. The testimony of both
witnesses at trial, varied from the written statements they
had previously made to police. The statements were
introduced as rebuttal testimony proof of both Adams and
Byrd’s prior inconsistent statements. The statement of
each witness corroborated the story of [Decedent] prior to
his death.
After having the opportunity to review his statement to
police, Byrd signed the bottom of each page and wrote the
names under pictures of Bell, Adams, and Appellant.
Indeed, Byrd made corrections to the written statement,
even correcting the spelling of his last name and initialing
next to the correction. Adams was afforded the same
opportunity to review. Adams signed each page of the
statement and also wrote the names of Bell, Byrd and
Appellant under their pictures.
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Trial Ct. Op. at 13-14.
Subsequently, Appellant’s trial counsel emphasized that he would not
call character witnesses due to the court’s decision to allow evidence of his
alleged past possession of a firearm as impeachment or rebuttal evidence.
N.T. Trial, 8/27/13, at 81-82. In response, the Commonwealth noted for the
record that substantial other impeachment evidence was available, stating:
I do want to note with respect to rebuttal character, there
is also a tremendous amount of information contained
within the J file [referring to Appellant’s juvenile record] as
well as other documents that were proffered by both the
Commonwealth and defense at the [de]certification
motion. The Commonwealth would certainly contend,
would implicate rebuttal character.
Id. at 83-84. The defense subsequently called its only witness, Detective
Hawkins, to testify that the 267-253-1684 phone was taken from Appellant’s
person on June 17, 2010. The defense’s questioning emphasized that there
were calls between the 267-253-1684 phone, which was taken from
Appellant, and the 267-206-7343 phone, which was saved in Adams’s phone
as “Redman,” the Decedent’s phone as “Jeff,” and in Warrington’s phone as
“Lil Jeff.” The defense’s questioning also elicited evidence that Decedent’s
contact list contained the name “Red” for a different telephone number
belonging to a third-party. Id. at 109-10.
At the close of the evidence, the trial court issued a jury charge, which
included instructions on first- and third-degree murder, voluntary
manslaughter, and possessing an instrument of crime. The court also
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instructed the jury on self-defense and “imperfect” self-defense. N.T. Trial,
8/28/13, at 21-26. During its discussion of self-defense, the court stated
that the jurors could “find malice and murder only if you are satisfied beyond
a reasonable doubt that the circumstances were such that if they existed,
would have justified the killing.” Id. at 24. Appellant did not object to the
court’s charge.
On August 29, 2013, the jury found Appellant guilty of third-degree
murder and possessing an instrument of crime. On January 17, 2014, the
trial court sentenced him to fifteen to thirty years’ imprisonment for third-
degree murder, with no further penalty imposed for possessing an
instrument of crime. Appellant’s timely post-sentence motions were denied
by operation of law on May 28, 2014. Appellant filed a timely notice of
appeal and a court-ordered statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On
December 30, 2014, the court filed a responsive Rule 1925(a) opinion.
While this appeal was pending, Appellant filed two motions with this
Court claiming after-discovered evidence. See Pa.R.Crim.P. 720(C) & cmt.
As part of his motions, Appellant noted he was charged for the shooting
death of Dominque Jenkins (“Jenkins case”) based, in part, on Adams’s
statement that Appellant confessed to him over the telephone in January
2010. In October 2014, Appellant proceeded to trial in that matter, but was
acquitted of murder. During the Jenkins trial, the defense cross-examined
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Adams with respect to his statements that another defendant, Ricardo
Harrison, confessed to shooting another person in an unrelated case
(“Harrison case”). In all three cases—the instant trial, the Jenkins case, and
the Harrison case—Adams gave statements that the defendants told him
they shot another person when the other person reached for something.
Appellant also averred that he recently discovered a search warrant in
the Jenkins case to search a “cell phone number 267-206-7343.” In the
affidavit of probable cause, dated June 24, 2010, the affiant indicated that
“the cell phone [Appellant] was in possession of was secured by Detectives
and revealed the number to be 267-206-7343.” Appellant thus sought an
evidentiary hearing to determine whether his phone had been “cloned,” i.e.,
whether more than one cell phone bore the same number.
This Court, in an order dated March 3, 2015, denied both motions
without prejudice to Appellant’s ability to raise those issues on appeal before
this Panel.
On appeal, Appellant raises the following issues for our consideration.
I. Whether the suppression court erred and denied rights
guaranteed by the fourth amendment to the Constitution
of the United States and Article I, Section 8 of the
Pennsylvania Constitution when it denied a motion to
suppress Appellant’s cell phone #267-206-7343 and all
evidence and information derived directly or indirectly from
the warrantless search of cell phone #267-206-7343?
II. Whether the Commonwealth suppressed evidence that
could have been used to impeach the testimony of Eric
Adams when it failed to disclose that Eric Adams had
engaged in a pattern or practice of claiming he heard
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confessions to homicides to curry favor with law
enforcement?
III. Whether [this C]ourt should have remanded the case
to the [trial] court for an evidentiary hearing to determine
whether cell phone #267-206-7343 was discovered during
the search of J.R.’s vehicle or during the search of
Appellant incident to arrest, or whether the two cell phones
had the same number and were evidence of cloned
phones?
IV. Whether the evidence was insufficient to support the
verdicts where the evidence of identity of the perpetrator
was so contradictory that as a matter of law no rational
jury could find guilt beyond a reasonable doubt?
V. Whether the [trial] court erred and denied due process
guaranteed by the due process clause of the Fourteenth
amendment when it failed to grant a judgment of acquittal
on the grounds that the only evidence against Appellant
was his own alleged admissions to third parties?
VI. Whether the [trial] court erred and denied due process
guaranteed by the due process clause of the Fourteenth
amendment when it gave an erroneous instruction on
justification/self defense?
VII. Whether the [trial] court erred and denied due process
guaranteed by the due process clause of the Fourteenth
amendment when it ruled that if the Appellant produced
character witnesses attesting to his reputation for
peacefulness, then the prosecution could introduce
evidence that the Appellant had been accused of
possession of a[n unrelated] firearm?
Appellant’s Brief at 4-5.
In his first issue, Appellant argues that the trial court erred by denying
his motion to suppress all information derived from the discovery of the 267-
206-7343 cell phone number. Appellant relies on the United States Supreme
Court decision in Riley v. California, 134 S. Ct. 2473 (2014), the
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companion case to Riley, United States v. Wurie, and this Court’s
subsequent decision in Commonwealth v. Stem, 96 A.3d 407 (Pa. Super.
2014) to assert that “the police may not open a . . . cell phone without first
obtaining a search warrant for the cell phone.” Appellant’s Brief at 34. He
argues:
In this case, Detective Harkins testified that he opened
cell phone #267-206-7343 without a search warrant, and
that he powered up the phone and examined the internal
and external displays. He went a step further and left the
cell phone powered on so he could monitor text messages
and phone calls displayed on the cell phone. Finally, he
exploited the warrantless search by using the cell phone to
communicate with Heather Warrington.
. . . The police left the phone powered on and used
information on the internal and external screen to
determine the existence of and communicate with Heather
Warrington.
Id. at 34. Thus, Appellant asserts that Detective Harkins improperly
searched the phone and that all evidence obtained from Heather Warrington
should have been suppressed.7 Id. at 35. We find Appellant’s reliance on
Riley/Wurie misplaced and conclude no relief is due.
When considering the trial court’s denial of a motion to suppress, this
Court employs the following standard of review:
7
We note that Appellant later argues that the phone did not belong to him
or that others had equal access to the phone. To the extent Appellant would
rely on such arguments with respect to the suppression ruling, we would
conclude that Appellant failed to establish a reasonable expectation of
privacy and affirm on that basis. See Commonwealth v. Benson, 10 A.3d
1268, 1274 (Pa. Super. 2010).
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[An appellate court’s] standard of review in
addressing a challenge to the denial of a suppression
motion is limited to determining whether the
suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn
from those facts are correct. Because the
Commonwealth prevailed before the suppression
court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the
suppression court’s factual findings are supported by
the record, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous. Where . . . the appeal of
the determination of the suppression court turns on
allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate
court, whose duty it is to determine if the
suppression court properly applied the law to the
facts. Thus, the conclusions of the courts below are
subject to [ ] plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)
(citation omitted).
The test for determining excludability is not whether the
evidence would have come to light but for the illegal
actions of the police, but rather, whether the evidence
“has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged
of the primary taint.”
Commonwealth v. Butler, 729 A.2d 1134, 1138 (Pa. Super. 1999)
(citation omitted).
Further, even if evidence is wrongfully admitted at trial,
[h]armless error exists where: (1) the error did not
prejudice the defendant or the prejudice was de minimis;
(2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was
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substantially similar to the erroneously admitted evidence;
or (3) the properly admitted and uncontradicted evidence
of guilt was so overwhelming and the prejudicial effect of
the error was so insignificant by comparison that the error
could not have contributed to the verdict.
Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (citations
omitted); see also Commonwealth v. Hoffman, 589 A.2d 737, 745 (Pa.
Super. 1991) (applying harmless error standard to admission of
“suppressible” statement by defendant to police officer).
Instantly, Appellant muddles several constitutional principles, but
relies upon a single theory for relief, namely, that the detective improperly
searched his phone to obtain evidence. This Court, in Stem, summarized
the principles relevant to this claim.
The Court[, in Riley/Wurie,] began its analysis with a
discussion of the well-settled history and parameters of the
search incident to an arrest exception to the warrant
requirement. The Court explained that the exception
permits an arresting officer without a warrant to search an
arrestee’s person and the area within his immediate
control only for personal property immediately associated
with the arrestee. The Court reiterated the well-
established dual bases that justify the exception: ensuring
police safety and preventing the destruction of evidence.
The Court proceeded to consider “how the search incident
to arrest doctrine applies to modern cell phones, which are
now such a pervasive and insistent part of daily life that
the proverbial visitor from Mars might conclude they were
an important feature of human anatomy.” The Court held
that the doctrine cannot be extended to such devices, and
held “instead that officers must generally secure a warrant
before conducting such a search.”
* * *
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Having determined that searching cellular telephones after
an arrest does not satisfy the traditional dual bases
underlying the search incident to arrest exception, the
Court turned its attention to the governments’ argument
that searching a cellphone is materially indistinguishable
from seizing and searching items incident to arrest that
contain the same information as the data stored on a
cellular telephone, but in physical form. For instance, a
police officer may search a woman’s purse incident to
arrest and, for example, review the contents of a date
book that includes phone numbers and addresses. The
United States argued that, in this type of scenario, the
phone number directory in a cellular device should not be
considered different from the date book in the woman’s
purse, and, therefore, should be susceptible to a search
incident to arrest. In response, the Court stated that this
argument is “like saying riding on horseback is materially
indistinguishable from a flight to the moon. Both are ways
of getting from point A to point B, but little else justifies
lumping them together.”
The Court, in large part, focused upon the interplay
between modern day cellular devices and the privacy
interests of the arrestee. The Court’s discussion on this
essential point, in relevant part, follows:
Modern cell phones, as a category, implicate privacy
concerns far beyond those implicated by the search
of a cigarette pack, a wallet, or a purse. A
conclusion that inspecting the contents of an
arrestee’s pockets works no substantial additional
intrusion on privacy beyond the arrest itself may
make sense as applied to physical items, but any
extension of that reasoning to digital data has to rest
on its own bottom.
Cell phones differ in both a quantitative and a
qualitative sense from other objects that might be
kept on an arrestee’s person. The term “cell phone”
is itself misleading shorthand; many of these devices
are in fact minicomputers that also happen to have
the capacity to be used as a telephone. They could
just as easily be called cameras, video players,
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rolodexes, calendars, tape recorders, libraries,
diaries, albums, televisions, maps, or newspapers.
One of the most notable distinguishing features of
modern cell phones is their immense storage
capacity. . . . The storage capacity of cell phones
has several interrelated consequences for privacy.
First, a cell phone collects in one place many distinct
types of information—an address, a note, a
prescription, a bank statement, a video—that reveal
much more in combination than any isolated record.
Second, a cell phone’s capacity allows even just one
type of information to convey far more than
previously possible. The sum of an individual’s
private life can be reconstructed through a thousand
photographs, labeled with dates, locations, and
descriptions; the same cannot be said of a
photograph or two of loved ones tucked into a wallet.
Third, the data on a phone can date back to the
purchase of the phone, or even earlier. A person
might carry in his pocket a slip of paper reminding
him to call Mr. Jones; he would not carry a record of
all his communications with Mr. Jones for the past
several months, as would routinely be kept on a
phone.
Finally, there is an element of pervasiveness that
characterizes cell phones but not physical records.
Prior to the digital age, people did not typically carry
a cache of sensitive personal information with them
as they went about their day. Now it is the person
who is not carrying a cell phone, with all that it
contains, who is the exception. . . . [I]t is no
exaggeration to say that many of the more than
90% of American adults who own a cell phone keep
on their person a digital record of nearly every
aspect of their lives—from the mundane to the
intimate. Allowing police to scrutinize such records
on a routine basis is quite different from allowing
them to search a personal item or two in the
occasional case.
Although the data stored on a cell phone is
distinguished from physical records, by quantity
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alone, certain types of data are also qualitatively
different. An Internet search and browsing history,
for example, can be found on an Internet-enabled
phone and could reveal an individual’s private
interests or concerns—perhaps a search for certain
symptoms of disease, coupled with frequent visits to
WebMD. Data on a cell phone can also reveal where
a person has been.
* * *
Modern cell phones are not just another
technological convenience. With all they contain and
all they may reveal, they hold for many Americans
“the privacies of life.” The fact that technology now
allows an individual to carry such information in his
hand does not make the information any less worthy
of the protection for which the Founders fought. Our
answer to the question of what police must do before
searching a cell phone seized incident to an arrest is
accordingly simple—get a warrant.
Stem, 96 A.3d at 410-414 (citations omitted).
In Riley, the search consisted of the following:
The officer accessed information on the phone and noticed
that some words (presumably in text messages or a
contact list) were preceded by the letters “CK”—a label
that, he believed, stood for “Crip Killers,” a slang term for
members of the Bloods gang.
At the police station about two hours after the arrest, a
detective specializing in gangs further examined the
contents of the phone. The detective testified that he
“went through” Riley’s phone “looking for evidence,
because . . . gang members will often video themselves
with guns or take pictures of themselves with guns.”
Although there was “a lot of stuff” on the phone, particular
files that “caught [the detective's] eye” included videos of
young men sparring while someone yelled encouragement
using the moniker “Blood.” The police also found
photographs of Riley standing in front of a car they
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suspected had been involved in a shooting a few weeks
earlier.
Riley, 134 S. Ct. at 2480-81.
In Wurie, as summarized in Stem,
Wurie received repeated calls from “my house,” which was
displayed on the phone’s external display screen.[8] The
police opened the phone and observed a photograph of a
woman and a baby on the phone’s “wallpaper.” The police
then pressed a button to access the phone’s call log, and,
from there, was able to push other buttons to determine
the phone number associated with the moniker “my
house.” The police then used an online phone directory to
trace the number to an apartment building, for which
police later obtained and executed a search warrant.
During the search of Wurie’s apartment, the police
recovered crack cocaine, marijuana, drug paraphernalia, a
firearm with ammunition, and United States currency.
Stem, 96 A.3d at 410 (discussing Riley, 134 S. Ct. at 2481).
Lastly, in Stem, the defendant was placed in custody for criminal
trespass after which,
[the arresting officer] inspected [Stem’s] cell phone.
[Stem] was under arrest prior to the [officer] turning
on the phone and searching the cell phone data. The
cell phone photos are not immediately displayed
when the cell phone is turned on. To the contrary,
the picture data must be accessed by proactively
opening it. In order to do so, the picture icon must
be touched. In the instant case, [the officer]
accessed the picture data by hitting the picture icon.
When [the officer] accessed the picture data on Stem’s
cellular telephone, the officer uncovered what appeared to
be a photograph depicting child pornography. Based upon
8
We note that Riley involved a search of a “smart” phone,” while Wurie
involved a search of a flip, or “simple” phone.
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this discovery, [the officer] applied for, and received, a
search warrant that, when executed, revealed a total of
seventeen photographs depicting child pornography.
Id. at 408 (citation omitted).
In the case sub judice, the extent of the specific intrusion complained
of was minimal compared to Riley, Wurie, and Stem. The detective
powered up the phone and although he “searched” the phone’s data for the
number associated with it, he accessed no additional information or data on
the phone. In contrast to Wurie, the discovery of Warrington’s existence
was not the product of a search of the call logs or other information
contained on the phone. Rather, the detective answered the phone, which
had been on his desk.
Even if we did conclude that Detective Harkins engaged in an illegal
warrantless search of Appellant’s phone and the evidence thereby obtained,
including the testimony of Warrington who the detective encountered via the
cell phone at issue, should have been suppressed, we hold that the
admission of this evidence constituted harmless error. Appellant did not
deny ownership of the phone identified as 267-206-7343, and that number
was listed in the Decedent’s phone under “Jeff.” In a dying declaration,
Decedent identified “Jeff” as his assailant. Additionally, two witnesses
submitted statements detailing Appellant’s confession to a shooting that was
substantially similar to that described by Decedent. Both witnesses
identified Appellant by his picture. Thus, in light of the other properly
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admitted evidence, we conclude that even if the trial court erred by failing to
suppress, the admission of Warrington’s testimony was harmless and not a
basis for reversal. Accordingly, Appellant’s first issue lacks merit.
Appellant’s second and third issues concern alleged after-discovered
evidence, which was the subject of two separate Rule 720(C) motions filed
by Appellant during the pendency of this appeal. In his second issue,
Appellant argues that he did not discover, until after his trial, that Adams,
whose prior inconsistent statements regarding Appellant’s confession was
admitted at trial, gave similar statements in the Jenkins case and the
Harrison case. Appellant’s Brief at 37-39. Appellant avers that he did not
discover this information until the Jenkins case went to trial in October 2014.
Appellant further claims that had he known about the third confession
Adams proffered in the Harrison case, he could have impeached Adams as a
“vending machine” of confession testimony. Id. at 6. Appellant emphasizes
that he used such impeachment evidence in the Jenkins case and was
acquitted of murder in that case. Id. at 41. Appellant thus contends that
the Commonwealth’s failure to reveal the information that Adams was a
“useful confession witness” constituted a Brady9 violation. Id. at 39-41.
In his third issue, Appellant argues that the Commonwealth failed to
disclose that the phone seized from Appellant by Officer Krewer also had the
number 267-206-7343. Id. at 41. Appellant contends that this information
9
See Brady v. Maryland, 373 U.S. 83 (1963).
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was material because that same number was attributed to the phone
recovered from the Mercury Marquis and used to identify him as the shooter.
Id.
Preliminarily, we note that Appellant’s brief focuses on his right to a
new trial based on the suppression of evidence by the Commonwealth.
However, interrelated with this claim are his petitions for remand based on
after-discovered evidence for hearing to develop these claims. We address
Appellant’s Brady and after-discovered evidence claims seriatim, but
conclude neither warrants relief.
It is well settled:
Under Brady, the prosecution’s failure to divulge
exculpatory evidence is a violation of a defendant’s
Fourteenth Amendment due process rights. A Brady claim
challenges the Commonwealth’s failure to produce material
evidence. Specifically, [the defendant] must plead and
prove that “(1) the prosecutor has suppressed evidence;
(2) the evidence, whether exculpatory or impeaching, is
helpful to the defendant; and (3) the suppression
prejudiced the defendant.” The defendant bears the
burden of demonstrating that the Commonwealth withheld
or suppressed evidence.
Commonwealth v. Smith, 17 A.3d 873, 887-88 (Pa. 2011) (citations
omitted).
Pursuant to Brady and its progeny, the prosecutor has
a duty to learn of all evidence that is favorable to the
accused which is known by others acting on the
government's behalf in the case, including the police.
Pursuant to [Kyles v. Whitley, 514 U.S. 419 (1995)],
“the prosecutor’s Brady obligation clearly extends to
exculpatory evidence in the files of police agencies of the
same government bringing the prosecution.” Moreover,
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there is no Brady violation when the defense has equal
access to the allegedly withheld evidence.
Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013) (citations
omitted). Moreover,
“[t]o satisfy the prejudice inquiry, the evidence
suppressed must have been material to guilt or
punishment.” . . . [M]ateriality extends to evidence
affecting the credibility of witnesses, rather than merely to
purely exculpatory evidence. Moreover, . . . the
protection of Brady extends to the defendant’s ability to
investigate alternate defense theories and to formulate
trial strategy. “[F]avorable evidence is material, and
constitutional error results from its suppression by the
government, if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of
the proceeding would have been different.”
Commonwealth v. Ly, 980 A.2d 61, 76 (Pa. 2009) (citations omitted).
As to after-discovered evidence, a claim for a new trial must be raised
promptly in a Pa.R.Crim.P. 720(C) motion, and if the evidence is obtained
during the direct appeal, the motion should include a request for a remand
to the trial court. Commonwealth v. Perrin, 108 A.3d 50, 51 (Pa. Super.
2015). In order to obtain relief based on after-discovered evidence, the
defendant must demonstrate that the after-discovered evidence:
(1) could not have been obtained prior to trial by
exercising reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to
impeach a witness's credibility; and (4) would likely result
in a different verdict.
Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014).
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Although a defendant need not produce an affidavit from a witness to
be entitled to a hearing on an after-discovered evidence claim, he must
establish the alleged after-discovered evidence is producible and admissible.
Id. at 825, 827. After-discovered evidence to be used solely to impeach the
credibility of a witness does not constitute grounds for a new trial. See
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). Conclusory
accusations alone are insufficient to warrant an evidentiary hearing pursuant
to Rule 720(C). Castro, 93 A.3d at 827. Further, the purpose of an
evidentiary hearing is not a fishing expedition to discover evidence. Id. at
827-28.
In the case sub judice, Appellant presents no meaningful argument
that the Commonwealth suppressed the alleged evidence, that is, Adams’s
status as a “useful confession witness,” or the phone numbers attributed to
the phones taken from Appellant by Krewer and from the Mercury Marquis.
Appellant apparently had equal access to such information as he was able to
impeach Adams in the Jenkins case using information regarding the Harrison
case. Furthermore, Appellant’s contention that the cell phone seized from
him by Officer Krewer bore the same number as the phone recovered from
the Mercury Marquis arose out of a June 24, 2010 affidavit of probable cause
for a search warrant in the Jenkins case. Thus, Appellant has not
established that the Commonwealth suppressed the evidence. See Weiss,
81 A.3d at 783.
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Furthermore, we discern no basis upon which to conclude that the
evidence was material or that the failure to disclose the information was
prejudicial. See Ly, 980 A.2d at 76. Instantly, Adams’s prior inconsistent
statement was wholly corroborated by Byrd. Appellant’s suggestion that the
two phones bore the number 267-206-7343 connected to the murder was
belied by the trial record in this case in which the 267-206-7343 number
was attributed to the Samsung “flip” phone recovered from the Mercury
Marquis, and the 267-253-1684 number was attributed to the iPhone
recovered from Appellant’s person.10
Our review further reveals no basis for a remand in light of Appellant’s
Pa.R.Crim.P. 720(C) motions. The sole purpose of the after-discovered
evidence based on Adams’s testimony in the Jenkins trial would be for
impeachment. Accordingly, Appellant has not met the second prong of the
after-discovered evidence test and we discern no basis to remand this
matter for further development of the record. See Pagan, 950 A.2d at 270.
Appellant’s contention that his phone might have been “cloned” fails to raise
a genuine issue of material fact that a new trial is required. Appellant
ostensibly should have known the number of the phone seized from his
person and the phone number of the phone used as primary evidence during
his trial. He also fails to assert how such evidence could not have been
10
As noted above, Appellant attempted to sow doubt that he possessed the
267-206-7343 phone because phone records revealed there were several
calls between that number and his 267-253-1684 number.
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discovered before the trial. Accordingly, Appellant’s second and third issues
do not warrant relief.
In his fourth and fifth issues, Appellant challenges the sufficiency of
the evidence. Specifically, in his fourth issue, Appellant claims that his
conviction was based upon speculation and inconsistent evidence regarding
his identity as the shooter. Appellant’s Brief at 44-47. He emphasizes
inconsistencies in the evidence, including Decedent’s statement that the
shooter reached through the window, Byrd’s and Adams’s prior statements
that Appellant stated he was inside the car when he fired, and that Appellant
was not known as “Jeff.” Id. He further contends that the Commonwealth
did not adduce evidence the 267-206-7343 phone “belonged” to him or that
he had sole access to the phone. Id. at 46. He insists that the “there was a
lot more evidence against J.R. than there was against [him].” Id. Appellant
highlights that the ammunition used to kill Decedent was consistent with
that found at Bell’s residence and Warrington testified Bell would also
answer the 267-206-7343 phone.
In issue five, Appellant presents the generalized argument that
sufficient evidence did not support his out-of-court confessions to Adams
and Byrd. He cites only to Opper v. United States, 348 U.S. 84 (1954),
for the general proposition that out-of-court admissions must be supported
by sufficient evidence.
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Our standard of review regarding a sufficiency of the evidence claim is
as follows:
The standard we apply in 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. In
applying the above test, we may not weigh the evidence
and substitute our judgment for [that of] the fact-finder.
In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Vargas, 108 A.3d 858, 867-68 (Pa. Super. 2014)
(citations omitted), appeal denied, 121 A.3d 496 (Pa. 2015).
Moreover, the Pennsylvania Supreme Court has summarized the
following view of the role of prior inconsistent statements for substantive
purposes:
In sum, then, our review of authority from the United
States Supreme Court and our Court, as well as our
consideration of jurisprudence from other states which
reject a per se rule, coupled with our over quarter-century
of experience with the use of prior inconsistent statements
as substantive evidence by the courts of this
Commonwealth, convinces us that criminal convictions
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which rest only on prior inconsistent statements of
witnesses who testify at trial do not constitute a
deprivation of a defendant’s right to due process of law, as
long as the prior inconsistent statements, taken as a
whole, establish every element of the offense charged
beyond a reasonable doubt, and the finder-of-fact could
reasonably have relied upon them in arriving at its
decision. Prior inconsistent statements, which meet the
requirements for admissibility under Pennsylvania law,[ ]
must, therefore, be considered by a reviewing court in the
same manner as any other type of validly admitted
evidence when determining if sufficient evidence exists to
sustain a criminal conviction.
Commonwealth v. Brown, 52 A.3d 1139, 1170-71 (Pa. 2012).
In this case, ample evidence was presented to establish that Appellant
was the individual known as “Jeff” who shot Decedent. Two witnesses,
Adams and Byrd, gave contemporaneously recorded and signed statements
that Appellant had confessed to a shooting within the same time frame and
location as the Decedent’s shooting. Decedent called Appellant’s admitted
phone number, 267-206-7343, six times shortly before being shot and listed
that number under the name “Jeff.” In a dying declaration, Decedent
indicated that “Jeff” had shot him. Warrington testified that she frequently
bought heroin from Appellant, whom she knew as “Lil Jeff,” and identified
Appellant’s picture as “Jeff.” We emphasize that the evidence produced by
the Commonwealth need not preclude every possibility of innocence and the
fact finder is free to believe all, part, or none of the evidence. See Vargas,
108 A.3d at 867-68. Accordingly, viewing all the evidence admitted at trial
in the light most favorable to the Commonwealth, as the verdict winner, we
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conclude that sufficient evidence corroborated Adam’s and Byrd’s
confessional evidence and supported Appellant’s conviction. See id.;
Brown, 52 A.3d at 1170-71. Therefore, Appellant’s fourth and fifth issues
also fail.
Turning to Appellant’s sixth issue, he contends that the trial court
erred by issuing an incorrect jury instruction. Appellant points to an isolated
passage in the transcript which indicates that the trial court omitted the
word “not” when describing malice/murder and justification. Appellant’s
Brief at 50; see also N.T. Trial, 8/28/13, at 24.
As a prefatory matter, we consider whether Appellant has preserved
his challenge to the trial court’s jury instruction. It is axiomatic that to
preserve such an issue for appellate review, a “[s]pecific exception shall be
taken to the language or omission complained of.” Pa.R.A.P. 302(b).
Similarly, our Rules of Criminal Procedure explicitly declare: “[n]o portions
of the charge nor omissions from the charge may be assigned as error,
unless specific objections are made thereto before the jury retires to
deliberate.” Pa.R.Crim.P. 647(B).
Our Supreme Court has opined:
The pertinent rules, therefore, require a specific objection
to the charge or an exception to the trial court's ruling on
a proposed point to preserve an issue involving a jury
instruction. Although obligating counsel to take this
additional step where a specific point for charge has been
rejected may appear counterintuitive, as the requested
instruction can be viewed as alerting the trial court to a
defendant's substantive legal position, it serves the
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salutary purpose of affording the court an opportunity to
avoid or remediate potential error, thereby eliminating the
need for appellate review of an otherwise correctable
issue.
Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005) (citation and
footnotes omitted).
In the instant case, at the conclusion of the charge to the jury, neither
counsel noted any objections and therefore the trial court had no
opportunity to remediate any potential error. N.T., 8/28/13, at 39. Thus,
Appellant has waived this issue for failing to object before the jury retired to
deliberate. See Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(B); Pressley, 887 A.2d
at 224.
In his final issue, Appellant argues that the trial court erred by ruling
that the Commonwealth could introduce evidence of Appellant’s alleged
previous possession of a firearm for purposes of impeachment if Appellant
produced character witnesses attesting to his “peacefulness” at trial.
Appellant asserts that this decision caused him to forgo any character
testimony regarding his peaceful nature. He contends that the trial court
should have prohibited any mention of his alleged prior possession of a
firearm pursuant to Commonwealth v. Morgan, 739 A.2d 1033, 1038 (Pa.
1999) (holding that character witnesses may not be cross-examined with
prior bad acts not resulting in convictions).
“It is well-settled that the scope of cross examination is a matter
within the trial court’s discretion and will not be disturbed by this Court
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absent an abuse of that discretion.” Commonwealth v. Kouma, 53 A.3d
760, 768 (Pa. Super. 2012) (citation and punctuation omitted). When
examining the admission or exclusion of impeachment evidence in the
context of character witnesses we specifically note:
In a criminal case, the defendant may offer character
witnesses to testify as to that defendant’s reputation in the
community regarding a relevant character trait. See
Pa.R.E. 404(a)(1); 405(a). Of course, the Commonwealth
may attempt to impeach those witnesses.
Commonwealth v. Hoover, 16 A.3d 1148, 1149 (Pa.
Super. 2011) (citing Commonwealth v. Morgan, 559 Pa.
248, 739 A.2d 1033, 1035 (1999)). “For example, when
cross-examining character witnesses offered by the
accused, the Commonwealth may test the witnesses’
knowledge about specific instances of conduct of the
accused where those instances are probative of the traits
in question.” Hoover, 16 A.3d at 1149-50 (citing Pa.R.E.
405(a)). However, the Commonwealth’s right to cross-
examine character witnesses is not unlimited: the
Commonwealth may not cross-examine a character
witness about a defendant’s uncharged criminal
allegations, Morgan, 739 A.2d at 1035-36, or a
defendant’s arrests that did not lead to convictions.
Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607,
611-12 (1981).
Commonwealth v. Kuder, 62 A.3d 1038, 1057-58 (Pa. Super. 2013).
We acknowledge that “evidence of good character is to be regarded as
evidence of substantive fact just as any other evidence tending to establish
innocence and may be considered by the jury in connection with all of the
evidence presented in the case on the general issue of guilt.”
Commonwealth v. Luther, 463 A.2d 1073, 1077 (Pa. Super. 1983).
However, a trial court’s ruling, which results in the defendant’s decision to
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not call character witnesses to testify regarding the defendant’s reputation,
may constitute harmless error where the evidence of guilt is overwhelming.
Kouma, 53 A.3d at 770-71. In addition, “[w]hen discussing harmless error,
we have also stated that the Commonwealth can meet its burden of showing
harmlessness by persuading us the error did not prejudice the appellant or
did so to a de minimis extent[.]” Hoover, 16 A.3d at 1150 (citation
omitted).
In the case sub judice, Appellant narrowly focuses on the trial court’s
decision to allow evidence of Appellant’s alleged prior possession of a firearm
to impeach any hypothetical character witness which Appellant could have
presented. However, as the Commonwealth noted for the record at trial,
significant other evidence was available for impeachment purposes, including
a certified juvenile adjudication for terroristic threats and simple assault.
N.T. Trial, 8/27/13, at 83-83. Accordingly, we hold that any error that the
trial court committed by allowing evidence of an alleged prior “bad act” to
impeach hypothetical character witnesses was de minimis, and therefore
harmless, in light of the other evidence available for impeachment purposes.
See Hoover, 16 A.3d at 1150. Further, given the overwhelming evidence
supporting Appellant’s conviction, as discussed supra, we conclude that any
error which caused Appellant to decline to call character witnesses was
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harmless.11 See Kouma, 53 A.3d at 771. Thus, Appellant’s seventh issue
merits no relief and does not require reversal. Accordingly, we affirm
Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Mundy, J. joins this Memorandum. Jenkins, J. Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2016
11
We also note that Appellant did not identify his possible character
witnesses at trial, and did not do so in his appellate brief.
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