Com. v. Jones, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MICHAEL JONES :
:
Appellant : No. 803 EDA 2020
Appeal from the Judgment of Sentence Entered February 28, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003755-2016
BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: APRIL 12, 2021
Michael Jones (Jones) appeals nunc pro tunc from the judgment of
sentence imposed following his jury conviction in the Court of Common Pleas
of Philadelphia County (trial court) of attempted murder, aggravated assault,
robbery, conspiracy and carrying a firearm without a license.1 We affirm.
I.
A.
On February 6, 2016, at about 3:30 a.m., after getting off a SEPTA train
on Broad Street in Philadelphia, Jones and co-defendants Syheed Wilson
(Wilson) and Keirsten Carroll (Carroll) hailed a cab driven by the victim, Alex
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 901, 2502, 2702, 3701, 903 and 6106.
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Destin (Destin). Jones sat in the front passenger seat of the cab and his co-
defendants rode in the back. Jones directed Destin where to drive and then
told him not to move as he put a gun to Destin’s head. (See N.T. Trial,
10/26/16, at 62-63). When Destin continued to drive, Jones shot him. Destin
jerked his head to the side and the bullet grazed his forehead. Jones shot
Destin again and the bullet struck his right ear. Jones jumped out of the taxi
as it was still moving and fled. Wilson then pulled Destin’s right arm back and
asked him to stop the cab. When Destin refused, Wilson shot him in the bicep.
Destin lost control of the vehicle and hit a parked car. He ran from the vehicle
and called for help.
Footage of Jones and his co-defendants just prior to the shooting was
captured on SEPTA video cameras and released to media outlets. Colin
Houston (Houston), the owner of the restaurant where Jones and Wilson
worked at the time, contacted police and identified them. Jones and his co-
defendants were arrested on February 23, 2016. Following his arrest, Wilson
gave a statement to police in which he identified Jones as the shooter.
B.
Prior to trial, defense counsel filed a motion seeking to redact all
references to Jones contained in a statement that co-defendant Wilson had
given to police. The Court ruled that specific references to Jones in the
statement be replaced with the phrase “my friend.”
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At trial, Houston testified that he employed Jones and Wilson at Jack’s
Firehouse Restaurant and that the two men were friends outside of work. He
also testified that Wilson had referred Jones for the job. (See N.T. Trial,
10/27/16, at 124-25).
The Commonwealth then called Detective Tim Quinn, who read Wilson’s
statement to police into the record, over an objection by defense counsel
based on the Confrontation Clause violation.2 Wilson’s statement read in
relevant part:
Myself and my friend had clocked out of work about 10:00
to 11:00 p.m. on February 5th. We work at Jack’s Firehouse. ...
We went to a party up in West Philly. I told my friends to call me
when she was done. She work at the one on Fox Street. Myself
and my friend had gotten on the subway about 2:00 a.m. to 2:30
a.m.
* * *
We [meet] my friend that was at Tasker-Morris station. She
just happened to be on the same train, not the same car. My
friend and I see her when we get off the subway. The three of us
begin to walk together.
My friend flagged down a cab as soon as we got out the
subway. We think my friend was going to pay for it. He gets in
the front seat. I got in the backseat. I was behind the driver she
was behind my friend.
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2The Sixth Amendment to the United States Constitution provides a criminal
defendant with the right “to be confronted with the witnesses against him.”
U.S. Const. Amend. VI. The Confrontation Clause protects a criminal
defendant’s right to confront witnesses bearing testimony against him. See
Crawford v. Washington, 541 U.S. 36, 51 (2004). The Pennsylvania
Constitution provides the same protection as the United States Constitution
under the Confrontation Clause. See Pa. Const. Article I, § 9.
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My friend- my friend in the front told the driver to go to 28th
and Tasker. I was talking to my friend in the back. We get to the
corner of 27th and Morris Street. My friend out of nowhere [pulls
a gun out].
My friend in the front seat takes his right hand and looking
forward points the gun at the cabdriver and said “give that shit
up.” The cabdriver, waving his hands as he was driving trying to
get the gun. A shot went off towards the cabdriver’s arm. Only
one shot went off.
Myself and my friend were in the backseat. My friend in the
front seat just bails out of the cab. We tried to get out but we
could not because of the locks. . . .
(Id. at 186-88). Wilson did not testify.
Before the jury deliberated, the trial court issued the following limiting
instruction:
There is a further rule that restricts use by you of the
evidence offered to show that the defendants, Syheed Wilson and
Keirsten Carroll, each made a statement concerning the crime
charged. A statement made before trial may be considered as
evidence only against the defendant who made that statement.
Thus, you may consider the statement as evidence against that
defendant who made it if you believe that he or she made the
statement voluntarily. You must not, however, consider the
statement as evidence against a defendant who did not
make it.
(See N.T. Trial, 10/31/16, at 30) (emphasis added).
On October 31, 2016, the jury found Jones guilty of the above-listed
offenses. On February 28, 2017, the trial court sentenced Jones to an
aggregate term of not less than twenty nor more than forty years’
incarceration. After his direct appeal was dismissed for counsel’s failure to file
a brief, Jones was successful in his PCRA petition seeking reinstatement of his
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appellate rights nunc pro tunc on February 12, 2020. This timely appeal
followed. Because the presiding trial court judge retired before Jones filed this
appeal, the case was forwarded to this Court without a Rule 1925(a) opinion.
See Pa.R.A.P. 1925(a).
II.
A.
On appeal, Jones challenges the trial court’s admission of Wilson’s
redacted statement to police into evidence at trial. Jones argues that
replacing his name with “my friend” violated his right to confront witnesses
under Bruton v. United States, 391 U.S. 123 (1968). Jones contends that
because his former employer Houston testified that Wilson and Jones worked
at his restaurant and were friends, it was plain to the jury that the “friend” in
Wilson’s statement was Jones.3
In Bruton, the United States Supreme Court held the admission of a
non-testifying co-defendant’s statement at a joint trial that incriminated the
defendant violated the Confrontation Clause of the Sixth Amendment, even if
the trial court issued a cautionary instruction to the jury. See Bruton, supra
at 126. The Court refined Bruton in Richardson v. Marsh, 481 U.S. 200____________________________________________
3 “Whether a defendant has been denied his right to confront a witness under
the Confrontation Clause of the Sixth Amendment to the United States
Constitution, made applicable to the States via the Fourteenth Amendment, is
a question of law, for which our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa.
Super. 2020) (citation omitted).
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(1987), holding that the admission of a co-defendant’s statement that
redacted the defendant’s name did not violate the Confrontation Clause when
accompanied by a proper limiting instruction. See Richardson, supra at
211. The Court noted that the calculus changes when a co-defendant’s
statement does not name the defendant, and emphasized there is an
important distinction between statements that expressly incriminate the
defendant and those that become incriminating only when linked to other
evidence properly introduced at trial. See id. at 208, 211.
In Commonwealth v. Travers, 768 A.2d 845 (Pa. 2001), our Supreme
Court applied these principles. There, the co-defendant’s statement to police
was redacted to replace any specific reference to the defendant by name with
the neutral term, “the other man.” Id. at 846. The trial court also issued a
cautionary instruction to the jury that it use the statement only against the
co-defendant. Id. The Supreme Court found no Confrontation Clause
violation, reasoning that the redacted statement could become incriminating
only through independent evidence introduced at trial which established the
defendant’s guilt, and only if the jury did not adhere to the court’s limiting
instruction. It found that the redaction, combined with the trial court’s
accurate cautionary charge, sufficed to protect the defendant’s Sixth
Amendment right to confrontation. See id. at 851. It further determined that
since the statement was not so incriminating on its face, it was appropriate to
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apply the general rule presuming that jurors follow a court’s instructions. See
id.
B.
In this case, the trial court properly admitted Wilson’s redated statement
because use of the phrase “my friend” did not violate Jones’ right to confront
witnesses where the jury also received a cautionary instruction that it could
not use the statement as evidence against him.4 Wilson’s redacted statement
was facially neutral, and any connection drawn between the redacted name
and Jones was established through other independent evidence. Further, the
trial court issued a limiting instruction to the jury expressly directing that it
could consider the statement as evidence only against Wilson. Thus, the
sound redaction, coupled with an appropriate instruction, sufficed to protect
Jones’ right to confrontation.
Judgment of sentence affirmed.
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4 Jones’ reliance on Gray v. Maryland, 523 U.S. 185 (1998), is misplaced, as
that case is distinguishable on its facts. At issue in Gray was admission of a
statement by a non-testifying co-defendant which substituted blanks and the
word “deleted” for Gray’s name. The United States Supreme Court held that
this redaction, using an obvious blank space, a word such as “deleted”, or
other prominent indication of alteration, is not sufficient to protect a
defendant’s Confrontation Clause rights despite the trial court’s issuance of a
limiting instruction. See Gray, supra at 194. The instant case involved no
such deletion or obvious alteration and instead replaced Jones’ name with a
neutral phrase, consistent with Travers.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/21
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