Com. v. Kendrick, P. ( 2018 )

J-A06001-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
PAUL JAWON KENDRICK,
Appellant No. 86 WDA 2016
Appeal from the Judgment of Sentence Entered August 24, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013583-2014
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 18, 2018
Appellant, Paul Jawon Kendrick, appeals from the judgment of sentence
of life-without-parole (LWOP) for first-degree murder, and a consecutive
sentence of LWOP for conspiracy to commit first-degree murder. He claims
that the verdict is against the weight of the evidence, and that his sentence
for conspiracy is illegal. After careful review, we vacate Appellant’s sentence
for conspiracy and remand for resentencing, but affirm Appellant’s sentence
for first-degree murder.
The trial court summarized the facts adduced at trial as follows:
On July 31, 2014, at approximately 11:45 pm, Antone
Marshall was playing basketball on the basketball court located in
North View Heights Housing Project with Maurice Freeman, Tyrea
Harper, CJ Pac and an individual who [was] only kn[o]w[n] by the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A06001-18
name of Manny. At approximately 12:30 am on August 1, 2014,
Marshall took a break from playing basketball to have a cigarette
when two light-skinned African American[] males appeared, both
of whom appeared to be wearing white t-shirts and one of whom
was wearing shorts and the other sweatpants. Marshall noticed
that both of these individuals possessed a handgun. These
individuals asked to play basketball. The individual who played
basketball against Manny had a fisherman’s hat on and during the
course of the basketball game, dropped his gun on the basketball
court. Marshall described this individual as being anywhere from
five foot nine to approximately six feet tall, saying that everybody
appeared short to him because he is six foot three and one-half.
He identified the other individual without the hat as being
approximately five foot seven. When this basketball game was
over, Marshall, Tyrea Harper and CJ Pac went on their way down
to Penfort Street while Maurice Freeman and Manny Harrison went
to a building on Hazlett Street where Freeman was apparently
staying. As Marshall approached his residence, he heard a
number of gunshots[,] but he did not know who had been hit[,]
or where they had been hit.
Marshall was interviewed by the police in the early morning
hours of August 1, 2014, and based upon the information that the
police had obtained during the course of their investigation, they
put together a photo array and Marshall identified [Appellant] as
one of the two individuals who approached them at the basketball
court and who had weapons on them. Tyrea Harper was playing
basketball with Marshall and the others when he saw the two light-
skinned African American males approach, both of whom were
wearing white tee-shirts. He also saw a gun that was being passed
between the two of them. They asked to play basketball and they
played one game against Manny and Manny won. At the
conclusion of that game, one of these two individuals said that if
you were not from Northview then you are going to get hit. He
then asked [where] Freeman was from and Freeman said he was
from Arlington. After this discussion everyone left the basketball
court but left in separate directions since Harper and Marshall
headed toward Harper’s sister’s house which was on Penfort, while
Manny and Maurice headed toward Hazlet Street. They then heard
[a] gunshot and then turned around to see the two light-skinned
African Americans running away. Marshall was interviewed by the
police … approximately five days later and was presented with a
photo array and he identified the shooter as being [Appellant].
-2-
J-A06001-18
Roxanne Steiner was living with her sister on Hazlet Street
in the Northview Heights housing project and although she had
never personally met [Appellant], she had seen him at least thirty
times in that housing project. In the late hours of July 31, 2014,
she went to the 7-11 Store in Downtown Pittsburgh to get some
food items. When she got back to Northview Heights she heard
that Freeman had been shot and she went to Allegheny General
Hospital to see what his condition was. She eventually returned
at approximately 6:00 am on August 1, 2014. During the course
of the police investigation, they went to the security office and
viewed a number of videotapes taken from the surveillance
cameras[,] which were placed throughout the Northview Heights
project. The police made copies of these tapes and on August 16,
2014, showed Steiner the tapes which showed two individuals in
white t-shirts and she was able to identify one of those individuals
as [Appellant].
Trial Court Opinion (TCO), 3/8/17, at 3-5.
The Commonwealth charged Appellant with criminal homicide, 18
Pa.C.S. § 2501(a); conspiracy to commit homicide, 18 Pa.C.S. § 903(a)(1);
and person not to possess a firearm, 18 Pa.C.S. § 6105. The trial court
granted Appellant’s pre-trial motion to sever the firearm offense, which is not
a subject of the instant appeal.1 Appellant was subsequently tried by a jury,
which returned a verdict of guilty on both counts on May 25, 2015.
Specifically, the jury found Appellant guilty of first-degree murder, 18 Pa.C.S.
§ 2502(a), and conspiracy to commit first-degree murder. On August 4, 2015,
the trial court sentenced Appellant to a mandatory LWOP sentence for first-
degree murder, and a consecutive sentence of LWOP for conspiracy.
Appellant filed a timely post-sentence motion, in which he challenged
the weight of the evidence, which the trial court considered at a post-sentence
____________________________________________
1 The firearm offense was transferred to CP-02-CR-0006355-2015.
-3-
J-A06001-18
hearing held on November 18, 2015. Ultimately, however, the court denied
Appellant’s post-sentence motion on December 10, 2015.
Appellant filed a timely notice of appeal on January 8, 2016, and a
timely, court-ordered Pa.R.A.P. 1925(b) statement on February 12, 2016. The
trial court did not issue its Rule 1925(a) opinion until March 8, 2017.
Appellant now presents the following questions for our review:
1. Whether the trial court abused its discretion in denying the
motion for a grant of a new trial when the verdict was
contrary to the weight of the evidence?
2. Whether the [LWOP] sentence for criminal conspiracy was
illegal because it exceeded the statutory limitations?
3. Whether the sentence for criminal conspiracy was illegal
based upon double jeopardy concerns when the sentence of
criminal conspiracy should have merged into the sentence
of first[-]degree murder, which was based upon a criminal
conspiracy theory?
Appellant’s Brief at 5.
Appellant first argues that the trial court abused its discretion in denying
his post-sentence motion for a new trial based on the weight of the evidence.
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. Commonwealth v.
Jackson, 506 Pa. 469, 475, 485 A.2d 1102, 1104 (1984). An
appellate court cannot substitute its judgment for that of the
finder of fact. Commonwealth v. Pronkoskie, 498 Pa. 245,
251, 445 A.2d 1203, 1206 (1982). Thus, we can only reverse the
lower court’s verdict if it is so contrary to the evidence as to shock
one’s sense of justice. Commonwealth v. Whitney, 511 Pa.
232, 239, 512 A.2d 1152, 1155 (1986).
Commonwealth v. Hawkins, 701 A.2d 492, 501 (Pa. 1997).
Furthermore:
-4-
J-A06001-18
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court’s determination that
the verdict is against the weight of the evidence. One of the
least assailable reasons for granting or denying a new trial
is the lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a new trial
should be granted in the interest of justice.
This does not mean that the exercise of discretion by the trial
court in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations
omitted).
Appellant alleges that inconsistencies in the testimony of Marshall,
Harper, and Steiner, both internally and in relation to each other, demonstrate
that the verdict was “so contrary to the evidence as to shock one’s sense of
-5-
J-A06001-18
justice.” Hawkins, 701 A.2d at 501. Appellant does not claim that the trial
court acted as “a result of partiality, prejudice, bias or ill-will.” Clay, 64 A.3d
at 1055. Rather, he asserts that the “verdict in this case would have shocked
the conscience of any normal judge who heard the testimony because the
evidence [of Appellant’s guilt] was so tenuous, vague, and uncertain.”
Appellant’s Brief at 23-24. Thus, Appellant essentially argues that the trial
court’s decision to deny his weight-of-the-evidence claim was “manifestly
unreasonable.” Clay, 64 A.3d at 1055. More specifically, Appellant challenges
whether the evidence was fundamentally inconsistent as to his identity as a
participant in the murder of Freeman.
The Commonwealth acknowledges the inconsistencies highlighted in
Appellant’s brief, but contends that those inconsistencies are not so dramatic
as to “shock one’s sense of justice.” Hawkins, 701 A.2d at 501. Rather, the
Commonwealth argues that the inconsistencies were resolvable by the jury,
and that the jury’s verdict was not shocking since Marshall, Harper, and
Steiner corroborated each other’s identifications of Appellant.
After reviewing the surveillance video, the testimony of Marshall,
Harper, and Steiner, the trial court’s opinion, and the parties’ briefs, we are
unconvinced by Appellant’s argument that the trial court abused its discretion
by denying his post-sentence, weight-of-the-evidence motion for a new trial.
The jury was free to disregard the observed discrepancies, and accept
testimony that directly demonstrated Appellant’s participation in the murder
of Freeman. Most importantly, the jury was free to credit Steiner’s
-6-
J-A06001-18
identification of Appellant as the person seen in the surveillance videos firing
his gun at Freeman. Inconsistencies in the evidence concerning her location
at the time of the shooting, as noted by Appellant, were not substantial issues
in this case, especially since Steiner’s identification of Appellant did not result
from direct observation at the time of the shooting, but from her viewing of
the surveillance video during the course of the subsequent investigation.
Likewise, discrepancies between Harper’s and Marshall’s descriptions of
Appellant’s clothing, and their recollections of whether Appellant or his
companion played the one-on-one basketball game, were tangential matters
largely unrelated to the critical import of their testimony as a whole. Both
men positively identified Appellant as being present and armed at the
basketball court immediately prior to the shooting of Freeman. Marshall
testified that Appellant or his companion threatened Freeman for being on
their ‘turf.’ Soon thereafter, surveillance video shows Freeman’s murder, from
which Steiner positively identified Appellant as one of the shooters. In these
circumstances, we find no abuse of discretion in the trial court’s determination
that the verdict did not “shock one’s sense of justice.” Hawkins, 701 A.2d at
501. Accordingly, Appellant’s weight-of-the-evidence claim is meritless.
Next, Appellant contends that his sentence for conspiracy is illegal.
First, he argues that his consecutive LWOP sentence for conspiracy exceeds
the statutory maximum for that offense. Second, he maintains that his
consecutive LWOP sentence for conspiracy violates double jeopardy principles
-7-
J-A06001-18
and, therefore, it should merge with his LWOP sentence for first-degree
murder.
“A challenge to the legality of [a] sentence may be raised as a matter
of right, is non-waivable, and may be entertained so long as the reviewing
court has jurisdiction.” Commonwealth v. Robinson, 931 A.2d 15, 19–20
(Pa. Super. 2007). “Issues relating to the legality of a sentence are questions
of law[.] ... Our standard of review over such questions is de novo and our
scope of review is plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802
(Pa. Super. 2014) (quoting Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.
Super. 2014)), aff'd, 140 A.3d 651 (Pa. 2016).
The phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts
that is applied to three narrow categories of cases. Those
categories are: “(1) claims that the sentence fell ‘outside of the
legal parameters prescribed by the applicable statute’; (2) claims
involving merger/double jeopardy; and (3) claims implicating the
rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000).”
Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013) (some
internal citation omitted). On their face, Appellant’s illegal-sentencing claims
fall into the first and second categories, respectively.
As to Appellant’s first illegal-sentencing claim, the Commonwealth
concedes that “the [LWOP] sentence imposed [for Appellant’s] conspiracy
conviction was illegal in that it exceeded the maximum sentence allowable by
law.” Commonwealth’s Brief at 21. We agree.
[A] person who has been convicted of attempt, solicitation or
conspiracy to commit murder, … where serious bodily injury
results[,] may be sentenced to a term of imprisonment which
-8-
J-A06001-18
shall be fixed by the court at not more than 40 years. Where
serious bodily injury does not result, the person may be sentenced
to a term of imprisonment[,] which shall be fixed by the court at
not more than 20 years.
18 Pa.C.S. § 1102(c) (emphasis added). An LWOP sentence clearly exceeds
the 40-year maximum sentence prescribed by Section 1102(c). Thus, we are
compelled to vacate Appellant’s LWOP sentence for conspiracy, as it is patently
illegal.
Nevertheless, we must still address Appellant’s final issue because, if
meritorious, the merger doctrine would effectively prohibit the trial court from
imposing a new sentence on Appellant for his conspiracy conviction. See
Commonwealth v. Kozrad, 499 A.2d 1096, 1099 (Pa. Super. 1985)
(recognizing that “[w]hen crimes merge for sentencing purposes, the [only]
one for which a defendant may be sentenced is the most serious, i.e., the
crime which carries the greatest maximum penalty”); see also 42 Pa.C.S. §
9765 (“Where crimes merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.”). For the following reasons,
we conclude that remand for resentencing is appropriate, because it is clear
that first-degree murder and conspiracy to commit first-degree murder are
not crimes that merge for sentencing purposes.
Section 9765 [of Title 42] provides:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
-9-
J-A06001-18
merge for sentencing purposes, the court may sentence the
defendant only on the higher graded offense.
42 Pa.C.S. § 9765.
The statute's mandate is clear. It prohibits merger unless two
distinct facts are present: 1) the crimes arise from a single
criminal act; and 2) all of the statutory elements of one of the
offenses are included in the statutory elements of the other.
Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).
An analysis of the statutory elements of first-degree murder and the
crime of conspiracy demonstrate that it is not the case that “all of the statutory
elements of one of the offenses are included in the statutory elements of the
other.” Id. The statutory elements of first-degree murder are: “(1) a human
being was unlawfully killed; (2) the defendant was responsible for the killing;
and (3) the defendant acted with malice and a specific intent to kill.”
Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014); see also 18
Pa.C.S. §§ 2501(a)-(b), 2502(a). The elements of conspiracy are defined by
Section 903(a):
(a) Definition of conspiracy.--A person is guilty of conspiracy
with another person or persons to commit a crime if with the intent
of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S. § 903(a).
- 10 -
J-A06001-18
As these definitions plainly demonstrate, the crime of first-degree
murder does not require proof of an agreement with another person to commit
first-degree murder, and the crime of conspiracy to commit first-degree
murder does not require proof that a human being was unlawfully killed.
Therefore, each crime requires proof of an element that the other does not;
as such, neither the elements of first-degree murder nor conspiracy to commit
first-degree murder is fully subsumed in the other. See Commonwealth v.
Miller, 364 A.2d 886, 886 (Pa. 1976) (“It has long been the law of this
Commonwealth that the crime of criminal conspiracy does not merge with the
completed offense which was the object of the conspiracy.”). Consequently,
the crimes of first-degree murder and conspiracy to commit first-degree
murder do not merge for sentencing purposes. As such, Appellant’s final claim
lacks merit. Accordingly, we are compelled to remand for resentencing on
Appellant’s conviction for conspiracy to commit first-degree murder.
However, we otherwise affirm Appellant’s sentence for first-degree murder.
Judgment of sentence affirmed in part, vacated in part. Case
remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2018
- 11 -