Com. v. Johnson, J. ( 2020 )

J-E01008-20, J-E01009-20, J-E01010-20, & J-E01011-20
2020 PA Super 164COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROME JOHNSON, :
:
Appellant. : No. 1620 EDA 2018
Appeal from the Judgment of Sentence, May 11, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005331-2014,
CP-51-CR-0005332-2014, CP-51-CR-0009453-2014,
CP-51-CR-0012063-2015.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROME JOHNSON, :
:
Appellant. : No. 2045 EDA 2018
Appeal from the Judgment of Sentence Entered, May 11, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005331-2014,
CP-51-CR-0005332-2014, CP-51-CR-0009453-2014,
CP-51-CR-0012063-2015.
J-E01008-20, J-E01009-20, J-E01010-20, & J-E01011-20
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROME JOHNSON, :
:
Appellant. : No. 2046 EDA 2018
Appeal from the Judgment of Sentence Entered, May 11, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005331-2014,
CP-51-CR-0005332-2014, CP-51-CR-0009453-2014,
CP-51-CR-0012063-2015.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROME JOHNSON, :
:
Appellant. : No. 2047 EDA 2018
Appeal from the Judgment of Sentence Entered, May 11, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005331-2014,
CP-51-CR-0005332-2014, CP-51-CR-0009453-2014,
CP-51-CR-0012063-2015.
BEFORE: PANELLA, P.J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS,
J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.
OPINION BY KUNSELMAN, J.: Filed: July 9, 2020
Jerome Johnson appeals from the judgment of sentence entered at four
separate dockets after a consolidated jury trial. The jury found him guilty of
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second-degree murder, robbery, aggravated assault, and other related
charges.
On June 5, 2018, Johnson timely filed four notices of appeal pursuant to
the Supreme Court decision in Commonwealth v. Walker, 185 A.3d 969(Pa. 2018), which requires appellants to file a separate notice of appeal for
each trial-court docket number they intend to appeal. However, Johnson
listed all four of the docket numbers on all four notices. He also italicized one
relevant docket number on each notice to identify which notice corresponded
with each appealed case.
While his four consolidated appeals were pending, a three-judge panel
of this Court filed a published opinion in Commonwealth v. Creese, 216
A.3d 1142 (Pa. Super. 2019). That panel construed Walker to mean that “we
may not accept a notice of appeal listing multiple docket numbers, even if
those notices are included in the records of each case.” Creese, 216 A.3d at
1144. Instead, the panel concluded “a notice of appeal may contain only one
docket number.” Id. (emphasis added). The panel quashed the appeal.
Neither party filed a petition for allowance of appeal with the Supreme Court,
rendering Creese a final disposition and setting precedent by this Court.
Thereafter, the panel originally assigned to Johnson’s case requested
en banc certification to determine whether Johnson adequately preserved his
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appeal.1 We conclude that Johnson may proceed with his appeal, but we
affirm his judgment of sentence.
I.
This Court granted en banc consideration of the following procedural
issues:
1. Whether Johnson’s inclusion of multiple court of
common pleas docket numbers on his notice of appeal
violates Pa.R.A.P. 341 and Walker?
2. If so, whether such violation necessitates quashal by
this Court?
Per Curiam Order, 10/4/19, at 3.
To answer these questions, we begin by examining the Walker decision.
There, the trial judge granted suppression motions filed by four codefendants,
and the Commonwealth filed a single notice of appeal. This Court quashed
the appeal based on our interpretation of the Official Note to Appellate Rule
341. Walker, 2016 WL 5845208 (Pa. Super. 2016). That Note provides in
relevant part as follows:
Where, however, one or more orders resolves issues arising
on more than one docket or relating to more than one
judgment, separate notices of appeal must be filed.
Commonwealth v. C.M.K., 932 A.2d 111, 113, & n.3 (Pa.
Super. 2007) (quashing appeal taken by a single notice of
appeal from order on remand for consideration under
Pa.R.Crim.P. 607 of two persons’ judgment of sentence).
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1 A panel in another case facing a similar procedural issue also requested en
banc review. See Commonwealth v. Larkin, ___ A.3d ___, 2761 EDA 2018
(Pa. Super. 2020) (en banc). Both cases were listed consecutively before this
en banc panel, and we decide them both today.
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Pa.R.A.P. 341, Official Note.
The Commonwealth argued that factual circumstances of Walker’s case
were distinguishable from the case cited in the note to Rule 341, C.M.K.,
because C.M.K. involved a single appeal filed by two criminal defendants,
based upon two judgments of sentence, for convictions on different charges
with different sentences. Under the circumstances of C.M.K., this Court held
quashal was necessary, because the two codefendants, who were husband
and wife, each presented different issues. We stated:
From a purely logical standpoint, the problems inherent in
criminal codefendants filing a joint appeal are readily
apparent. In most cases, they would not have been
convicted for identical actions. If, then, these codefendants
raised a challenge to the sufficiency of the evidence, as
[a]ppellants here do, the evidence under evaluation would
be different for each defendant, necessitating individualized
arguments and analyses. The same would be true for
challenges to different sentences.
Some appellate issues may coincide; for instance, in
this case, [a]ppellants challenge ex parte contact between
the prosecutor and a juror. The potential for prejudice from
such contact would appear to be the same for each
defendant. However, even this claim may not be treated by
this Court in exactly the same fashion. Appellants were
individually represented at trial; accordingly, the issue may
have been preserved at trial by one defendant's counsel and
not the other’s.2
C.M.K., 932 A.2d at 113 (footnote omitted).
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2Because they were married to each other, the appellants in Commonwealth
v. C.M.K., 932 A.2d 111 (Pa. Super. 2007), filed one joint brief which
contained only joint arguments; the Court found this distinction irrelevant.
C.M.K., 932 A.2d at 113.
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In Walker, the Commonwealth argued against quashal, because, unlike
C.M.K., the appeal stemmed from a single suppression order that applied
equally to all of the appellees, with a single set of findings of fact and
conclusions of law, relating to a single vehicle stop.
This Court disagreed, indicating that although the specific problems
produced by a single order differed in C.M.K., the Commonwealth’s single
appeal in Walker generated a different set of issues:
For instance, affirming (or reversing) the suppression order
may affect each defendant differently, depending on what
evidence, if any, is still available for use by the
Commonwealth at trial. Indeed, the results of such an
appeal may ultimately affect circumstances which impact
whether the codefendants should be jointly tried at all.
Moreover, the Fourth Amendment and/or privacy rights of
[a]ppellees, as well as their standing to challenge the
lawfulness of a search and/or seizure, could also differ
between codefendants. Accordingly, although we agree that
the specific concerns discussed in C.M.K. cannot arise in a
Commonwealth’s appeal from a suppression order affecting
multiple codefendants, sufficiently similar or analogous
hazards exist to justify the rule requiring the
Commonwealth to file separate appeals with respect to each
[a]ppellee/codefendant.
Walker, 2016 WL 5845208 at *3 (Pa. Super. 2016). For these reasons, this
Court held that the Commonwealth was required to file four separate notices
of appeal, and that we lacked “the authority to manufacture a remedy for the
Commonwealth, even if we were inclined to do so.” Id. As a result, we
quashed the Commonwealth’s appeal. Id. at *4.
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The Supreme Court granted further review and agreed with our analysis.
Walker, 185 A.3d at 976. The High Court also explained that the
Commonwealth’s filing of a single notice of appeal “effectively and improperly
consolidated the appeals in the [criminal defendants’] four cases . . . without
either the approval of the Superior Court or the agreement of the [parties].”
Id. at 976 (citing Pa.R.A.P. 513).3 The Supreme Court expressed concern
that a failure to require separate notices of appeal “will often result in
unintended consequences, as the appellate court, in deciding the single appeal
must ‘go behind’ the notice of appeal to determine if the same facts and issues
apply to all of the [criminal defendants.]” Id. at 977.
Applying the rules of statutory construction, the High Court found that
the 2013 amendment to the Official Comment of Rule 341(a) required a
bright-line rule: “Where . . . one or more orders resolves issues arising on
more than one docket or relating to more than one judgment, separate notices
of appeal must be filed.” Id. “Failure to do so, requires the appellate court
to quash the appeal.” Id. at 977.
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3 Pa.R.A.P. 513 states:
[w]here there is more than one appeal from the same order,
or where the same question is involved in two or more
appeals in different cases, the appellate court may, in its
discretion, order them to be argued together in all
particulars as if but a single appeal. Appeals may be
consolidated by stipulation of the parties to the several
appeals.
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However, because its interpretation of the Rule 341 was based on the
2013 amendment to the Official Note which was contrary to decades of case
law from our appellate courts, the Supreme Court declined to quash Walker’s
appeal and made the rule prospective only, i.e., to cases filed after June 1,
2018. Id. at 977.
Notably, Walker did not specifically address the situation in this case,
where one defendant appeals from one judgment of sentence, entered
following one trial on multiple criminal dockets. In this circumstance, the
problems identified in C.M.K. and Walker involving multiple defendants do
not exist. Nonetheless, where a single defendant challenges his sentence
relating to “more than one docket,” Walker requires that defendant to file
separate notices of appeal. Id. at 976.
Six months after Walker, on December 20, 2018, Lawrence Creese
appealed from the PCRA court’s order, denying him post-conviction relief at
four separate docket numbers. Creese, 216 A.3d at 1143. Creese filed a
single notice of appeal listing all four docket numbers. Id.
This Court entered a rule to show cause for Creese to explain why we
should not quash the appeal based on Walker, 185 A.3d. 969 (Pa. 2018). Id.
Creese filed a response in which he admitted to filing only one notice that
included all four docket numbers and conceded that “counsel was previously
unaware of the rule in [Walker].” Id. However, he claimed that no party
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would be prejudiced by “this technical error.” Id. In a per curiam order, this
Court referred the Walker issue to the merits panel.
Under these facts, the majority of the panel concluded that Creese did
not satisfy Walker.4 Id. at 1144. The Court noted that, because Creese’s
counsel was previously unaware of the Walker rule, “it appear[ed] that one
notice of appeal was simply photocopied and placed in each record,
conceivably by the clerk of courts. It [was] impossible to be sure whether
that occurred, or whether counsel himself filed four copies of the notice of
appeal.” Id. at 1144, n.1.5 The Creese majority then read Walker “as
instructing that we may not accept a notice of appeal listing multiple docket
numbers, even if those notices were included in the records of each case.”
Id. Moreover, as previously mentioned, Creese held that “a notice of appeal
may contain only one docket number.” Id.6
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4Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019) was a divided
decision, with Judge Strassburger dissenting. He believed Creese had met the
mandates of Pa.R.A.P. 341 and Commonwealth v. Walker, 185 A.3d 969(Pa. 2018), and, therefore, Judge Strassburger would not have quashed the
appeal. Creese, 216 A.3d at 1146
5 As the Creese panel correctly noted, a clerk of courts has only ministerial
powers. Creese, 216 A.3d 1144, n.2. The clerk “has no judicial powers nor
does he have the power to act as attorney for others by virtue of his
office.” Id. (emphasis in original). We agree that the clerk of courts cannot
perfect an appeal at multiple dockets when a lawyer fails to file separate
notices.
6In his dissent, Judge Strassburger opined, “Nothing in Walker requires a
notice of appeal to contain only one docket number.” Creese, 216 A.3d. at
1146.
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The Creese panel recognized the severity of applying such a rule to any
appeal filed after June 1, 2018. Id. However, this rule, it reasoned, would
provide consistency, and “would ultimately benefit appellants and counsel by
providing clear guidance on how to satisfy Walker and Rule 341(a).” Id.Significantly, the Creese decision immediately affected numerous cases
already pending on appeal, including the instant case, where the facts were
significantly different. Creese placed many appellants, who believed they had
complied with Walker, in unforeseen jeopardy of forfeiting their appeals,
because Creese, unlike Walker, did not apply its rule prospectively.
Here, for example, Johnson clearly filed 4 separate notices of appeal, as
Walker directed. Although the notices contained all four of the docket
numbers from the lower court, on each notice, he italicized the relevant case
number being appealed. As we did in Creese, this Court issued a rule to show
cause why this appeal should not be quashed pursuant to Walker. Johnson
filed a response, stating that he filed four separate notices of appeal, and
although the notices had all four case numbers on it, the relevant docket
number, at which the notice was filed, was italicized. This Court entered a per
curiam order, referring the Walker issue to the merits panel.
As noted, because Johnson’s appeal was pending when Creese was
decided, and because Creese would require quashal of this appeal and many
others, we granted en banc review to decide whether Walker and Rule 341
dictate that only one number may appear on a notice of appeal.
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In their supplemental briefs to this Court, both Johnson and the
Commonwealth contend that we should not quash Johnson’s four notices of
appeal. Both parties assert that he complied with the explicit requirements of
Appellate Rule 341 and Walker.7 We agree.
Importantly, we observe that Rule 341 and Walker make no mention
of case numbers on a notice of appeal. To be sure, the error in Walker was
the filing of a single notice of appeal affecting multiple cases and several
defendants. The bright-line rule set forth in Walker only required an
appellant to file a “separate” notice of appeal for each lower court docket the
appellant was challenging.
Here, it is indisputable that Johnson filed a separate notice of appeal for
each of the four dockets below, because he italicized only one case number
on each notice of appeal. Unlike Creese, the clerk of courts played no role in
typing four separate notices of appeal and italicizing the individual docket
numbers on Johnson’s behalf. Based on our review of Walker and Rule 341,
Johnson filed separate notices that perfected four appeals from each of the
four common pleas court dockets. The fact that the notices contained all four
lower court numbers is of no consequence. Indeed, the Rules of Appellate
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7 Johnson also argues that even if he violated Rule 341 and Walker, the
appeal should not be quashed due to a breakdown in the court system,
because the trial court incorrectly informed Johnson that he could file “an
appeal” to the Superior court after sentencing. Johnson’s Supplemental Brief
at 27-30. As our decision today in Larkin, supra, makes clear, this
alternative argument likewise dictates against quashal of Johnson’s appeals.
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Procedure are to be liberally construed to effectuate justice. Pa.R.A.P. 105(a);
see also 1 Pa.C.S.A. § 1928(c). We should not invalidate an otherwise timely
appeal based on the inclusion of multiple docket numbers, a practice that the
Rules themselves do not expressly forbid.
By stating that each notice of appeal may contain only one number,
Creese imposed upon appellants an additional requirement found in neither
Walker nor Rule 341. Although our Supreme Court may adopt such a rule in
the future, it did not do so in Walker.8 As such, in so far as Creese stated
“a notice of appeal may contain only one docket number,” 216 A.3d at 1144
(emphasis added), that pronouncement is overruled.9 Because Johnson
appealed from four docket numbers and filed four notices of appeal, Johson
has complied with Walker. The fact that each notice of appeal listed all four
docket numbers does not invalidate his notices of appeal, and we decline to
quash his appeals.
____________________________________________
8 We respectfully suggest that any such rule be prospective and require an
appellant to identify any related cases as well; identifying related cases alerts
the appellate court to assign those appeals to the same merits panel, which
fosters judicial economy, ensures uniform treatment for the appellant, and
limits the possibility of inconsistent results.
9As Creese’s attorney admitted to only filing one notice of appeal in violation
of Walker, and the clerk, we agree with the ultimate decision in Creese to
quash that appeal.
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II.
Turning to the merits of this case, we note that Johnson’s convictions
for second degree murder, robbery and related offenses arose out of two
incidents, which occurred one day apart in January 2014. The first case arose
from a robbery and murder at the New Diamond Chinese Store. On January
26, 2014, Marquise Kemp and Kyleaf Gordon were selling drugs out of the
store. Johnson and his two co-conspirators, Shafik Lamback and Mychal
Cassel, went to the store looking for drugs. Johnson pointed a gun at Kemp,
said “Don’t move or I’m going to kill you”, and demanded Kemp give him
everything. Kemp gave him his black Armani Exchange “bubble” jacket, which
had money, drugs, and a phone in it. Kemp followed the three robbers out of
the store and yelled to Gordon, who was across the street, “They robbed me.”
Gordon started shooting at the men; Cassel fired back, hitting Gordon. Kemp
and Gordon ran, but Gordon, who was bleeding from his nose and mouth, fell
to the ground. Kemp called the police. Kemp’s robbers sped off, and later
they divided up the proceeds from the robbery. Gordon laid in the street and
died shortly thereafter.
Johnson’s three other cases arose from another robbery at the Norman
Blumberg Apartments. On January 27, 2014, the day after the Chinese Store
robbery and murder, Johnson, Lamback, and Cassel went to the Norman
Blumberg Apartments looking for pills. Johnson and Cassel carried the same
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firearms that they had with them the night before. Failing to find any pills,
Lamback left, but Johnson and Cassel stayed at the apartment building.
Derek Fernandes was leaving the apartment building when he saw the
two unfamiliar men. Johnson pulled out a gun, pointed it at Fernandes’ face,
and said “Don’t move.” Johnson grabbed twenty dollars that Fernandes was
holding in his hand. As Johnson and Cassel left the building, Johnson warned
Fernandes not to follow them or he would shoot.
Fernandes followed them out of the building; shots were fired.
Fernandes told two housing police officers that he was robbed. The officers
saw Johnson and Cassel walking away, told them to stop, but they took off.
The police chased them on foot for several blocks. An FBI agent joined the
chase in his vehicle. Eventually, the three officers trapped Johnson in a
fenced-in lot. The officers directed Johnson to drop his weapon, but he
refused. Instead, Johnson raised his gun and pointed it directly at the officers.
The officers shot at Johnson, and he fell to the ground. Johnson was arrested
and charged.
Prior to trial, the Commonwealth filed a motion to consolidate the
charges from the Chinese Store robbery and murder with the Fernandes
robbery and assaults. Although Johnson opposed it, the trial court granted
the motion.
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A jury convicted Johnson of the aforementioned charges. The trial court
imposed an aggregate sentence of life imprisonment without parole. Johnson
filed post-sentence motions, which the trial court denied.
Johnson timely appealed. Both Johnson and the trial court complied
with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Johnson raises the following issues:
1. Did the Trial Court abuse its discretion in granting the
Commonwealth’s Motion to Consolidate Cases for Trial?
2. Did the Trial Court err in denying the Appellant's Post–Verdict
Motions where the weight and sufficiency of the evidence did not
support a verdict of guilty of Second-Degree Murder?
Johnson’s Brief at 2-3.
In his first issue, Johnson argues that the trial court erred by
consolidating for trial the charges stemming from the Chinese Store
robbery/murder and the Fernandes robbery/assaults. Specifically, Johnson
contends that the evidence of each offense would not have been admissible in
separate trials. Additionally, the charges were based on two separate
incidents occurring on different dates and at different times and locations.
Johnson’s Brief at 9, 11-13. According to Johnson, he was prejudiced by the
consolidation of the cases. Id. at 13-15. We disagree.
“The general policy of the laws is to encourage joinder of offenses and
consolidation of indictments when judicial economy can thereby be effected,
especially when the result will be to avoid the expensive and time consuming
duplication of evidence.” Commonwealth v. Patterson, 546 A.2d 596, 600
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(Pa. 1988). “Whether to join or sever offenses for trial is within the trial
court's discretion and will not be reversed on appeal absent a manifest abuse
thereof, or prejudice and clear injustice to the defendant.” Commonwealth
v. Wholaver, 989 A.2d 883, 898 (Pa. 2010). The Rules of Criminal Procedure
provide:
Rule 582. Joinder—Trial of Separate Indictments or Informations
(A) Standards
(1) Offenses charged in separate indictments or informations may
be tried together if:
(a) the evidence of each of the offenses would be admissible
in a separate trial for the other and is capable of separation
by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or
transaction.
Pa.R.Crim.P. 582(A)(1)(a)-(b).
To establish that evidence of other crimes is admissible at trial, the
evidence must be used for a purpose other than to show mere propensity to
commit a crime. Pa.R.E. 404(b)(1). Rationales for the admission of other
crimes or bad acts evidence include using this evidence to prove identity,
intent, malice, absence of mistake or accident, common scheme or plan, and
where the prior or subsequent act is part of the history of the event or part of
the natural development of the facts. Commonwealth v. Collins, 703 A.2d
418, 422 (Pa. 1997). Such evidence is only admissible upon a showing that
its probative value outweighs its potential for prejudice. Pa.R.E. 404(b)(3).
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Here, the trial court found that Johnson’s multiple criminal charges were
properly joined for trial. It explained as follows:
Evidence of the robbery and murder from January 26, 2014 is
clearly admissible in the trial for the robbery and aggravated
assaults that occurred on January 27, 2014 and vice versa to
demonstrate common plan and scheme, identity, knowledge,
motive, intent, absence of mistake, to complete the narrative of
events, and to show consciousness of guilt. The facts of the cases
demonstrate sufficient similarity to warrant joinder to show the
undertaking of a common plan and scheme. These criminal acts
occurred on two consecutive nights in the same early morning
hours; the same three defendants used the same vehicle to drive
from West Philadelphia to North Philadelphia for the purpose of
robbing a drug dealer of his narcotics and money. Johnson and
Cassel carried the same firearms each night. The jacket stolen
the first night was recovered from Johnson's person on the second
night. Ballistic evidence from the first robbery and murder was
located inside Johnson's vehicle after it was recovered outside the
scene of the second robbery and shooting.
The overlapping evidence, including the use of Johnson's white
Lincoln Town Car in both robberies and the recovery of the
proceeds from the first robbery on the night of the second
robbery, is admissible to establish the identity of the doers in each
case. Similarly, evidence of Johnson's conduct and use of a
firearm in the first robbery is relevant and admissible to establish
intent and malice during the second robbery and subsequent
aggravated assaults. Finally, the short time frame and
overlapping evidence of each criminal act is so intertwined as to
be part of the res gestae of this case. As such, the evidence of
each crime would properly be admissible in a trial for the others.
The offenses charged for each case, while consisting of
overlapping evidence, are sufficiently distinct in time, location,
and action to be evaluated by a jury without confusion, as they
occurred in different locations and had different victims. Likewise,
[Johnson] is not overly prejudiced by the consolidation. “[T]he
trial court 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 and form a part of the history
and natural development of the events and offenses for which the
defendant is charged.” Commonwealth v. Lark, 543 A.2d 491,
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501 (Pa. 1988). Prior acts are not prejudicial when they are
necessary for the prosecution of a case. Commonwealth v.
O'Brien, 836 A.2d 966, 971 (Pa. Super. 2003) (citing
Commonwealth v. Gordon, 673 A.2d 866 (Pa. 1996). The
cases were therefore properly consolidated.
Trial Court Opinion, 8/6/18, at 11-13. Given this rationale, we conclude that
the trial court did not abuse its discretion in consolidating the charges for trial
and that Johnson was not prejudiced and did not suffer clear injustice as a
result of the consolidation. Johnson’s first issue warrants no relief.
In his second issue, Johnson raises a sufficiency and weight claim as to
his conviction for second-degree murder. We note, however, that although
Johnson preserved this issue for appeal, he did not develop any argument
regarding the weight claim in his appellate brief. We have stated:
When briefing the various issues that have been preserved, it is
an appellant's duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with
citations to legal authorities. Citations to authorities must
articulate the principles for which they are cited.
This Court will not act as counsel and will not develop arguments
on behalf of an appellant. Moreover, when defects in a brief
impede our ability to conduct meaningful appellate review, we
may dismiss the appeal entirely or find certain issues to be
waived.
Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (citations
omitted). Accordingly, because he failed to develop an argument, Johnson
has waived his weight claim. Therefore, we will only address his sufficiency
claim.
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Johnson argues that there was insufficient evidence to support his
conviction for second-degree murder. Specifically, Johnson argues that when
he, Cassel, and Lamback left the Chinese Store, the robbery and conspiracy
to rob Kemp had ended. The shooting death of Gordon occurred independent
from the robbery. The men had already left the Chinese Store when Gordon
shot at Cassell, and Cassell returned fire in an act of self-defense. Thus,
Johnson claims the evidence presented at trial was insufficient as a matter of
law to convict him of second-degree murder. Johnson’s Brief at 19-20. We
disagree.
In reviewing a claim based upon the sufficiency of the evidence, this
Court:
must determine whether the evidence admitted at trial, as well as
all reasonable inferences drawn therefrom when viewed in the
light most favorable to the verdict winner, are sufficient to support
all elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted). “Because evidentiary sufficiency is a question of law, our standard
of review is de novo and our scope of review is plenary.” Commonwealth v.
Diamond, 83 A.3d 119, 126 (Pa. 2013).
A defendant commits second-degree murder when he or an accomplice
kills another human being during the course of committing a felony.
18 Pa.C.S.A. §§ 2501, 2502(b), (d). To sustain a conviction for second-degree
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murder, the Commonwealth must prove that: (1) a human being was
unlawfully killed; (2) the defendant or an accomplice, while partners in a
crime, committed the act that caused the killing; (3) the defendant or an
accomplice committed the act in furtherance of that crime, and (4) that the
defendant acted with malice. Id.
Here, the Commonwealth’s evidence showed that Gordon was killed
while Johnson and his accomplices were committing a robbery. Even though
the men left Kemp’s store, the shooting occurred while they were attempting
to flee from the scene. As the trial court stated:
The evidence clearly established that on January 26, 2014,
Johnson, Cassel, and Lamback drove to North Philadelphia with
the intent of robbing a drug dealer. Johnson and Cassel brought
guns. Johnson immediately asked Kemp if he had any drugs,
before pulling out his gun and pointing it at Kemp. Cassel boxed
Kemp in while Lamback stood at the door as a lookout. While
trying to flee from the robbery and confronted by Kyleaf Gordon,
Cassel pulled out his firearm and shot at Gordon, ultimately
shooting him in the back as he ran away. Both Johnson and Cassel
were unlicensed to carry a firearm. All three defendants received
proceeds from the robbery.
Johnson conceded that he robbed Kemp. [Johnson] asserts,
however, that he acted alone in the robbery and that co-defendant
Cassel acted alone in self-defense. This claim necessarily rests on
the premise that the Commonwealth’s evidence did not prove
Cassel’s involvement in the robbery and the conspiracy among the
defendants to commit robbery. The jury, sitting as fact-finder, did
not find the [d]efendants’ arguments persuasive and convicted
both Johnson and Cassel of both robbery and conspiracy to
commit robbery.
Since Second-Degree Murder is predicated on the underlying
felony, this Court will address the evidence proving that each
defendant was involved in the robbery and conspiracy to commit
robbery of Kemp. Johnson, Cassel, and Lamback left their own
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neighborhood with guns to find drug dealers. They drove together
to an area of the city where they were unfamiliar. All three exited
the Lincoln Town Car and entered the Chinese Store, surrounding
Kemp and preventing his escape and surveying for law
enforcement or other potential threats to their enterprise. After
the money, drugs, phone, and jacket were confiscated from Kemp
at gunpoint, all three left the store together and returned to
Johnson's vehicle. After shots were exchanged and all three
returned back to West Philadelphia together, the proceeds were
divided equally among the perpetrators. The evidence is more
than sufficient to establish all three defendants were guilty of
Robbery and Conspiracy to Commit Robbery.
Johnson, Cassel, and Lamback were therefore conspirators, or
partners, at the time they were leaving the Chinese Store and
encountered Gordon. Cassel, acting as a co-conspirator, fired his
weapon in an attempt to successfully flee from the scene of the
robbery, an act that furthered the robbery and the conspiracy.
Since the defendants were involved in a crime that by its nature
risks the safety of others, the jury could infer malice. Gordon
suffered a fatal gunshot wound as a result of Cassel's actions. The
evidence is therefore sufficient to sustain a verdict of Second-
Degree Murder.
Trial Court Opinion, 9/6/18, at 14-15.
Additionally, the Commonwealth proved that Johnson’s accomplice,
Cassel, did not act in self-defense. As the trial court explained:
The jurors dismissed the claims that Cassel acted in self-defense.
Self-defense, which the [Johnson] argues justified Cassel's
actions, is defined as the use of force upon another person when
the actor believes that such force is immediately necessary for the
purpose of protecting himself against unlawful force. 18 Pa.C.S.
§505(a). The use of a deadly force is limited by § 505(b)(2),
under the circumstances where “the actor believed such force is
necessary to protect himself against death or serious bodily
injury.” 18 Pa.C.S. §505(b)(2). Deadly force is defined as, “force
which, under the circumstances in which it is used, is readily
capable of causing death or serious bodily injury.” 18 Pa.C.S.
§501.
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Under the law, the Commonwealth must prove beyond reasonable
doubt that a killing was not committed in self-defense.
Commonwealth v. Mouzon, 53 A.3d 527 (Pa. 2012). It
succeeds in the task if it's [sic] evidence shows that the defendant
provoked or continued in the difficulty that resulted in the killing,
the defendant's belief that he was in danger of death or serious
bodily injury was unreasonable, or that the defendant could have
retreated in complete safety. Id. at 532. As the defendants here
provoked the use of force against them by robbing Kemp at
gunpoint, self-defense was inapplicable.
Id. at 15-16.
Based upon our independent review of the record, and viewing the
evidence in the light most favorable to the Commonwealth as verdict winner,
we likewise find that there was sufficient evidence to prove beyond a
reasonable doubt that Johnson committed second-degree murder. Contrary
to Johnson’s argument, the robbery and the murder were all one continuous
event. The shooting clearly was prompted by Kemp telling Gordon that he
had been robbed as Johnson and his co-conspirators attempted to leave the
scene. The gunfire that ensued led to the murder of Gordon. Johnson’s
second issue also warrants no relief.
Judgment of sentence affirmed.
President Judge Panella, and Judges Dubow, Nichols, McLaughlin, King,
and McCaffery join this Opinion.
Judge Stabile filed a Concurring Statement, which Judges Dubow, King,
and McCaffery join.
Judge Murray Notes Dissent.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/20
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