Com. v. Cooley, C. ( 2018 )

J-A03043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER COOLEY,
Appellant No. 3474 EDA 2016
Appeal from the Judgment of Sentence September 9, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0006347-2014
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 28, 2018
Appellant, Christopher Cooley, appeals from the judgment of sentence
imposed following his jury conviction of attempted murder, aggravated
assault, robbery, kidnapping, possession of an instrument of a crime, and two
counts of criminal conspiracy.1 We affirm.
This case arises from the brutal robbery of Kevin Slaughter by Appellant
and his four co-defendants, Timothy Gooden, Kylieff Brown, Shaheed Smith,
and Kareem Cooley, after a chance meeting between Slaughter and Brown at
the SugarHouse Casino. We take the following facts and procedural history
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* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S.A. §§ 901(a), 2702(a), 3701(a)(1)(ii), 2901(a)(1), 907(a), and
903, respectively.
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from the trial court’s March 10, 2017 opinion and our independent review of
the certified record.
On December 8, 2013, at approximately 8:00 p.m., Slaughter ran into
Brown, whom he knew from prison, at the casino. Brown told Slaughter that
he wanted to purchase cocaine and a handgun, and Slaughter responded that
he was able to sell both. Slaughter cashed out with $3,600.00 to $4,200.00,
and left the casino alone to drop off the money at his home in Northeast
Philadelphia.
Slaughter then returned to the casino to meet Brown and they drove to
South Philadelphia and picked up the drugs and gun. While they were driving,
Brown was on the phone, telling the person he was speaking with their exact
location. When Slaughter pulled over to stop at a store, a van drove by and
then quickly returned, veering out of its lane towards his vehicle. Slaughter
then looked in his rear-view mirror and saw Timothy Gooden slumped down
on the right side of his vehicle, creeping towards him with a gun. Slaughter
attempted to flee in the car, but Gooden fired bullets at it. The car crashed
into a telephone poll, and Slaughter exited it and started running.
Slaughter was shot in his lower back and two or three men threw him
into the van and tied him up with duct tape. The van fled the scene. Police
quickly responded to a 911 call of gunshots and arrested Brown and Kareem
Cooley, who had remained at the scene.
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As the van traveled in the direction of center city, Gooden and Appellant
rode in the back with Slaughter.2 Gooden repeatedly asked Slaughter where
his money and drugs were, and threatened to kill and burn him. Appellant
pistol-whipped Slaughter numerous times, and put a gun in his face. Gooden
punched Slaughter in the face several times and knocked out his front tooth.
The men put a bag over his head at various points. Slaughter gave Gooden
his address and the cell phone number of his wife, Samirah Savage, and told
him to obtain the money he won at the casino from her. The men drove to
his home.
Samirah Savage received several phone calls from a blocked phone
number, which she did not answer. She then received a call from an
unblocked number, (215) 789-0863, which she did not answer, and heard a
knock on the front door. She went to the door, and a man with a cell phone
told her that her husband was on the phone. She cracked the door open, took
the phone, and spoke with Slaughter. He told her that he was being followed,
that the person at the door was his friend, and to give the friend the money
from the casino. When she questioned Slaughter, he told her to do what he
said, or they would kill him. She gave the money and the phone to the man.
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2 Appellant wore a mask over his face during the episode and Slaughter did
not identify him at trial; the Commonwealth established his identity through
circumstantial evidence. (See N.T. Trial, 5/18/16, at 84; Trial Court Opinion,
3/10/17, at 5, 31). Slaughter identified Gooden as the man in the back of the
van who did most of the talking during the incident at trial. (See N.T. Trial,
5/18/16, at 83-84).
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Once the conspirators had Slaughter’s money, they drove behind a high
school and threw him out of the van. Gooden or Appellant shot at him six
times, with a bullet passing through his face and neck. A resident of the
neighborhood heard gunshots, found Slaughter, and called 911. The
conspirators drove the van to another location, doused it with an accelerant,
and lit it on fire as a neighbor watched. Meanwhile, police responded to the
scene where Slaughter was shot and he was airlifted to the hospital. He
underwent multiple surgeries and survived his injuries.
During the ensuing investigation, police obtained search warrants for
the defendants’ cellphone records, which showed frequent contact between
them immediately before, during, and after the crime. The records showed
that, during the relevant time-period, Appellant’s cell phone had ten calls or
text messages with Smith; sixty-two with Gooden; and thirty-five with Kareem
Cooley. The Federal Bureau of Investigation (FBI) was able to reconstruct the
conspirators’ approximate locations throughout the crime using historical cell
site data.3 Appellant’s cellphone was at the approximate site of each stage of
the crime.
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3 Special Agent William B. Shute of the FBI testified that historical cell site
analysis is when investigators take the information contained in a suspect’s
call detail records, which are generated as a result of the suspect’s phone
calls, and analyze the calls and depict them onto a map. (See N.T. Trial,
6/01/16, at 40).
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Arrest warrants were issued for those defendants not immediately
apprehended at the scene of the first shooting. Appellant and Gooden were
arrested on February 25, 2014. At the time of his arrest, Appellant had a cell
phone in his possession with phone number (215) 789-0863.4
On June 13, 2016, a jury found Appellant guilty of the above-listed
offenses. On September 9, 2016, the trial court sentenced him to an
aggregate term of not less than twenty nor more than forty years’
incarceration, followed by ten years of probation. On October 25, 2016, the
court denied Appellant’s timely post-sentence motion without a hearing. This
timely appeal followed.5
Appellant raises the following issues for our review:
1) [Whether] the verdict is against the weight of the evidence such
that certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice[?] Specifically, the Appellant contends:
(a) That there was a compelling lack, and even
contradictory evidence of, any physical identification
of Appellant Cooley as a suspect in this criminal case;
(b) That there was a compelling lack of evidence that
Appellant Cooley was in actual possession of the cell
phone in question on the date of the incident;
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4 Co-defendant Smith was arrested on June 5, 2014.
5 Appellant, through counsel, filed a filed an untimely concise statement of
errors complained of on appeal. See Pa.R.A.P. 1925(b). However, because
the trial court addressed the issues raised by Appellant in its March 10, 2017
opinion, we decline to find waiver, and it is unnecessary to remand. See
Pa.R.A.P. 1925(a); see also Commonwealth v. Brown, 145 A.3d 184, 186
(Pa. Super. 2016), appeal denied, 165 A.3d 892 (Pa. 2017).
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(c) That there was a lack of circumstantial physical
evidence including, but not limited to, fingerprints and
DNA evidence which would serve to link Appellant
Cooley to this crime;
(d) That there was a lack of evidence that Appellant
Cooley had any prior contact with his co-defendants;
(e) That there was direct and conflicting identification
evidence that an individual other than Cooley was
involved in the crime.
2) [Whether] there was [] sufficient evidence to enable the fact-
finder to find every element of the crime beyond a reasonable
doubt including, but not limited to, the identification of the
Appellant Cooley as participating in this crime[?]
3) [Whether] the court committed error when it permitted the
prosecution to introduce an exhibit [Det. [Robert Daly’s] spread
sheet] which unfairly prejudiced Appellant Cooley by adding
information [[Appellant’s] name] which was not contained on the
official cell phone records[?]
4) [Whether] the court committed error when it permitted hearsay
evidence in the form of cell phone contact entry(s) allegedly made
by Kareem Cooley without an applicable hearsay exception or
calling Kareem Cooley[?]6
(Appellant’s Brief, at 7) (unnecessary capitalization omitted).
Appellant first challenges the weight of the evidence 7 supporting his
conviction, arguing that the Commonwealth failed to prove that he was
physically present during the commission of the crime. (See id. at 10-11, 18-
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6 Co-defendant Kareem Cooley entered a negotiated guilty plea for his
involvement in this case in February 2015. (See Trial Ct. Op., at 3 n.2, 34
n.19). He did not testify at trial. (See N.T. Trial, 5/24/16, at 5).
7Appellant preserved his weight claim by raising it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3).
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19).8 He asserts that, at most, the Commonwealth established only that
someone (other than him) used a cell phone associated with him during the
incident. (See id.). This issue does not merit relief.
At the outset, we note that the weight attributed to the
evidence is a matter exclusively for the fact finder, who is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses. The grant of a new trial is not
warranted because of a mere conflict in the testimony and must
have a stronger foundation than a reassessment of the credibility
of witnesses. Rather, the role of the trial judge is to determine
that, notwithstanding all of the facts, certain facts are so clearly
of greater weight, that to ignore them or to give them equal
weight with all of the facts is to deny justice.
An appellate court’s purview:
is extremely limited and is confined to whether the
trial court abused its discretion in finding that the jury
verdict did not shock its conscience. Thus, appellate
review of a weight claim consists of a review of the
trial court’s exercise of discretion, not a review of the
underlying question of whether the verdict is against
the weight of the evidence.
An appellate court may not reverse a verdict unless it is so
contrary to the evidence as to shock one’s sense of justice. [T]he
trial court’s denial of a motion for a new trial based on a weight of
the evidence claim is the least assailable of its rulings.
Commonwealth v. Hicks, 151 A.3d 216, 223–24 (Pa. Super. 2016), appeal
denied, 168 A.3d 1287 (Pa. 2017) (citations and quotation marks omitted).
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8 In the argument section of his brief, Appellant improperly conflates his
weight and sufficiency claims (see Appellant’s Brief, at 10, 17-19), which are
distinct challenges, in violation of our appellate rules. See Pa.R.A.P. 2119(a)
(requiring argument to be divided into as many parts as there are questions
to be argued); see also Commonwealth v. Widmer, 744 A.2d 745, 751
(Pa. 2000).
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In the instant case, after considering all of the testimony and evidence
presented at trial, the court determined that Appellant’s weight claim is
meritless. (See Trial Ct. Op., at 31). It explained:
[Appellant] was in possession of a phone at the time of his
arrest in [February] 2014. (See N.T. Trial, 5/23/16, at 24-26,
255-56). Detective Daly testified that the phone was turned over
to him and a search warrant was executed. (See id. at 252, 256).
The search warrant revealed that the number for the phone was
(215) 789-0863. (See id.). Records obtained pursuant to the
warrant revealed that the 0863 number was registered to “Blood
Money” with an address of 923 South 60th Street in Philadelphia.
(Id. at 253). This address was the exact address [Appellant’s]
mother provided when she visited [him] in prison. (See N.T. Trial,
6/01/16, at 25-26). [Appellant] has “Blood Money” tattooed
across his chest. (N.T. Trial, 5/23/16, at 253). His date of birth
matched the birthdate associated with the account. (See id. at
255).
The phones associated with co-defendants Kareem Cooley
and Timothy Gooden had the 0863 number saved in their
respective cell phone address books as “Bop.” (Id. at 179, 185,
269). [Appellant] has “Bop” tattooed on his forearm. (Id. at
253). [Appellant’s] mother provided phone number (215) 471-
0620 when she visited [him] in prison. (See N.T. Trial, 6/01/16,
at 25-26). The 0620 number was saved in Gooden’s phone as
“Bop Mom.” . . . (N.T. Trial, 5/23/16, at 270). [R]ecords for
Gooden’s phone showed [Appellant] was the most contacted
person in the phone from September 1, 2013, to December 15,
2013. (See N.T. Trial, 5/24/16, at 165-66).
The complainant’s wife testified that she received the
ransom call from the 0863 number. (See N.T. Trial, 5/20/16, at
15-16). Records for the 0863 number showed that nine calls were
placed to the complainant’s wife between 11:09 p.m. and 11:12
p.m. on December 8, 2013, the night of the abduction. (See N.T.
Trial, 5/24/16, at 149-151). Furthermore, cell phone records
showed that numerous calls were exchanged between the 0863
number and co-defendants Kylieff Brown, Timothy Gooden, and
Shaheed Smith from the time that Brown encountered the
complainant at the SugarHouse casino until and after the time that
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the complainant was removed from the van and shot at
approximately 11:30 p.m. (See id. at 168, 176, 178-184). Cell
site analysis showed that each of these calls and text messages
were made in close proximity to the respective crime scenes.
(See N.T. Trial, 6/01/16, at 56, 62, 64-65, 69, 71, 75-78). The
number of calls and text messages, the content of those text
messages, the timing of each of those communications, and the
locations where those connections were made and received, and
the fact that [Appellant] was in possession of the phone at the
time of his arrest in [February] 2014, is strong circumstantial
evidence that [Appellant] was one of the major players in this
scheme. . . .
(Id. at 30-31) (record citations provided).
Upon review, we agree, and conclude that the trial court did not abuse
its discretion in finding that jury’s verdict does not in any way shock the
conscience. See Hicks, supra at 223-24. Therefore, Appellant’s first issue
does not merit relief.
In his second issue, Appellant challenges the sufficiency of the evidence
supporting his conviction. (See Appellant’s Brief, at 10-19). This issue is
waived.
In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant’s Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient. Such
specificity is of particular importance in cases where, as here, the
appellant was convicted of multiple crimes each of which contains
numerous elements that the Commonwealth must prove beyond
a reasonable doubt.
Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa. Super. 2015)
(citations and quotation marks omitted) (finding sufficiency claim waived and
declining to address issue where Rule 1925(b) statement failed to identify
relevant elements or crimes).
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Here, in his Rule 1925(b) statement, Appellant generically argued that:
“There was not sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt including, but not limited to,
the identification of the [A]ppellant as participating in this crime.” (Rule
1925(b) Statement, 1/23/17, at 2 ¶ 2). Appellant’s concise statement does
not specify which element or elements of the relevant crimes, or even which
crimes, the Commonwealth failed to prove beyond a reasonable doubt.9 This
vague assertion, which essentially reiterates his weight claim, is inadequate
to preserve his sufficiency claim for appellate review. See Freeman, supra
at 1248. Therefore, Appellant has waived his second issue.10
Appellant next argues that the trial court erred in permitting the
Commonwealth to enter into evidence a spreadsheet prepared by Detective
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9 We recognize that, in every criminal prosecution, the Commonwealth must
prove beyond a reasonable doubt that the defendant was the perpetrator of
the offense, and that identity is an implicit element of each crime. See
Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973);
Commonwealth v. Broadwater, 90 A.2d 284, 285 (Pa. Super. 1952). Here,
the Commonwealth presented substantial evidence of Appellant’s involvement
in the incident, and viewing all the evidence admitted at trial in the light most
favorable to the Commonwealth, as we must under the relevant standard of
review, there was sufficient evidence to establish Appellant’s identity beyond
a reasonable doubt. See Commonwealth v. Duck, 171 A.3d 830, 835 (Pa.
Super. 2017).
10 Appellant has also waived this issue by failing to develop it adequately in
his brief. (See Appellant’s Brief, at 10-19); see also Pa.R.A.P. 2101,
2119(a)-(b). Although the jury convicted him of numerous crimes, he does
not set forth the elements of the crime(s) he is challenging, or otherwise
identify the specific elements he disputes. (See id.). Additionally, as noted,
he conflates his sufficiency and weight claims.
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Daly summarizing raw data from cell phone call detail records. (See
Appellant’s Brief, at 19-20). Appellant contends that this was prejudicial
because the detective added the names of the individuals associated with each
phone number to the chart, which gave the unfair impression that the listed
individual made the call. (See id. at 19). This was especially problematic in
light of Appellant’s defense that someone else used the cell phone associated
with him to make the calls. (See id.). This issue is waived.
As the Commonwealth points out, Appellant’s three-paragraph
argument on this issue is underdeveloped, and does not contain a single case
citation to support his assertion that admission of the spreadsheet was
prejudicial. (See id. at 19-20; Commonwealth’s Brief, at 14). It includes no
discussion of legal authority, save a bare passing reference to Pennsylvania
Rule of Evidence 403. Appellant therefore waived his third issue. See
Pa.R.A.P. 2119 (a)-(b); Commonwealth v. Buterbaugh, 91 A.3d 1247,
1262 (Pa. Super. 2014) (en banc), appeal denied, 104 A.3d 1 (Pa. 2014) (“The
Pennsylvania Rules of Appellate Procedure require that each question an
appellant raises be supported by discussion and analysis of pertinent
authority, and failure to do so constitutes waiver of the claim.”) (citation
omitted).
Moreover, it would not merit relief.
Our standard of review concerning the admissibility of
evidence is well settled:
With regard to the admission of evidence, we
give the trial court broad discretion, and we will only
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reverse a trial court’s decision to admit or deny
evidence on a showing that the trial court clearly
abused its discretion. . . .
Relevance is the threshold for admissibility of evidence.
“Evidence is relevant if it has any tendency to make a fact more
or less probable than it would be without the evidence[,] and the
fact is of consequence in determining the action.” Pa.R.E. 401.
“The court may exclude relevant evidence if its probative
value is outweighed by a danger of . . . unfair prejudice. . . . ”
Pa.R.E. 403.
However, [e]vidence will not be prohibited merely because
it is harmful to the defendant. [E]xclusion is limited to evidence
so prejudicial that it would inflame the jury to make a decision
based on something other than the legal propositions relevant to
the case. . . . This Court has stated that it is not required to
sanitize the trial to eliminate all unpleasant facts from the jury’s
consideration where those facts are relevant to the issues at
hand[.]
Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa. Super. 2015), appeal
denied, 138 A.3d 4 (Pa. 2016) (some citations and quotation marks omitted).
“Visual aids [such as charts] may be used to assist the jury in
understanding the evidence in appropriate cases, and permission to do so is
within the sound discretion of the trial judge.” Commonwealth v.
Rickabaugh, 706 A.2d 826, 837 (Pa. Super. 1997), appeal denied, 736 A.2d
603 (Pa. 1999) (citation omitted). “A chart or diagram may be used at trial
where it assists the jury in clarifying facts.” Commonwealth v. Johnson,
615 A.2d 1322, 1334 (Pa. Super. 1992) (citation omitted). “If the trial court
could properly conclude that the exhibit would be helpful to the jury, the
decision to admit the exhibit will likely be upheld on appeal.” Id. (citation
omitted).
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Here, the trial court admitted the spreadsheet prepared by Detective
Daly, based on its finding that it would help the jury break down and
understand the voluminous call detail records in this case. (See N.T. Trial,
5/23/16, at 9-10). It issued a cautionary instruction underscoring that the
detective created the spreadsheet for trial, stating:
[The spreadsheet] is demonstrative evidence in the sense
that these aren’t the exact, actual call records that you are going
to be seeing. This detective took all of that raw information that
you just heard about for an hour and took what he believed was
needed, summarized it and put it in a format which will make it
easily understandable to you.
You are still the judge of the facts. He created this. So if
there is something on there that you disagree with, based on the
evidence that you heard, then it is your accounting of it, your
recollection.
(N.T. Trial, 5/24/16, at 116-17). It its opinion, the court explained:
[Appellant] and his co-defendants were connected to each
other and to the locations of the three crime scenes through
circumstantial evidence in the form of cell phone messages and
cell cite analysis. The call detail records for each defendant were
voluminous and complex. Consequently, Detective Daly created
spreadsheets highlighting the relevant calls and text messages in
each of the defendants’ call detail records in order to assist the
jury on understanding the relevant data. The defense was in
possession of all of the raw data and it was admitted into evidence.
The court gave a cautionary instruction to the jury that the
document was created by the detective himself. During
deliberations, the jury asked for both the raw data and Detective
Daly’s spreadsheets. It is clear that the spreadsheet was not so
prejudicial such that it inflamed the jury to render its verdict based
upon something other than the legal propositions relevant to the
instant case. . . .
(Trial Ct. Op., at 33-34) (record citation omitted).
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Based on the foregoing, we conclude that the trial court properly
determined that the spreadsheet could “assist the jury in understanding the
evidence[.]” Rickabaugh, supra at 837 (citation omitted). Additionally, the
court issued an appropriate cautionary instruction, which the jury is presumed
to have followed. See Talbert, supra at 542 (“Jurors are presumed to follow
the trial court’s instructions.”) (citation omitted). Therefore, we discern no
abuse of discretion in the trial court’s admission of the spreadsheet. See id.
at 539. Appellant’s third issue would not merit relief, even if it were not
waived.
Finally, Appellant claims that the trial court erred in admitting hearsay
evidence, in the form of a cell phone address-book contact entry of his alleged
nickname, “Bop,” in Kareem Cooley’s cell phone, without an applicable
exception. (See Appellant’s Brief, at 20-21). This issue is also waived.
Specifically, we agree with the Commonwealth’s assessment that
Appellant’s two-paragraph argument on this issue is undeveloped, in that it
contains no citation to or discussion of applicable legal authority, save a bald
reference to Pennsylvania Rule of Evidence 801(a). (See id.; see also
Commonwealth’s Brief, at 17-18). Therefore, Appellant has waived this claim.
See Pa.R.A.P. 2119 (a)-(b); Buterbaugh, supra at 1262.
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Moreover, it would not merit relief.11 “Hearsay is an out-of-court
statement offered to prove the truth of the matter asserted in the statement.”
Commonwealth v. Kuder, 62 A.3d 1038, 1055 (Pa. Super. 2013), appeal
denied, 114 A.3d 416 (Pa. 2015) (citation omitted); see also Pa.R.E. 801(c).
A statement can be oral or written. See Pa.R.E. 801(a).
“As a general rule, hearsay is inadmissible, because such evidence lacks
guarantees of trustworthiness fundamental to our system of jurisprudence.”
Kuder, supra at 1055 (citation omitted). However, “[w]hen an extrajudicial
statement is offered for a purpose other than proving the truth of its contents,
it is not hearsay and is not excludable under the hearsay rule.” Id. (citation
omitted).
Here, the trial court determined that the cell phone contact entry at
issue was not hearsay. (See Trial Ct. Op., at 35). Upon review, we agree.
The entry was introduced, not for the truth of the matter asserted (i.e., that
the listed phone number belonged to Appellant), but to show the relationships
among the parties involved in the crime. Therefore, the trial court did not
abuse its discretion in admitting evidence of the entry. See Talbert, supra
at 539; Kuder, supra at 1055. Appellant’s final issue would merit no relief,
even if it were not waived. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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11 As previously noted, our standard of review relative to the admission of
evidence is for an abuse of discretion. See Talbert, supra at 539.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/18
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