Com. v. McKinney, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CALVIN MCKINNEY :
:
Appellant : No. 1464 MDA 2020
Appeal from the Judgment of Sentence Entered September 29, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0000188-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CALVIN L. MCKINNEY :
:
Appellant : No. 1467 MDA 2020
Appeal from the Judgment of Sentence Entered September 29, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0001117-2018
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 06, 2021
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Calvin L. McKinney (Appellant) appeals1 from the judgment of sentence
imposed after a jury found him guilty of first-degree murder, conspiracy to
commit murder, and perjury.2 We affirm.
On December 29, 2017, Appellant fired multiple shots at Keynen Guider
(Victim), as the Victim was driving in downtown Harrisburg. See Trial Court
Opinion, 2/12/21, at 7-9. Two days later, the Victim was again driving in
Harrisburg when Appellant shot and killed him. See id. at 9-13. The trial
court recounted the procedural history that followed:
On January 24, 2018, [Appellant] was charged at Docket
Number CP-22-000113-2018 [(attempt docket)] with one count
[each] of criminal attempt – criminal homicide; recklessly
endangering another person; firearms not to be carried without
license; and possession of firearm prohibited. Prior to trial, Counts
2 and 3 were withdrawn by the Commonwealth and Count 4 was
severed. Simultaneous to the aforementioned charges,
[Appellant] was charged at Docket Number CP-22-CR-0001117-
2018 [(murder docket)] with criminal homicide; conspiracy—
criminal homicide; firearms not to be carried without a license;
and possession of firearm prohibited. Prior to trial, Count 2 was
withdrawn by the Commonwealth and Counts 3 and 4 were
severed. [The attempt docket and murder docket] were formally
joined on June 13, 2018.
A jury trial was held before this [c]ourt from August 12
through August 16, 2019. [Appellant] was found guilty at [the
attempt docket] of criminal attempt – criminal homicide. The jury
was hung on the remaining charges at [the murder docket].
Based on what transpired during the first trial, [Appellant] was
____________________________________________
1 Appellant has complied with the dictates of Commonwealth v. Walker,
185 A.3d 969, 971 (Pa. 2018); on February 17, 2021, this Court consolidated
his appeals sua sponte.
2 18 Pa.C.S.A. §§ 2501(a), 903, and 4902(a).
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charged with perjury on October 3, 2019 at Docket Number CP-
22-CR-0000188-2020 [(perjury docket)]. A joinder hearing was
held on February 4, 2020, and after submission of post-hearing
briefs, this [c]ourt granted the Commonwealth’s motion.
Therefore, [the murder docket and perjury docket] were joined
for purposes of trial.
A second jury trial was held before this [c]ourt on August
31 through September 3, 2020. [Appellant] was found guilty of
[] 1st degree murder, conspiracy [], and perjury.
Trial Court Opinion, 2/12/21, at 1-2 (footnotes omitted).
On September 29, 2020, the trial court sentenced Appellant to life in
prison without parole. Appellant filed a timely post-sentence motion which
the court denied on October 22, 2020. Appellant timely appealed. Both
Appellant and the trial court have complied with Pa.R.A.P. 1925.
On appeal, Appellant presents three questions for review:
1. Did the trial court err by granting the Commonwealth’s motion
to join Appellant’s perjury case with the homicide case for trial?
2. Was the evidence presented at trial insufficient to sustain a
verdict of guilt at First Degree Murder?
3. Did the trial court err by denying Appellant’s motion for a new
trial where the jury’s verdict was against the weight of the
evidence presented at trial?
Appellant’s Brief at 5 (second and third questions reordered for disposition).3
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3 In his Rule 1925(b) statement, Appellant raises an additional sufficiency
claim. See Rule 1925(b) Statement, 12/9/20, at *1. However, because
Appellant abandoned this claim in his brief, we do not address it. See
Appellant’s Brief at 5; see also Commonwealth v. Briggs, 12 A.3d 291, 310
n.19 (Pa. 2011), cert. denied, 132 S.Ct. 267 (2011) (refusing to address
claim appellant raised with trial court but subsequently abandoned in brief).
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In his first issue, Appellant claims the trial court erred in granting the
Commonwealth’s motion to join his perjury and murder cases for trial.
Appellant’s Brief at 17-20. Appellant argues:
The trial court erred when it granted the Commonwealth’s motion
to join a perjury charge related to Appellant’s first homicide trial
to the Appellant’s homicide docket for retrial where the majority
of the evidence presented for the homicide would not have been
admissible as evidence of the perjury. … Further, the Appellant
was prejudiced because of the charges being joined, since a guilty
verdict could have resulted from the cumulative evidence of both
charges and the jury’s assumption that Appellant is culpable
because he was charged with both things and not just either a
homicide or perjury separately.
Id. at 15. Appellant contends that “if presented with all the evidence from the
homicide case while also on trial for the perjury, it would not be a difficult
assumption to believe that the scales of justice might tip in favor of a guilty
verdict based on the cumulative evidence of both charges, or simply the jury’s
belief that ‘he must be a bad person’ if he is charged with homicide and perjury
together.” Id. at 20.
We begin by recognizing that 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 (Pa. 1988). In reviewing a trial
court decision to consolidate or to sever offenses for trial, our
standard is abuse of discretion. Offenses charged in separate
informations may be tried together if they are “based on the same
act or transaction” or if “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.”
Pa.R.Crim.Pro. 582(A)(1).
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Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005) (some
citations omitted). “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 Pennsylvania Supreme Court has established a three part test for
deciding if joinder is appropriate: 1) whether the evidence of each of the
offenses would be admissible in a separate trial for the other; 2) whether such
evidence is capable of separation by the jury so as to avoid danger of
confusion; and, if the answers to these inquiries are in the affirmative, 3)
whether the defendant will be unduly prejudiced by the consolidation of
offenses. Thomas, supra (citing Commonwealth v. Lark, 543 A.2d 491,
497 (Pa. 1988)).
Instantly, the trial court explained:
During Appellant’s first jury trial, he testified under oath that
he travelled to Philadelphia during the early morning hours of
December 31, 2017, to stay at a prepaid hotel room with his
girlfriend for New Year’s Eve. [To support his alibi], he submitted
copies of his bank records and pointed to a specific charge to
Priceline on December 10, 2017. Appellant testified that the
December 10, 2017 charge to Priceline on his bank record was
him booking the room in Philadelphia for New Year’s Eve. During
its investigation, the Commonwealth subpoenaed the records from
Appellant’s bank, as well as Priceline. In reviewing the records,
the Commonwealth discovered that the December 10, 2017
charge was for a one-night stay at the Days Inn Grantville
beginning on December 9, 2017. There was no evidence that
Appellant had booked a hotel room in Philadelphia for New Year’s
Eve on December 31, 2017.
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We find that the evidence for the perjury charge would be
admissible in the homicide trial. Evidence of flight, lying to police
or destroying evidence is circumstantial evidence of a defendant’s
consciousness of guilt. Therefore, Appellant’s testimony at the
previous trial, knowing that it was inaccurate and material to his
defense, as well as evidence that he knew he was lying, would be
admissible to prove consciousness of guilt. Likewise, the evidence
of the homicide would be relevant in the perjury trial to provide
context, as well as to show Appellant knew the statement he made
was false at the time he made it and that the statement was
material. Further, the charges are capable of separation as to not
confuse the jury. Therefore, this [c]ourt did not abuse its
discretion by granting the Commonwealth’s motion for joinder.
Trial Court Opinion, 2/12/21, at 18-19 (citations edited).
The record supports the trial court’s reasoning. The murder and perjury
charges are related but distinct, and we discern no error in the court’s
determination that the perjury charge would be admissible at Appellant’s
murder trial to show consciousness of guilt. See Pa.R.E. 404(b)(2); see also
N.T., 2/4/20, at 5 (defense counsel conceding evidence of perjury would be
admissible at Appellant’s murder trial). Similarly, Appellant’s murder charge
would be admissible at a perjury trial to show the falsification was material.
See 18 Pa.C.S.A. 4902(b) (“Falsification is material … if it could have affected
the course or outcome of the proceeding.”).
Further, the facts and elements of murder and perjury are different and
not confusing. As the Commonwealth states, “Juries are more than capable
of separating two charges which differ significantly in their elements and
perceived seriousness.” Commonwealth Brief at 17; see also
Commonwealth v. Collins, 703 A.2d 418, 423 (Pa. 1997) (a jury is capable
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of separating the evidence where the criminal offenses at issue are
distinguishable in time, place, and parties involved).
Given the affirmative answers to the above two inquiries and consistent
with the three-prong analysis set forth in Lark, supra, we examine
Appellant’s claim of prejudice.
Under Pa.R.Crim.P 583, which addresses severance,
the prejudice the defendant suffers due to joinder must be greater
than the general prejudice any defendant suffers when the
Commonwealth’s evidence links him to a crime. The prejudice of
which Rule 583 speaks is, rather, that which would occur if the
evidence tended to convict the [defendant] only by showing his
propensity to commit crimes, or because the jury was incapable
of separating the evidence or could not avoid cumulating the
evidence. Additionally, the admission of relevant evidence
connecting a defendant to the crimes charged is a natural
consequence of a criminal trial, and it is not grounds for severance
by itself.
Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa. Super. 2010) (citations
omitted).
Again, our review reveals no error. Appellant committed perjury to
provide an alibi to his murder charge. There was no prejudice in permitting
the jury to hear relevant evidence connecting Appellant to the two related but
distinct crimes. Accordingly, the trial court did not abuse its discretion in
granting the Commonwealth’s request for joinder.
In his second issue, Appellant challenges the sufficiency of the evidence
supporting his murder conviction. See Appellant’s Brief at 24-26.
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
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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. Leaner, 202 A.3d 749, 768 (Pa. Super. 2019) (citation
omitted).
Appellant asserts “the Commonwealth failed to prove beyond a
reasonable doubt the identity of the shooter as Appellant.” Appellant’s Brief
at 24. He states:
Specifically, none of the Commonwealth witnesses were able to
place Appellant at the scene of the homicide on the night of
December 31, 2017. The only Commonwealth eyewitness was
Javon McKinnon, who was also wounded in the December 31,
2017 shooting. However, McKinnon only identified one shooter as
being short, even though Appellant is over six feet tall. [] Except
for vague descriptions of the shooter’s vehicle during the
attempted homicide and Ms. Goicoechea’s contradicted testimony,
no other evidence was presented by the Commonwealth to link
[Appellant] to the December 29, 2017 shooting.
Id. at 25-26.
“To prove first-degree murder, the Commonwealth must demonstrate
that the defendant acted with malice and a specific intent to kill, that a human
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being was unlawfully killed, that the defendant committed the killing, and
that the killing was intentional, deliberate and premeditated.”
Commonwealth v. Chamberlin, 30 A.3d 381, 394 (Pa. 2011) (citing, inter
alia, 18 Pa.C.S.A. § 2502) (emphasis added).
“In addition to proving statutory elements of the crimes charged beyond
a reasonable doubt, the Commonwealth must also establish the identity of the
defendant as the perpetrator of the crimes.” Commonwealth v. Smyser,
195 A.3d 912, 915 (Pa. Super. 2018) (citations omitted). However, there “is
no requirement that a homicide, including murder in the first degree, be
proven by eyewitness testimony.” Commonwealth v. Hardcastle, 546 A.2d
1101, 1107-08 (Pa. 1988). We have explained:
Evidence of identification need not be positive and certain to
sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be used as other circumstances
to establish the identity of the perpetrator. Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh.
Given additional evidentiary circumstances, any indefiniteness
and uncertainty in the identification testimony goes to its weight.
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)
(citations omitted). Circumstantial evidence alone may support a first-degree
murder conviction. See Chamberlin, 30 A.3d at 394 (“Circumstantial
evidence can itself be sufficient to prove any element or all of the elements of
criminal homicide.”).
Instantly, the trial court detailed the evidence refuting Appellant’s
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sufficiency claim as follows:
The testimony and evidence adduced at trial, together with
all reasonable inferences derived therefrom, is sufficient to sustain
Appellant’s conviction of [first-degree murder]. On December 27,
2017, there was an altercation between Appellant and [Victim].
Appellant was driving a pepperdust metallic Chevrolet Impala with
a license plate number of FAC5639 that he rented from Enterprise.
Appellant’s girlfriend testified that [Victim] was driving a black
vehicle.
Two days later, on December 29, 2017, [Ariele] Morrison
testified that [Victim] was driving her black Kia Optima. Around
noontime, Teresa [Smith] was outside of her residence … bringing
recycling bins in when she heard a popping noise. She walked to
the street and saw a light-skinned male shooting up 20th Street.
She went inside her home and called 911. [Carla] Goicoechea was
inside of her residence on the second floor when she heard
gunshots and looked out her window. She observed a black
vehicle speeding away up 20th Street and a light-skinned male
shooting toward the black vehicle.
When police arrived, Ms. Goicoechea provided them
information about the shooter. On January 15, 2018, Ms.
Goicoechea met with Detective [Richard] Iachini and selected
Appellant out of a photo array. Additionally, she identified
Appellant in court as the same person she selected in the photo
array as the shooter. Ms. Goicoechea watched the shooter get
into what she believed was a brown Chevrolet Impala and
provided three digits (“FCG”) of the license plate. While on scene,
police collected eleven .40 caliber cartridges.
… In addition, Appellant’s phone records show that he was
in the area of 20th and Market Streets, very close to where the
shooting occurred at the time it occurred.
In the early morning hours of December 31, 2017, police
responded to a call of a male shot near 1938 Brookwood Street.
[Victim] was found in the driver’s seat of his running vehicle with
a gunshot wound to his head. Shortly thereafter, a second victim,
[Javon] McKinnon, was located and had sustained injuries to the
leg and groin area. Mr. McKinnon testified that he was with
[Victim] in the early morning hours of December 31, 2017.
[Victim] was dropping Mr. McKinnon off near 1938 Brookwood
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Street when Mr. McKinnon saw two figures appear from behind his
wife’s van, shooting at them. Mr. McKinnon jumped back into the
car and heard [Victim] scream out. While ducking from the
gunfire and trying to grab his friend, Mr. McKinnon looked up and
realized the car was rolling toward a pole (the car was running
and still in drive when police arrived), and jumped out. He ran
around and eventually ended back at his mother’s home at 1938
Brookwood Street, where officers eventually located him.
Police collected a total of twelve cartridges from the scene.
After analysis, it was determined that seven of the twelve
cartridges were from the same unknown firearm and the
remaining five were from a second unknown firearm. It was
further determined that the seven cartridges collected on
December 31, 2017 were from the same unknown firearm as the
eleven cartridges collected on December 29, 2017. None of the
cartridges collected and tested were from the firearm found in the
[V]ictim’s vehicle.
All of Appellant’s cell phone activity prior to 3:00 A.M. on
December 31, 2017, occurred in the City of Harrisburg.
Specifically, Appellant received four phone calls between 12:38
A.M. and 1:28 A.M. on December 31, 2017, and each hit off the
specific sector of each tower that would cover the direction of the
homicide. Appellant’s call activity shows that he remained in the
Harrisburg area until approximately 3:00 A.M. when he travelled
to the Philadelphia area presumably via the Pennsylvania
Turnpike. Appellant’s cell phone records show that he exchanged
numerous text messages and phone calls with an individual …
between 2:04 A.M. and 4:19 A.M. on December 31, 2017.
Based on the testimony and evidence adduced at trial, a jury
could reasonably conclude that Appellant intentionally or
knowingly caused the death of [Victim].
Trial Court Opinion, 2/12/21, at 22-24.
As accurately recited by the trial court, the above evidence, viewed in
the light most favorable to the Commonwealth, was sufficient for the jury to
convict Appellant of first-degree murder. See Chamberlin, 30 A.3d at 394.
There is no merit to Appellant’s sufficiency claim.
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In his third issue, Appellant argues his murder conviction is against the
weight of the evidence.4
The weight of the evidence is exclusively for the finder of fact, who
is free to believe all, none or some of the evidence and to
determine the credibility of the witnesses. Resolving contradictory
testimony and questions of credibility are matters for the finder of
fact. It is well-settled that we cannot substitute our judgment for
that of the trier of fact.
Moreover, appellate review of a weight claim is a review of the
exercise of discretion, not the underlying question of whether the
verdict is against the weight of the evidence. Because the trial
judge has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court's determination that the verdict is [or is
not] against the weight of the evidence. One of the least
assailable reasons for granting or denying a new trial is the lower
court’s conviction that the verdict was or was not against the
weight of the evidence and that a new trial should be granted in
the interest of justice.
Furthermore, in order for a defendant to prevail on a challenge to
the weight of the evidence, the evidence must be so tenuous,
vague and uncertain that the verdict shocks the conscience of the
court.
Commonwealth v. Miller, 172 A.3d 632, 642-43 (Pa. Super. 2017)
(citations omitted).
Appellant argues his murder conviction is against the weight of the
evidence because “the jury did not give proper weight to the testimony of
Teresa Smith,” the “jury gave more weight than it should have to the
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4 Appellant preserved this issue as required by Pa.R.Crim.P. 607 by raising it
with the trial court in a post-sentence motion. See Post-Sentence Motion,
10/9/20, at ¶¶ 11-18.
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testimony of Carla Goicoechea,” and “the jury also did not give proper weight
to the testimony of Sharayne Cook[.]” Appellant’s Brief at 22-23.
In assailing the weight the jury gave to witness testimony, Appellant
disregards established law which provides “while passing on the credibility of
the witnesses and the weight of the evidence, [the jury is] free to believe all,
part, or none of the evidence.” Commonwealth v. Melvin, 103 A.3d 1, 39
(Pa. Super. 2014) (citation omitted); see also Commonwealth v. Figueroa,
859 A.2d 793, 797 (Pa. Super. 2004) (“The weight of the evidence is strictly
within the province of the fact finder[.]”). Appellant is essentially attempting
to retry his case by having us reweigh the evidence, which is not the role of
an appellate court. It is well-settled that we may not disturb findings of fact
and determinations regarding credibility and weight of the evidence absent an
abuse of discretion. Miller, 172 A.3d at 642-43. Rather, we review the
exercise of the trial court’s discretion in denying Appellant’s weight claim.
Upon review, there is ample support for the court’s determination that “the
verdict was not contrary to the weight of the evidence to the degree of
shocking one’s conscience.” Trial Court Opinion, 2/12/21, at 28.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2021
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