Com. v. Ogden, L.

J. A21023/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
LOUIS RODERICK OGDEN, :
:
Appellant : No. 3148 EDA 2015
Appeal from the Judgment of Sentence September 22, 2015
In the Court of Common Pleas of Wayne County
Criminal Division at No.: CP-64-CR-0000319-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 11, 2016
Appellant, Louis Roderick Ogden, appeals from the Judgment of
Sentence entered by the Wayne County Court of Common Pleas following his
conviction by a jury of First-Degree Murder. After careful review, we affirm.
The relevant facts, as gleaned from the certified record and the trial
court’s Pa.R.A.P. 1925(a) Opinion, are as follows. On the morning of June
20, 2014, Rebecca Pisall, Appellant’s 20-year-old niece, arrived at
Appellant’s home in Lake Ariel to purchase heroin from Appellant. After a
brief conversation in the kitchen with Rebecca, Appellant’s daughter, Mary
Langendorfer, who lived with Appellant, woke Appellant up and told him
Rebecca wanted to purchase heroin. Appellant then tossed a small black
bag containing heroin at Mary and told Mary to “take care of it.” N.T. Trial,
9/21/15, at 9-10. Mary took the heroin into the kitchen, gave Rebecca three
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bags of heroin in exchange for $60, put the money in the black bag, and
returned the black bag to Appellant. Id. at 10.
When Mary returned to the kitchen, Rebecca claimed that the bags
were empty and demanded her money back. Mary returned to Appellant
and, after learning of Rebecca’s complaint, Appellant pulled a loaded gun
from underneath his pillow, walked into the kitchen, pointed the gun at
Rebecca, and fatally shot Rebecca in the forehead from 4-8 inches away.
Appellant then pointed the gun at Mary’s throat and said, “it just went off” in
an “angry tone like he was telling [Mary] what to do.” Id. at 13.
Appellant called 911 shortly thereafter and Appellant, who was very
upset, admitted during the call that he had shot Rebecca in the head. Id. at
34-37, 40. Appellant provided a Mirandized1 statement to Pennsylvania
State Trooper Sharon Palmer, admitting all of the above facts but stating
that he had: (1) traveled to Philadelphia the night before the shooting to
purchase heroin; (2) used twenty bags of heroin while in Philadelphia; (3)
returned to his house in Wayne County and went to sleep; and (4) only
wanted to scare Rebecca when the gun went off accidentally. He also
admitted to being familiar with guns and gun safety. N.T. Trial, 9/21/15, at
58-74; Commonwealth Exhibit 6.
At Appellant’s jury trial on September 21 and 22, 2015, the
Commonwealth presented testimony from Appellant’s daughter Mary; 911
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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dispatcher Forest Mohn; Pennsylvania State Troopers Sharon Palmer, Gerald
Gustas, and Sean Doran, and Corporal Michael Brown; and forensic
pathologist Dr. Gary Ross. The trial court admitted Appellant’s statement to
police into evidence. Appellant presented no evidence.
On September 22, 2015, the jury convicted Appellant of First-Degree
Murder2 and the trial court imposed the statutorily mandated sentence of life
in prison.3 After the denial of his Post-Sentence Motion, Appellant filed a
timely Notice of Appeal on October 16, 2015. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant presents four issues for our review:
1. Did the Court below err in not instructing the jury regarding
the Appellant’s Involuntary or Voluntary Intoxication (8.308B &
8.308C), which would have instructed the jury of the possibility
of a finding of Third[-]Degree Murder or Voluntary Manslaughter
in this case, based upon the level of drugs consumed by the
[Appellant] prior to the shooting of the victim?
2. Did the Trial Court err and abuse its discretion, as well as
deny the Appellant due process, in denying the [Appellant’s]
Motion for Post[-]Trial Relief pursuant to Pa.R.Crim.P. 606
seeking a judgment of acquittal and/or for a new trial with
regard to the sufficiency of the evidence presented at trial, as
the Commonwealth did not meet its burden of proof that the
[Appellant] acted with premeditation, and the evidence was
insufficient to prove specific intent to kill and/or malice, beyond
a reasonable doubt, as required to permit a conviction of First[-
]Degree Murder?
2
18 Pa.C.S. § 2501; 18 Pa.C.S. § 2502(a).
3
42 Pa.C.S. § 9711.
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3. Did the Trial Court err in denying the Appellant’s Motion for
Post-Trial Relief seeking a new trial, in light of the fact that the
jury only deliberated for 10 or 11 minutes before returning a
verdict of guilty?
4. Did the Trial Court err and abuse its discretion, as well as
deny the Appellant due process, in denying the Appellant’s
Motion to Strike the Jury Panel following a prospective juror
uttering words to the effect of “if he made it this far, I’d figure
he’d have to be guilty”, which resulted in actual prejudice to the
[Appellant] and the polluting of the remaining pool of jurors,
from which the jury was chosen which ultimately heard the
instant case?
Appellant’s Brief at 4-5 (numbering added).
Appellant first avers that the trial court erred in failing to instruct the
jury regarding voluntary and involuntary intoxication based on evidence that
Appellant had used twenty bags of heroin the night before the shooting. Our
standard of review in assessing a trial court’s jury instruction is as follows:
When evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that[] it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury
for its consideration. Only where there is an abuse of discretion
or an inaccurate statement of the law is there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014). “The
trial court is not required to give every charge that is requested by the
parties and its refusal to give a requested charge does not require reversal
unless the Appellant was prejudiced by that refusal.” Commonwealth v.
Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).
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The Crimes Code discusses the ramifications of voluntary intoxication
as follows:
Intoxication or drugged condition
Neither voluntary intoxication nor voluntary drugged condition is
a defense to a criminal charge, nor may evidence of such
conditions be introduced to negative the element of intent of the
offense, except that evidence of such intoxication or drugged
condition of the defendant may be offered by the defendant
whenever it is relevant to reduce murder from a higher degree
to a lower degree of murder.
18 Pa.C.S. § 308.
This Court has previously made clear that “a jury instruction regarding
diminished capacity due to voluntary intoxication is justified only when the
record contains evidence that the accused was intoxicated to the point of
losing his or her faculties or sensibilities.” Commonwealth v. Padilla, 80
A.3d 1238, 1263 (Pa. 2013) (emphasis in original). Evidence that an
accused ingested alcohol or an intoxicating drug does not warrant a
voluntary intoxication instruction without more. Id.
In support of his contention that the court should have given an
intoxication jury instruction, Appellant relies on testimony from Trooper
Palmer about Appellant’s written statement, in which Appellant stated that
he had used twenty bags of heroin the night before the shooting. He also
relies on photographs and testimony from Trooper Gustas regarding drugs,
drug packaging, and drug paraphernalia recovered from Appellant’s home.
N.T. Trial, 9/21/15, at 67; 91. Although there was testimony that Appellant
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was very upset when he called 911, there was no testimony or evidence that
Appellant’s purported drug use the previous night overwhelmed or
overpowered his faculties or sensibilities in any way. Corporal Brown and
Trooper Palmer testified that Appellant appeared sober in the back of the
patrol car at Appellant’s home shortly after the shooting, during the ride to
state police barracks, as well as during his interview and when he gave his
statement at the state police barracks later that day. N.T. Trial, 9/21/15, at
46-47, 51-52, 63-64. Likewise, there was absolutely no evidence that
Appellant was involuntary intoxicated at the time of the shooting.
Accordingly, Appellant was not entitled to an instruction on voluntary
or involuntary intoxication and the trial court did not err in refusing to
provide such instructions to the jury.
In his second issue, Appellant avers “that the evidence was insufficient
to sustain his conviction” for First-Degree Murder because the
Commonwealth did not prove the elements of premeditation and specific
intent to kill. Appellant’s Brief at 20, 23.
We review challenges to the sufficiency of the evidence by considering
whether, “viewing all the evidence admitted at trial in the light most
favorable to the verdict winner, there is sufficient evidence to enable the
fact-finder to find every element of the crime beyond a reasonable doubt.”
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014). The trier
of fact—while passing on the credibility of the witnesses and the weight of
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the evidence—is free to believe all, part, or none of the evidence. Id. at 40.
Moreover, the trier of fact may base a conviction solely on circumstantial
evidence. Id. In conducting this review, the appellate court may not weigh
the evidence and substitute its judgment for that of the fact-finder. Id.
Section 2502(a) of the Crimes Code defines First-Degree Murder as
follows:
(a) Murder of the first degree.--A criminal homicide constitutes
murder of the first degree when it is committed by an intentional
killing.
18 Pa.C.S. § 2502(a). First-Degree Murder is an intentional killing, i.e., a
“willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(a), (d). In
order to prove First-Degree Murder, the Commonwealth must establish that:
(1) a human being was killed; (2) the accused caused the death; and (3) the
accused acted with malice and the specific intent to kill. Commonwealth v.
Sanchez, 82 A.3d 943, 967 (Pa. 2013) (citations omitted).
In reviewing whether the evidence was sufficient to support a First-
Degree Murder conviction, we must evaluate the entire trial record and
consider all evidence. Id. See, e.g., Commonwealth v. Hall, 701 A.2d
190, 195-97 (Pa. 1997) (holding evidence sufficient to support First-Degree
Murder conviction and elements of malice and the specific intent to kill
where defendant shot the victim in the head from 4-10 inches away during a
robbery, killing the victim, and defendant later admitted to shooting the
victim).
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A jury may infer the intent to kill based upon the defendant’s use of a
deadly weapon on “a vital part of the victim’s body.” Sanchez, supra at
967.
In the instant case, there was sufficient evidence to support
Appellant’s conviction for First-Degree Murder. Appellant admitted in an
inculpatory Mirandized statement provided to police that he had shot his
niece in the head at point-blank range in the midst of a drug dispute which
resulted in her death. The jury properly inferred an intent to kill based on
Appellant’s shooting Rebecca in “a vital part of the body.” That inference
was further supported by his daughter’s testimony regarding Appellant’s
threatening behavior immediately after the shooting. Viewing the totality of
the evidence in the light most favorable to the Commonwealth as the verdict
winner, it is clear that the Commonwealth proved each element of the
offense. Appellant’s sufficiency challenge, thus, fails.
In his third issue on appeal, Appellant avers that the trial court erred
in denying his Post-Sentence Motion, arguing the brevity of the jury’s
deliberations mandated a new trial based on jury bias.
The denial of a Post-Sentence Motion seeking a new trial on the
grounds of alleged juror misconduct is largely within the discretion of the
trial judge, and we will not reverse absent an abuse of that discretion.
Commonwealth v. Russell, 665 A.2d 1239, 1243 (Pa. Super. 1995). It is
well settled that the length of the deliberation of a jury is wisely left to the
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sound discretion of the trial court and we will reverse only if we find an
abuse of that discretion, or that the verdict was the product of coercion or of
an overworked and fatigued jury. Commonwealth v. Penn, 439 A.2d
1154, 1161 (Pa. 1982) (quotation and citations omitted).
This Court has previously held that “[t]here is no requirement of the
law … prohibiting [a jury] from the immediate pronouncement of its verdict.
The requirement is that it be unanimous, as it was here, and it may be
pronounced … without long consultation.” Commonwealth ex rel. Sharpe
v. Burke, 101 A.2d 397, 400 (Pa. Super. 1953).4
Although Appellant “admits that he knows of no rule of law which
requires a jury to deliberate for any particular length of time,” he contends
that the jury’s ten or eleven minute deliberation time “is a useful signal of
jury bias[,]” particularly when considering the severity of the offense and the
resulting sentence of life in prison. Appellant’s Brief at 25-27.
It is undeniable that Appellant faced a serious charge. However, the
evidence presented at trial was straight-forward, the witnesses were few,
4
Other jurisdictions have rejected challenges to the jury’s verdict based on
the brevity of the jury’s deliberations. See, e.g., Kimes v. U.S., 240 F.2d
301, 302 (5th Cir. 1957) (twenty minutes’ deliberations); U.S. v. Young,
301 F.2d 298, 299 (6th Cir. 1962) (four minutes’ deliberations); U.S. v.
Brotherton, 427 F.2d 1286, 1289 (8th Cir. 1970) (five to seven minutes’
deliberations); Wall v. U.S., 384 F.2d 758, 762 (10th Cir. 1967) (one hour
of jury deliberations despite 8 day jury trial); State v. Ballard, 315 A.2d
45, 46 (N.J. Super. Ct. App. Div. 1974) (fifteen minutes’ deliberations);
State v. Mosier, 490 P.2d 471, 474 (N.M. Ct. App. 1971) (ten minutes’
deliberations).
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the trial was relatively short, and the issues were not complex. The trial
court properly instructed the jury on the applicable law, and we presume the
jury followed those instructions. See Commonwealth v. Tedford, 960
A.2d 1, 37 (Pa. 2008) (holding that a jury is presumed to follow a trial
court’s instructions). There is no evidence that the verdict was the “product
of coercion or of an overworked and fatigued jury.” Penn, supra at 1161.
Accordingly, we conclude that the trial court did not abuse its discretion in
denying Appellant’s Post-Sentence Motion based upon the brevity of the
jury’s deliberations.
In his fourth and final issue, Appellant avers that the trial court erred
in denying his Motion to Strike the Jury Panel5 after a venire person
purportedly uttered, “if [Appellant] made it this far, I’d figure he’d have to
be guilty.” Appellant’s Brief at 28. Appellant contends that such a
statement in front of the entire venire during voir dire tainted the entire jury
panel and prevented the seated jurors from being fair and impartial. Id.
Appellant does not allege that the trial court actually seated the
venireperson who made this comment on his jury.
The jury selection process is crucial to the preservation of a criminal
defendant’s right to an impartial jury explicitly guaranteed by Article I,
section 9 of the Pennsylvania Constitution. Commonwealth v. Ingber,
5
Appellant avers that he made his Motion to Strike the Jury Panel during
voir dire sometime after the venire person uttered the comment. However,
the certified record does not contain the transcripts from the voir dire.
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531 A.2d 1101, 1102 (Pa. 1987). The decision whether to disqualify a
venireman is within the discretion of the trial court and will not be disturbed
on appeal absent a palpable abuse of that discretion. Id. at 1103 (citations
omitted).
The test of disqualification is the juror’s ability and willingness to
eliminate the influence of his scruples and render a verdict according to the
evidence. Commonwealth v. Penn, 132 A.3d 498, 502 (Pa. Super. 2016).
The decision whether to disqualify a venireperson “is to be made by the trial
judge based on the juror’s answers and demeanor and will not be reversed
absent a palpable abuse of discretion.” Id. (citation omitted).
Here, the trial court concluded there was no basis to strike the jury
panel. The court emphasized that, when asked whether there was any
reason why any member of the empaneled jury could not sit as a fair and
impartial juror, no one raised his or her hand. Likewise, when ask if they
could “listen to the evidence as it came from the witness stand, listen to the
judge’s instructions as to the law[,] and base their decision on that,” no
juror indicated otherwise. Trial Court Opinion at 4.
Appellant points to no evidence that the trial court seated the venire
person in question as a juror at trial. Appellant points to no evidence that
any specific juror displayed bias or impartiality during voir dire or during the
trial. Appellant’s argument of jury bias is speculative at best. The trial court
did not abuse its discretion in refusing to strike the entire venire.
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Because we conclude that the trial court properly exercised its
discretion and find no merit to the issues raised, we affirm Appellant’s
Judgment of Sentence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2016
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