Com. v. King, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD EUGENE KING :
:
Appellant : No. 409 WDA 2022
Appeal from the Judgment of Sentence Entered March 9, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013383-2017
BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED: December 8, 2023
Donald Eugene King appeals from the judgment of sentence, entered in
the Court of Common Pleas of Allegheny County, after a jury convicted him of
one count each of first-degree murder,1 robbery,2 conspiracy - robbery,3
carrying a firearm without a license,4 and criminal trespass,5 and two counts
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1 18 Pa.C.S.A. § 2502(a).
2 Id. at § 3701(a)(1)(iii).
3 Id at § 903.
4 Id. at § 6106(a)(1).
5 Id. at § 3503(a)(1)(i).
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of burglary—overnight accommodations and person present.6 After careful
consideration, we affirm.
The trial court set forth the facts of the case as follows:
[O]n August 6, 2017[,] at approximately 10:41 p.m., [King] and
his accomplices went to a residence located at 208 Conestoga
Road in Penn Hills, Allegheny County, Pennsylvania[,] to rob Kevin
Trowery. [King] and his two accomplices were seen fleeing the
back door of the residence and Penn Hills police officers began
pursuit. [King] was arrested after a short pursuit. During the
course of the investigation[,] detectives recovered [] surveillance
videos of the entire incident. The videos d[epicted] the victim
exit[] his residence and st[and] on the front porch. [King] and his
two accomplices can be seen running toward the victim. The
victim attempted to fight off the three actors. [King], with a
firearm in his hand, shot the victim. The victim fell to the ground
and the three actors, including [King], beat the victim while he
was on the ground. [King] then fired two more shots into the
victim’s body. The victim died as a result of multiple gunshot
wounds. The three actors then entered the victim’s residence.
They are observed seconds later exiting the residence and
dragging the victim’s body into the residence.
Trial Court Opinion, 11/30/22, at 2.
Following a joint trial with co-defendant-brother, DeVante King, King
was convicted of the aforementioned offenses.78 On March 9, 2022, the court
sentenced King to the mandatory minimum sentence of life imprisonment for
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6 Id. at §§ 3501(a)(1)(i) (overnight accommodations; person present; bodily
injury), (ii) (overnight accommodations; person present).
7 The court granted the defendant a judgment of acquittal on the charge of
fleeing and eluding.
8 The third actor, Dustin Taylor, entered a guilty plea in the instant matter and
agreed to testify against King and DeVante in exchange for the
Commonwealth agreeing not to seek a life without parole sentence. See N.T.
Jury Trial, 12/6/21, at 16.
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first-degree murder. The court imposed consecutive terms of 60-120 months’
imprisonment for robbery and one of the burglary offenses, 90-180 months’
imprisonment for conspiracy - robbery, and 3½-7 years’ imprisonment for the
firearm conviction. No further penalty was imposed on the remaining counts.
King filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. King raises the
following issues for our review:
(1) The evidence presented at trial was insufficient to sustain
King’s convictions for [b]urglary-[o]vernight
[a]ccommodations[;] [p]erson [p]resent at counts 3 and
4[—]because it was quantitatively and/or qualitatively
insufficient to support a finding that a person was present
in the dwelling where the victim was located on his porch
at the time of the event. Accord, In the Interest of J.B.,
189 A.3d 390 (Pa. 2018).
(2) The trial court erred and/or abused its discretion in
amending the standard jury instruction 4.01 regarding
accomplice testimony as it misstates the circumspection
the jury should properly have given to the testimony of
Dustin Taylor.
Appellant’s Brief, at 6.
King contends that because the victim was not inside his residence at
the time of the offense, the structure was not “occupied” for purposes of
proving the crime of burglary.
The Crimes Code defines burglary, in relevant part, as:
a) Offense defined. A person commits the offense of burglary if,
with the intent to commit a crime therein, the person:
(1)
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(i) enters a building or occupied structure, or
separately secured or occupied portion
thereof, that is adapted for overnight
accommodations in which at the time of the
offense any person is present and the person
commits, attempts[,] or threatens to commit a
bodily injury crime therein;
(ii) enters a building or occupied structure, or
separately secured or occupied portion
thereof that is adapted for overnight
accommodations in which at the time of the
offense any person is present[.]
18 Pa.C.S.A. § 3502(a)(1)(i), (ii) (emphasis added). We review King’s
sufficiency of the evidence challenge under the following standard:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for [that of] the fact-
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact[,] while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part[,] or none of the evidence.
Commonwealth v. Callen, 198 A.3d 1149, 1167 (Pa. Super. 2018) (citations
and quotation marks omitted).
In Commonwealth v. Jackson, 585 A.2d 533, 535 (Pa. Super. 1991),
the defendant had been convicted of burglary, among other offenses, after
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entering the front door of a residence while the owner was seated on the back
porch. On appeal, our Court held that a porch attached to a residence is part
of the “structure” for purposes of assessing an offense gravity score (OGS) to
the defendant’s burglary conviction. Because a burglary that carries an OGS
of 7 requires that the burglarized structure be “adapted for overnight
accommodation in which the time of the offense any person is present,” id.
at 354 (emphasis added), the Court’s holding in Jackson necessarily assumes
that the Commonwealth had proven that the owner-victim was, in fact,
present when the offense occurred. See also Commonwealth v. Forman,
241 A.3d 467 (Pa. Super. filed Oct. 27, 2020)9 (unpublished memorandum
decision) (even though victims “tried to enter home” while it was being
burglarized, and then immediately retreated to their car, section 3502(a)(1)
burglary conviction upheld).
King admits in his appellate brief that “[t]he incident occurred outside”
the victim’s residence. Appellant’s Brief, at 14. In fact, video surveillance of
the crime shows the victim standing on the front porch 10 of his home when
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9 See Pa.R.A.P. 126(b) (non-precedential decisions filed after May 1, 2019,
may be cited for persuasive value).
10 Responding officers testified that the victim’s two-story residence had a
“side porch that went up steps.” N.T. Jury Trial, 12/6/21, at 63. See also
id. at 89 (officer testifying on cross-examination he “observed people coming
down the side steps of the residence” when he arrived at scene). When the
officer arrived on the scene, he observed King and his accomplice(s) emerge
from the victim’s home, “c[o]me out the door and c[o]me down the steps on
the side of the residence.” Id.; see also id. at 92 (“And that’s the stairwell
(Footnote Continued Next Page)
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the three assailants, wearing dark-colored clothing and facial coverings, run
toward him and point a firearm at him. The victim attempts to fight off the
three men with a broom; however, during the struggle, one of the assailants
fires a round at the victim, striking him in the leg. The victim falls down and
is beaten by the three men. The assailant with the gun then fires two more
shots, one grazes the victim and the final shot, to the victim’s chest, fatally
wounds him. The three men then enter the victim’s residence, exit the
residence several seconds later, and drag the victim back into his home
through the front door. See Commonwealth Exhibit III (video surveillance
footage from 208 Conestoga Road).
The fact that the victim was on the porch when King entered the
residence and burglarized the home supports the finding that the dwelling was
occupied. We decline to interpret section 3502 in a hyper-technical way,
where doing so would defeat the purpose of the statute. In short, “violence
[was] equally present” whether the victim was just inside the front door of the
residence or merely feet away on its porch at the time of the crime.
Commonwealth v. Stepp, 652 A.2d 922, 924 (Pa. Super. 1995) (“ ̀[T]he
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on the side of 208 Conestoga that you observed the three individuals.”). One
of King’s arresting officers testified regarding the appearance of the victim’s
front porch, specifically recognizing that the porch was on the side of the
house and had steps coming off it that led down to the residence’s surrounding
yard. See N.T. Jury Trial, 12/6/21, at 64-65 (perpetrators “ran down the
steps [from the porch] and fled towards the back of the residence[, and after
following them to the back of the house, officer] saw three of the individuals
. . . running down Conestoga Road toward the dead-end.”). Moreover, the
Commonwealth entered into evidence pictures of the residence, as well as the
side and rear yards of the home. See Commonwealth Exhibits 5-11.
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likelihood for greater’ mischief and violence is equally present both when a
person returns to their residence and discovers an intruder and when a person
[who is] already within the home discovers an intruder.”); see also id. at 923(Pa. Super. 1995) (where homeowner entered mobile home at time of
burglary, Court found “a technical application of the definition of burglary
missed the purpose and spirit which underline the different offense gravity
scores. . . . A potentially violent encounter exists whenever a person discovers
an intruder inside his home.”).
Because the victim was on the porch, which was part of the home’s
structure, the dwelling was occupied for purposes of proving burglary under
section 3502(a). See 18 Pa.C.S.A. §§ 3502(a)(1)(i)(ii); Callen, supra. Thus,
we find no merit to this claim.
In his second and final issue, King contends that the trial court abused
its discretion when it amended the standard jury instruction for accomplice
testimony11 causing the instruction to “fail[] to explain to the jury accurately
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11 The Suggested Standard Jury Instruction for accomplice testimony is:
First, you should view the testimony of an accomplice with
disfavor because it comes from a corrupt and polluted source.
Second, you should examine the testimony of an accomplice
closely and accept it only with care and caution.
Third, you should consider whether the testimony of an
accomplice is supported, in whole or in part, by other evidence.
Accomplice testimony is more dependable if supported by
independent evidence. [However, even if there is no independent
supporting evidence, you may still find the defendant guilty solely
(Footnote Continued Next Page)
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how they should access accomplice testimony.”12 Appellant’s Brief, at 12.
More specifically, King contends that the jury should have been instructed that
accomplice Taylor’s testimony “had to be considered with caution because an
accomplice may place blame on another.” Id. at 16.13
The standard charge for accomplice testimony is commonly referred to
as “the corrupt and polluted source charge.” Commonwealth v. Lawrence,
165 A.3d 34, 44 (Pa. Super. 2017). “The corrupt source charge[,] in
particular[,] is designed specifically to address situations where one
accomplice testifies against the other to obtain favorable treatment. It directs
the jury to view the testimony of an accomplice with disfavor and accept it
only with care and caution.” Commonwealth v. Smith, 17 A.3d, 873, 906
(Pa. 2011).
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on the basis of an accomplice’s testimony if, after using the special
rules I just told you about, you are satisfied beyond a reasonable
doubt that the accomplice testified truthfully and the defendant is
guilty.]
Pa. SSJI (Crim) 4.01 (italics and brackets in original).
12 The Commonwealth, too, suggested the standard jury instruction for
accomplice testimony in its proposed instructions.
13 King preserved this issue by objecting to the omitted language he suggested
for accomplice testimony. See Pa.R.Crim.P. 647(C); see also N.T. Jury Trial,
12/10/21, at 988-89 (defense counsel noting objection on record that court
removed following language: “Experience shows that an accomplice, when
caught, may often try to place blame falsely on someone else.”); id. at 989
(defense counsel objecting to court’s removal of words “corrupt” and wicked”
when instructing jury that accomplice may testify falsely in hope of obtaining
favorable treatment or for some “corrupt or wicked motive.”).
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[A] trial court has broad discretion in phrasing its instructions, and
may choose its own wording so long as the law is clearly,
adequately, and accurately presented to the jury for its
consideration. Commonwealth v. Charleston, [] 94 A.3d 1012,
1021 (Pa. Super. 2014)[.] A jury charge will be deemed
erroneous only if the charge as a whole is inadequate, not clear or
has a tendency to mislead or confuse, rather than clarify, a
material issue.
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).
Here, the trial court gave the following accomplice testimony instruction
to the jury:
I have defined accomplice liability to you. I have indicated that a
person is an accomplice of another person in the commission of a
crime if he or she has the intent to promoting or facilitating the
commission of that crime, solicits the other person to commit it,
or aids or agrees or attempts to aid or agree[—]excuse me, or
attempts to aid the other person in committing the planning. An
accomplice is a person who knowingly and voluntarily cooperates
with or aids another person in committing an offense.
When a Commonwealth witness is an accomplice, his or her
testimony has to be judged by special precautionary rules.
He or she may testify falsely in the hope of obtaining
favorable treatment or for some other motive. On the other
hand, an accomplice may be a truthful witness.
The special rules that I will give you are meant to help you
distinguish between truthful and false accomplice testimony.
In view of Dustin Taylor’s testimony, you must decide whether
Dustin Taylor was an accomplice of the crimes charged. If, after
considering all of the evidence, you find that he was an
accomplice, then you must apply the special rules to his
testimony. Otherwise, you would ignore those rules.
Use this test to determine whether Dustin Taylor was an
accomplice. Again, an accomplice is a person who knowingly and
voluntarily cooperates with and/or aids in the commission of a
crime.
Special rules that apply to accomplice testimony are these:
First, you should view the testimony of an accomplice with
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disfavor because it comes from a corrupt and tainted
source; second, you should examine the testimony of an
accomplice closely and accept it only with care and caution;
third, you should consider whether the testimony of an
accomplice is supported in full or in part by other evidence.
Accomplice testimony is more dependable if it is supported by
independent evidence. However, even if there is no independent
supporting evidence, you may still find the Defendant guilty solely
on the basis of an accomplice’s testimony if[,] after using these
special rules I’ve just told you about, you are satisfied beyond a
reasonable doubt that the accomplice testified truthfully and the
Defendant is guilty.
Again, the special rules are, first, you should view the
testimony of the accomplice with disfavor because it comes
from a corrupt and tainted source. And second, you should
examine the testimony of an accomplice closely and accept it only
with care and caution.
Separate and apart from the fact of whether that witness was an
accomplice, you should examine closely and carefully and
receive with caution the testimony of Dustin Taylor if you
find he has provided testimony with the intent to receive a
benefit after giving that testimony.
You’ve also heard that Dustin Taylor has been convicted of a
crime. The purpose for which you may consider the prior
conviction is in deciding whether or not to believe him, all or part
of his testimony. In doing so, you may consider the type of crime
he committed, and how it may affect the likelihood that he has
testified truthfully in this case.
You’ve also heard evidence that certain witnesses, Dustin Taylor
among them, made statements on earlier occasions that were
inconsistent with his present testimony. First of all, you, the jury
will determine whether the statements were inconsistent.
Secondly, if you do find that, you may, if you choose, regard that
as evidence, that is, the prior inconsistent statement, of the truth
of anything that the witness said in the earlier statement. You
may also consider that evidence to help you judge the credibility
and weight of the testimony given to you in this trial.
N.T. Jury Trial, 12/10/21, at 1102-06 (emphasis added).
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Based on the highlighted language above, we are not persuaded by
King’s argument that the trial judge’s accomplice testimony instruction was
“inadequate, not clear[,] or ha[d] a tendency to mislead or confuse, rather
than clarify, a material issue [for the jury].” Sandusky, supra at 667.
Rather, the instruction clearly advised the jury that if they found Taylor was
King’s accomplice, they were required to receive his testimony with disfavor
because it came from a corrupt and tainted source who may testify falsely to
receive favor. See Smith, supra at 906 (“In any case where an accomplice
implicates the defendant, the judge should tell the jury that the accomplice is
a corrupt and polluted source whose testimony should be viewed with great
caution.”).
Moreover, the judge instructed the jury that they could consider Taylor’s
prior conviction and whether, based on the crime he committed and how long
ago he committed it, it would affect Taylor’s ability to testify truthfully. Id. at
1105. The court also reminded the jury that Taylor had made inconsistent
statements (before and during trial) and that it was up to the jury to determine
the weight and credibility of Taylor’s trial testimony. Id. at 1106. Finally, the
court gave a detailed instruction on judging the credibility of witnesses,
stating:
As judges of the facts, you are the sole judges of the credibility of
witnesses and their testimony. This means you must judge the
truthfulness and accuracy of each witness’s testimony and decide
whether to believe all[,] part[,] or none of that testimony.
The following are some of the factors that you should and may
consider when judging credibility, deciding who to believe, what
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testimony to believe or not: Was the witness able to see, hear,
or know the things about which he testified; how well could the
witness remember and describe the things about which he or she
testified; did the witness testify in a convincing manner; how did
he or she look, act, and speak while testifying; was his or her
testimony uncertain, confused, self-contradictory or evasive; did
the witness have any interest in the outcome of the case; did the
witness have any bias, prejudice, or other motive that might affect
his or her testimony; how well does the testimony of the witness
square with the other evidence in the case, including the
testimony of other witnesses; was it contradicted or supported by
other testimony and evidence; did it make sense?
If you believe some part of the testimony of a witness to be
inaccurate, consider whether the inaccuracy cast[s] doubt upon
the rest of his or her testimony. This may depend on whether he
or she has been inaccurate in an important matter or only a minor
detail and on any possible explanation. For example, did the
witness make an honest mistake or simply forget, or did he or she
deliberately falsify [testimony].
While you are judging the credibility of each witness, you are likely
to be judging the credibility of other witnesses or evidence. If
there is a real irreconcilable conflict, it is up to you to decide which,
if any, conflicting testimony to believe.
Id. at 1091-94. Smith, supra at 906 (“If the evidence is sufficient to present
a jury question with respect to whether the prosecution’s witness was an
accomplice, the defendant is entitled to an instruction as to the weight to be
given to that witness’s testimony.”). Accordingly, we find that the court’s
charge was not erroneous. Sandusky, supra.
Judgment of sentence affirmed.
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DATE: 12/8/2023
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