Com. v. Gibson, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JALEN DEMERE GIBSON :
:
Appellant : No. 1569 WDA 2018
Appeal from the Judgment of Sentence Entered August 8, 2018
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0001051-2017
BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 30, 2020
Appellant, Jalen Demere Gibson, appeals from the August 8, 2018
judgment of sentence entered in the Cambria County Court of Common Pleas
following his conviction by a jury of first-degree murder and related crimes.
We affirm.
The facts of the crimes are as follows. On April 3, 2017, utilizing his
girlfriend’s white Chevrolet Malibu, Clifford Eddins (“Eddins”) drove his half-
brother, Dennis Manson (“Manson”), inter alia, to Harris Funeral Home (“ the
Funeral Home”) in Johnstown, Pennsylvania. N.T., 8/3/18, at 80, 157–168.
While en route, the brothers made a few stops, one of which was to the home
of Eddins’s friend, Travis Williams. Id. at 165. When they left Williams’s
home, Manson and Eddins were in the Malibu, and they followed Williams in
his car. Id. at 166–167; N.T., 8/6/18, at 56. At some point, Manson and
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Eddins left the Funeral Home, this time with Manson driving, to pick up
Appellant at his home and return with him to the Funeral Home. N.T., 8/3/18,
at 171–172; N.T., 8/6/18, at 20. On the way to Appellant’s home, Manson
turned in front of a motorcycle traveling toward them and “cut it off.” N.T.,
8/3/18, at 173; N.T., 8/6/18, at 23. Eddins testified “the man had his hands
up like, yo, what the, you know what I mean, you just cut me off.” N.T.,
8/3/18, at 173; N.T., 8/6/18, at 23. Manson recognized the man and referred
to him as “Tev,” but Eddins did not know him. N.T., 8/3/18, at 173. The
brothers proceeded to Appellant’s house and picked up Appellant.
Manson, with Eddins in the front passenger seat, and Appellant in the
rear passenger seat, returned to the Funeral Home. N.T., 8/3/18, at 173–
174; N.T., 8/6/18, at 24–25. When they later left, Manson drove the Malibu,
Eddins was the front seat passenger, and Appellant sat in the rear passenger
seat. N.T., 8/3/18, at 179; N.T., 8/6/18, at 27–29. Eddins and Manson were
going to “drop [Appellant] off at Pine Street.” N.T., 8/3/18, at 179; N.T.,
8/6/18, at 27–29.
Tevin Sitton (“Victim”) was the man on the motorcycle. N.T., 8/3/18,
at 180. Both Eddins and Manson testified that they saw Victim again. N.T.,
8/3/18, at 180; N.T., 8/6/18, at 30–31. This time, Victim was accompanied
by his two brothers, Million Smith (“Million”) and Dwayne Sitton (“DJ”), who
were all on separate motorcycles. N.T., 8/6/18, at 27–28. Eddins stated:
My little brother [Manson] realize[d] who they are or whatever
and made a comment like, he [Victim] probably don’t [sic] even
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know this was me in this car when I cut him off earlier when we
were on our way . . . . He was like, I’m going to pull up and say
it was me, like, my bad because he saw he had his hands up like
that.
N.T., 8/3/18, at 181. Manson testified similarly:
I actually looked at [Eddins] like, oh shit, that’s [Victim]. I
said, you know, like if I see him later, I’m going to let him know
that it was me that cut him off. I don’t know what he could see.
I know I cut him off. I didn’t want him to think I did it on purpose
or anything. It wasn’t nothing [sic] serious, you know, it was just
me taking a left.
N.T., 8/6/18, at 31–32.
Eddins testified that when they stopped at Victim’s house, Victim came
to the car, and Manson apologized for turning in front of him earlier that day.
Id. at 183. Victim reached in the car and “gave [Manson] a handshake and
gave me a handshake.” Id. Unbeknownst to Eddins, Appellant had a gun and
shot Victim “from the back seat of the window.” Id. at 184.
Eddins testified that when the shots rang out, he “grabbed [his] head
and ducked.” N.T., 8/3/18, at 185. Manson drove off and Appellant stated,
“[L]et me out.” Id. at 186. Manson “pulled the car over and let him out.”
Id. The brothers then returned the Malibu to Eddins’s girlfriend. Id. at 187.
Manson testified similarly that on their way to drop Appellant at his
house, he saw Victim on Von Lunen Street, called him over to the car, and
Victim walked “right to the window. N.T., 8/6/18, at 34. Manson told Victim,
“[H]ey, that was me earlier, my bad. I cut you off. I didn’t know if you knew
that was me. He was like, oh. I don’t even think he knew.” Id. at 35. Manson
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testified that Victim “reach[ed] over [Eddins] to give me a handshake. And
then he also gave my brother a handshake.” Id. As Manson turned back to
drive, “[s]hots went off.” Id. at 36–37. Manson did not know that Appellant
had a gun. Id. at 67–68. Manson testified, “I actually thought somebody was
shooting at us and they shot my brother, because my brother, he kind of like
dropped like he was dead.” Id. at 37. Manson stated his reaction was to “get
out of there. So I pushed the gas, drove as fast as I could.” Id. at 38.
Appellant said, “Just let me out. Just let me out.” Id. at 43. It was only then
that Manson realized what had happened. Id.
Million testified that he, Victim, and DJ rode their motorcycles on April
3, 2017, and eventually stopped at Victim’s house on Von Lunen Street. N.T.,
8/3/18, at 28, 30. While they were outside, “a white Malibu pulled up.” Id.
at 30. Million recognized Eddins and Manson in the front seat and observed
Victim talking with the men in the Malibu and shaking their hands. Id. at 32.
Suddenly, shots rang out from the back seat where Appellant sat. Million
recognized Appellant from the neighborhood. Id.
Elmo Smith (“Elmo”), Victim’s and DJ’s stepfather and Million’s father,
testified that he and his son and step-sons and other family members had
gone to purchase a new motorcycle for Elmo that day. N.T., 8/3/18, at 57.
They were unsuccessful in their purchase and returned to Victim’s home on
Von Lunen Street. Id. at 59. Elmo went to Bantly’s, a nearby hardware store,
when he heard shots ring out. Id. at 60. He testified that “[w]hen you come
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out of Bantly’s door, you can look straight down to Von Lunen.” Id. at 61. As
he ran out to his truck, he “noticed the white car go past.” Id. The passenger
side of the white car was the side he could see as the car passed, and he
stated that he saw “Cliff [Eddins] in the passenger, front passenger’s seat. I
didn’t—couldn’t see the driver. And, then, in the back, I seen [Appellant]
sitting up on the seat turning and looking behind him.” Id. at 62. Elmo
testified that he knew Appellant “since he was little.” Id. At that point, Elmo
saw Million and DJ running down the street, pointing at the white car. Id. at
63. Elmo stated, “I was going to try to follow them to see where they was
[sic] going, but then I said, what’s the use of me chasing them. I seen [sic]
who it was, so I turned and went back to check on [Victim].” Id. at 64.
Detective Brad Christ of the Johnstown Police Department testified that
he processed several hundred crime scenes in his ten years as a police officer
and detective in Johnstown. N.T., 8/2/18, at 139–141. Detective Christ was
the officer in charge of the murder scene. Id. at 142. Utilizing approximately
thirty photographs that he took at the scene and that were admitted into
evidence at trial, Detective Christ pointed out, inter alia, three surveillance
cameras in the area. Id. at 146, 148, 156. Detective Christ also recovered a
video surveillance box at the scene. Id. at 169. Specialists from the
Pennsylvania State Police “exported the videos . . . that captured the
crime . . . happening.” Id. The videos were admitted into evidence and
played for the jury. Id. at 171, 175. The videos showed Victim speaking with
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people in a white vehicle when the back passenger window exploded with glass
as a gun shot occurred. Id. at 176. Detective Christ also recovered a Harris
brochure from the back seat of the white Malibu and a “shell casing headstamp
Winchester .45 caliber, the same as the one located” on the ground where
Victim was shot. Id. at 181. Victim was shot three times, and the cause of
death was a “gunshot wound to the head with the manner of death being ruled
a homicide.” N.T., 8/2/18, at 77, 81. In all, the Commonwealth presented
seventeen witnesses, including four members of Victim’s family, and multiple
eyewitnesses. Appellant presented no witnesses.
The trial court summarized the procedural history as follows:
Appellant was found guilty on August 7, 2018 of one count
of First Degree Murder, two counts of Aggravated Assault, and
three counts of Recklessly Endangering Another Person
[(“REAP”)1] after a jury trial in this [c]ourt. Appellant was
sentenced on October 2, 2018[,] on count 1 to life in prison
without the possibility of parole and a consecutive aggregated
period of not less than four (4) years and not more than eight (8)
years at counts 10, 11, 12, and 13 involving other victims.
Appellant filed his Notice of Appeal to the Superior Court on
October 31, 2018[,] and was ordered to file his 1925 (b) Concise
Statement within 21 days. This [c]ourt granted Appellant an
extension to file the 1925 (b) Statement on two different
occasions, with a new filing deadline of February 14, 2019.
Trial Court Opinion, 3/15/19, at 1–2. Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following questions on appeal:
I. Whether the trial court erred in making pre-trial and trial
evidentiary rulings that violated Appellant’s constitutional right to
____________________________________________
1 18 Pa.C.S. §§ 2501, 2702, and 2705, respectively.
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present a complete defense and present an alternative theory to
the jury:
A. Whether the trial court erred by granting the
Commonwealth’s motion in limine and prohibiting the
defense from introducing evidence that the decedent
possessed drugs and guns that were found in his
residence the day after the murder?
B. Whether the trial court abused its discretion in
prohibiting defense counsel from confronting Dennis
Manson with photographs of Travis Williams, who
looked like Appellant and was with the co-conspirators
around the time of the murder, to prove that Travis
Williams was the shooter?
Appellant’s Brief at 1.
We address Appellant’s claim that the trial court erred in granting the
Commonwealth’s motion in limine. When an appellant challenges the ruling
on a motion in limine, our scope of review is limited to the relevant pretrial
hearing transcripts. See In re Interest of L.J., 79 A.3d 1073, 1088-1089
(Pa. 2013) (noting that our scope of review is limited to the evidence
presented at the pretrial hearing). In conducting our review, we apply an
abuse-of-discretion standard. Commonwealth v. Moser, 999 A.2d 602, 605
(Pa. Super. 2010) (citation omitted). The admissibility of evidence is left to
the sound discretion of the trial court, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that ruling
reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support to be clearly erroneous. Id. “The trial court will be
reversed only if an error in the admission of evidence contributed to the
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verdict.” Commonwealth v. Sauers, 159 A.3d 1, 6 (Pa. Super. 2017) (citing
Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa. Super. 2016)).
Before trial, the Commonwealth filed a motion in limine on April 9, 2018,
seeking to preclude Appellant from presenting evidence that during the
investigation, police executed a search warrant at Victim’s residence and
discovered marijuana and firearms. Motion in Limine, 4/9/18, at 1. The trial
court held a hearing on April 17, 2018, after which it granted the
Commonwealth’s motion on April 19, 2018, and filed an opinion in support.
There was no testimony at the April 17, 2018 hearing regarding how
much marijuana or the number of firearms found in Victim’s home pursuant
to the search conducted on April 4, 2018. N.T. (Motion in limine), 4/17/18,
2–3, 5. Appellant implied that because police found marijuana and drugs at
Victim’s home, Victim was a drug dealer and “could have had a number of
people who wanted him [dead] for whatever reason related to the drugs.” Id.
at 4. As such, Appellant maintains “that any number of people could have
killed” Victim. Appellant’s Brief at 7. In particular, Appellant assails the
following explanation by the trial court:
On April 9, 2018, the Commonwealth filed a Motion in Limine
to exclude testimony related to the search warrant executed by
the Johnstown Police Department at [Victim’s] residence in the
immediate aftermath of the homicide. [The Commonwealth
argued, and the court issued an opinion on April 19, 2018, in
agreement, that the evidence seized, specifically narcotics and
firearms, was not admissible.] At the hearing on this matter,
Appellant argued that the evidence seized tended to show that
[Victim] was engaged in the business of selling narcotics.
Appellant argued that, because [Victim] was a drug dealer he was
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potentially the subject of violent retaliations from various other
unnamed individuals. Appellant believed that this evidence
established that other unnamed individuals may have had a
motive to kill [Victim].
Id. at 7 (citing Trial Court Opinion, 3/15/19, at 5–6).
Appellant contends the trial court’s ruling prevented Appellant from
introducing into evidence and offering testimony concerning the firearms and
drugs seized at Victim’s home following the shooting. Appellant’s Brief at 7.
Thus, he maintains the defense was prevented “from fully developing a
defense theory and introducing relevant testimony of others with a potential
motive to kill [Victim], especially in light of the fact that [Victim’s] brother
testified at the sentencing hearing that their father, Elmo Smith, was targeted
in a shooting prior to the homicide.” Id. at 7–8 (footnote omitted) (citing N.T.
(Sentencing), 10/2/18, at 9–10). Appellant theorizes that Victim was a drug
dealer and as such, would have many enemies with “a motive to kill” him.
Appellant’s Brief at 9.
This issue lacks merit. First, Appellant’s reference to testimony at
sentencing by Victim’s father is of no moment because our review, as noted,
is limited to the pretrial hearing transcript. Interest of L.J., 79 A.3d at 1088-
1089. Second, there was no evidence presented that Victim was a drug
dealer. N.T. (Motion in limine), 4/17/18, 2–6. Therefore, Appellant’s
argument is based on mere speculation. Third, the threshold inquiry with
respect to the admission of evidence is whether the evidence is relevant.
Commonwealth v. Blauser, 166 A.3d 428, 432 (Pa. Super. 2017); Pa.R.E.
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402. Evidence is relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence. Sauers, 159 A.3d at 6;
Pa.R.E. 401. The fact that police found marijuana and firearms in Victim’s
residence the day after the homicide did not make it more probable or not
that Appellant shot Victim or that Victim was a drug dealer, in the absence of
an indication of the amount of marijuana. Finally, there was extensive
evidence establishing that Appellant was the shooter. We agree with the trial
court that “Appellant’s purpose for attempting to introduce this evidence . . .
to support the allegation that the victim was a drug dealer and thus may have
been killed by an unnamed person is hypothetical and irrelevant.” Trial Court
Opinion, 3/15/19, at 7. Moreover, the evidence that Appellant was the shooter
was overwhelming.
In his second issue, Appellant avers that the trial court erred in
precluding Appellant’s admission of photographs of Travis Williams, who he
confusingly and mistakenly called Travis Washington. See, e.g., Appellant’s
Brief at 9–10. Appellant contends, “The photographs support his defense
theory that another individual, Travis Williams, who looked like Appellant, was
present in the back seat of the car, and shot [Victim].” Appellant’s Brief at
10.
We apply the following principles to an evidentiary challenge:
In determining whether evidence should be admitted, the trial
court must weigh the relevant and probative value of the evidence
against the prejudicial impact of that evidence. Evidence is
relevant if it logically tends to establish a material fact in the case
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or tends to support a reasonable inference regarding a material
fact. Although a court may find that evidence is relevant, the court
may nevertheless conclude that such evidence is inadmissible on
account of its prejudicial impact.
Commonwealth v. Vucich, 194 A.3d 1103, 1106 (Pa. Super. 2018), appeal
denied, 199 A.3d 885 (Pa. 2018).
After review, we conclude that this issue is waived. Appellant’s
argument in his appellate brief completely lacks any references to the record
or trial testimony, and therefore, is deficient. Commonwealth v. Samuel,
102 A.3d 1001, 1005 (Pa. Super. 2014) (“The Rules of Appellate Procedure
require that appellants adequately develop each issue raised with discussion
of pertinent facts and pertinent authority.”). See Pa.R.A.P. 2119. Appellant
avers that he attempted to admit photographs of “Travis Washington[, sic]
who was with Clifford Eddins and Dennis Manson, prior to and following the
shooting death of [Victim]. The photographs of Williams fit the exact physical
description and characteristics of Appellant.” Appellant’s Brief at 9–10.
First, the notes of testimony lack any reference to someone named
“Travis Washington.” Second, Appellant wholly fails to refer to the notes of
testimony in his argument on this issue. Appellant’s Brief at 9–12. “It is not
this Court’s responsibility to comb through the record seeking the factual
underpinnings of an appellant’s claim.” Samuel, 102 A.3d at 1005. It is not
this Court’s responsibility to develop an argument for an appellant or scour
the record to find evidence to support an argument. Commonwealth v.
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Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018). In his brief, Appellant
failed to direct our attention to the place in the record where he attempted to
admit the photographs, cite to where he lodged a timely and specific objection,
or point out where the trial court ruled on the admission at trial. Accordingly,
we conclude that this issue is waived.
Even if not waived, we would affirm the issue on the basis of the trial
court’s explanation, as follows:
While counsel for Appellant was cross-examining Dennis
Manson, the Commonwealth’s last witness, counsel attempted to
introduce two photographs of an individual identified as Travis
Williams.1 The Commonwealth objected to the introduction of the
photographs and this [c]ourt sustained the objection. Pursuant to
Pennsylvania Rule of Evidence 401, “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. It is a determination to be
made by the [c]ourt whether evidence has a tendency to make a
fact more or less probable. “Evidence is considered relevant if it
logically tends to establish a material fact in the case, tends to
make the fact at issue more or less probable, or supports a
reasonable inference or presumption regarding the existence of a
material fact.” Commonwealth v. LaCava, 666 A.2d 221, 227 (Pa.
1995).
1 This [c]ourt viewed Counsel’s decision to wait until
the Commonwealth’s very last witness to bring this
evidence forward as more of an unfair trial tactic than
an attempt to present the jury with an alternative
suspect as the shooter in this case.
At trial, three separate witnesses identified the shooter as
the Appellant, Jalen Gibson. First, William Harris testified during
the jury trial that he is the owner of the Harris Funeral Home that
the two co-defendants testified that they were at with the
Appellant on the day of the shooting. Harris testified that he has
video surveillance in multiple places at the funeral home.
Transcript of Jury Trial, 08/03/18, p. 13, 11. 9-13. Harris also
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testified that one of the cameras located in the vestibule shows
the main entrance and who is in that vestibule. Transcript of Jury
Trial, 08/03/18, p. 14, II 11-23. Clifford Eddins, co-defendant in
this case, testified for the Commonwealth as an identification
witness and after viewing the video surveillance from the Harris
Funeral Home, identified himself, Appellant and his brother,
Dennis Manson all leaving the Harris Funeral Home together on
the date of the incident. Transcript of Jury Trial, 08/03/18, p.
176, II 5-25. Also during the jury trial, Dennis Manson was shown
the video surveillance from the Harris Funeral Home. After
viewing that video, Mr. Manson also identified his brother Clifford,
Appellant and him all leaving the funeral home. Transcript of Jury
Trial, 08/06/18, p. 27, 11. 4-21. Mr. Manson further testified that
Appellant got into the car with him and his brother, Clifford Eddins
as they left the funeral home. Transcript of Jury Trial, 08/06/18,
p. 28, 11. 14-24. Throughout the course of the trial, no attempt
was made to cross examine the prior identification witnesses on
the issue that the shooter may have been a man identified as
Travis Williams, the man in the photographs that the Appellant
attempted to introduce into evidence.
Alternatively, even if Counsel believes this evidence is
relevant, “the [c]ourt may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Pa.R.E. 403. Three other witnesses, Million
Smith, Elmo Smith and Clifford Eddins all testified and identified
the Appellant prior to Dennis Manson’s testimony, when Appellant
attempted to introduce the photographs. The Commonwealth
would have been prejudiced by the inability to rebut this
misidentification evidence as Dennis Manson was its last witness
and the other identification witnesses listed above had already
testified. Further, those same witnesses were no longer being
sequestered, so the Appellant would have had an advantage by
waiting until the last Commonwealth witness to introduce this
evidence, and could claim that the prior identification witnesses
knew what to say if recalled by being in the courtroom and hearing
Manson’s testimony. Therefore, the [c]ourt properly disallowed
this evidence, as it otherwise would have substantially and unfairly
prejudiced the Commonwealth.
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Trial Court Opinion, 3/15/19, at 3–5. Moreover, Appellant has not advanced
a plausible basis for relevance of a photograph of Travis Williams in light of
the significant eyewitness testimony that was corroborated by the surveillance
videos played at trial. Therefore, even if the trial court erred in its ruling, any
prejudice was de minimis and any error was harmless. Vucich, 194 A.3d at
1110 (introduction of irrelevant photographs was improper, but their
prejudicial effect was de minimis). Thus, even if not waived, the issue lacks
merit.
Judgment of sentence affirmed.
P.J.E. Ford Elliott joins this Memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2020
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