Com v. Jones, S. ( 2018 )

J. A19036/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SHAWN JONES, : No. 1679 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence Entered August 2, 2017,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0005871-2016
BEFORE: GANTMAN, P.J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 01, 2018
Shawn Jones appeals from the August 2, 2017 judgment of sentence
imposed after a jury found him guilty of first-degree murder and firearms not
to be carried without a license.1 After careful review, we affirm.
The trial court summarized the relevant facts of this case, as gleaned
from the trial testimony, as follows:
Sergeant Dave DeLellis of the Pennsylvania State
Capitol Police Department was driving patrol on
December 15, 2015. As he drove in the area of Third
and Calder Streets in Harrisburg, he heard gunshots.
He observed two men shooting directly in front of him;
the officers gave chase and ultimately
Sergeant DeLellis did identify one of the shooters;
however none were taken into custody. DeLellis was
never able to identify the other shooter. The officers
did apprehend Glenn Walker, Jr.
1 18 Pa.C.S.A. §§ 2501(a) and 6106(a)(1), respectively.
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Glenn Walker, Jr., was friend[s] with the victim in this
case, John Carter. His son, Glenn Walker, III, is
friends with [appellant]. Mr. Walker, Jr. was the
victim of an assault in a nearby bar known by various
names (1400 Club or Wanda’s most prominently). As
some background to this incident, Glenn Walker, Jr.
was in an altercation with a woman who believed he
had not paid her the right amount for incense. By
happenstance, [a]ppellant showed up at
1400 Club/Wanda’s with Glenn Walker, III. Video
evidence showed [a]ppellant and Glenn Walker, III
approaching and entering the bar. Glenn Walker, Jr.,
identified the young men. The three men then exited
the building. The woman called a friend to help her
with Glenn Walker, Jr. When the woman’s friend
attacked him, Glenn Walker, III, shot at the attacker
and shots were fired f[ro]m the area where
[a]ppellant disappeared.
Several items of evidence were collected from the
scene, the most important being three spent
.45 cartridges, two different .45 cartridges, and a
projectile.
Moving to March of 2016, Kristian Cammack and her
fiancé, John Carter III, were taking two of their four
children on a walk down memory lane in the uptown
section of Harrisburg. They stopped by the house that
Mr. Carter grew up in and as they left, the older child
asked for a drink. As Ms. Cammack drove down the
2200 block [of] Green Street, they passed a group of
men who glanced over at them and Mr. Carter glanced
back. Neither of them recognized the men.
The family pulled up to the store, Ms. Cammack got
out to buy some water and Mr. Carter got out to
smoke a blunt. He told her to drive around the block
while he finished his blunt. Ms. Cammack got the
water, returned to her car and circled the block, but
could not find him. Ms. Cammack tried calling his cell
phone and he answered it but was unable to talk. She
reversed up the street and saw people looking on
Woodbine so she turned onto Woodbine and saw
Mr. Carter laying on the ground. She immediately
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rushed to him and saw that he was shot. She asked
him who shot him and he said he did not know.
Ms. Cammack acknowledged removing a half of a
blunt from Mr. Carter’s pocket, but denied that he
carried weapons and that she removed any weapons
from his body.
Taji Abdullah testified for the Commonwealth.
Mr. Abdullah is friends with [a]ppellant and
Glenn Walker. He lived at 2233 Green Street.
Mr. Abdullah testified that on the day in question, he
was outside hi[s] home when John Carter drove down
the street in his truck. They looked at each other and
a few minutes later, Mr. Carter came walking up the
street and grabbed the handle of a gun and asked
Mr. Abdullah if he “wanted some problem” so
Mr. Abdullah hit him. Mr. Abdullah had been staring
at the truck because he was wary of strangers on his
block after being shot a few weeks earlier.
Mr. Abdullah identified John Carter as the man he
fought with on a neighbor’s video surveillance. In the
statement given April 1, 2015, Mr. Abdullah told police
that he did not know if the victim had any sort of a
weapon on him. However, Mr. Abdullah was able to
identify himself, Glenn Walker, III, and [a]ppellant on
the video.
The video showed Mr. Carter walking down
Green Street and out of view. Then he came running
back up Green Street with the three young men
following him. Something caused [a]ppellant to stop
chasing him and turn around. Thereafter, [a]ppellant
and Mr. Walker, III, began chasing Mr. Carter again.
Mr. Abdullah denied seeing anyone shoot Mr. Carter,
but admitted to hearing gunshots and turning around
to run away. Mr. Abdullah also identified
Norbell Lynch in the video as the fourth person
running after Mr. Carter. He did not know whether
Mr. Lynch had a gun on him at the time, though he
did appear to be holding something. Mr. Abdullah
never saw [a]ppellant shooting a gun.
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Dr. Wayne Ross testified that John Carter died of a
gunshot wound to the back.
Norbell Lynch was in a romantic relationship with
Abdullah’s mother at the time of the incident. He
knew Mr. Abdullah because of that relationship and he
knew Mr. Abdullah’s friends, [a]ppellant and
Mr. Walker, III. Mr. Lynch was at the home the day
that Mr. Carter was killed. Mr. Lynch arrived at the
home about 1:00 p.m. and [a]ppellant[,] Mr. Abdallah
and Mr. Mr. [sic] Walker, III, were all already there
outside. Mr. Lynch saw that Mr. Walker, III, had a
gun on him at that time.
He did not know Mr. Carter, but that day he saw
Mr. Carter drive down the street and he saw
Mr. Abdullah and Mr. Carter make eye contact as a
female drove John down the street. The next thing he
knew, Mr. Carter was walking back up the street and
the fight started[.] Per Mr. Lynch, while everyone is
out of sight on the video, Mr. Abdullah and Mr. Carter
had words and then Mr. Abdullah hit Mr. Carter. Then
[a]ppellant and Mr. Walker, III, jumped in on the
fight. Mr. Carter managed to escape and began to run
away.
As Mr. Carter was running away, Mr. Abdullah’s
mother came outside and told the men to “get him” at
which point they took off after Mr. Carter. Mr. Lynch
testified that Mr. Walker, III and [a]ppellant then
began shooting at Mr. Carter. He recalled six shots.
Investigator Marc McNaughton of the Harrisburg
Bureau of Police, processed the scene for evidence.
Most relevant to the case at hand, he collected
serval [sic] casings. Those casing[s] were identified
as brass .45 Winchester, nickel .45 Hornady, and
brass .45 Blazer.
A neighbor testified that she was home on the day in
question. She originally heard a ruckus and asked her
daughter to check outside. Her daughter came back
to say there was a fight. Then they heard shooting.
She went outside almost immediately after she heard
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the shots and could not see anything but did hear
someone screaming for help. A day or two later, the
neighbor was gardening and found a gold grill in her
garden. She gave it to police who happened to be
canvassing the area.
The neighbor also saw Mr. Abdullah’s mother in her
garden picking up casings, just after the shooting.
Through a stipulation, the jury learned that DNA on
the grill matched that of [a]ppellant.
Mr. Abdullah’s mother, Shariyka Muhammed testified.
She indicated that Mr. Lynch was able to run and that
on the day of the incident, he ran outside saying “I’m
gonna go get him” when they found out her son was
in a fight. She assumes it was in reference to the man
Mr. Abdullah’s [sic] was fighting with. She identified
that fourth man in the video as Mr. Lynch.
Ms. Muhammed was questioned on cross examination
as to whether she was a police informant and had an
open drug case. Defense counsel objected but
Ms. Muhammed had already answered the question
and this Court deemed it relevant.
Todd Neumyer of the Pennsylvania State Police is a
firearm and tool marking examiner. He performs
microscopic analysis on the tool marks left behind on
the surface of ammunition components when fired by
a gun. He does these exams to determine if various
bullets were discharged from the same firearm. He
was admitted as an expert.
Neumyer examined the cartridges recovered at both
the December 2015 and the March 2016 incidents. He
was able to conclude that the four non-Glock cartridge
cases from the Green Street scene matched the
non-Glock cartridge cases from the incident at Third
and Calder in December of 2015. Further, the
non-Glock cartridges were discharged from the same
unknown Glock at both scenes.
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Trial court opinion, 3/1/18 at 2-6 (citations to notes of testimony omitted;
footnotes omitted).
Appellant was subsequently arrested and charged with first-degree
murder; firearms not to be carried without a license; and persons not to
possess, use, manufacture, control, sell, or transfer firearms.2 On March 30,
2017, appellant filed a motion in limine to exclude video of the December 15,
2015 shooting at the 1400 Club/Wanda’s. (See Omnibus Pretrial Motion,
3/30/17 at ¶¶ 17-30.) Following a pre-trial hearing, the trial court denied
appellant’s motion on April 19, 2017. On May 22, 2017, appellant proceeded
to a jury trial and was found guilty of the aforementioned offenses on May 25,
2017. On August 2, 2017, the trial court sentenced appellant to life
imprisonment without the possibility of parole for first-degree murder and a
concurrent term of seven years’ probation for firearms not to be carried
without a license. On August 10, 2017, appellant filed timely post-sentence
motions that were denied by the trial court on October 13, 2017. This timely
appeal followed on October 30, 2017. On November 1, 2017, the trial court
ordered appellant to file a concise statement of errors complained of on appeal
in accordance with Pa.R.A.P. 1925(b). Appellant complied with the trial court’s
order, and the trial court issued its Rule 1925(a) opinion on March 1, 2018.
Appellant raises the following issues for our review:
2 18 Pa.C.S.A. § 6105(a)(1). This charge was nolle prossed by the
Commonwealth prior to trial.
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1. Did the trial court improperly allow the
admission of video evidence and testimony
about an unrelated and uncharged shooting in
violation of the Sixth Amendment and the Due
Process Clause of the Fourteenth Amendment to
the United States Constitution, Article I, §§ 6
and 9 of the Pennsylvania Constitution, and
Pa.R.E. 401, 403, and 404?
2. Did the trial court abuse its discretion and
commit legal error by failing to provide the jury
with a cautionary instruction that evidence of
[a]ppellant’s alleged bad act was admitted for a
limited purpose and must not be considered or
regarded as showing [a]ppellant’s guilt?
3. Did the trial court abuse its discretion and
commit legal error when it overruled an
objection to the prosecutor’s questioning of
Shariyka Muhammad, a witness who provided
helpful defense testimony, about her open drug
case and status as a police informant?
Appellant’s brief at 2.
Appellant’s admissibility of evidence claim is three-fold. Appellant first
argues that the trial court abused its discretion in permitting the
Commonwealth to introduce surveillance video of the December 15, 2015
shooting at the 1400 Club/Wanda’s. (Id. at 20.) Appellant maintains that
this video had “no relevant value”; was “incredibly prejudicial”; and was
inadmissible as “prior bad act” evidence under Pennsylvania Rule of
Evidence 404(b)(1) because it was offered “only for the prohibited purpose of
showing that [he] had a propensity for violence.” (Id. at 5, 21-23). We
disagree.
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“[T]he admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106
(Pa.Super. 2012) (citation omitted), appeal denied, 76 A.3d 538 (Pa. 2013).
“An abuse of discretion is not merely an error of judgment; rather discretion
is abused when the law is overridden or misapplied, or the judgment exercised
is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence or the record.” Commonwealth v.
Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014) (citation omitted), appeal
denied, 95 A.3d 275 (Pa. 2014).
The threshold inquiry with admission of evidence is
whether the evidence is relevant. Evidence is relevant
if it logically tends to establish a material fact in the
case, tends to make a fact at issue more or less
probable, or supports a reasonable inference or
presumption regarding the existence of a material
fact. In addition, evidence is only admissible where
the probative value of the evidence outweighs its
prejudicial impact.
Id. at 750 (citations and internal quotation marks omitted); see also
Pa.R.E. 401(a), (b).
Generally, “evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in conformity
therewith.” Pa.R.E. 404(b)(1); see also Commonwealth v. Weakley, 972
A.2d 1182, 1189 (Pa.Super. 2009) (stating, “[e]vidence of distinct crimes is
not admissible against a defendant being prosecuted for another crime solely
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to show his bad character and his propensity for committing criminal acts.”
(citation omitted; emphasis in original)), appeal denied, 986 A.2d 150 (Pa.
2009). Evidence of prior bad acts may be admissible, however, “when offered
to prove some other relevant fact, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, and absence of mistake or accident.”
Commonwealth v. Ross, 57 A.3d 85, 98 (Pa.Super. 2012) (citations
omitted), appeal denied, 72 A.3d 603 (Pa. 2013). “In determining whether
evidence of other prior bad acts is admissible, the trial court is obliged to
balance the probative value of such evidence against its prejudicial impact.”
Ross, 57 A.3d at 98 (citation omitted).
Upon review, we conclude that the surveillance video was admissible
because it was relevant to establish the identity of the firearm used in the
instant case and the fact that appellant was present on a prior occasion, on
December 15, 2015, when this same firearm was utilized. Specifically, the
video depicts Glenn Walker, III, exit the 1400 Club/Wanda’s on December 15,
2015, approximately three months before Carter was murdered, with two
other individuals and discharge a firearm. (Notes of testimony, 5/22-25/17
at 50-52.) Ballistics testing matched the tool markings on the cartridge cases
recovered from the scenes of the December 15, 2015 and the March 26, 2016
shootings, indicating the same gun used in each instance. (Id. at 279, 286-
287, 346-347.) Additionally, Glenn Walker, Jr., positively identified appellant
as one of the men in the video. (Id. at 44-45.) Based on the foregoing, we
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discern no abuse of the trial court’s discretion in permitting the
Commonwealth to introduce this video surveillance evidence at trial. See
Ross, 57 A.3d at 98.
Appellant next argues that it was improper to admit the video and
testimonial evidence about the December 15, 2015 shooting because the
expert testimony of Pennsylvania State Trooper Todd Neumyer, upon which
the trial court relied, was “based on faulty science.” (Appellant’s brief at
23-30.)
Expert testimony is admissible if it concerns a subject beyond the
knowledge, information, or skill possessed by the average layperson, as
phenomena and situations that are matters of common knowledge may not
be the subject of expert testimony. Pa.R.E. 702.
[I]n cases involving the admission of expert testimony
. . . the admission of expert testimony is a matter left
largely to the discretion of the trial court, and its
rulings thereon will not be reversed absent an abuse
of discretion. An expert’s testimony is admissible
when it is based on facts of record and will not cause
confusion or prejudice.
Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa.Super. 2013) (citation
omitted), appeal denied, 80 A.3d 775 (2013).
At trial, Trooper Neumyer, a firearm and toolmark examiner with the
Harrisburg Regional Crime Laboratory, testified that he could render an expert
opinion with respect to the cartridges recovered from both the December 2015
and the March 2016 shootings. (Notes of testimony, 5/22-25/17 at 326, 330.)
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Neumyer opined, based on his research and 17 years’ experience in the
discipline, that he could state to a reasonable degree of scientific certainty
that the four non-Glock cartridge cases recovered in the March 26, 2016
shooting matched the non-Glock cartridge cases from the December 15, 2015
shooting. (Id. at 338-340, 346-347, 351, 358-360.) Additionally, Neumyer
testified that the non-Glock cartridges were discharged from the same
unknown Glock at both scenes. (Id.) The record reflects that appellant never
objected to Neumyer’s expert testimony regarding the degree of scientific
certainty of his findings. Accordingly, appellant has waived this claim on
appeal. See Commonwealth v. Houck, 102 A.3d 443, 451 (Pa.Super. 2014)
(stating, “the failure to make a timely and specific objection before the trial
court at the appropriate stage of the proceedings will result in waiver of the
issue.” (citation omitted)).
In any event, even if appellant had properly preserved an objection to
Trooper Neumyer’s expert testimony, we would find his claim to be without
merit. Appellant asks us to reassess the general admissibility of forensic
firearms evidence; we decline to do so. In Commonwealth v. Whitacre,
878 A.2d 96 (Pa.Super. 2005), appeal denied, 892 A.2d 823 (Pa. 2005), a
panel of this court held that expert ballistic matching evidence obtained by a
comparison microscope, like Neumyer used in this case,3 is “generally
accepted by the scientific community consisting of firearms experts.” (Id. at
3 See notes of testimony, 5/22-25/17 at 336-337.
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101.) The Whitacre court notes that “[t]he comparison microscope
examination method has been in use since the 1930’s and is an accepted
methodology by the Association of Firearms and Toolmark Examiners.”
Accordingly, appellant’s claim would nonetheless fail. See Huggins, 68 A.3d
at 966.
Appellant next contends that the trial court abused its discretion in
failing to undertake additional analysis as required by Pennsylvania Rule of
Evidence 404(b)(2) and “properly weigh whether the probative value [of the
video evidence] outweighed any danger of unfair prejudice.” (Appellant’s brief
at 31.) We disagree.
Instantly, the trial court set forth the following rationale in support of its
decision to deny appellant’s motion in limine to exclude video of the
December 15, 2015 shooting at the 1400 Club/Wanda’s:
THE COURT: And, in essence, there was no argument
that either one of them were [sic] charged in the
previous video. It was set up for the purpose of
showing that they were there and that the caliber of
gun and the shells that were found on the one scene
were also found in the second scene. So it will be
allowed.
Notes of testimony, 4/19/17 at 10.
Although appellant is correct that “the trial court is obliged to balance
the probative value of such evidence against its prejudicial impact[,]” see
Ross, 57 A.3d at 98 (citation omitted), our supreme court has explicitly
recognized that a trial court is not required “to articulate its balancing test on
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the record.” Commonwealth v. Hairston, 84 A.3d 657, 667 (Pa. 2014),
cert. denied, 135 S.Ct. 164 (2014). Rather, “[w]e presume that trial courts
know the law . . . [and s]uch weighing and the general consideration of the
admissibility of evidence is a discretionary ruling which trial courts routinely
engage in mentally. There is no requirement that it record these mental
deliberations on the record.” Id. (emphasis added).
Here, we are satisfied by the trial court’s discussion of why it considered
the aforementioned video admissible that it understood the applicable criteria
and mentally engaged in the appropriate balancing test. There is nothing in
this record to suggest that this trial court did not understand its duty to weigh
the evidence in accord with Rule 404(b)(2).
Accordingly, for all the foregoing reasons, we discern no abuse of
discretion on the part of the trial court in allowing the video and testimonial
evidence of the December 15, 2015 shooting to be admitted into evidence.
In his second issue, appellant argues that the trial court abused its
discretion “when it failed to provide the jury with a cautionary instruction that
evidence of [a]ppellant’s alleged prior bad act was admitted for a limited
purpose and must not be considered as evidence of guilt or bad character.”
(Appellant’s brief at 41.) In support of this contention, appellant relies on
Commonwealth v. Weiss, 81 A.3d 767 (Pa. 2013), wherein our supreme
court stated:
[W]hile evidence of prior bad acts may be relevant
and admissible, there is the potential for
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misunderstanding on the part of the jury when this
type of evidence is admitted. This evidence must,
therefore, be accompanied by a cautionary
instruction[,] which fully and carefully explains to the
jury the limited purpose for which that evidence has
been admitted.
Id. at 798 (citations and internal quotation marks omitted); see also
appellant’s brief at 43.
Here, however, the record reveals that appellant did not specifically
request that a cautionary instruction be given to the jury after the
Commonwealth sought to introduce the video of the December 15, 2015
shooting, nor did he object to the trial court’s failure to provide said instruction
at the conclusion of trial. (See notes of testimony, 5/22/17 at 43-44.) The
“[f]ailure to request a cautionary instruction upon the introduction of evidence
constitutes a waiver of a claim of trial court error in failing to issue a cautionary
instruction.” Commonwealth v. Bryant, 855 A.2d 726, 739 (Pa. 2004).
Consequently, we agree with the trial court that appellant waived this claim.4
In his final claim, appellant argues that the trial court abused its
discretion when it permitted the Commonwealth to cross-examine defense
witness Shariyka Muhammad “about whether she had an open drug case and
whether she was a police informant.” (Appellant’s brief at 49.) We disagree.
4 To the extent appellant argues that his trial counsel was ineffective for failing
to request a cautionary instruction, we note that, absent limited
circumstances, “claims of ineffective assistance of counsel are to be deferred
to PCRA review[.]” Commonwealth v. Reid, 117 A.3d 777, 787 (Pa.Super.
2015) (citation omitted); see also appellant’s brief at 46.
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“The scope of cross-examination is a matter within the discretion of the
trial court and will not be reversed absent an abuse of that discretion.”
Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005) (citation and
internal quotation marks omitted), cert. denied, 549 U.S. 848 (2006).
“[T]rial judges retain wide latitude as to the scope of cross-examination.”
Commonwealth v. Murphy, 182 A.3d 1002, 1005 (Pa.Super. 2018) (citation
omitted).
Instantly, the record reflects that appellant failed to specifically object
to the Commonwealth’s inquiry as to whether Muhammad had a pending drug
charge:
Q Ma’am, you have a pending felony drug delivery
charge?
A. Yep.
Q. I believe --
A. Trumped up charges that you all put on me, yes.
Notes of testimony, 5/24/17 at 389.
Accordingly, appellant has waived his challenge to this specific inquiry.
See Houck, 102 A.3d at 451; see also Pa.R.A.P. 302(a) (stating an issue not
raised in the trial court is considered waived for purposes of appellate review).
Thereafter, the following exchange occurred between the
Commonwealth and Muhammad during which appellant lodged an objection:
Q. You had an opportunity to talk to
Detective Iachini?
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A. While I was down there, of course, yes.
Q. You actually have a relationship with
Detective Iachini?
A. I mean, yes. I got a relationship with a couple
officers, detectives.
Q. In fact, you’ve been an informant in the past for
Detective Iachini?
[Appellant’s counsel]: Objection. It’s not relevant.
[Commonwealth]: Of course it is.
THE WITNESS: No.
Notes of testimony, 5/24/17 at 392.
Upon review, we agree with the trial court that this line of inquiry was
relevant to establishing whether Muhammed had a prior relationship with
police and would not be apprehensive about speaking to them with regard to
what she witnessed on the day in question. Moreover, we find that any
resulting prejudice was minimal and could not have outweighed the probative
value of this brief cross-examination. Accordingly, we discern no abuse of
discretion on the part of the trial court in permitting the Commonwealth to
cross-examine Muhammad as to whether she was a police informant.
Based on the foregoing, we affirm the trial court’s August 2, 2017
judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2018
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