Com. v. Lee, D. ( 2014 )

J.S45037/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
DARNELL LEE, :
:
Appellant : No. 2383 EDA 2013
Appeal from the Judgment of Sentence March 1, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0005987-2009
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 23, 2014
Appellant, Darnell Lee, appeals from the judgment of sentence entered
in the Philadelphia County Court of Common Pleas following his jury trial and
convictions for second degree murder,1 robbery,2 carrying a firearm on a
public street or public property in violation of the Uniform Firearms Act,3 and
conspiracy.4 Appellant asserts that he is entitled to a new trial because the
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(b).
2
18 Pa.C.S. § 3701(a)(1)(i).
3
18 Pa.C.S. § 6108.
4
18 Pa.C.S. § 903(a)(1).
J. S45037/14
guilty verdicts of murder and robbery were against the weight of the
evidence. We affirm the convictions but vacate the judgment of sentence
for robbery because it merged with his second degree murder conviction for
purposes of sentencing.
The trial court summarized the facts of this case as follows:5
On June 3, 2008, at about 9:30 p.m., [the victim]
at 3858 North 15th Street, Philadelphia. Around 11:20
four-door white Chevrolet Malibu parked on the 1500 block
of Pike Street. While McCoy and Fields were sitting in the
vehicle, [Appellant] and [his co-defendant] Daniel Johnson
-
and co-defendant approached Fields on the
passenger side of the vehicle. [Appellant] then said,
silver gun that was tucked into his waistband. McCoy said,
and money. When McCoy told [Appellant] that his phone
[Appellant] and co-
vehicle and started fighting with [Appellant]. During this
struggle, [Appellant] and McCoy moved toward the rear of
the vehicle, where McCoy was shot at least twice. McCoy
was shot a third time after co-defendant ran to the rear of
the vehicle. This shooting occurred at or around 11:31
p.m. on June 3, 2008.
5
Appellant was tried jointly with his co-defendant, Daniel Rasheed R.
Johnson. As we discuss infra, a prior panel of this Court, in the direct appeal
-defendant, affirmed in part and vacated in part.
Commonwealth v. Johnson, 213 EDA 2013 (unpublished memorandum)
(Pa. Super. Dec. 19, 2013).
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Afterward, [Appellant] jumped onto a bicycle and fled
toward 16th and Smedley Streets. As Fields tried to exit
the front passenger door, co-
stuck under the vehicle. Fields made eye contact with co-
defendant, who then ran in the same direction as
[Appellant]. When Fields exited the vehicle, she
approached McCoy and saw him lying on the ground. He
had a hole in his face and was struggling to breathe.
Blood was pooled behind his head and was coming from
his face and hand. Fields called 911 and ran into the bar,
McCoy was transported to Temple University Hospital,
where he was pronounced dead at approximately 1:27
a.m. on June 4, 2008. Dr. Gary Collins, deputy chief
y.
While performing his examination, Dr. Collins found that
McCoy sustained three gunshot wounds. Two gunshot
wounds were penetrating wounds and one gunshot wound
was a perforating wound. . . .
Dr. Collins concluded to a reasonable degree of medical
certainty that the cause of death was the penetrating
gunshot wound to the head. . . . Dr. Collins further
concluded to a reasonable degree of medical certainty that
the manner of death was homicide. He submitted the two
o the Firearms
Identification Unit.
* * *
Detective John Cahill was assigned to investigate this
homicide. At approximately 2:15 a.m., Detective Cahill
responded to the crime scene with Detective Ted Hagan.
On June 4, 2008, Detective [James] Dunlap assisted with
the recovery of surveillance footage from the digital video
recording player at the bar. He found a total of eight video
cameras around the interior and exterior of the bar. . . .
Camera Number 5 was an exterior camera located on the
front of the property at the southwest corner of 15th and
Pike Streets, and viewed the 1500 block of Pike Street
westbound. Camera Number 6 was located outside the
entrance door at 15th and Pike Streets and viewed the
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J. S45037/14
southwest corner of 15th and Pike Streets. Camera
Number 7 viewed the sidewalk on Pike Street. . . .
Detective Dunlap checked the operability of the video
recording player and determined that it was functioning
properly. When he checked the time, Detective Dunlap
observed that it was military time and discovered that it
was nine minutes faster than the actual time determined
by the U.S. Naval Observatory. Detective Dunlap
downloaded all eight camera views, copied them onto a
digital video disc, and gave it to the assigned detective.
Detective Dunlap recovered a one-half hour block of video
running on June 3, 2008 from 23:20 to 23:50 (11:20 p.m.
to 11:50 p.m.). He also recovered one fifty-minute block
of video from 22:30 to 23:20 (10:30 p.m. to 11:20 p.m.)
from Camera Numbers 5 and 6, both exterior cameras.
Camera Number 5 had the best camera view of the
incident. Because multiple camera views could not be
shown at once, Detective Dunlap used software to copy
and compile camera views into one running video.
The first video clip was recorded at 23:29:36 from
Camera Number 5 and displayed a male and female
entering a white Malibu several feet from the corner. The
next video clip showed two men riding bicycles on Pike
Street traveling toward 15th Street. The two men rode
past the camera and turned southbound onto 15th Street,
where they were recorded by Camera Number 6. The men
Street. The subsequent video clip came from Camera
Number 5 and showed bicycles crossing the street. One
bicycle rode onto the curb to the driver side of the white
Malibu and the other bicycle rode to the passenger side.
Someone was inside the vehicle because the brake lights
side of the vehicle. A man wearing a striped shirt exited
the vehicle, but then went back inside the vehicle.
The video then showed one of the men running away.
At the scene, the passenger door was open and a person
and an object were on the ground. At that time, people
started to exit the bar and gather into a large crowd.
Police then arrived and secured the scene. In addition to
compiling these several camera views, Detective Dunlap
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J. S45037/14
took 130 still photographs from the video. These still
photographs accurately depicted the views from Camera
Number 5 and Camera Number 6.
After reviewing this video, Detective Hagan returned to
The video displayed Capehart walking westbound on the
1500 block of Pike Street prior to the murder. During this
interview, Capehart did not appear to be under the
influence of drugs or alcohol. After reviewing her five-
page statement, Capehart signed it. Capehart was
interviewed a second time by Detective Cahill on June 6,
2008. During this interview, Detective Cahill learned that
[Appellant] was her cousin and that his nickname was
-
Cahill learned that, on the evening of the murder,
[Appellant] and co-
residence, which was approximately one and one-half
that [Appellant] and co-defendant were in front of her
house when she left to go to the bar at 8:45 p.m. Co-
defendant was wearing cargo shorts and a red or burgundy
shirt. [Appellant] was wearing a white shirt, tan cargo
pants[,] and a bulletproof vest. Co-defendant had a red
bicycle and [Appellant] had a blue and pink bicycle. The
day before giving this statement, Capehart had seen the
blue and pink bicycle in front of her house, but she had not
seen the red bicycle since the shooting.
Capehart left the bar at about 11:30 p.m. When she
ho
told her that he heard gunshots. Capehart then went
upstairs and called a friend who was still at the bar.
been shot. When Capehart went back downstairs, she
encountered [Appellant] and Durell at her front door.
[Appellant] told her that he was leaving because too many
police were around. Finally, Capehart stated that she had
not seen [Appellant] or co-defendant since the murder.
Capehart did not appear to be under the influence of drugs
or alcohol during this second interview. After reviewing
her eight and one-half page statement, Capehart signed it.
She identified co-defendant after being shown a
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J. S45037/14
photographic array. She also identified [Appellant] after
being shown a photograph.
On June 10, 2008, Detective Hagan interviewed Naja
McCoy and took her statement. Ms. McCoy informed
Detective Hagan that McCoy was her blood cousin, but that
she considered him her brother because they were raised
in the same household. Ms. McCoy also knew [Appellant]
because she grew up with him in the neighborhood. She
residence because she was best friends with Lekita Gilliard
year, she helped Kita buy bicycles for the children. As a
result, bicycles were always on the porch. However, after
the murder, the bicycles were missing.
Ms. McCoy also told Detective Hagan that she went to
and 4:30 p.m. When she arrived, she saw [Appellant],
who was wearing a dark hooded sweatshirt, white tee-
shirt[,] and dark jeans. After she hugged [Appellant], he
showed her that he was also wearing a bulletproof vest.
She asked him why he was wearing it, and he told her that
he was being careful because he took a chrome gun from
leaving
[Appellant] introduced Ms. McCoy to [co-defendant], who
that she saw co-defendant. It was also the last time that
she saw [Appellant]. At trial, Ms. McCoy confirmed that
after the murder. Ms. McCoy further testified that she
reviewed her four-page statement and signed it. She also
signed and dated photographs of co-defendant and
[Appellant], which were attached to her statement.
On June 10, 2008, Detective Cahill interviewed Fields,
who had been in a relationship with McCoy for two years.
Detective Cahill first met Fields at the homicide unit and
delayed interviewing her because she was crying and
hysterical. In her statement, Fields described the two men
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J. S45037/14
Afterward, [Appellant] jumped onto a bicycle and fled
toward 16th and Smedley Streets. As Fields tried to exit
the front passenger door, co-
stuck under the vehicle. Fields made eye contact with co-
defendant, who then ran in the same direction as
[Appellant]. When Fields exited the vehicle, she
approached McCoy and saw him lying on the ground. He
had a hole in his face and was struggling to breathe.
Blood was pooled behind his head and was coming from
his face and hand. Fields called 911 and ran into the bar,
McCoy was transported to Temple University Hospital,
where he was pronounced dead at approximately 1:27
a.m. on June 4, 2008. Dr. Gary Collins, deputy chief
y.
While performing his examination, Dr. Collins found that
McCoy sustained three gunshot wounds. Two gunshot
wounds were penetrating wounds and one gunshot wound
was a perforating wound. . . .
Dr. Collins concluded to a reasonable degree of medical
certainty that the cause of death was the penetrating
gunshot wound to the head. . . . Dr. Collins further
concluded to a reasonable degree of medical certainty that
the manner of death was homicide. He submitted the two
o the Firearms
Identification Unit.
* * *
Detective John Cahill was assigned to investigate this
homicide. At approximately 2:15 a.m., Detective Cahill
responded to the crime scene with Detective Ted Hagan.
On June 4, 2008, Detective [James] Dunlap assisted with
the recovery of surveillance footage from the digital video
recording player at the bar. He found a total of eight video
cameras around the interior and exterior of the bar. . . .
Camera Number 5 was an exterior camera located on the
front of the property at the southwest corner of 15th and
Pike Streets, and viewed the 1500 block of Pike Street
westbound. Camera Number 6 was located outside the
entrance door at 15th and Pike Streets and viewed the
-3-
J. S45037/14
southwest corner of 15th and Pike Streets. Camera
Number 7 viewed the sidewalk on Pike Street. . . .
Detective Dunlap checked the operability of the video
recording player and determined that it was functioning
properly. When he checked the time, Detective Dunlap
observed that it was military time and discovered that it
was nine minutes faster than the actual time determined
by the U.S. Naval Observatory. Detective Dunlap
downloaded all eight camera views, copied them onto a
digital video disc, and gave it to the assigned detective.
Detective Dunlap recovered a one-half hour block of video
running on June 3, 2008 from 23:20 to 23:50 (11:20 p.m.
to 11:50 p.m.). He also recovered one fifty-minute block
of video from 22:30 to 23:20 (10:30 p.m. to 11:20 p.m.)
from Camera Numbers 5 and 6, both exterior cameras.
Camera Number 5 had the best camera view of the
incident. Because multiple camera views could not be
shown at once, Detective Dunlap used software to copy
and compile camera views into one running video.
The first video clip was recorded at 23:29:36 from
Camera Number 5 and displayed a male and female
entering a white Malibu several feet from the corner. The
next video clip showed two men riding bicycles on Pike
Street traveling toward 15th Street. The two men rode
past the camera and turned southbound onto 15th Street,
where they were recorded by Camera Number 6. The men
Street. The subsequent video clip came from Camera
Number 5 and showed bicycles crossing the street. One
bicycle rode onto the curb to the driver side of the white
Malibu and the other bicycle rode to the passenger side.
Someone was inside the vehicle because the brake lights
side of the vehicle. A man wearing a striped shirt exited
the vehicle, but then went back inside the vehicle.
The video then showed one of the men running away.
At the scene, the passenger door was open and a person
and an object were on the ground. At that time, people
started to exit the bar and gather into a large crowd.
Police then arrived and secured the scene. In addition to
compiling these several camera views, Detective Dunlap
-4-
J. S45037/14
took 130 still photographs from the video. These still
photographs accurately depicted the views from Camera
Number 5 and Camera Number 6.
After reviewing this video, Detective Hagan returned to
The video displayed Capehart walking westbound on the
1500 block of Pike Street prior to the murder. During this
interview, Capehart did not appear to be under the
influence of drugs or alcohol. After reviewing her five-
page statement, Capehart signed it. Capehart was
interviewed a second time by Detective Cahill on June 6,
2008. During this interview, Detective Cahill learned that
[Appellant] was her cousin and that his nickname was
-
Cahill learned that, on the evening of the murder,
[Appellant] and co-
residence, which was approximately one and one-half
that [Appellant] and co-defendant were in front of her
house when she left to go to the bar at 8:45 p.m. Co-
defendant was wearing cargo shorts and a red or burgundy
shirt. [Appellant] was wearing a white shirt, tan cargo
pants[,] and a bulletproof vest. Co-defendant had a red
bicycle and [Appellant] had a blue and pink bicycle. The
day before giving this statement, Capehart had seen the
blue and pink bicycle in front of her house, but she had not
seen the red bicycle since the shooting.
Capehart left the bar at about 11:30 p.m. When she
ho
told her that he heard gunshots. Capehart then went
upstairs and called a friend who was still at the bar.
been shot. When Capehart went back downstairs, she
encountered [Appellant] and Durell at her front door.
[Appellant] told her that he was leaving because too many
police were around. Finally, Capehart stated that she had
not seen [Appellant] or co-defendant since the murder.
Capehart did not appear to be under the influence of drugs
or alcohol during this second interview. After reviewing
her eight and one-half page statement, Capehart signed it.
She identified co-defendant after being shown a
-5-
J. S45037/14
photographic array. She also identified [Appellant] after
being shown a photograph.
On June 10, 2008, Detective Hagan interviewed Naja
McCoy and took her statement. Ms. McCoy informed
Detective Hagan that McCoy was her blood cousin, but that
she considered him her brother because they were raised
in the same household. Ms. McCoy also knew [Appellant]
because she grew up with him in the neighborhood. She
residence because she was best friends with Lekita Gilliard
year, she helped Kita buy bicycles for the children. As a
result, bicycles were always on the porch. However, after
the murder, the bicycles were missing.
Ms. McCoy also told Detective Hagan that she went to
and 4:30 p.m. When she arrived, she saw [Appellant],
who was wearing a dark hooded sweatshirt, white tee-
shirt[,] and dark jeans. After she hugged [Appellant], he
showed her that he was also wearing a bulletproof vest.
She asked him why he was wearing it, and he told her that
he was being careful because he took a chrome gun from
leaving
[Appellant] introduced Ms. McCoy to [co-defendant], who
that she saw co-defendant. It was also the last time that
she saw [Appellant]. At trial, Ms. McCoy confirmed that
after the murder. Ms. McCoy further testified that she
reviewed her four-page statement and signed it. She also
signed and dated photographs of co-defendant and
[Appellant], which were attached to her statement.
On June 10, 2008, Detective Cahill interviewed Fields,
who had been in a relationship with McCoy for two years.
Detective Cahill first met Fields at the homicide unit and
delayed interviewing her because she was crying and
hysterical. In her statement, Fields described the two men
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J. S45037/14
-
skinned black male in his twenties who was approximately
six feet and one inch tall. This man was wearing a black
hoodie and a white tee-shirt, and she saw a tattoo on the
She described the man on the passenger side of the
vehicle as being between 18 to 20 years old with light
brown skin and a scruffy beard. This man was wearing tan
khaki pants and a gray hoodie. After the interview, she
reviewed her three-page statement and signed it.
After being shown a photographic array, Fields
identified Johnson as the man who stood on the passenger
side of the vehicle. She next identified [Appellant] as
vehicle. These identifications were signed and
attached to her statement. At trial, Fields stated
that she was certain of her identifications.
During this interview, Detective Cahill showed Fields the
signed statement she provided to Detective Knecht[6] . . .
at 12:52 a.m. on June 4, 2008. She reviewed this
statement and corrected one minor typographical error.
No other corrections were made. At trial, she stated that
her ability, but that there were a few inaccurate
statements in that document. Fields denied stating that
did not have a gun. During her interview with Detective
Knecht and at trial, Fields stated that this was incorrect
because [Appellant] did possess a gun during this incident.
five-feet seven inches and five-feet nine inches] tall
because he was the same height as McCoy, who was about
hearing. At the preliminary hearing, Fields identified
Johnson as the man who was at the passenger side of the
vehicle trying to pick up the red bicycle.
6
Our review of the record did not reveal t
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On June 10, 2008, Sergeant William Britt assigned
Detectives Burke and Rocks[7] to search for [Johnson and
Appellant] as fugitives. On June 13, 2008, based on
information received, Sergeant Britt and several officers
went to 3731 North 16th Street, where they found
Chandler. Chandler was subsequently transported to the
homicide unit, where he was interviewed. Detective
[Joseph] Bamberski testified that two warrants had been
issued for Chandler to appear as a witness by the time of
he has not been seen since June 13, 2008, when he
provided a signed statement.
members of the U.S. Marshals Fugitive Task Force went to
the area of 24th and Norris Streets. During their
surveillance, they observed Johnson riding a bicycle
northbound on 24th Street toward Diamond Street. They
pursued him, but then lost him when he fled into a public
housing authority development. On June 14, 2008,
Sergeant Britt and members of the U.S. Marshals Fugitive
Task Force went to Apartment 905 at 4455 Holden Street
based on information received. When they arrived, they
found and arrested co-defendant and [Appellant]. . . .
Trial Ct. Op., 12/17/13, at 2-4, 6-13 (footnotes, citations, and some
Appellant was convicted following a jury trial and sentenced to life
imprisonment without the possibility of parole for second degree murder and
imprisonment for conspiracy to commit murder and two and one-half to five
years for carrying a firearm on public streets in Philadelphia. Appellant filed
7
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a timely post-sentence motion, which was denied, and then the instant
appeal. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of
errors complained of on appeal8 and the trial court filed a responsive
opinion.
Appellant claims that the court erred in denying his motion for a new
trial based on the weight of the evidence.9
that Fields gave two different descriptions of the male who came to the
side of the vehicle with respect to his height and facial hair. Id. at
having been involved in the shooting. Id. He contends the verdict was
against the weight of the evidence because it was based solely upon the
inconclusive testimony of the lone eyewitness to the shooting. 10 Id. at 17.
We find no relief is due.
8
We note that Appellant was ordered to file a Rule 1925(b) statement no
later than twenty-one days from September 3, 2013, which was September
24th. Appellant filed his Rule 1925(b) statement on October 15, 2013. This
Court has stated that where the trial court addresses the issues raised in an
untimely 1925(b) statement, we can address the merits of the appeal
without a remand. Commonwealth v. Fischere, 70 A.3d 1270, 1275 n.2
(Pa. Super. 2013), appeal denied, 83 A.3d 167 (Pa. 2013).
9
Appellant preserved this issue in his post-sentence motion. See Post
Sentence Mot., 3/11/13, at 1 (unpaginated).
10
We note with displeasure that the argument section of
spans three pages, consisting primarily of a recitation of the facts. The sole
legal authority cited is two civil cases, without pinpoint citation, for the
standard of review. We remind counsel:
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Our Supreme Court has held that
[a] motion for a new trial alleging that the verdict was
against the weight of the evidence is addressed to the
discretion of the trial court. An appellate court, therefore,
reviews the exercise of discretion, not the underlying
question whether the verdict is against the weight of the
evidence. The factfinder is free to believe all, part, or
none of the evidence and to determine the credibility of
the witnesses. The trial court will award a new trial only
standard has been met, appellate review is limited to
and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of
a motion for a
new trial based on a weight of the evidence claim is the
least assailable of its rulings.
Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations
omitted).
Section 2502(b) of the Crimes Code defines second degree murder:
arguments that are
sufficiently developed for our review. The brief must
support the claims with pertinent discussion, with
references to the record and with citations to legal
authorities. Id.; Pa.R.A.P. 2119(a), (b), (c). Citations to
authorities must articulate the principles for which they are
cited. Pa.R.A.P. 2119(b).
This Court will not act as counsel and will not develop
arguments on behalf of an appellant. Moreover, when
defects in a brief impede our ability to conduct meaningful
appellate review, we may dismiss the appeal entirely or
find certain issues to be waived. Pa.R.A.P. 2101.
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (some
citations omitted). Because we are able to conduct meaningful appellate
review, we decline to find the issue waived. See id.
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