Com. v. Carter, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TERRELL K. CARTER :
:
Appellant : No. 46 EDA 2022
Appeal from the Judgment of Sentence Entered October 20, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000559-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRELL K. CARTER :
:
Appellant : No. 47 EDA 2022
Appeal from the Judgment of Sentence Entered October 20, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000560-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRELL K. CARTER :
:
Appellant : No. 48 EDA 2022
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Appeal from the Judgment of Sentence Entered October 20, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000603-2021
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED NOVEMBER 29, 2022
Terrell K. Carter (Carter) appeals from the October 20, 2021 judgments
of sentence1 imposed by the Court of Common Pleas of Philadelphia County
(trial court) following his convictions by jury of two counts each of first-degree
murder, carrying a firearm without a license and carrying a firearm on the
streets of Philadelphia, and one count each of attempted murder and
aggravated assault.2 We affirm.
I.
We glean the following facts from the certified record. On August 27,
2018 (the August shooting), Steven Mosley (Mosley) and Roderick Williams
(Williams) contacted Carter to purchase methamphetamine. They had
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* Retired Senior Judge assigned to the Superior Court.
1 Carter’s notices of appeal purported to appeal from the trial court’s
December 1, 2021 order denying post-sentence motions. “In a criminal
action, appeal properly lies from the judgment of sentence made final by the
denial of post-sentence motions.” Commonwealth v. Shamberger, 788
A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc). We have corrected the
captions accordingly.
2 18 Pa.C.S. §§ 2502(a), 6106, 6108, 901 & 2702.
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purchased narcotics from Carter on at least two prior occasions. Mosley texted
back and forth with Carter throughout the night and originally arranged to
meet him in the Nicetown section of Philadelphia. When he and Williams
arrived at the meeting point, Carter directed them to a ShopRite in the
Roxborough section of the city. When they reached that location, Carter was
driving a Jeep Cherokee3 and directed them to follow him.
They proceeded to a nearby residential street and parked their vehicles.
Carter then entered the backseat of Mosley’s vehicle. Mosley and Williams
gave him $2,500 in cash, which he counted before going back to his vehicle
to retrieve the methamphetamine. However, when Carter returned to
Mosley’s vehicle, he immediately fired several shots into the driver’s side
window. Mosley was killed instantly and Williams, after being struck in the
thigh, pretended to be dead. When Carter began to walk back to his vehicle,
Williams attempted to exit Mosely’s vehicle. Carter returned and fired several
more shots at Williams before running to his vehicle and fleeing the scene.
Neighbors called the police and reported that the shooter had left the
scene in a Jeep heading northbound toward Henry Avenue. Williams was
taken to the hospital and treated for his injuries. When he was interviewed
by police that night, he did not immediately name Carter as the assailant but
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3Williams reported that on prior occasions, he had seen Carter driving a white
BMW.
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did provide a description of Carter and his vehicle. In an interview in January
2019, after Carter had been arrested, Williams identified Carter as the
shooter.
Detectives recovered Mosley’s cell phone from the crime scene and
analyzed the activity leading to the shooting. Mosley had communicated with
a phone number that was saved as “Rell the Man” and exchanged text
messages to establish a time, meeting place and price for the sale. 4 N.T.,
10/14/21, at 98. Additional text messages and phone calls later in the evening
corroborated Williams’ account of meeting at the ShopRite before following
Carter to the second location where the shooting occurred.
Upon further investigation, detectives identified Carter as the owner of
the “Rell the Man” phone number and learned that he lived at an apartment
complex on Henry Avenue. A Jeep Cherokee registered to Carter was located
at the address. Surveillance video from the apartment complex showed the
vehicle leaving the complex at approximately 9:46 PM and returning at
10:26 PM on the night of the murder, which matched the time frame of the
shooting. The complex was located approximately half-a-mile from the crime
scene. Detectives also located video from a private residence near the scene
of the shooting that showed an individual park his vehicle, walk out of frame
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4 In the biographical information sheets completed at the time of his arrests
in the two cases, Carter listed “Rell” as his nickname and listed the “Rell the
Man” phone number as his own.
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for a few minutes, return briefly to his vehicle before leaving the frame again
and finally running back to the vehicle and driving away.
On September 13, 2018 (the September shooting), Rafiq Turner
(Turner) was shot and killed while seated in the driver’s seat of his vehicle.
Shanya Lovett (Lovett), Turner’s sister, had spoken with him the day before
and he told her he was planning to meet Carter to purchase narcotics. Turner
and Lovett both knew Carter because they previously lived in the same
neighborhood. Turner showed her a backpack containing a large amount of
cash in twenty-dollar bills bound in rubber bands. After the murder, police
recovered an empty backpack from the front seat of the vehicle.
Zarriah Stone (Stone), Carter’s stepdaughter, reported that around the
time of the September shooting, she entered Carter’s vehicle and found a roll
of twenty-dollar bills next to the passenger’s seat. She gave the money to
Carter, who gave her $20 from the bundle to thank her for locating it. Zabre
Carter (Zabre),5 Carter’s wife, also reported that around the time of the
murders Carter had given her $3,200 to make a payment on her white BMW,
which had been repossessed.6 He had also given her approximately $900 for
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5 For clarity, we refer to Zabre by her first name.
6 A Western Union receipt recovered from Zabre and Carter’s residence
confirmed that the car payment was transferred the day after Turner’s
murder.
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rent. Carter’s bank records revealed that he had deposited $5,000 into his
own account the morning after the September shooting.
Detectives recovered a cell phone from Turner’s vehicle and analyzed it
for any communications with Carter’s phone number,7 which was saved in
Turner’s phone under the name “RC.” N.T., 10/18/21, at 126. The contact
was created on the day of the murder and there were 13 phone calls and
approximately 37 text messages between the two devices. Shortly after 7 PM,
Turner texted Carter’s phone that he was “on [his] way” and the two phones
then connected for a four-minute FaceTime video call. Id. at 140. A few
minutes later, Carter’s phone texted a street address to Turner. Two final,
brief calls occurred between the phones at 8:29 PM and 8:43 PM. At 8:57 PM,
law enforcement was dispatched to the scene of the shooting, which was a
little over a mile away from the address that had been texted to Turner.
Law enforcement also retrieved surveillance video footage from the
Henry Avenue apartment complex during this time frame. The complex was
approximately 6.4 miles from the scene of the September shooting.
Surveillance video captured Carter’s Jeep returning to the complex at
9:11 PM. Additionally, analysis of Carter’s phone’s historical data showed that
it was within range of a cell phone tower that covered the crime scene at
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7This was the same phone number saved in Mosley’s phone as “Rell the Man.”
Zabre additionally told police that the phone number belonged to Carter.
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8:43 PM. The phone then moved toward a tower that covered Carter’s
apartment complex at 8:56 PM.
Prior to trial, the Commonwealth filed a motion to consolidate the August
shooting and the September shooting cases pursuant to Pa.R.Crim.P.
582(A)(1) and 404(b)(2).8 It argued that Williams’ identification of Carter as
his assailant in the August shooting was relevant and probative of Carter’s
involvement in the September shooting. In both cases, the victims
communicated with Carter’s phone number to arrange a drug deal and were
subsequently shot in their vehicles during the transaction. Large amounts of
money intended for the narcotics purchases were stolen from the victims. The
shootings occurred in an area of town where Carter had previously lived and
had met with Mosley. They occurred approximately two weeks apart. The
Commonwealth argued that the cases should be consolidated based on their
similarities and to establish Carter’s identity and motive as the perpetrator of
the September shooting, as there were no eyewitnesses to that incident.
Carter argued that the cases should not be consolidated because it was
overly prejudicial and the jury would not be able to separate the evidence in
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8 For reasons unclear from the record, Carter was charged at separate docket
numbers for the murder of Mosley and the attempted murder of Williams, even
though the charges arose from the same incident. Accordingly, three docket
numbers were at issue in the trial court. The parties’ arguments related to
consolidating the cases for trial focus on the joinder of the August shooting
and the September shooting, as they were separate transactions.
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the August shooting from the September shooting. Relying on Pa.R.Crim.P.
404(b), the trial court concluded that the evidence in the August shooting
would be admissible in the trial for the September shooting to establish
identity, motive and a common scheme. It granted the Commonwealth’s
motion and consolidated the cases for trial.
Carter proceeded to a jury trial and was convicted of the above-
mentioned offenses. He was immediately sentenced to two consecutive terms
of life imprisonment on the counts of first-degree murder. For the counts
related to the August shooting, he was sentenced to concurrent terms of 2.5
to 5 years’ imprisonment each for carrying a firearm without a license and
carrying a firearm on the streets of Philadelphia, and 10 to 20 years’
imprisonment for the attempted murder of Williams. Related to the
September shooting, he was sentenced to concurrent terms of 2.5 to 5 years’
imprisonment each for carrying a firearm without a license and carrying a
firearm on the streets of Philadelphia.
Carter filed timely post-sentence motions challenging the weight of the
evidence to support his convictions and the consolidation of the cases for trial.
The trial court denied the motions and Carter timely appealed. He and the
trial court have complied with Pa. R.A.P. 1925.
II.
In his first issue on appeal, Carter argues that the trial court abused its
discretion by denying his request for a new trial because his convictions for
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the September shooting were against the weight of the evidence.9 He
contends that the only evidence linking him to the September shooting was
the phone number that communicated with Turner prior to his murder. He
points out that there were no eyewitnesses to the September shooting and
contends that the Commonwealth could not establish based only on the text
conversations that he was the perpetrator in that incident.
“An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court.” Commonwealth v. Sullivan,
820 A.2d 795, 805-06 (Pa. Super. 2003) (citation omitted). “Trial judges, in
reviewing a claim that the verdict is against the weight of the evidence, do
not sit as the thirteenth juror. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice.” Commonwealth v. Widmer, 744 A.2d 745, 752
(Pa. 2000) (quotations omitted). A new trial is appropriate only when the
verdict “is so contrary to the evidence as to shock one’s sense of justice.”
Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa. Super. 2013) (citation
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9 When evaluating a challenge to the weight of the evidence to support a
conviction, this Court does not reweigh the evidence presented at trial, but
rather evaluates the trial court’s denial of the motion for a new trial for an
abuse of discretion. Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa.
2013). A trial court’s determination that the verdict was not against the
weight of the evidence is “[o]ne of the least assailable reasons for granting a
new trial.” Id. (citation omitted).
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omitted). “[T]he evidence must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.” Commonwealth v. Akhmedov,
216 A.3d 307, 326 (Pa. Super. 2019) (en banc) (citation omitted).
Carter does not address his argument to the trial court’s exercise of
discretion in denying his post-sentence motion. Rather, he asks this Court to
reweigh the evidence against him and find that his text messages and phone
calls to Turner immediately prior to the murder have insufficient weight to
support his convictions. This argument misapprehends our scope and
standard of review on appeal, as we may not reweigh the evidence or disturb
the trial court’s determinations without a clear abuse of discretion. See
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
The trial court’s opinion reveals no such abuse of discretion. See Trial
Court Opinion, 3/2/22, at 11-12. Carter’s cell phone number was far from the
only evidence linking him to the September shooting. Turner spoke with his
sister the day before his murder and told her that he planned to purchase
narcotics from Carter the following day. He showed her a backpack with the
cash he intended to use to purchase the drugs, and an empty backpack was
found in his vehicle after his murder. The day after the shooting, Carter gave
his wife $3,200 and deposited $5,000 in his own bank account, and around
that same time Stone found a roll of cash in Carter’s vehicle.
Carter confirmed to police at the time of his arrest that the phone
number that communicated with Turner about the drug sale was his own.
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Analysis of the number’s historical data showed that the phone was in the
vicinity of the crime scene around the time of the September shooting, after
which it moved toward the apartment complex where Carter lived.
Surveillance video at the apartment depicted Carter’s vehicle returning to the
apartment complex shortly after the shooting. Finally, the September
shooting occurred less than three weeks after the August shooting and bore
substantial similarities to that incident, and Williams testified that Carter was
the perpetrator of the August shooting. The trial court concluded that taken
together, the weight of this evidence was not so vague, tenuous and uncertain
as to require a new trial. Akhmedov, supra. The record supports this
determination and no relief is due.
III.
Next, Carter argues that the trial court abused its discretion in
consolidating the trials for the August shooting and the September shooting.10
He argues that joinder of the two incidents for trial improperly suggested to
the jury that he had a “propensity to commit robbery-murders.” Carter’s Brief
at 10. He argues that no eyewitness was presented for the September
shooting and the phone number saved as “Rell the Man” and “RC” in the
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10 “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.
Knoble, 188 A.3d 1199, 1205 (Pa. Super. 2018) (quoting Commonwealth
v. Wholaver, 989 A.2d 883, 888 (Pa. 2010)).
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victims’ phones could not be conclusively linked to him. He contends that the
jury could not separate the evidence from the two murders and consider them
individually. We disagree.
Offenses charged based on different criminal acts or transactions may
be joined for trial 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.P. 582(A)(1). A court may
order separate trials if a party would be prejudiced by joinder, even when it is
otherwise appropriate under the Rules. Pa.R.Crim.P. 583.
Under Rule 583, the prejudice the defendant suffers due to the
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 appellant 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.
Commonwealth v. Hobel, 275 A.3d 1049, 1067 (Pa. Super. 2022) (quoting
Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa. Super. 2010)).
The Commonwealth argued in the trial court that joinder of the August
shooting case and the September shooting case was proper to establish
Carter’s identity as the shooter in both instances and to show a motive and
common plan or scheme underlying the shootings. While it is well-established
that evidence of other crimes or bad acts is not admissible to show a
defendant’s propensity to commit crimes, such evidence is admissible for
other purposes, “such as proving motive, opportunity, intent, preparation,
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plan, knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E.
404(b)(1)-(2).
In Hobel, the trial court consolidated four of the defendant’s cases for
trial: the first three were robberies of different stores that occurred over a
40-hour period and the fourth case was a high-speed vehicle chase with the
police that resulted in the defendant’s arrest. The robberies were each
captured on surveillance video which showed the defendant in the same
clothing and pointing a black handgun at the store clerks. The stores were
located within a few miles of each other. Following the car chase, police
located items of clothing and a black airsoft gun resembling those seen in the
videos in the defendant’s vehicle. This Court affirmed, finding that joinder
was proper because evidence in each case would be admissible in a trial for
the others to establish the identity of the perpetrator of the robberies through
the common pattern of criminal activity. Id. at 1068.
The same reasoning applies here. As the trial court explained, the
August shooting and September shooting shared substantial similarities that
suggested a single perpetrator had committed both crimes. The victims had
both communicated with the same phone number to arrange to purchase
narcotics. The shooter directed the victims to meet him at a specific address
and then led them to a second location to complete the transaction. Both
victims were shot in the head while seated in the driver’s seat of their vehicles.
Williams testified that he and Mosley had given Carter the money for the
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methamphetamine before he returned to his vehicle to retrieve the narcotics.
He and Mosley were then shot when Carter returned to the driver’s side
window of their vehicle, ostensibly to bring them the drugs. While there were
no witnesses to the September shooting, the empty backpack in Turner’s
vehicle that had previously been full of cash suggested a similar turn of events.
Finally, both shootings occurred within a short drive of Carter’s apartment
complex and surveillance video captured him returning to that address shortly
after each shooting. The trial court did not abuse its discretion in concluding
that the similarities between the two shootings were probative of Carter’s
identity and motive as the shooter in the September shooting.
Additionally, the jury was capable of separating the evidence from the
two shootings and evaluating each case on its own merits. The shootings
involved different victims and occurred on different dates approximately two-
and-a-half weeks apart. The Commonwealth presented all evidence of the
August shooting first, followed by all evidence related to the September
shooting, even when this approach necessitated calling the same witness on
two separate days to testify regarding each shooting. See N.T., 10/14/21, at
84-145 (Detective Thorsten Lucke testifying regarding the cell phone evidence
in the August shooting); N.T., 10/18/21, at 119-60 (Detective Lucke testifying
regarding the cell phone evidence in the September shooting). The trial court
also issued a cautionary instruction to the jury that “the evidence pertaining
to the separate cases must not be regarded as evidence tending to show that
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the Defendant is a person of bad character or criminal tendencies from which
you might be inclined to infer guilt.” N.T., 10/19/21, at 122. It explained that
the cases were tried together to show similarities between the crimes but that
the jury retained the sole discretion of determining whether Carter was the
perpetrator. Based on these circumstances, we cannot conclude that the jury
would have been incapable of evaluating each case separately or that Carter
was prejudiced by the joinder of the cases for trial.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2022
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