Com. v. Eady, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
DARION AKIER EADY,
Appellant No. 876 WDA 2017
Appeal from the Judgment of Sentence entered May 23, 2017,
in the Court of Common Pleas of Erie County,
Criminal Division, at No(s): CP-25-CR-0001496-2016.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 09, 2018
Darion Akier Eady appeals from the judgment of sentence entered after
a jury convicted him of third-degree murder, recklessly endangering another
person, possession of an instrument of crime, and firearms not to be carried
without a license.1 After careful review, we vacate all of his convictions except
for the firearm violation, and remand for resentencing on the charge of
firearms not to be carried without a license.
Our independent review of the record, viewed in the light most favorable
to the Commonwealth, reveals the following: On July 24, 2015, a house party
took place at Brandy Kooker’s apartment, located at 230 West 29th Street in
Erie, Pennsylvania. N.T., 1/31/17, at 36-37. After the gathering grew to
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1 18 Pa.C.S.A. §§ 2502(c), 2705, 907(a), 6106(a)(1), respectively.
*Former Justice specially assigned to the Superior Court.
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approximately 100 people, Kooker’s boyfriend, Mario Sanders, decided to shut
the party down. Mr. Sanders testified that while attempting to make people
leave the premises, he noticed a group of five men standing around a car on
the corner. One of the men was a young black male in a white t-shirt,
approximately 5’7” or 5’8” in height. The men were approximately thirty yards
away when Mr. Sanders observed what looked like a gun on the right hip of
the man in the white T-shirt. Immediately after he witnessed this, Mr. Sanders
approached the men, requested them to leave, and then went back inside
Kooker’s apartment. Shortly after returning to the apartment, Mr. Sanders
heard gunshots. He did not see who fired the gun. See N.T., 1/31/17, at 40-
46.
Corporal Royce Smith, a training supervisor and SWAT officer with the
City of Erie Police Department, arrived at the 29th Street apartment after
receiving a shots fired call. Id. at 85. He observed the body of sixteen-year-
old Elijah Jackson in the backyard, along with two live rounds and one spent
shell casing near the body. Corporal Smith reported that Jackson was not
breathing when he arrived, and there was blood coming from the back of his
head. Id. at 88. Dr. Eric Vey, a forensic pathologist, testified that Jackson
died from a gunshot wound to the back of the head and was killed and
incapacitated immediately when a bullet severed his brain stem. Id. at 120.
A security camera located at 231 Goodrich Street, which adjoins 230
West 29th Street, captured two men on surveillance footage. Id. at 98. The
police posted the footage on Facebook in an attempt to identify the two
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suspects. Mr. Sanders identified the person designated “Suspect #1” as the
person he witnessed with the gun on the night of July 24, 2017. Various
tipsters identified Suspect #1 as Darion Eady and/or Chase Bucks. During an
interview with Captain Rick Lorah of the City of Erie Police Department, Eady
himself admitted that he was suspect #1 on the surveillance footage, that he
attended the party, and that he went by the nickname “Chase Bucks.” See
N.T., 1/31/17, at 70-77.
In the surveillance footage, Suspect #2 and Eady appeared in the frame
together. N.T., 1/31/17, at 99. Captain Lorah testified that it appeared
Suspect #2 had a gun in his right pocket. N.T., 2/1/17, at 42. The video did
not show that Eady was in possession of a firearm. Id. at 43. Suspect #2
then left the frame. After some lapse in time, Suspect #2 returned to the
video screen, and he appeared to no longer have the weapon. Id. at 42-43.
Police Officer Joshua Allison, of the City of Erie Police Department,
discovered a .22 caliber Smith & Wesson handgun under a staircase landing
in the area where Eady and Suspect #2 were seen in the video. Id. at 99.
The staircase was located in the direction Suspect #2 travelled when he
walked out of the video surveillance coverage. Id. at 101. The handgun
contained at least four sets of DNA, one of which was positively linked to Eady,
and one fingerprint that was determined not to belong to Eady. Id. at 14;
N.T., 1/31/17, at 156.
Additionally, a second gun – a German Sport Gun – was recovered
several blocks away near 2912 Myrtle Street under a piece of plywood behind
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a shed. N.T., 1/31/17, at 156-157. This gun was also a .22 caliber. Id. at
158. At the scene, two live rounds, four spent shell casings, and one spent
round were recovered. Id. at 175-178. The two live rounds were .22 caliber.
Id. at 176. Captain David Burlingame of the City of Erie Department, a
firearm toll mark examiner, testified at trial that two of the spent shell casings
he examined were discharged from the Smith & Wesson pistol, and the
additional two spent shell casings were fired from the German Sport Gun. Id.
at 177-178. Captain Burlingame could not determine which firearm
discharged the bullet that was retrieved from Elijah Jackson’s body, although
it too was a .22 caliber round. Id. at 175.
Following the close of evidence and testimony, the jury convicted Eady
on the above-enumerated charges. On March 14, 2017, Eady filed a post-trial
motion, in which he sought a new trial due to juror misconduct. 2 The trial
court took testimony regarding this issue on two separate dates, and
subsequently denied the motion. On May 23, 2017, the trial court sentenced
Eady to an aggregate term of 23 years and 8 months to 47 years and 6 months
of incarceration, followed by 10 to 20 months of probation. This timely appeal
follows the denial of Eady’s post-sentence motion asking for a modification of
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2 After the trial, Eady claimed that his friend, Roshina Glover, overheard the
only African-American juror say she “grew up” “down the street from [the
victim’s] family,” that she “knew [his] family”, and that the victim “didn’t
deserve that.” Glover also stated that she saw the African-American juror and
the family of the victim give each other a “thumbs up gesture” on the way out
of the courthouse. Trial Court Opinion, 9/18/17, at 6.
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sentence, a new trial, and an arrest of judgment. Both Eady and the trial
court have complied with Pa.R.A.P. 1925.
Eady raises two issues on appeal:
1. Whether the Commonwealth failed to present sufficient
evidence to prove [Eady’s] guilt beyond a reasonable doubt
as to the convictions for murder of the third degree,
recklessly endangering another person, possession of
instruments of crime and firearms not to be carried without
a license?
2. Whether the trial court abused its discretion in denying
[Eady’s] post-trial motion for a new trial?
Eady’s Brief at 3.
First, Eady argues that there was insufficient evidence presented from
which the jury could conclude beyond a reasonable doubt that Eady fired the
gun responsible for killing Jackson. Eady contends that “the Commonwealth
failed to present one single shred of evidence that connected [Eady] with the
death of Elijah Jackson.” Eady’s Brief at 11. In his brief, Eady repeatedly
points to the trial court’s rationale for upholding the verdict which, he claims,
contains statements “totally contradicted by the record.” Eady’s Brief at 14.
We agree.
In reviewing a challenge to the sufficiency of the evidence, we must
determine whether viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that each and every element of
the crimes charged was established beyond a reasonable doubt.
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Commonwealth v. Lewis, 911 A.2d 558, 563-64 (Pa. Super. 2006). When
reviewing the evidence adduced at trial, the court may not weigh the evidence
and substitute its judgment for that of the fact-finder. Commonwealth v.
Derr, 841 A2d 558, 560 (Pa. Super. 2004). The fact-finder, 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. Hunzer,
868 A.2d 498, 505 (Pa. Super 2005).
However, if the facts relied on by the fact-finder are so weak or
inconclusive that, as a matter of law, no probability of fact may be drawn from
the circumstances, then the conviction in question cannot stand.
Commonwealth v. Kim, 888 A.2d 847, 851-52 (Pa. Super. 2005) (citations
omitted). Stated differently, “[a]lthough the Commonwealth does not have
to establish guilt to a mathematical certainty and may in the proper case rely
wholly on circumstantial evidence, the conviction must be based on more than
mere suspicion or conjecture.” Commonwealth v. Thomas, 561 A.2d 699,
704 (Pa. 1989) (citations omitted).
In this case, Eady challenges his conviction for third degree murder.
Third degree murder is defined as all other murders that are not first or second
degree murder:
Third degree murder occurs when a person commits a killing
which is neither intentional nor committed during the
perpetration of a felony, but contains the requisite malice.
Malice is not merely ill-will but, rather, wickedness of
disposition, hardness of heart, recklessness of
consequences, and a mind regardless of social duty. Malice
may be inferred from the use of a deadly weapon on a vital
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part of the victim's body. Further, malice may be inferred
after considering the totality of the circumstances.
Commonwealth v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013) (citation
omitted).
The trial court provided the following rationale in support of Eady’s third-
degree murder conviction:
[Eady] admitted attending the party and that he was
suspect [#1] in the surveillance video. [Eady’s] conduct on
the video evinced his criminal intent. He is shown
brandishing a handgun and appears to be stalking someone.
He was holding the weapon consistent with a criminal intent
to use it. He clearly was not engaged in any innocent
endeavor. While [Eady] does not have the burden of proof,
he did not proffer or argue to the jury any exculpatory
explanation for his conduct on the video.
The .22 caliber handgun linked to the gun that killed
Jackson was found close to where [Eady] was seen in the
video. Jackson’s body was in the driveway/backyard near
where [Eady] is seen in the video armed and ready to fire.
The Smith & Wesson gun found not far from the victim’s
body had [Eady’s] fingerprint near the trigger and his DNA
on it. The location of [Eady’s] fingerprint near the trigger
created an inference [Eady] pulled the trigger. The gun was
a black handgun consistent with what was seen on video.
The handgun was .22 caliber and the bullet that killed the
victim was a .22 caliber bullet. The spent .22 casings near
the dead body were traced to the gun containing [Eady’s]
fingerprint and DNA.
[Eady] matched the description of the young man who
had such a gun at the party as identified by Sanders. In a
police interview, Kooker and Sanders identified the young
man with a gun at the party as Chase Bucks from Facebook.
Separately, [Eady] admitted Chase Bucks is his Facebook
profile, that he was at the party, and he was suspect [#1]
in the neighboring video.
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Trial Court Opinion, 9/18/17, at 9-10.
If the record supported the facts as summarize by the trial court above,
we would agree that sufficient evidence existed to convict Eady of third-degree
murder. However, the trial court’s version of the facts contained several
errors and omissions, which undermine its sufficiency analysis in this case.
First, the court stated, “The .22 caliber handgun linked to the gun that killed
Jackson was found close to where [Eady] was seen in the video.” Although a
gun was found in this location, the record showed that two guns were found,
and neither could be linked to the murder. Second, the court stated that
Eady was seen in the video “armed and ready to fire.” The video did not
show Eady to be armed; thus, Eady did not appear “ready to fire.” To the
contrary, a second suspect, Suspect #2, was armed. The trial court never
mentioned that a second suspect was also in the video near the location where
the victim was found. Third, the court stated that Eady’s fingerprint was
found near the trigger on the Smith and Wesson gun and that the location of
this fingerprint “created an inference [that Eady] pulled the trigger.” The
record revealed, however, that the only fingerprint recovered was determined
not to belong to Eady; thus, there can be no inference that Eady pulled the
trigger. Fourth, the court noted that Eady’s DNA was on this gun. Although
this was true, the trial court never mentioned that the DNA of three other
people was also found on this gun. Based on these numerous and significant
inconsistencies, we cannot accept the trial court’s rationale for concluding that
there was sufficient evidence to convict Eady on the charge of third-degree
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murder. Rather, after our own review of the record as cited above, we are
compelled to conclude that the Commonwealth did not establish its heavy
burden of “beyond a reasonable doubt” needed to sustain a conviction.
In order for the jury in this case to have concluded that Eady was guilty
of third-degree murder, the jury would have had to determine that Eady was
the person who killed Jackson. Under the applicable standard of review, we
must leave issues of witness credibility to the jury. See, Hunzer supra.
Following this principle, we must accept Mr. Sander’s testimony as fact.
However, his observation that Eady possessed a gun earlier that night is not
enough to sustain a conviction of third-degree murder.
Our Supreme Court has held that a criminal defendant is entitled to
acquittal if the facts adduced against him are susceptible to more than one
reasonable interpretation. Commonwealth v. Woong Knee New, 47 A.2d
450, 455 (Pa. 1946) (citation omitted). In Woong Knee New, our Supreme
Court concluded that that the defendant had been erroneously convicted on
circumstantial evidence for criminal homicide. The Court held that the
Commonwealth at most proved that the defendant had an opportunity to
commit murder, but it failed to prove that such opportunity was exclusively
that of the defendant’s, and that no one else could have committed the crime.
Id. at 467. In that case, all the circumstances the Commonwealth proved
were consistent with the theory that some unknown person committed the
murder. Id.
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Similarly, in this case, it is entirely feasible that another person other
than Eady, fired the Smith and Wesson. Furthermore, it is also equally likely
that the German Sport Gun was the weapon responsible for killing Jackson.
When two equally reasonable and mutually inconsistent
inferences can be drawn from the same set of
circumstances, a jury must not be permitted to guess which
inference it will adopt, especially when one of the two
guesses may result in depriving a defendant of his life or his
liberty.
Commonwealth v. Hubbard, 372 A.2d 687, 692 (Pa. 1977). When there is
an equally likely possibility someone other than the defendant committed the
offense, the Commonwealth’s proof must sufficiently cast doubt on the
alternative scenario. Commonwealth v. Scott, 597 A.2d 1220, 1224 (Pa.
Super. 1991). The Commonwealth’s proof failed to do so in this case.
Here, Mr. Sanders testified that he observed Eady in possession of a
handgun on the night to the party. Two weapons were fired that night, both
of which were .22 calibers – a Smith & Wesson and German Sport Gun. Spent
shell casings from both weapons were recovered from the scene. The .22
caliber bullet that killed Jackson was not traceable to either weapon. In
addition, as we previously noted, Eady’s fingerprint was not found on the
Smith & Wesson. Although his DNA was found on the gun, three other sets
of DNA and one fingerprint, not belonging to Eady, were on the Smith &
Wesson. As the Commonwealth’s DNA expert testified upon cross-
examination, despite the presence of Eady’s DNA on the gun, it could not be
determined when he handled it or how he did so; the presence of Eady’s DNA
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established only that at some unknown point in time, Eady had come into
contact with it. Finally, video surveillance showed Eady and Suspect #2 in the
alley behind 230 West 29th. Eady appeared to be unarmed while Suspect #2
appeared to have a gun in his pocket. Suspect #2 left the frame and then
returned without the weapon.
Given this evidence, the circumstances the Commonwealth presented
to the jury legitimately and reasonably support the inference that Suspect #2
or some person, other than Eady, fired the .22 caliber handgun that killed
Jackson. In addition, it is equally reasonable to conclude that Jackson was
killed by a bullet fired from the German Sport Gun, which the record did not
link to Eady in any manner. The Commonwealth offered no proof sufficient to
cast doubt on these inferences. While the record permitted the suspicion that
Eady shot Jackson, we find the evidence was insufficient to support this
conclusion beyond a reasonable doubt. Short of that, a criminal conviction
cannot be upheld. Lewis, supra.
Our analysis on the murder charge equally applies to the charges of
recklessly endangering another person, and possession of instruments of
crime. We apply the aforementioned reasoning to these charges. The trial
court’s conclusions that the Commonwealth met its evidentiary burden for
these offenses is valid only if the record evidence supported the court’s factual
summary as to third-degree murder. It did not. Thus, we likewise conclude
that the evidence introduced by the Commonwealth was insufficient to support
these convictions.
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We reach a different conclusion with regard to Eady’s conviction for
firearms not to be carried without a license. Pursuant to 18 Pa. C.S.A.
§6106(a)(1), a person is guilty of this offense if the Commonwealth shows
that he was in possession of a concealed firearm on his person, without a valid
license. When viewing the evidence in the light most favorable to the
Commonwealth, the Commonwealth established that Eady, at some point
during the night of the incident, was in possession of a firearm. In addition,
the Commonwealth introduced evidence that Eady did not have a license to
carry a firearm. Thus, the evidence presented by the Commonwealth
sufficiently established that Eady possessed a firearm without a valid license
on the night in question.
In summary, we are compelled to conclude that the evidence presented
at trial, when carefully reviewed in its entirety, was too indeterminable to
support a guilty verdict for third degree murder, recklessly endangering
another person, and possession of instrument of a crime, and thus, was
insufficient as a matter of law. Having reached this conclusion, after careful
and meticulous review of the record, we find that the verdict of the jury was
based on speculation and conjecture and cannot stand. Woong Knee New,
supra. With respect for the conviction for the offense of firearms not to be
carried without a license, we affirm.
We now turn to Eady’s claim that the trial court abused its discretion
when it denied his post-trial motion for a new trial due to juror misconduct.
Eady claimed that after the jury reached a verdict, his friend, Roshina Glover,
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discovered that one of the jurors had a prior relationship with Jackson’s family.
Eady alleges that the juror failed to disclose this preexisting relationship in
voir dire.
The trial court granted Eady two days of hearings to explore the merits
of this claim. At the hearing, when asked whether she knew the juror,
Jackson’s mother testified that she had never seen or interacted with the juror
before the trial and never lived down the block from her. Other family
members of Jackson provided similar testimony. The trial court ultimately
denied the motion, stating that “after careful review of Glover’s testimony and
a thorough analysis of the surrounding circumstances, this court does not find
Glover’s testimony credible given her bias and inconsistencies, the lack of any
corroboration, the physical evidence which contradicts her purported
observations and the rebuttal testimony from the victim’s family.” Trial Court
Opinion, 9/18/17, at 15. The trial court provided a detailed discussion of why
it did not believe the evidence of juror misconduct presented by Eady.
A new trial should only be granted in instances of juror misconduct when
it is clear that improper conduct by a juror has occurred, and is evidenced by
competent testimony. Johnson v. Frazier, 787 A.2d 433, 436 (Pa. Super.
2001). The trial court’s determination that no juror misconduct occurred here
was based on credibility determinations and physical evidence presented at a
two-day evidentiary hearing. We cannot disturb this credibility determination,
when, as here, it is supported by the record. Commonwealth v. Wholaver,
177 A.3d 136, 180 (Pa. 2018).
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Accordingly, the judgment of sentence for firearms not to be carried
without a license is affirmed; the judgment of sentence for third degree
murder, reckless endangerment, and possession of instruments of a crime are
vacated, and the case is remanded for resentencing. See Commonwealth
v. Goldhammer, 517 A.2d 1280, 1283 (stating generally if appellate court
upsets sentencing scheme, then remand for resentencing is warranted).
Judgment of sentence affirmed in part and vacated in part. Case
remanded for proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judge Lazarus joins in this Memorandum.
P.J.E. Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2018
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