Com. v. Minor, B. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BYRON MINOR :
:
Appellant : No. 1931 EDA 2020
Appeal from the Judgment of Sentence Entered February 20, 2020
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0007556-2018
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: Filed: October 7, 2021
Appellant, Byron Minor, appeals from the judgment of sentence of 20-
40 years’ incarceration, imposed following his conviction for criminal
conspiracy to commit third-degree murder.1 Herein, Appellant challenges the
sufficiency of the evidence to support his conviction. After careful review, we
affirm.
The Commonwealth provided the following summary of the facts
adduced at trial, as follows:2
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 903 (conspiracy); 18 Pa.C.S. § 2502(c) (third-degree murder).
2 The trial court’s summary of the facts in its Pa.R.A.P. 1925(a) opinion was
exceptionally brief. Trial Court Opinion (“TCO”), 3/4/21, at 2. Accordingly,
we have reproduced the Commonwealth’s summary instead, as it both
accurately reflects the record and does not conflict with Appellant’s even more
comprehensive summary of the facts. See Appellant’s Brief at 5-16.
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Around 2:00 p.m. on May 21, 2018, [Appellant] spoke on the
phone with his friend, co-defendant Eric Johnson. Approximately
two hours later, [Appellant] picked Johnson up and drove him to
5th and Central streets in Chester, Pennsylvania. Vincent
Franklin, who owed Johnson money in connection with Johnson’s
drug dealing[,] lived on that block. At 4:24 p.m., as [Appellant]
approached the block, Johnson held a gun in his right hand. The
pair saw Franklin walking down the street with his girlfriend.
[Appellant] slowed his car, Johnson opened the passenger door
with his left hand, exited, and began firing a barrage of bullets at
Franklin. In total, Johnson fired 22 shots, twice hitting Franklin
and killing him. Johnson then ran back to [Appellant]’s waiting
car (with the passenger door wide open to hasten their escape),
and [Appellant] sped away.
Officer Matthew Bruder of the Folcroft Borough Police Department
was on duty when he heard a radio call about the Nissan SUV with
New York State plates involved in Franklin’s murder. He saw a
vehicle matching that description and followed it. After confirming
that Chester Police were still looking for the vehicle, Officer Bruder
activated his police lights to stop the Nissan. Instead of
complying, [Appellant] drove away, fleeing from police. Shortly
thereafter, both [Appellant] (the driver) and Johnson (the
passenger) jumped out of the moving car and fled in different
directions. Officer Bruder pursued Johnson, who pointed his gun
at Officer Bruder during the chase. Neither [Appellant] nor
Johnson were immediately apprehended.
[Appellant]’s girlfriend, Lydia Rivera, rented the Nissan SUV from
Enterprise Car Rental on May 14, 2018. Telephone records
admitted at trial show that [Appellant] called Lydia about twenty
minutes after Franklin’s murder. They spoke two more times in
the following five minutes. A minute after that, Rivera called
Enterprise and reported the Nissan SUV as stolen. Moments after
the call to Enterprise, Rivera called the Chester Police to report
the Nissan SUV as stolen. [Appellant] and Rivera spoke 33 times
on May 21, 2018[,] in the hours after Franklin’s murder. Cell
phone records demonstrate that [Appellant] and Johnson
reconnect[ed] in Tinicum, Pennsylvania[,] later in the day after
the murder.
Commonwealth’s Brief at 2-3 (citations omitted).
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Appellant and Johnson were jointly tried by a single jury. On November
14, 2019, the jury convicted Appellant of conspiracy to commit third-degree
murder, and Johnson of first-degree murder,3 conspiracy to commit first-
degree murder,4 and carrying a firearm without a license.5 N.T., 11/14/19, at
107-10. On February 20, 2020, the trial court sentenced Appellant as stated
supra.
Appellant timely filed an omnibus post-sentence motion (“PSM”) on
March 2, 2020. He then filed a premature notice of appeal on October 13,
2020. On January 12, 2021, this Court issued a rule to show cause why the
appeal should not be quashed as interlocutory due to the pending PSM. On
January 20, 2021, Appellant filed a motion in the trial court seeking to have
his PSM denied by operation of law. Appellant then answered our rule to show
cause on January 22, 2021. The PSM was still pending on April 6, 2021, when
this Court issued an order directing the trial court to decide the PSM. The trial
court failed to comply with our order, prompting this Court to issue a second
order, on June 2, 2021, again directing the trial court to decide the PSM.
Finally, on June 6, 2021, 461 days after it was filed, the trial court entered an
order denying the PSM. Subsequently, on June 25, 2021, this Court issued
an order referring the matter to the panel. Under these circumstances, we
____________________________________________
3 18 Pa.C.S. § 2502(a).
4 18 Pa.C.S. § 903.
5 18 Pa.C.S. § 6106.
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will treat Appellant’s premature notice of appeal as having been timely filed
on June 25, 2021. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof.”).
The trial court ultimately issued its Rule 1925(a) opinion on March 4,
2021, after never having ordered Appellant to file a Rule 1925(b) statement.
Appellant now presents the following issue for our review:
Evidence introduced at trial showed that Appellant’s co-defendant,
Eric Johnson, got out of the car, approached the victim and started
firing a handgun at the victim, who died as a result of several
gunshot wounds. Evidence showed that Appellant Byron Minor,
while driving the car that Johnson was riding in, did not get out of
the car or in any way partake in the shooting; Appellant and
Johnson fled after the shooting and later, when spotted by police.
The issue then is whether evidence that Appellant’s presence at
the scene of the shooting and flight afterwards, is sufficient to
convict … Appellant of [c]onspiracy to [c]ommit [t]hird[-d]egree
[m]urder.
Appellant’s Brief at 4.
Appellant presents a challenge to the sufficiency of the evidence.
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim[,] the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
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Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
Here, the jury convicted Appellant of conspiracy to commit third-degree
murder. “A conspiracy conviction requires proof of (1) an intent to commit or
aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an
overt act in furtherance of the conspiracy.” Commonwealth v. Spotz, 756
A.2d 1139, 1162 (Pa. 2000).
Once a conspiracy is established, the actions of each co-
conspirator may be imputed to the other conspirators. In this
regard, “[t]he law in Pennsylvania is settled that each conspirator
is criminally responsible for the actions of his co-conspirator,
provided that the actions are accomplished in furtherance of the
common design.” Commonwealth v. Baskerville, 681 A.2d
195, 201 (Pa. Super. 1996). Furthermore,
[w]here the existence of a conspiracy is established, the law
imposes upon a conspirator full responsibility for the natural
and probable consequences of acts committed by his fellow
conspirator or conspirators if such acts are done in
pursuance of the common design or purpose of the
conspiracy. Such responsibility attaches even though such
conspirator was not physically present when the acts were
committed by his fellow conspirator or conspirators and
extends even to a homicide which is a contingency of the
natural and probable execution of the conspiracy, even
though such homicide is not specifically contemplated by the
parties.
Commonwealth v. Eiland, 301 A.2d 651 (Pa. 1973).
Commonwealth v. Geiger, 944 A.2d 85, 91 (Pa. Super. 2008) (citations
reformatted).
To prove third-degree murder, the Commonwealth must establish that
the accused
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killed another person with malice. Commonwealth v. Hardy,
918 A.2d 766, 774 (Pa. Super. 2007).
The elements of third[-]degree murder, as developed by
case law, are a killing done with legal malice but without
specific intent to kill required in first[-]degree murder.
Malice is the essential element of third[-]degree murder,
and is the distinguishing factor between murder and
manslaughter.
Commonwealth v. Cruz–Centeno, 668 A.2d 536, 539 (Pa.
Super. 1995)….
Malice under the law “comprehends not only a particular ill-will,
but every case where there is wickedness of disposition, hardness
of heart, cruelty, recklessness of consequences, and a mind
regardless of social duty, although a particular person may not be
intending to be injured.” Commonwealth v. Thomas, 594 A.2d
300, 301 (Pa. 1991) [(citation omitted)]. “Malice may be inferred
from the ‘attending circumstances of the act resulting in death.’”
Commonwealth v. Lee, 626 A.2d 1238, 1241 (Pa. Super.
1993…. Otherwise stated, malice may be found where the
defendant has consciously disregarded an unjustified and
extremely high risk that her conduct might cause death or serious
injury to another.
Geiger, 944 A.2d at 90 (citations reformatted, some citations omitted).
In the case sub judice, it is undisputed that Johnson, who was convicted
of first-degree murder, fired the shots that killed Franklin. Thus, Appellant’s
conviction is solely premised upon his culpability as a co-conspirator to the
killing of Franklin. Appellant first argues that the Commonwealth’s evidence
established only that he was present at the scene of the crime, and that he
subsequently engaged in flight from police, facts which he contends were
insufficient, even in combination, to establish his participation in a conspiracy
with Johnson.
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Second, Appellant argues that there was no evidence of a common
scheme or plan to harm the victim. In this vein, Appellant first asserts that
there was no evidence presented by the Commonwealth to demonstrate his
motive to assist Johnson in the shooting of Franklin. Appellant claims that he
“was not present for any of Johnson’s drug transactions with Franklin” and
that “no evidence was offered to show that Appellant even knew Johnson was
in the drug trade.” Appellant’s Brief at 23. He contends that
[t]here is no evidence Appellant knew … Franklin, or even knew
who he was. No evidence was introduced to show that Appellant
was aware that Johnson sold drugs to Franklin or that Franklin
owed Johnson money. Police obtained … Franklin’s cell phone in
the days after the homicide; examination of the phone revealed
no contact between Appellant and Franklin. No other evidence
was offered to show Appellant had a motive to harm Franklin.
Id. at 24-25.
Finally, Appellant asserts that the Commonwealth failed to produce any
evidence that he knew beforehand that Johnson would jump out of the vehicle
and shoot Franklin. He claims that the “video does not show what Appellant
was doing as Johnson fired at Franklin and no evidence was offered to show
that Appellant was acting as a lookout. Appellant did not stop the vehicle so
that Johnson could jump out; Appellant stopped at a stop sign[.]” Id. at 25.
Appellant further argues that the was no evidence “offered to show that the
shooting was planned.” Id. at 27. In this regard, Appellant states that:
There is no evidence that either Appellant or Johnson [was] aware
that Franklin ha[d] just awoken or that he was walking in the area.
In fact[,] there was no evidence that either Appellant or Johnson
even knew where Franklin resided. Moreover, there was no
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evidence that Appellant drove the Nissan on Central Avenue at
any other time that day.
Id. Appellant concludes that, “for the jury to find that Appellant knew of
Johnson’s intentions, and came to a meeting of the minds with Johnson as to
those intentions, would be guess, speculation[,] and conjecture.” Id. at 28.
The trial court rejected Appellant’s sufficiency claim, reasoning as
follows:
In the instant case, the Commonwealth put forth circumstantial
evidence that [Appellant] agreed to and aided co-defendant
Johnson in the shooting of the victim, who died as a result of the
gunshot wounds. [Appellant] and … Johnson had been in
communication leading up to the shooting, [Appellant] drove …
Johnson to the victim’s home and slowed the vehicle down when
he noticed the victim outside in front of his home. [Appellant]
waited while … Johnson fired twenty-two shots at [the] victim and
got back in the vehicle, prior to fleeing the scene. Thereafter,
[Appellant] remained in the vehicle with … Johnson until the police
attempted a vehicle stop, at which point, both individuals exited
the vehicle while it was still in motion and fled the scene. In
viewing the evidence in the light most favorable to the
Commonwealth, as verdict winner, based on the evidence
presented, under the facts and circumstances in this case, it was
reasonable for the jury to find, beyond a reasonable doubt, that
[Appellant] conspired with … Johnson to shoot the victim and did
so with conscious disregard for the value of human life. The
evidence was sufficient to support the verdict finding [Appellant]
guilty to [c]onspiracy to [c]ommit [t]hird-[d]egree [m]urder.
TCO at 6.
We will first address Appellant’s assertion that the evidence produced at
trial solely consisted of his mere presence at the scene, and his subsequent
flight from police. The Commonwealth did not merely present evidence of
Appellant’s presence at the scene and his subsequent flight from police. The
Commonwealth produced evidence demonstrating that Appellant and Johnson
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were friends, that they communicated with each other prior to the shooting,
and that Appellant waited in the vehicle when Johnson got out of the vehicle
and fired 22 shots at the victim. Additionally, Appellant contacted his girlfriend
immediately after the shooting, and asked her to mislead both police and the
rental company by telling them that the Nissan had been stolen. Furthermore,
after their coordinated flight from police,6 Appellant and Johnson met up with
each other later that same day. Thus, Appellant’s claim that the
Commonwealth only demonstrated his presence at the scene and his flight
from police is belied by the record.
Appellant further claims that the Commonwealth failed to demonstrate
his motive to assist Johnson in the shooting of Franklin. However, while
evidence of motive is almost always admissible and relevant in a murder
prosecution, motive is not itself an element of either murder or conspiracy.
See Commonwealth v. Shain, 426 A.2d 589, 591 (Pa. 1981) (“In
establishing an accused’s guilt in a homicide case, the prosecutor is not
required to show motive.”); see also Commonwealth v. Holland, 389 A.2d
1026, 1034 (Pa. 1978) (“Motive, while sometimes relevant factually, is not an
element of the crime charged which the Commonwealth must prove. If the
Commonwealth presents sufficient evidence concerning the elements of the
crimes charged, its failure to offer evidence of motive does not, as a matter
____________________________________________
6 As noted in the summary of the facts above, Appellant and Johnson jumped
from the Nissan at the same time as it was still moving, and then ran in
opposite directions, indicating a coordinated attempt to thwart further pursuit
by the police.
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of law, raise a reasonable doubt.”) (citation omitted). Thus, the
Commonwealth’s failure to demonstrate Appellant’s motive to assist Johnson
in the slaying of Franklin does not render the evidence insufficient to convict
Appellant of conspiracy to commit third-degree murder. See Holland, supra.
Finally, Appellant asserts that the evidence was insufficient to show any
prior plan with Johnson to harm or kill Franklin. However, as noted in Spotz,
“[b]ecause it is difficult to prove an explicit or formal agreement to commit an
unlawful act, such an act may be proved inferentially by circumstantial
evidence, i.e., the relations, conduct or circumstances of the parties or overt
acts on the part of the co-conspirators.” Spotz, 756 A.2d at 1162. We
conclude that, in the circumstances of this case, the evidence was sufficient
to allow the jury to infer that Appellant had an agreement to assist Johnson
in the attack on Franklin, based on the following facts.
First, Appellant and Johnson were friends according to Appellant’s
girlfriend, Rivera, see N.T., 11/13/19, at 20, and they were in communication
with each other earlier in the day according to cell phone evidence presented
by the Commonwealth, id. at 101-02. Thus, Appellant’s “presence at the
scene” was not coincidental. He drove Johnson to the scene of the crime.
Second, the evidence demonstrated that Appellant stopped the vehicle near
Franklin, allowing Johnson to exit and fire his weapon 22 times. See N.T.,
12/12/19 at 61 (Officer Murphy’s describing Franklin’s account of the shooting
before he died); id. at 71 (Officer Linowski describing his discovery of 22 shell
casings at the scene). Appellant did not flee but, instead, remained at the
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scene as the shooting occurred and waited for Johnson to reenter the vehicle,
thereby facilitating Johnson’s escape.
Third, Appellant continued to drive Johnson away from the scene of the
crime until Officer Bruder encountered the Nissan about 20 minutes after the
shooting. See id. at 90 (Officer Bruder describing his encounter with the
Nissan). Thus, despite witnessing Johnson fire 22 shots at the victim,
Appellant continued to drive him for an additional 20 minutes after the
shooting. At that time, Appellant and Johnson simultaneously exited the
vehicle in opposite directions, see id. at 96-97, further demonstrating 1) that
Appellant and Johnson were acting in concert, and 2) Appellant’s
consciousness of guilt.7
Fourth, Appellant’s girlfriend testified that, following the shooting,
Appellant directed her to report the Nissan stolen to both police and the rental
company. N.T., 11/13/19, at 27-29. This was further evidence of Appellant’s
consciousness of guilt. Fifth, Appellant and Johnson again met up later the
same evening after their coordinated flight from the Nissan,8 further
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7 “When a person commits a crime, knows that he is wanted therefor, and
flees or conceals himself, such conduct is evidence of consciousness of guilt,
and may form the basis in connection with other proof from which guilt may
be inferred[.]” Commonwealth v. Coyle, 203 A.2d 782, 789 (Pa. 1964).
8 This can be reasonably inferred from the fact that Appellant’s and Johnson’s
cell phones were tracked in different locations after they separated, until their
phones were later found to be “pinging” off the same cell tower in Tinicum
after approximately 9 p.m. that evening. See N.T., 11/13/19, at 110-14.
Appellant and Johnson called each other ten times on the day of the shooting,
but not once after their phones were linked to the Tinicum location. Id. at
116.
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demonstrating that they had acted in concert. Based on the foregoing, we
agree with the trial court and the Commonwealth that the evidence was
sufficient to allow the jury to infer that Appellant intended to aid, and in fact
agreed to aid Johnson in the attack on Franklin, based on the totality of the
evidence that showed that they acted in concert before, during, and after the
shooting.
Finally, we are unpersuaded by Appellant’s attempts to contrast this
case with the facts in Commonwealth v. Lambert, 795 A.2d 1010 (Pa.
Super. 2002). In Lambert, this Court held that the evidence was sufficient
to support Lambert’s conviction for burglary, criminal conspiracy, and second-
degree murder. Id. at 1025. Lambert was convicted based on his
participation in a burglary conspiracy, where his co-defendant fatally shot the
victim in the head. Lambert “served as an accomplice to the commission of
the burglary” as he “drove [his c]o–[d]efendant to the scene of the crime,
waited during the commission of the crime[,] and facilitated the flight
afterwards.” Id. at 1022. Similarly, here, Appellant drove Johnson to the
scene of the crime, waited for him while Johnson fired 22 shots at the victim,
and then facilitated Johnson’s escape, first by immediately driving Johnson
away from the scene of the crime and, later, by coordinating their escape from
police when Officer Bruder attempted to stop the Nissan. Furthermore,
Appellant demonstrated further consciousness of guilt by directing his
girlfriend to report the Nissan as stolen as he was assisting Johnson flight from
police. Lambert therefore offers Appellant no relief.
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Accordingly, for all the aforementioned reasons, we conclude that
Appellant’s sufficiency claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/21
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