Com. v. Sargent, R. ( 2021 )

J-A27027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHON SARGENT :
:
Appellant : No. 816 EDA 2020
Appeal from the Judgment of Sentence Entered January 5, 2016
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004565-2015
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 13, 2021
Appellant Rashon Sargent appeals nunc pro tunc from the judgment of
sentence imposed after a jury found Appellant guilty of first-degree murder
and possessing an instrument of crime.1 Appellant claims that the trial court
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2502(a) and 907, respectively.
This Court previously remanded this matter for clarification of whether the
order giving rise to this appeal reinstated Appellant’s right to appeal from the
judgment of sentence or the dismissal of Appellant’s first Post-Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition. In response, the PCRA
court filed a supplemental opinion stating that it reinstated Appellant’s direct
appeal rights. See Suppl. Trial Ct. Op., 5/21/21, at 4. The parties also
entered into a written stipulation confirming the PCRA court’s reinstatement
of Appellant’s direct appeal rights, and the court attached the parties’ signed
stipulation to its opinion. Id. & Attach. B. Accordingly, we have amended the
caption to indicate that Appellant takes this appeal from the judgment of
sentence entered January 5, 2016.
J-A27027-20
erred in (1) overruling his Batson2 objection, (2) denying his motion to
suppress his statements while in police custody, and (3) precluding evidence
of the decedent’s prior criminal history. We affirm on the basis of the trial
court’s opinion.
The trial court summarized the factual background to this appeal as
follows:
[O]n May 8, 2015[, Appellant, who was seventeen years old at the
time,] waited outside the home of . . . Dolan Alsop. At the time
of his death Alsop was sixty years old, had the use of only his right
arm and he walked with the assistance of a cane. Mr. Alsop
entered the hallway to his residence from the front porch.
Carrying a shotgun[, Appellant] approached and followed Mr.
Alsop into the interior hall. In the hallway[, Appellant] shot Mr.
Alsop from an estimated distance of two to eight feet. [Appellant]
took Mr. Alsop’s cell phone and fled, leaving the dying man.
During his flight[, Appellant] disposed of a box of ammunition in
a sewer opening. Mr. Alsop was pronounced dead at the scene.
Trial Ct. Op. 5/21/20, at 1-2.
On November 19, 2015, the jury found Appellant guilty of first-degree
murder and possessing an instrument of crime. On January 5, 2016, the trial
court sentenced Appellant to an aggregate term of thirty-six-and-one-half
years to life imprisonment. Appellant did not file post-sentence motions or a
direct appeal.
As noted above, the PCRA court reinstated Appellant’s direct appeal
rights on May 21, 2021. Appellant timely filed a notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement.
____________________________________________
2 Batson v. Kentucky, 476 U.S. 79 (1986).
-2-
J-A27027-20
Appellant raises the following issues for our review:
1. Was the trial court in error for denying [Appellant]’s Batson
challenge raised during jury selection?
2. Was the trial court in error for denying the pretrial motion as
to the suppression of the statement made by [Appellant] while
in police custody on May 14, 2015?
3. Was the trial court in error for denying [Appellant]’s motion to
introduce at the time of trial evidence of [decedent]’s prior
criminal history?
Appellant’s Brief at 4.3
We have reviewed the trial court’s opinion, the parties’ arguments, and
the record, and we conclude that Appellant’s issues are meritless. First, we
agree with the trial court even if Appellant established a prima facie Batson
claim, the Commonwealth provided a race-neutral explanation for striking the
prospective juror. See Trial Ct. Op. at 5. Second, Appellant fails to establish
an error in the trial court’s conclusion that Appellant’s statement to police was
voluntary. See id. at 7-9. Third, we discern no abuse of discretion in the trial
court’s ruling to preclude the evidence of the decedent’s 1973 and 1979
convictions as being too remote in time to the 2015 killing of the decedent.
____________________________________________
3 Appellant’s Rule 1925(b) statement raised five issues. However, on appeal,
Appellant abandoned two of the issues stated in his Rule 1925(b) statement—
one concerning the denial of Appellant’s motion to exclude evidence of his
prior conviction, the other concerning the Commonwealth’s admission of
autopsy photographs into evidence. See Pa.R.A.P. 2116, 2119(a);
Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002)
(noting that “an issue identified on appeal but not developed in the appellant’s
brief is abandoned and, therefore, waived” (citation omitted)).
-3-
J-A27027-20
See id. at 11-12. For these reasons, we conclude that the trial court properly
addressed Appellant’s claims on appeal and affirm based on the trial court’s
opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2021
-4-
1_Opinion
Circulated 08/30/2021 09:07 AM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : CP-23-CR-4565-2015
vs.
RASHON SARGENT
A. Sheldon Kovach, Esquire, on behalf of the Commonwealth
Scott D. Galloway, Esquire, on behalf of the Defendant
OPINION
Bradley, J. FILED: og
The Defendant, Rashon Sargent, was sentenced to an aggregate sentence of 438
months to Life after a jury found him guilty of First Degree Murders and possessing an
instrument of crime.2 The evidence presented at trial proved beyond a reasonable doubt
that on May 8, 2015 Defendant waited outside the home of the Victim, Dolan Alsop. At the
time of his death Alsop was sixty years old, had the use of only his right arm and he walked
with the assistance of a cane. Mr. Alsop entered the hallway to his residence from the front
porch. Carrying a shotgun Defendant approached and followed Mr. Alsop into the interior
hall. In the hallway Defendant shot Mr. Alsop from an estimated distance of two to eight
feet. Defendant took Mr. Alsop's cell phone and fled, leaving the dying man. During his flight
1 18 Pa.C.S.A. 2502(A)
2 18 Pa.C.S.A. 907(A)
1
the Defendant disposed of a box of ammunition in a sewer opening. Mr. Alsop was
pronounced dead at the scene.
On February 6, 2020 Defendant was granted post-conviction relief which allowed him
to file this direct appeal nunc pro tunc. The parties stipulated that prior counsel, who had
filed a PCRA petition on Defendant's behalf, was ineffective during the course of his
representation. Defendant was directed to file a Concise Statement of Errors Complained of
on Appeal. Defendant has complied with the Court's Order and has identified the following
claims of trial court error for review:
1) The Trial Court erred by denying Defendant's Batson challenge;
2) The Trial Court erred by failing to grant Defendant's pre-trial motion to suppress his
statement;
3) The Trial Court erroneously failed to grant Defendant's motion in limine wherein he
sought to introduce evidence of the Victim's prior criminal history;
4) The Trial Court erred when it denied the Defendant's motion to exclude evidence of a
prior juvenile adjudication for theft from a motor vehicle;
5) The Trial Court erred by allowing inflammatory autopsy photographs, specifically
photographs #2 and #3, into evidence.
Facts
The Commonwealth's evidence proved far beyond a reasonable doubt that Defendant
shot and killed Mr. Alsop. Video surveillance recordings obtained from nearby residences and
a church captured the Defendant as he hid from Mr. Alsop's view as the Victim approached
his home. The Defendant removed a shotgun from a case and watched as Mr. Alsop
unlocked the front door. Defendant then went up to the residence, onto the front porch and
2
followed Mr. Alsop inside. Inside Defendant killed Mr. Alsop with a single slug shot from a
Winchester Super X 12 gage shotgun.3
At trial Defendant testified and based on his testimony raised "imperfect self-defense"
in an attempt to obtain the "reduced" verdict of guilty to voluntary manslaughter. Evidence
from the Medical Examiner suggested that, based on the autopsy and photos of the Victim at
the crime scene Mr. Alsop raised his left arm to a defensive position when he was shot. This
testimony suggested that Mr. Alsop knew that he was about to be shot before the fatal slug
was fired. Defendant contradicted a statement that he gave to law enforcement on May 14,
2015 and testified that he never intended to rob Mr. Alsop, that he only went to see him
because he wanted to make amends with the Victim for past confrontations in which Mr.
Alsop threatened the Defendant. He testified that thought that Mr. Alsop was pulling a gun
from his pocket and he shot him. No weapons were found near Mr. Alsop's body and
Defendant admitted that in prior interactions with Mr. Alsop he never saw him in possession
of a weapon of any kind, including a gun or a knife.
Batson Challenge.
Jury selection in this matter took place on November 16, 2015. After the jury pool was
reduced through strikes for cause the prosecutor and trial counsel exercised their preemptory
challenges. See N.T. 11/16/15 p. 26. At the conclusion of the process trial counsel raised a
3A search warrant was executed at Defendant's aunt's home shortly after the murder. The sweatshirt
Defendant was wearing in the videotape was seized. Blood on the shirt was submitted for DNA testing and it
proved to be a match with Mr. Alsop's DNA profile. Defendant admitted to his cousin that he shot and killed Mr.
Alsop but described it as an accident. Defendant was interviewed by law enforcement six days after
the killing
and admitted that he shot and killed Mr. Alsop. He claimed that at the time, he intended only to rob the victim
and that the gun went off accidently after he had gone through Mr. Alsop's pockets.
a drug user and
By all accounts, Mr. Alsop was a sixty-year-old man who was known in his neighborhood as
who had a crippled left arm with a minimal range of motion and minimal strength.
3
Batson challenge based solely on the fact that in exercising his preemptory challenges the
prosecutor chose to strike Juror Number 30, the only black juror among the remaining
prospects. When called upon to explain his reason for striking the juror, the prosecutor
explained: "30 put on reason why you can't be a fair juror, my husband is still getting locked
up for a DUI and is in the criminal justice system. Someone helped her with her sheet. It just
seems like she had some issues with the criminal justice system if her husband was going
through it." N.T. 11/16/15 p. 27. The Court found this explanation acceptable and noted that
both the Defendant and the Victim in this case were black. Id. The jury was seated without
further objection.
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United
States Supreme Court held that the Federal Constitution's Equal Protection Clause prohibits a
prosecutor from challenging potential jurors solely on the basis of race. In Commonwealth v.
Edwards, 177 A.3d 963 (Pa. Super, 2018) the Pennsylvania Superior Court explained:
When a defendant makes a Batson challenge during jury selection: (1) the
defendant must make a prima fade showing that the circumstances give rise to
an inference that the prosecutor struck one or more prospective jurors on
account of race; (2) if the prima facie showing is made, the burden shifts to the
prosecutor to articulate a race -neutral explanation for striking the jurors at issue;
and (3) the trial court must then make the ultimate determination of whether the
defense has carried its burden of proving purposeful discrimination.
Id. at 971 quoting Commonwealth v. Watkins, 108 A.3d 692, 708 (Pa. 2014).
The record in this case refutes Defendant's claim that the prosecutor engaged in
purposeful discrimination based on race. At the outset we note that Defendant failed to make
4
a prima fade showing that the circumstances gave rise to an inference that Juror #30 was
struck on account of her race. The fact that this juror appears to have been the only African
American in the panel makes it impossible for the Defendant to demonstrate discriminatory
intent through a pattern of preemptory strikes. However, even if this single juror was
excluded because of her race Defendant's claim would have merit. To establish a prima fade
case of purposeful discrimination a defendant "must show that he is a member of a
cognizable racial group, that the prosecutor exercised a peremptory challenge or challenges
to remove from the venire members of the defendant's race; and that other relevant
circumstances combine to raise an inference that the prosecutor removed the juror(s) for
racial reasons." Commonwealth v. Cook, 952 A.2d 594, 602 (Pa. 2008). In this case the
record is completely devoid of any evidence that suggests that the prosecutor engaged in
any questioning or behavior that would indicate discriminatory intent. See Commonwealth v.
Roney, 79 A.3d 595, 619 (Pa. 2013) (citing Commonwealth v. Spotz, 896 A.2d 1191, 1213-
1214 (in evaluating a Batson claim alleging gender discrimination, a court may look to
whether the prosecutor made any questionable remarks during jury selection).
In an abundance of caution however, the Court directed the prosecutor to state his
reasons for striking Juror #30. Referring to the Juror #30's completed questionnaire, the
prosecutor explained that the Juror indicated that the fact that her husband was "going
through" the criminal justice system could prevent her from being fair and impartial and that
another person helped her complete the questionnaire were the reasons for the strike. This
explanation satisfied the Court that the strike was for race -neutral reasons. Finally, from the
circumstances that existed, including the relevant fact that both the Victim and the
5
Defendant were African American and therefore this case was not racially sensitive, see
Commonwealth v. Roney, supra, the Court appropriately concluded that the Defendant had
not met his burden of proving purposeful discrimination. See also Commonwealth v. Ligons,
971 A.2d 1125, 1142 (Pa. 2009)
Motion to Suppress Defendant's Statement
Defendant was arrested in Philadelphia on the evening of May 13, 2015. He was
immediately transported to the Darby Borough Police Headquarters where he was advised of
his Miranda rights in the presence of his aunt, Teyone Sargent. Defendant executed a waiver
of rights at about 2:23 a.m. and gave a brief statement which was recorded. The interview
concluded at 2:24 a.m. See Exhibit CS -2 and Exbibit C-29. In a pre-trial motion Defendant
challenged the voluntariness of the Defendant's waiver of rights. A hearing was convened
and at the conclusion the Court found that, given the totality of the circumstances that
existed when the statement was given, Defendant voluntarily waived his right to remain
silent and the statement was voluntarily given. N.T. 10/22/15 p. 41.
"[I]f a suspect makes a statement during custodial interrogation, the burden is on the
Government to show, as a prerequisite to the statement's admissibility in the Government's
case in chief, that the defendant voluntarily, knowingly and intelligently waived his rights." In
re B.T., 82 A.3d 431, 436 (Pa. Super. 2013). In In re V.C., 66 A.3d 341, 351 (Pa. Super.
2013) the Superior Court explained that this inquiry has two distinct dimensions: "First, the
relinquishment of the right must have been voluntary in the sense that it was the product of
a free and deliberate choice rather than intimidation, coercion or deception. Second, the
waiver must have been made with a full awareness both of the nature of the right being
6
abandoned and the consequences of the decision to abandon it. Only if the "totality of the
circumstances surrounding the interrogation" reveals both an uncoerced choice and the
requisite level of comprehension may a court properly conclude that Miranda rights have
been waived." Defendant did not suggest that his waiver was not knowing or intelligent but
challenged only the voluntariness of the statement, focusing on the fact that the interested
adult in attendance, an aunt who raised him, was not his current legal guardian. Given the
fact that there is no per se requirement that an interested adult be present during a police
interview, see id. at 351, the suggestion that only the presence of a legal guardian can
ensure voluntariness is meritless. Rather, the totality of the circumstances, including the
juvenile's age, experience, comprehension, the presence or absence of an interested adult,
the duration and means of the interrogation, the defendant's physical and psychological
state, the conditions attending his detention, the attitude of the interrogator and "any and all
other factors that could drain a person's ability to withstand suggestion and coercion" are all
circumstances that must be considered." Id. See also In the Interest of N.M., 222 A.3d 759(Pa. Super. 2019)(absence of interested adult did not invalidate waiver of Miranda rights
where juvenile was twenty-four days short of his eighteenth birthday; his mother was
contacted and made clear that she would not attend interview, gave officers permission for
the interview to proceed and rejected offer to speak with her son).
On May 13, 2015 at about 10:30 or 11:00 p.m. a search warrant was executed at the
residence of Teyone Sargent. N.T. 10/22/15 pp. 79, 28-29. Ms. Sargent arrived as the
residence was being searched and she agreed to speak with Detective Corporal Brian Pitts of
the Darby Borough Police Department following the search. Id. Ms. Sargent told Detective
7
Pitts that she had raised the Defendant from the time he was a child. Detective Pitts knew
that Defendant's mother was incarcerated. Ms. Sargent did not know the whereabouts of the
Defendant's father. See id. Ms. Sargent told Detective Pitts that she had spoken to the
Defendant twice and exchanged text messages with him after Mr. Alsop was killed. She
shared the text messages with Detective Pitts at her residence and agreed to speak with the
detective further at Police Headquarters. Id. at 9, 31. After the search she was transported to
Darby Borough Police Headquarters.
Defendant was arrested in Philadelphia at about 1:30 a.m. on May 14, 2015. At the
time of his arrest he was seventeen years and ten months old and had four prior juvenile
adjudications. He was immediately transported to Darby Borough Headquarters. Id. at pp. 8-
9, 39-40. Within twenty minutes of Defendant's arrival Detective Pitts and Lieutenant
Richardt Gibney advised him that that they were investigating Mr. Alsop's killing. Defendant
was brought to an interview room where Ms. Sargent was waiting. Id. at 12-15. The room
was small and contained a table and a few chairs. Detective Pitts, Lieutenant Gibney and Ms.
Sargent were in the room. The officers were dressed in plain clothes- jeans and t -shirts - and
their firearms were not visible. Defendant was calm, and his aunt stayed in the room the
entire time.
Detective Pitts advised the Defendant of his Miranda rights, reading an Advice of
Rights Form aloud in the presence of Ms. Sargent. After reading each paragraph advising
the
Defendant of his right to remain silent, his right to an attorney during questioning at no cost
to him and his right to stop questioning at any time Detective Pitts asked the Defendant if he
understood each of these rights. Each time Defendant responded verbally that he did.
8
Detective Pitts wrote "yes" on the form each time. Defendant acknowledged his rights and
executed the waiver that is set forth at the bottom of the form. Detective Pitts handed the
form to the Defendant and asked him to read it. Defendant read the form, initialed each of
his responses and affixed his signature. Detective Pitts handed the form to Ms. Sargent and
she read and signed the form. Id. at 16-23. The interview followed immediately and
concluded about twenty minutes later. Detective Pitts testified credibly that the Defendant
remained calm throughout the interview. Neither Detective Pitts nor Lieutenant Gibney raised
their voices. No promises or threats were made. There was no physical contact. Defendant
did not appear to be under the influence of drugs or alcohol, his responses were appropriate
and it appeared that he understood the detectives' questions. At no time did he ask for a
lawyer and he never suggested that he wished to end questioning and remain silent. Id. at
22-23.
All of the foregoing support the conclusion that in the presence of his aunt, Defendant
made a free and deliberate choice to waive his rights and to participate in questioning. He
was two months short of his eighteenth birthday and had prior experience in the criminal
justice system that resulted in four juvenile adjudications. There is no evidence suggesting
that the detectives engaged in any behavior that could tend to intimidate, coerce or deceive.
Defendant's entire interaction with police authorities, from the time of his arrest to the
conclusion of the interview, spanned about an hour and fifteen minutes. The waiver and the
interview that followed took twenty minutes. The Commonwealth met its burden of proving
the voluntariness of the statement and therefore the Court's determination as to its
admissibility was not erroneous. Compare, In re T.B., 11 A.3d 500 (Pa. Super. 2010) (fifteen
9
year -old juvenile's waiver of his Miranda rights in delinquency proceeding was not
intelligently and knowingly entered, where statement was taken with no interested adult in
attendance, his I.Q. was sixty-seven and he could read only at third grade level despite being
of high school age; juvenile's mother was not informed of juvenile's right to remain silent or
right to attorney, when she authorized the police to speak to him after his arrest).
Motion in Limine- Victim's Criminal Record
In a pre-trial motion in limine Defendant sought a ruling to allow the admission of the
Victim's prior convictions for inter alia robbery, aggravated and simple assault, possessing an
instrument of crime and terroristic threats. The convictions in question occurred between
1973 and 1979. N.T. 10/22/15 p. 42-43. Defendant argued that the Victim's character or
propensity for violence was relevant to a defense that would suggest that the Victim was in
fact the aggressor in the incident that resulted in his death4. Trial counsel argued that, if
Defendant sought to raise self-defense at trial these approximately thirty-six year -old
convictions would be relevant. Trial counsel did not suggest that the Defendant was aware of
these convictions at the time of the killing. In fact, he represented that he did not know
whether the Defendant knew of the convictions. Inexplicably, counsel argued that this lack of
knowledge was grounds for the admission of this evidence. In response the prosecutor
argued that these convictions were too remote in time to be relevant and that, given the
evidence that was shared in Discovery, the Defendant's suggestion that self-defense would
be at issue in this matter was disingenuous. The Court agreed and ruled that evidence of the
Victim's prior convictions would be irrelevant and inadmissible at trial.
4 It was agreed that prior convictions for drug violations were irrelevant and therefore inadmissible at trial.
10
"Relevant evidence is that which 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." Commonwealth v. Gill, 206 A.3d 459, 464 (Pa. 2019) (quoting
Pa.R.E. 401(a) & (b). Pursuant to Pennsylvania Rule of Evidence 402, General Admissibility
of Relevant Evidence, all relevant evidence is admissible and irrelevant evidence is
inadmissible. Determinations regarding the admissibility of evidence rest within the sound
discretion of the trial court. See Gill, supra.
Where self-defense is properly raised when murder is charged, evidence of prior
convictions which demonstrate the victim's propensity toward violence may be admitted to
prove that the victim was in fact the aggressor. See Commonwealth v. Amos, 284 A.2d 748,
750-51 (Pa. 1971). However, only those past crimes that are similar in nature and are not
too distant in time will be deemed probative, with the determination as to similarity and
remoteness resting within the sound discretion of the trial judge. Commonwealth v. Mouzon,
53 A.3d 738, 741 (Pa. 2012) citing Commonwealth v. Beck, 402 A.2d 1371, 1373 (Pa. 1979)
(plurality) (citing and applying Commonwealth v. Amos, 284 A.2d 748, 750-51).
In Commonwealth v. Quarles, 456 A.2d 188, 192-93 (1983) the defendant was found
guilty of aggravated assault and related offenses. The Superior Court found the claim that
the trial court erred by failing to admit evidence of the victim's twenty-two year old
conviction "wholly frivolous and without merit." The Court explained that the evidence was
too "attenuated" and irrelevant where there was no proof and the defendant did not allege
knowledge of the victim's prior conviction. See Commonwealth v. Quarles, supra. (the
decision to admit that character evidence rests in the sound discretion of the trial judge).
11
Similarly, in this case convictions that occurred some thirty-six years before the Victim was
killed were too remote in time to be relevant and they were properly ruled inadmissible5.
The fact that that self-defense was not at issue in this case must be noted. In
Commonwealth v. Mouson, 53 A.3d 738, 740 (Pa. 2012) the Supreme Court considered
whether the trial court abused its discretion in excluding evidence of the murder victim's
nine -year -old conviction for robbery. The Court explained that, if probative, a victim's prior
convictions involving aggression may be admitted "as character/ propensity evidence, as
indirect evidence that the victim was in fact the aggressor." First however, self-defense must
be properly at issue. "Self-defense or justification requires evidence establishing three
elements: '(a) [that the defendant] reasonably believed that he was in imminent danger of
death or serious bodily injury and that it was necessary to use deadly force against the victim
to prevent such harm; (b) that the defendant was free from fault in provoking the difficulty
which culminated in the slaying; and (c) that the [defendant] did not violate any duty to
retreat.' " Id. To raise the issue a defendant must to show "some evidence, from whatever
source," to support this defense. If the defense is properly raised, a defendant may seek the
admission of a victim's prior conviction. If the prior convictions are similar in nature and not
too distant in time they will be deemed probative, with the determination as to similar nature
and remoteness resting within the sound discretion of the trial judge." Id. at 741 citing
Amos, 284 A.2d at 752. In Mouzon, as in this case, evidence that purported to support a case
for self-defense was lacking.
5 The admission of Mr. Alsop's prior convictions would serve only to smear the decedent's reputation.
12
Defendant testified at trial. He testified that about two weeks before the night of the
murder he was approached by Mr. Alsop. N.T. 11/18/15 pp. 107. Defendant knew Mr. Alsop
only as a junkie from the neighborhood and never saw him with a weapon. Id. at 123.
According to Defendant's testimony Mr. Alsop asked the Defendant if he had any drugs and
threated to kill the Defendant when he replied that he did not. A second interaction of the
same type occurred during the afternoon of May 8th. Mr. Alsop did not threaten the
Defendant but cursed at him. Id. at 109, 116. Defendant testified that later that evening he
went to Mr. Alsop's residence to speak with him, to make sure they were "cool." Id. at 110.
Although Defendant never saw Mr. Alsop with a weapon, he brought a shotgun with him for
his own protection. He was invited in and followed Mr. Alsop into the hall where they spoke
for about thirty seconds. Mr. Alsop started to threaten Defendant. Defendant, got "antsy"
and took the shot gun from its case. Id. at 117, 121-123. Mr. Alsop reached into his pocket
for his cell phone and Defendant believed the black object in Mr. Alsop's hand was a gun.
Defendant shot Mr. Alsop, took the cell phone he was holding and ran from the residence. Id.
at 112, 120.6
Motion in Limine- Defendant's Juvenile Adjudication for Theft From a Motor Vehicle
In a pre-trial motion in limine Defendant requested a ruling excluding evidence of a
2012 juvenile adjudication for theft of a motor vehicle. Because Defendant chose to testify at
6 The jury instructions included an "unreasonable belief" instruction which instructed the jury that if it found
that the Defendant in fact harbored a mistaken unreasonable belief that circumstances were such that if they
existed the killing would be justified the element of "malice" could not be found. Under those circumstances a
defendant cannot be found guilty of murder but may be found guilty of manslaughter provided the defendant
did not provoke the use of force by the victim and did not violate a duty to retreat. See N.T. 11/19/15 p. 33.
See also Pennsylvania Suggested Standard Criminal Jury Instructions, § 15.2503(A).
13
trial his credibility was at issue. The evidence, entered by stipulation was offered on rebuttal.
The finding that this evidence was admissible was not erroneous.
Pennsylvania Rule of Evidence 609, Impeachment by evidence of conviction of crime,
provides, in relevant part, as follows:
(a) General rule. For the purpose of attacking the credibility of any witness,
evidence that the witness has been convicted of a crime, whether by verdict or
by plea of guilty or nolo contendere, shall be admitted if it involved dishonesty or
false statement.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a
period of more than ten years has elapsed since the date of the conviction or of
the release of the witness from the confinement imposed for that conviction,
whichever is the later date, unless the court determines, in the interests of
justice, that the probative value of the conviction substantially outweighs its
prejudicial effect. However, evidence of a conviction more than ten years old as
calculated herein is not admissible unless the proponent gives to the adverse
party sufficient advance written notice of intent to use such evidence to provide
the adverse party with a fair opportunity to contest the use of such evidence.
* * *
(d) Juvenile Adjudications. In a criminal case only, evidence of the adjudication
of delinquency for an offense *366 under the Juvenile Act, 42 Pa.C.S. §§ 6301 et
seq., may be used to impeach the credibility of a witness if conviction of the
offense would be admissible to attack the credibility of an adult.
There is no basis on which to conclude that the Court erred by allowing
evidence of Defendant's 2012 adjudication for a theft offense into evidence for the
purpose of impeaching his credibility. The evidence satisfied the dictates of Pa.R.E. 609,
credibility was clearly an issue and a juvenile adjudication for theft does not suggest a
14
propensity for murder. See generally Commonwealth v. Rivera, 983 A.2d 1211, 1226--
27 (Pa. 2009). It bears only on the Defendant's credibility as a witness at trial. The
Court instructed:
There was evidence tending to prove that the Defendant has a prior criminal
conviction. Speaking of his adjudication for Theft of a Motor Vehicle as was
stipulated by the parties and testified to by the Defendant. This evidence is not
evidence of the Defendant's guilt. You must not infer guilt from the evidence of
his prior conviction. The evidence may be considered for one purpose and that is
to help you judge the reliability and weight of the testimony given by him as a
witness in this trial. You must not regard this evidence as showing that the
Defendant is a person of bad character or criminal tendencies from which you
might be inclined to infer guilt. In considering the evidence of the you may
consider the type of crime committed, how long ago it was committed, the age
of the Defendant at the time of the offense and how it may affect the likelihood
that he has testified truthfully in this case.
See N.T. 11/19/15 p. 11.
"The law presumes that the jury will follow the instructions of the court."
Commonwealth v. Spotz, 896 A.2d 1191, 1224 (Pa. 2006) (citation omitted). See also
Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011); Commonwealth v. O'Hannon, 732
A.2d 1193, 1196 (Pa. 1999) ("Absent evidence to the contrary, the jury is presumed to have
followed the trial court's instructions.").
Admission of Photographs #2 and #3
In response to the Commonwealth's motion in limine to allow autopsy phots and
photographic evidence from the crime scene the Court ruled, after a hearing, that one of
the
five photographs that the Commonwealth sought to introduce would be excluded. As to the
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remaining four, Defendant had no objection to photographs marked Exhibits CL-1 and CL -4.
See N.T. 10/22/20 p. 47. Defendant argued that Exhibits CL-2 and CL-3 were objectionable
because they were excessively gruesome and unnecessary. Id. at 47. Exhibit CL -2 was taken
at the crime scene; Exhibit CL-3 is an autopsy photo in which Mr. Alsop's face is hidden from
view. The Commonwealth argued that without viewing these photographs the jury would be
unable to appreciate the devastation that was caused by a single "slug" shot from a shotgun.
Also, in his May 14, 2015 statement Defendant told detectives that he followed Mr. Alsop into
the residence and, "I had the shotgun held to him and I told him to empty his pockets, ... I
had went through his pockets he ain't have shit but the phone, a little phone. So after that, I
was about to leave, next thing I, hear, Boom! The gun went off man, I ain't mean to man,
the gun just went off man. I, I ain't mena to." See Exhibit C-29. Evidence from the Medical
Examiner's autopsy report indicated that Mr. Alsop was in a defensive posture when he was
shot and significant damage to vital organs was inflicted as it traveled into and through Mr.
Alsop's body. Therefore, the position of the body and the trajectory of the shot were relevant
to demonstrate that the killing was intentional. To this, end the photographs were
demonstrative evidence of the extent and the location of the wounds that caused death.
In Commonwealth v. Solano, 906 A.2d 1180, 1191-92 (Pa. 2006) the Supreme Court
set forth the law applicable where a defendant claims on appeal that photographs admitted
at trial were unduly prejudicial:
The admission of photographs is a matter vested within the sound
discretion of the trial court whose ruling thereon will not be overturned absent
an abuse of that discretion. Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767(2004). This Court has long recognized that photographic images of the injuries
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inflicted in a homicide case, although naturally unpleasant, are nevertheless
oftentimes particularly pertinent to the inquiry into the intent element of the
crime of murder. See, e.a., Commonwealth v. McCutchen, 499 Pa. 597, 454 A.2d
547 (1982); Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203, 216
(1997)(the mere fact that blood is visible in a photograph does not necessarily
render the photograph inflammatory). In determining whether the photographs
are admissible, we employ a two-step analysis. First, we consider whether the
photograph is inflammatory. If it is, we then consider whether the evidentiary
value of the photograph outweighs the likelihood that the photograph will
inflame the minds and passions of the jury. Commonwealth v. Marshall, 537 Pa.
336, 643 A.2d 1070, 1074 (1994). Even gruesome or potentially inflammatory
photographs are admissible when the photographs are of such essential
evidentiary value that their need clearly outweighs the likelihood of inflaming the
minds and passions of the jurors. Commonwealth v. Gorby, 527 Pa. 98, 588 A.2d
902, 908 (1991).
Id. In Solano, photographs depicting the shirt and shorts worn by the victim the day of
the shooting and photographs depicting pools of blood on the basketball court where
the victim's body had lain were admitted into evidence. The court determined at the
outset that these photos were not inflammatory but went on to examine the question of
whether their evidentiary value outweighed any potential prejudice. The photographs
were admissible because they were relevant to demonstrate the number and location of
the bullet holes, and also to bolster the Commonwealth's forensic evidence indicating
that although the victim was shot at close range.
Ein this case, these two photographs exhibit the bloody wounds that which were
inflicted and they are certainly unpleasant to view. However, they also exhibit the
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position of Mr. Alsop's body after he was shot, his wounds at the point of the slug's
entry and the trajectory the slug travelled as it went from the arm and into the torso.
The photos served as demonstrative evidence to corroborate the Medical Examiner's
testimony concerning Mr. Alsop's defensive position and the trajectory of the slug and
to contradict the Defendant's prior statement in which he indicated that the shooting
was accidental. Therefore, the evidentiary value of these photos clearly outweighed
any potential prejudice in this instance.
In Commonwealth v. McCutchen, 454 A.2d 547 (Pa. 1982), where the defendant
was found guilty of murder, the Court recognized that evidence in a homicide trial is
unpleasant by its very nature: "and the photographic images of the injuries inflicted are
merely consonant with the brutality of the subject of inquiry." "To permit the disturbing
nature of the images of the victim to rule the question of admissibility would result in
exclusion of all photographs of the homicide victim, and would defeat one of the
essential functions of a criminal trial, inquiry into the intent of the actor. There is no
need to so overextend an attempt to sanitize the evidence of the condition of the body
as to deprive the Commonwealth of opportunities of proof in support of the onerous
burden of proof beyond a reasonable doubt." 454 A.2d at 549. In McCutchen, supra,the deceased was subjected to a brutal beating and the Court found the photographic
evidence disturbing but nonetheless probative of the defendant's intent to kill. So too,
in this case, the inference that arises from these photos, i.e. that the Defendant shot
Mr. Alsop when he was in a defensive posture with a weapon that was capable of and
did in fact inflict unfathomable injuries, was probative of Defendant's intent to kill. The
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evidentiary value of the images contained in these photographs clearly outweighed the
likelihood of inflaming the minds and passions of the jury.
In light of the foregoing, it is respectfully submitted that judgement of sentence
should be affirmed.
BY THE COURT:
, -
James P. Bradley,
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2_Supplemental Opinion