Com. v. Ebo, M.

J-A07033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MATTHEW EBO, :
:
Appellant : No. 92 WDA 2016
Appeal from the Judgment of Sentence November 28, 2012
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002821-2012
BEFORE: OLSON, STABILE, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 21, 2017
Matthew Ebo (Appellant) appeals from the judgment of sentence
imposed following his conviction for first-degree homicide and related
offenses. We affirm Appellant’s convictions, but vacate his judgment of
sentence and remand for resentencing.
Because we write only for the parties, a full recitation of the facts is
unnecessary. Relevant to this appeal, Appellant and co-defendant
Thaddaeus Crumbley (Crumbley) (collectively, the co-defendants), were
tried jointly in the Court of Common Pleas of Allegheny County on charges
related to the May 16, 2011 shooting death of Todd Mattox. A jury found
both men guilty of first-degree homicide; robbery - serious bodily injury;
robbery of a motor vehicle; two violations of the Uniform Firearms Act:
carrying a firearm without a license and possession of firearms by a
*
Retired Senior Judge assigned to the Superior Court.
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prohibited person; conspiracy to commit criminal homicide; and conspiracy
to commit robbery - serious bodily injury. On November 28, 2012, during
the joint sentencing hearing, Appellant was sentenced to a term of life
imprisonment for his homicide conviction, and an aggregate term of 46 to 92
years of consecutive imprisonment on the remaining counts. Relevant
herein, as part of the aggregate sentence, the trial court imposed
consecutive ten-to-20-year sentences at count three (robbery of a motor
vehicle) and count six (conspiracy to commit robbery - serious bodily injury).
On November 30, 2012, Appellant’s trial counsel moved to withdraw
from representation. The trial court granted this request by order dated
December 12, 2012. After being appointed by the court, appellate counsel
from the Allegheny County Public Defender’s Office filed an emergency
petition for leave to file post-sentence motions nunc pro tunc, which was
granted. Appellant’s post-sentence motion was subsequently denied by
operation of law on June 26, 2013.
On July 25, 2013, counsel timely filed a notice of appeal to this Court,
which was docketed at 1194 WDA 2013. However, before the appeal was
heard, counsel filed an application for remand based upon a claim of after-
discovered evidence. This Court granted counsel’s request and ordered the
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trial court to conduct a hearing to determine whether Appellant’s claim
merited a new trial.1
On October 29, 2015, the trial court held a joint hearing on the co-
defendants’ claims of after-discovered evidence. On December 22, 2015,
the trial court denied the requested relief. Appellant filed timely a notice of
appeal, and both Appellant and the trial court have complied with the
mandates of Pa.R.A.P. 1925.
Appellant raises four issues for our review.
I. Did the trial court abuse its discretion in failing to award
[Appellant] a new trial based upon the recantation of the
sole witness connecti[ng] him to the crime?
II. Was the evidence that [Crumbley] was involved in gun
violence and possessed a firearm two weeks after the
homicide inadmissible evidence of other bad acts and was
it completely irrelevant to whether [Appellant] was
involved in the homicide when the subsequent incident had
no connection to [Appellant]?
III. Should identification evidence have been suppressed when
the highly suggestive pre[-]trial identification procedure
tainted the main eyewitness’[s] in-court identification of
[Appellant]?
1
Crumbley’s case followed a similar post-trial trajectory. Crumbley, through
counsel, timely filed a notice of appeal after the November 28, 2012
sentencing. His appeal was docketed at 1997 WDA 2012. On January 5,
2015, while Crumbley’s case was pending on appeal before this Court, his
counsel filed a petition for remand on the basis of after-discovered evidence.
This Court initially denied Crumbley’s request, as well as his request for
reconsideration of the same, and oral argument was scheduled for August
11, 2015. However, on August 11, 2015, before argument occurred, this
Court remanded Crumbley’s case for an evidentiary hearing on the after-
discovered evidence claim.
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IV. Was the trial court’s imposition of sentence under the
unconstitutional statute, 18 Pa.C.S. § 9712, illegal when
the factfinder never found the facts necessary beyond a
reasonable doubt for the imposition of the mandatory
minimum sentence?
Appellant’s Brief at 12 (unnecessary capitalization and trial court answers
omitted).
Appellant first claims that the trial court erred in denying his motion
for a new trial based on after-discovered evidence. Appellant’s Brief at 27-
39. We address this claim mindful of the following.
To warrant relief, after-discovered evidence must meet a
four-prong test: (1) the evidence could not have been obtained
before the conclusion of the trial by reasonable diligence; (2) the
evidence is not merely corroborative or cumulative; (3) the
evidence will not be used solely for purposes of impeachment;
and (4) the evidence is of such a nature and character that a
different outcome is likely. At an evidentiary hearing, an
appellant must show by a preponderance of the evidence that
each of these factors has been met in order for a new trial to be
warranted.
Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citation
omitted).
The after-discovered evidence at issue is the unsworn statement of
eyewitness Saday Robinson in which she recanted her pre-trial and in-court
identification of the co-defendants. The certified record shows the following.
The May 16, 2011 shooting that resulted in Mattox’s death occurred outside
of Robinson’s apartment. Robinson was presented with a number of photo
arrays following the shooting, but did not identify Appellant as one of the
shooters until July of 2012. At trial, Robinson made a positive in-court
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identification of both co-defendants, and noted that it was fear of retaliation
that prevented her from identifying the men in the initial photo arrays.
Robinson was cross-examined extensively as to the credibility of her
identification.
In 2014, after both co-defendants had been sentenced, Robinson was
interviewed by a defense investigator. This interview was recorded in
writing and on video; however, Robinson was not sworn, nor did she give
the statement under penalty of perjury. Robinson told the investigator that
she did not witness the shooting, that her trial testimony was fabricated, and
that her identification of the co-defendants was coerced by the police.
Robinson was called to testify at the October 29, 2015 evidentiary
hearing. At that time, she recanted her statements to the investigator and
claimed that her 2014 recorded statement was untruthful. When asked why
she lied, she explained that she had been threatened by persons close to
Appellant and Crumbley and had been offered a large sum of money to
recant her trial testimony. However, Robinson affirmed at the evidentiary
hearing that she was telling the truth when she identified Appellant and
Crumbley as the shooters during their trial.
Appellant argues that he met his burden under Rivera and is entitled
to a new trial based on Robinson’s statement to the defense investigator
because (1) the evidence of her recantation could not have been obtained
before the conclusion of trial, (2) the evidence is not corroborative or
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cumulative, (3) the evidence would not be used solely for the purposes of
impeachment, and (4) the recantation is of such “immense importance” that
a new outcome would have resulted had the jury been permitted to hear it.
Appellant’s Brief at 27-32.
As our Supreme Court has explained,
[r]ecantation testimony is extremely unreliable. When the
recantation involves an admission of perjury, it is the least
reliable form of proof. The trial court has the responsibility of
judging the credibility of the recantation. Unless the trial court is
satisfied that the recantation is true, it should deny a new trial.
An appellate court may not disturb the trial court’s determination
absent a clear abuse of discretion.
Commonwealth v. Henry, 706 A.2d 313, 321 (Pa. 1997) (citations
omitted).
Here, the trial court determined that a new trial was not warranted
because, at the evidentiary hearing on the co-defendants’ claims of after-
discovered evidence, Robinson “credibly recanted her unsworn recantation
statements” made to the investigator. Trial Court Opinion, 12/22/2015, at 5.
In so holding, the court found credible Robinson’s explanation for why she
made false statements to the investigator only to later recant those
statements at the hearing. Id. The court explained as follows.
As noted by the parties, [] Robinson provided testimony at
the October 29, 2015 evidentiary hearing, during which she
recanted the statements that she had made to [the] defense
investigator … in videotaped and handwritten form. The
videotaped and handwritten statements served as the
recantation evidence upon which the defendants have relied in
seeking a new trial based on after-discovered [] evidence. It
should be noted that [] Robinson never took an oath to tell the
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truth prior to giving the videotaped statement and did not write
the handwritten statement under penalty of perjury. During her
testimony at the October 29, 2015 hearing, Ms. Robinson
explained that the statements that she had made in video and
written form were untruthful. She explained that she had lied to
[the] defense investigator … because she had been threatened
by people associated with the defendants. Additionally, she had
been offered a substantial sum of money -- $25,000 -- to recant
her trial testimony.
The court paid extremely close attention to [] Robinson’s
demeanor throughout the evidentiary hearing, and it finds highly
credible her explanation for why she initially attempted to recant
her trial testimony to [the] defense investigator…. [] Robinson
acknowledged that she is in fear for her life from the defendants.
Her fear is due, in part, to her knowledge of the reputation of
the defendants, their friends, associates and families, as well as
the events she herself witnessed. She indicated, convincingly,
that she would rather have lied than lost her life. [] Robinson
was in fear from the defendants, given that people associated
with them kept finding her despite several moves. Further, she
testified credibly that she believed that, if she cooperated with
the defense efforts, she would be left alone by the defendants.
The court also found highly credible her explanation for why she
recanted her post-trial recantation statements during the
evidentiary hearing. [] Robinson indicated that she did not want
guilty people to be let out of jail and that the defendants
deserved to be in jail for what they had done. [] Robinson did
not waver in her testimony at the evidentiary hearing and was
adamant that her post-trial recantation statements were made
out of fear and not as a result of any crisis of conscience that
she was experiencing as to the certainty of her observations. At
the October 29, 2015 hearing, [] Robinson very clearly,
convincingly, and without hesitation, identified the defendants as
the perpetrators of the murder. It must be noted that this was
the second time that she made her identification of the
defendants as murderers in a courtroom, in the presence of the
defendants and under oath.
This court had the benefit of sitting through the original
homicide trial, and it observed firsthand [] Robinson’s demeanor
when she provided her eyewitness account of the brutal murder
and identified the defendants as the perpetrators. [] Robinson
shook uncontrollably throughout her testimony and was clearly
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frightened to be involved in the case. As the Commonwealth
noted in its brief, [] Robinson had nothing to gain and everything
to lose by testifying against the defendants during the homicide
trial. This holds equally true with regard to her testimony at the
evidentiary hearing related to her supposed recantation. []
Robinson has nothing to gain and everything to lose by recanting
the unsworn recantation statements[.] She continues to place
herself in danger of retribution by maintaining her position that
the defendants were the perpetrators of the murder, which
makes her identification testimony all the more credible. The fact
that she maintains her identification of the defendants as
murderers when under oath and forced to confront them face-to-
face, and in light of her fear of the defendants based on their
reputations, threats made to her, and her inability to remain
hidden, makes [] Robinson’s identification ring with truthfulness
and credibility.
Accordingly, after taking into account the strength of []
Robinson’s identification testimony at trial and after finding []
Robinson’s testimony at the evidentiary hearing credible in all
respects, this court finds that a new trial is not warranted under
these circumstances. Given that [] Robinson has consistently
identified the defendants while under oath, and given that her
identification testimony has been very credible each time, the
court does not find that the purported recantation evidence
would “likely result in a different verdict if a new trial were
granted.” Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa.
Super. 2010).
Trial Court Opinion, 12/22/2015, at 2-4 (unnecessary capitalization omitted;
emphasis in original).
Based on our thorough review of the record, we conclude that the trial
court did not abuse its discretion in determining that the unsworn statement
offered to the defense investigator was not credible, and that Robinson had
fabricated the statements out of fear of the co-defendants and their
associates. Importantly, we agree that Appellant’s argument fails as to the
fourth prong of the applicable test. When presented with the purported
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recantation testimony, the circumstances surrounding Robinson’s statement
to the defense investigator, and Robinson’s later recantation of those
statements under oath, it is unlikely that the verdict would be rendered in
Appellant’s favor. As such, the trial court did not err in denying Appellant a
new trial based upon this evidence.
We now turn to Appellant’s second issue on appeal: whether the trial
court erred in denying a motion in limine, filed by Crumbley and joined by
Appellant, which sought to exclude from the co-defendants’ joint trial
evidence regarding other bad acts attributable to Crumbley. Appellant’s Brief
at 40-52.
We provide the following background. The police recovered seven .40
caliber shell casings and two 357 Sig2 shell casings from the scene of the
May 16, 2011 shooting that resulted in the death of Mattox. Forensic testing
showed that two of the recovered .40 caliber shell casings had been fired
from one gun, while the other five had been fired from another. The
presence of the two 357 Sig shell casings recovered from the scene
evidenced the involvement of a third gun.
On June 2, 2011, a few weeks after the Mattox shooting, Crumbley
was injured in a shootout in Swissvale, Allegheny County. When police
arrived at that scene, they found a number of spent shell casings in and
2
As explained during trial, “the 357 Sig caliber is a 40 caliber cartridge case
which is bottlenecked down to fit a nine millimeter [bullet].” N.T., 8/20-
9/4/2012, at 457.
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around the vehicle in which Crumbley had been riding. Those shell casings
were tested and determined to have come from two separate firearms: a
9mm and a .40 caliber. The 9mm casings were all determined to have been
discharged from a Ruger P89 firearm recovered from the vehicle in which
Crumbley had been riding prior to and during the June 2, 2011 shootout.
Crumbley’s blood was found on the side of the Ruger and on the barrel.
Also present at the scene of the shootout was Asa Thompkins, who
was released after a brief detention. On June 9, 2011, Thompkins was a
passenger in a vehicle that was stopped by police. Police recovered a .40
caliber Springfield Armory pistol during a search of that vehicle.
Three bullets were recovered from Mattox’s body during his autopsy,
two 9mm rounds and one .40 caliber. At trial, the Commonwealth’s firearms
and tool marks expert, Raymond Everett, testified that his examination of
the recovered bullets led him to conclude that the two 9mm bullets were
fired from the same gun: either a 357 or a 9mm firearm; however, no
definitive comparison could be made to any 357 or 9mm firearm tested in
connection with this case. N.T., 8/20-9/4/2012, at 460-61, 471-72. Everett
testified that the class characteristics present on the .40 caliber bullet
recovered during Mattox’s autopsy were similar to those made by Springfield
Armory brand pistols. Id. at 452-53. Further, it was determined that the
.40 caliber casings recovered from both the May 16, 2011 homicide matched
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those recovered from the .40 caliber casings recovered from the scene of the
2011 Swissvale shootout. Id. at 451-54.
On May 30, 2012, the Commonwealth filed notice of its intent to
present evidence, pursuant to Pa.R.E. 404(b), of Crumbley’s involvement in
the June 2, 2011 shootout. The Commonwealth averred that the Ruger and
Springfield Armory firearms associated with the June shootout linked
Crumbley to the Mattox shooting on May 16, 2011. Thus, it sought to
introduce testimony regarding the June 2 incident at the co-defendants’ trial
in order to prove identity. While Crumbley was obviously present at the June
2 incident, Appellant was not; thus, he argued that the evidence was
prejudicial and, therefore, inadmissible against him. Following a hearing,
the trial court ruled that the evidence was admissible at the joint trial, and
denied the motion in limine.
“When reviewing the denial of a motion in limine, we apply an
evidentiary abuse of discretion standard of review.” Commonwealth v.
Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (citation omitted). “The
admissibility of evidence is a matter directed to the sound discretion of the
trial court, and an appellate court may reverse only upon a showing that the
trial court abused that discretion.” Id. (citation omitted).
The crux of Appellant’s argument is that evidence recovered from the
June 2, 2011 incident involving Crumbley has no bearing on Appellant’s
identity as one of the shooters involved in the May 16, 2011 death of
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Mattox. Appellant’s Brief at 46. However, this argument fails to
acknowledge that Appellant and Crumbley were joined for trial. 3 The co-
defendants herein did not object to joinder. Indeed, “joint trials are
preferred where conspiracy is charged.” Commonwealth v. Housman, 986
A.2d 822, 834 (Pa. 2009) (citation omitted).
Pennsylvania Rule of Evidence 404(b) governs admissibility of
evidence of other bad acts.4
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
However, evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. In determining whether evidence
of other prior bad acts is admissible, the trial court is obliged to
balance the probative value of such evidence against its
prejudicial impact.
The Commonwealth must prove beyond a reasonable
doubt that a defendant has committed the particular crime of
which he is accused, and it may not strip him of the presumption
of innocence by proving that he has committed other criminal
acts.
Commonwealth v. Ross, 57 A.3d 85, 98–99 (Pa. Super. 2012) (en banc)
(citations omitted).
3
The Rules of Criminal Procedure provide that “[d]efendants charged in
separate indictments or informations may be tried together if they are
alleged to have participated in the same act or transaction or in the same
series of acts or transactions constituting an offense or offenses.”
Pa.R.Crim.P. 582(A)(2).
4
Rule 404(b) does not distinguish between prior and subsequent acts.
Commonwealth v. Wattley, 880 A.2d 682, 687 (Pa. Super. 2005).
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Here, the trial court properly admitted the evidence related to the June
2, 2011 incident as probative of the identity of Crumbley and his
involvement in the May 16, 2011 shooting that resulted in the death of
Mattox. See Trial Court Opinion, 6/25/2014, at 23-28. Of significance, we
note that the trial court offered a limiting instruction concerning this
testimony, which was rejected by both Crumbley’s counsel and Appellant. 5
N.T., 8/20-9/4/2012, at 1318-23, 1411-12.
5
We find instructive the following portion of Justice Saylor’s concurring and
dissenting opinion in Commonwealth v. Housman, 986 A.2d 822, 848 (Pa.
2009) (Saylor, J., concurring and dissenting).
In Zafiro v. United States, 506 U.S. 534, 539, [] (1993), the
high Court opined that when defendants have properly been
joined, a district court should only grant severance if there is a
serious risk that a joint trial “would compromise a specific trial
right of one of the defendants, or prevent the jury from making
a reliable judgment about guilt or innocence.” Id. at 539 [].
The Court went on to say that where evidence is admitted at a
joint trial that would not be admissible in a separate trial, a
defendant might be prejudiced:
Such a risk might occur when evidence that the jury
should not consider against a defendant and that
would not be admissible if a defendant were tried
alone is admitted against a codefendant. For
example, evidence of a codefendant's wrongdoing in
some circumstances erroneously could lead a jury to
conclude that a defendant was guilty. When many
defendants are tried together in a complex case and
they have markedly different degrees of culpability,
this risk of prejudice is heightened. Evidence that is
probative of a defendant's guilt but technically
admissible only against a codefendant also might
present a risk of prejudice. Conversely, a defendant
might suffer prejudice if essential exculpatory
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In light of the forgoing, following our review of the certified record, the
parties’ briefs, and the relevant law, we conclude that the opinion of the
Honorable Beth A. Lazzara thoroughly and correctly addresses and disposes
of Appellant’s second issue and supporting arguments and evidences no
abuse of discretion or errors of law. Accordingly, we adopt section C of the
trial court’s opinion, pages 23 through 28, filed on June 25, 2014, as our
own and hold, based upon the reasons stated therein, that the trial court
committed neither an error of law nor an abuse of discretion in denying the
co-defendants’ motion in limine.
In his third claim of error, Appellant asks this Court to consider
whether the trial court erred in failing to grant a motion, filed by Crumbley
and joined by Appellant, that sought suppression of Robinson’s pre-trial
identification of the co-defendants due to the “highly suggestive” nature of
the administered photo arrays. Appellant’s Brief at 40-63. Appellant also
evidence that would be available to a defendant tried
alone were unavailable in a joint trial. The risk of
prejudice will vary with the facts in each case, and
district courts may find prejudice in situations not
discussed here. When the risk of prejudice is high, a
district court is more likely to determine that
separate trials are necessary, but, as we indicated in
Richardson v. Marsh, less drastic measures,
such as limiting instructions, often will suffice
to cure any risk of prejudice. [See 481 U.S. 200,
107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987)].
Zafiro, 506 U.S. at 539 [] (internal citations omitted).
Housman, at 848 (emphasis added).
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argues that the suggestive pre-trial procedure tainted Robinson’s in-court
identification, and admission of both was in error. Id.
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct.
[W]e may consider only the evidence of the prosecution
and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the findings of the suppression
court, we are bound by those facts and may reverse only if the
court erred in reaching its legal conclusions based upon the
facts. Moreover, it is within the lower court’s province to pass on
the credibility of witnesses and determine the weight to be given
to their testimony.
When determining the admissibility of identification
testimony, this Court has held that suggestiveness in the
identification process is a factor to be considered in determining
the admissibility of such evidence, but suggestiveness alone
does not warrant exclusion. A pretrial identification will not be
suppressed as violative of due process rights unless the facts
demonstrate that the identification procedure was so infected by
suggestiveness as to give rise to a substantial likelihood of
irreparable misidentification.
Due process does not require that every pretrial
identification of witnesses must be conducted under laboratory
conditions of an approved lineup. In reviewing the propriety of
identification evidence, the central inquiry is whether, under the
totality of the circumstances, the identification was reliable.
Additionally, the purpose of a suppression order regarding
exclusion of identification evidence is to prevent improper police
action. Thus, where a defendant does not show that improper
police conduct resulted in a suggestive identification,
suppression is not warranted.
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Commonwealth v. Jaynes, 135 A.3d 606, 610 (Pa. Super. 2016), appeal
denied, 145 A.3d 724 (Pa. 2016) (citations and quotation marks omitted).
Once more, our thorough review of the certified record, the parties’
briefs, and the relevant law leads us to conclude that the opinion of Judge
Lazzara thoroughly and correctly addresses and disposes of this issue and
evidences no abuse of discretion or errors of law. Accordingly, we adopt
section B of the trial court’s opinion, pages 15 through 23, filed on June 25,
2014, as our own and hold, based upon the reasons stated therein, that the
trial court committed neither an error of law nor an abuse of discretion in
denying the co-defendants’ suppression motion, nor did the court err in
permitting Robinson’s in-court identification of the co-defendants.
In his final claim of error, Appellant contends that imposition of
mandatory minimum sentences at counts three and six is illegal under
Alleyne v. United States, 133 S. Ct. 2151 (2013).6 Appellant’s Brief at 64-
67. The Commonwealth concedes that this case must be remanded for
resentencing because the applicable statute, 42 Pa.C.S. § 9712, has been
found unconstitutional. Commonwealth’s Brief at 54; see Commonwealth
v. Newman, 99 A.3d 86, 104 (Pa. Super. 2014) (en banc) (holding the
mandatory minimum sentencing scheme under section 9712 unconstitutional
pursuant to Alleyne). See also Commonwealth v. Valentine, 101 A.3d
6
In Alleyne, the Supreme Court held that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury” and
found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155.
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801 (Pa. Super. 2014). We agree. Because section 9712 has been
invalidated by Alleyne, and Appellant is currently appealing from his
judgment of sentence, we vacate the illegal, mandatory minimum terms
imposed at counts three and six, and remand for resentencing on those
charges.
In sum, we affirm Appellant’s convictions, but vacate his judgment of
sentence as to count three (robbery of a motor vehicle) and count six
(conspiracy to commit robbery - serious bodily injury), and remand for
resentencing. The parties shall attach a copy of the trial court’s June 25,
2014 opinion to this memorandum in the event of future proceedings.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2017
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Circulated 05/22/2017 01:02 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA, i1
r
v. m
0
THADDEUS CRUMBLEY,
Defendant.
COMMONWEALTH OF PENNSYLVANIA, No. CR 2821-2012
v.
MATTHEW EBO, OPINION
Defendant. BETH A. LAZZARA, JUDGE
Court of Common Pleas
Copies Sent To:
Michael W. Streily, Esquire
Office of the District Attorney
Allegheny County Courthouse
Pittsburgh, PA 15219
Sally Frick, Esquire
437 Grant Street
Suite 407
Pittsburgh, PA 15219
Jessica L. Herndon, Esquire
Office of the Public Defender
400 County Office Building
542 Forbes Avenue
Pittsburgh, PA 15219
THE COURT OF COMMON PLEAS
OF ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEAL TH OF CRIMINAL DIVISION
PENNSYLVANIA,
vs.
CC: 2820-2012
THADDEUS CRUMBLEY,
Defendant.
COMMONWEALTH OF CRIMINAL DIVISION
PENNSYLVANIA,
vs.
CC: 2821-2012
MATTHEW EBO,
Defendant.
OPINION
This is an appeal following the imposition of sentences to life
imprisonment for both Defendants following a jury trial in which both Defendants
were found guilty of First Degree Murder, Robbery -- Serious Bodily Injury,
Robbery -- Motor Vehicle, Carrying a Firearm without a License, Conspiracy --
Robbery and Conspiracy - Murder. The trial occurred between Auqust 22, 2012
and September 4, 2012, and the Defendants were sentenced on November 28,
2012. On appeal, the Defendants have raised numerous allegations of error,
which will be set forth and discussed below. Many of the issues raised by the
Defendants are identical, which is why this court has chosen to address them in a
single opinion.
I. ALLEGATIONS OF ERROR
The Defendants have raised numerous allegations of error in their Concise
Statements of Matters Complained of on Appeal. These are listed below, by
Defendant, and it is further noted at which section of this opinion the alleged
error is discussed.
Defendant Crumbley:
1. The court failed to exclude the testimony of Saday Robinson due to
alleged violations of Pa. R. Crim. Proc. 573. (Section Ill. A.)
2. The court failed to exclude the testimony of Saday Robinson due to
police taint or bias in the identification. (Section Ill. B.)
3. The court erred in admitting evidence of a subsequent shooting
involving Defendant Crumbley, failed to give a limiting instruction
regarding the evidence and failed to exclude evidence relating to a
Ruger handgun. (Section Ill. C.)
4. The court failed to either strike a comment, or provide a curative
instruction related to the comment, made by the Assistant District
Attorney referring to Defendant Crumbley as "the Angel of Death."
Additionally, Defendant Crumbley has alleged ineffective assistance of
counsel due to his counsel's lack of objection to the comment. (Section
Ill. D.)
2
5. The court failed to exclude testimony of certain "[allhouse" witnesses
due to alleged violations of Pa. R. Crim. Proc. 573. (Section Ill. E.)
6. The court failed to give a "missing witness" instruction as to witness
Richard Carpenter. (Section Ill. F.)
7. The court violated Defendant Crumbley's right to a speedy trial by
granting a continuance on June 7, 2012 (Section Ill. G.)
8. The evidence was insufficient to sustain the verdict. (Section Ill. H.)
9. The verdict was against the weight of the evidence. (section Ill. H.)
Defendant Ebo:
1. The court failed to exclude the testimony of Saday Robinson due to
alleged violations of Pa. R. Crim. Proc. 573. (Section Ill. A.)
2. The court erred in admitting evidence of a subsequent shooting
involving Defendant Crumbley, failed to give a limiting instruction
regarding the evidence and failed to exclude evidence relating to a
Ruger handgun. (Section Ill. C.)
3. The court failed to exclude the testimony of Saday Robinson due to
police taint or bias in the identification. (Section Ill. B.)
4. The verdict was against the weight of the evidence. (section Ill. H.)
This court disagrees with the Defendants' allegations of error and asserts
that it has committed no errors. This court requests that its rulings, the jury's
verdict and the sentences of the Defendants be upheld.
3
II. FACTUAL BACKGROUND
On May 16, 2011, Todd Mattox was shot to death in the parking lot of the
Leechburg Garden apartments in Penn Hills. (T.R. 8/20/12, p. 240)1. He had
suffered three (3) gunshot wounds, two (2) to the trunk and one (1) fatal shot to
the head. (T.R. 8/20/12, pp. 246-261, Ex. 4-16).
An eyewitness, Saday Robinson, described the sounds of an altercation
above her apartment in the minutes before the shooting, followed by the noise of
people running down stairs. (T.R. 8/20/12, pp. 527-528). She then saw Mr. Mattox
being pushed out the front door of the apartment complex by two (2) African-
American males with handguns. (T.R. 8/20/12, pp. 528-529). She was able to hear
Mr. Mattox pleading for his life, offering the two (2) males everything that he had,
and backing away from them with his hands up. (T.R. 8/20/12, pp. 529, 531). The
eyewitness described seeing a man that she later identified as Defendant Ebo
shooting at Mr. Mattox three (3) times. (T.R. 8/20/12, p, 531 ). Mr. Mattox fell to the
ground after the gunshots were fired. (T.R. 8/20/12, p. 531 ). The witness then
described seeing Defendant Ebo going through the pants pockets of Mr. Mattox
1
The notation ''T.R. 8/20/12" refers to Volumes I and II of the trial transcript for August 20, 2012 through
September 4, 2012.
4
before she saw a person that she later identified as Defendant Crumbley walk up
to Mr. Mattox, stand over his body as it lay in the parking lot, and shoot him
directly in the head. (T.R. 8/20/12, pp. 532-534). She then indicated that she saw
the Defendants get into Mr. Mattox's white Nissan and speed out of the parking
lot. (T.R. 8/20/12, p. 534). Mr. Mattox's vehicle was later found after it had been
set on fire on Hill Street in Penn Hills. (T.R. 8/20/12, pp.757-759, 762-780, 782-787,
804, 818, 841; Ex. 58-63, Ex. 66-67).
It should be noted that other witnesses corroborated key points contained
in Ms. Robinson's description of the events that night. For example, John
Gardone also testified that Mr. Mattox was chased by two (2) African-American
males before he was shot several times in the parking lot of the Leechburg
Gardens. (T.R. 8/20/12, pp. 591 -592). He also saw the two (2) suspects enter a
white vehicle and speed from the parking lot. (T.R. 8/20/12, pp. 492-493). Another
witness, Yurri Lewis, heard multiple shots that day, although he did not witness
the shooting. (T.R. 8/20/12, p. 513). He did, however, see an African-American
male going through the pockets of a man lying in the parking lot of Leechburg
Garden Apartments. (T.R. 8/20/12, p. 515). He saw the man who had been rifling
through the victim's pockets enter a white car and speed out of the parking lot.
(T.R. 8/20/12, p. 515). Detective Anthony Perry confirmed that the right front
pants pocket of Mr. Mattox was pulled out when he arrived at the scene. (T.R.
8/20/12, pp. 302-304, 330-334, Ex. 41). The left front pocket was in its normal
position. (T.R. 8/20/12, pp. 302-304).
5
Despite the fact that th_ere were several eyewitnesses to the events that
occurred on May 16, 2011, none of the witnesses interviewed by either Penn Hills
police officers or Allegheny County detectives were able to positively identify the
actors.
The Defendants became suspects in the Todd Mattox murder following a
string of events occurring over the course of the several months following the
slaying. On June 2, 2011, Defendant Crumbley was involved in a shooting in
Swissvale, in which he was shot several times. (T.R. 8/20/12, pp. 855-858). Two
types of shell casings were recovered from the scene, including the same type of
shell casings that were found at the Todd Mattox murder scene, those being from
a .40 caliber Smith and Wesson Springfield Armory pistol. (T.R. 8/20/12, pp. 885-
886). A friend of Defendant Crumbley's, Asa Thompkins, was present at the
scene of the shooting. (T.R. 8/20/12, pp. 847, 852). One week later, on June 9,
2011, Asa Thompkins was pulled over for a traffic stop in South Park. (T.R. 8/3/12,
p. 20; T.R. 8/20/12, p. 1009). A Springfield Armory pistol was found under the front
passenger seat of the car, and Mr. Thompkins said that the gun was his. (T.R.
8/20/12, pp.1010-1011).
6
On September 6, 2011, Thomas Julian Brown wrote a letter from the
Allegheny County jail to Detective Garlicki, of. the Allegheny County police,
asking that he be put in touch with the detective who was handling the Todd
· Mattox homicide. (T.R. 8/20/12, p. 697). He indicated that he was willing to
provide information on that case. (T.R. 8/2C/12, pp. 697-698). Mr. Brown further
indicated that he had heard, several months earlier, Defendant Crumbley saying
that he had "smoked" Todd Mattox. (T.R. 8/20/12, pp. 698-699). Mr. Brown's
cousin was Asa Thompkins, and Mr. Brown's son, Leron Brown, was a friend of
Defendant Crumbley. (T.R. 8/20/12, pp. 695-696). Leron Brown was found shot
dead in January or February 2012, inside a car with Roman Herring, a cousin of
Defendant Crumbley's, who was also found dead in that same car. (T.R. 8/20/12,
pp. 948, 991). Roman Herring was allegedly involved in the burning of a vehicle
on Hill Street in Penn Hills. (T.R. 8/20/12, p. 945).
Defendant Crumbley became a suspect in the Todd Mattox murder In
September 2011, after Detective Anthony Perry received a report connecting the
handguns used in the Todd Mattox homicide with the weapons used in the
Swissvale shooting on June 2, 2011, and after witness Thomas Brown came
forward with information about the homicide. (T.R. 8/20/11, pp. 1017, 1020, 1021,
1025). Defendant Ebo also became a suspect at that time. (T.R. 8/20/11, p. 1017).
7
Ill. ARGUMENT
A. Alleged Discovery Violation regarding Saday Robinson
The Defendants' first allegation of error is that this court erred in admitting
the testimony of eyewitness Saday Robinson. The Defendants argue that the
testimony should have been excluded as a sanction for the Commonwealth's
violation of Pa. R. Crim Proc. 573. The Defendants allege that the Commonwealth
failed to provide full and timely discovery by failing to provide information to the
Defendants regarding Ms. Robinson's "misidentification" during presentation of a
photo array.
During testimony taken on August 21, 2012 in connection with a pre-trial
motion seeking exclusion of Ms. Robinson's identification of the Defendants on
the basis that the identification was the product of bias and taint, Ms. Robinson
indicated that, during one of the photo arrays prior to July 24, 2012, she had
pointed to a photograph and said that the individual in the photograph "looked
like" Defendant Ebo. (T.R. 8/20/12, pp. 59-61). However, this alleged
misidentification was not reported in any police report by either Penn Hills
officers or Allegheny County homicide detectives. (LR. 8/20/12, p. 82). After Ms.
'"
Robinson's pretrial testimony about the alleged intentional misidentification, and
defense counsel's request for any report that detailed the misidentification, this
court advised the Commonwealth that, if discovery related to the
9
misidentification was not turned over to the Defendants, Ms. Hobinson would not
be permitted to testify. (T.R. 8/20/12, p. 83).
The following day, while the jury was at lunch, Assistant District Attorney
Steven Stadtmiller indicated that, after speaking with the officers involved in the
investigation, he was advised that the misidentification did not occur. (T.R.
8/20/12, pp. 152-154). Detective Hitchings, who had shown Ms. Robinson the
November 4, 2011 lineup, which was the first photo array to contain Defendant
Ebo, indicated that no identification at all had occurred on that date. (T.R.
8/20/12, p. 153).
Ms. Robinson took the stand on August 22, 2012 to continue her testimony
related to the pre-trial motion. (T.R. 8/20/12, p. 155). She again stated that she
had previously pointed to someone who looked like Defendant Ebo in a photo
array prior to July 24, 2012. (T.R. 8/20/12, pp. 166-167). Her clearest discussion of
the issue was in the following exchange with Defense Attorney Wendy Williams:
Q. Okay. Are you saying now that you mistakenly said that or that you
were lying under oath yesterday?
A. You are confusing me.
Q. Did that in fact occur? Did you point to somebody else and say that
this is the guy that did the crime?
10
A. No, I said that this looks like the guy who did the crime.
Q. Okay. And you pointed to somebody other than Mr. Ebo and Mr.
Crumbley?
A. Yes. (T.R. 8/20/12, p. 163).
Ms. Robinson also testified that the misidentification occurred when she was in a
car with Detective Perry before her grandmother died. (T.R. 8/20/12, pp. 176-177).
It should be noted that only the September 16, 2011 photo array meets all three
(3) of these criteria. Ms. Robinson also specifically denied that Detective
Hitchings was present during the alleged misidentification. (T.R. 8/20/12, p. 176).
Following Ms. Robinson's testimony, Detective Anthony Perry took the
stand and testified regarding the photo arrays that he had shown to Ms.
Robinson. (T.R. 8/20/12, pp. 186-203). Detective Perry had shown Ms. Robinson
two (2) photo arrays, one in June 2011 containing Asa Thompkins (T.R. 8/20/12,
pp. 187, 189) and one in September 2011 containing Defendant Crumbley. (T.R.
8/20/12; p. 187). He did not show Ms. Robinson any photo arrays containing a
picture of Defendant Ebo. (T.R. 8/20/12, p. 188). A photo array containing Mr.
Eba's photo was not prepared until October 2011, and that array was presented to
Ms. Robinson in November, 2011 by Detectives Hitchings and Langan. (T.R.
8/20/12, p. 188). Detective Perry emphatically stated that any alleged
misidentification by Ms. Robinson did not occur when he showed Ms. Robinson
any photo arrays. (T.R. 8/20/12, pp. 193, 195, 196). He clearly stated that no
i1
identifications at all were made when he presented photo arrays to her (T.R.
8/20/12, pp. 195-196), and that, had there been an identification, he would have
followed his regimented protocol of having her circle or initial the person
identified. (T.R. 8/20/12, p. 193).
Detective Steven Hitchings also provided testimony related to the issue of
a misidentification. (T.R. 8/20/12, pp. 204-207). He indicated that he showed Ms.
Robinson two (2) photo arrays on November 4, 2011, one containing a photo of
Defendant Crumbley and the other containing a photo of Defendant Ebo. (T.R.
8/20/12, p. 204). Detective Hitchings clearly indicated that Ms. Robinson made no
identifications from either photo array and, further, that she did not indicate that
any of the photos "looked like" one of the actors. (T.R. 8/20/12, pp. 204-5, 206,
207). In fact, he was "absolutely sure" that no identifications occurred on
November 4, 2011. (T.R. 8/20/12, p. 207).
Following the testimony of Ms. Robinson and Detectives Perry and
Hitchings, this court found that there was conflicting evidence regarding any
alleged discovery violation and any alleged misidentification, but stated that the
issue could be revisited later, after further development of trial testimony, if
necessary. (T.R. 8/20/12, pp. 214-215).
12
On appeal, the Defendants assert that the court erred in permitting Ms.
Robinson to testify because the Commonwealth had not turned over police
reports detailing a prior misidentification. Rule 573(e} of the Pennsylvania Rules
of Criminal Procedure provides that, if a party has failed to comply with a
discovery request, the court may, inter elte, prohibit a party from introducing the
evidence not disclosed, or may order any other remedy that it deems just under
the circumstances. Pa. R. Crim. P 573. The Commonwealth does not violate
Rule 573 when it fails to disclose to the defense evidence that it does not possess
and of which it is unaware. Com. v. Collins, 957 A.2d 237, 253 (Pa. 2008).
In this case, there was no clear evidence of a discovery violation at all, let
alone one of such seriousness to justify complete exclusion of Ms. Robinson's
testimony. There was clearly conflicting evidence as to whether a prior
identification or misidentification had even occurred. While Ms. Robinson said
that she had pointed to someone in a photo array and said it "looked like"
Defendant Ebo, not a sing le detective who had presented a photo array to her had
any recollection of this occurring. Each detective was also aware of his
responsibility to place an identification or misidentification in a police report.
(T.R. 8/20/12, pp. 193, 198, 205). None of the police reports indicate any
identification occurred. (T.R. 8/20/12 p. 79; Ex. A, C). This court was presented
with no evidence, facts or questioning from which it could conclude that any of
the detectives testifying during pre-trial motions or who were involved in the
13
presentation of photo arrays to Ms. Robinson had lied, hid information or were in
any way negligent or lacking in their duties.
In failing to find that an identification or misidentification occurred, this
court is not indicating that it in any way disbelieved Ms. Robinson's testimony.
On the contrary, Ms. Robinson was a tremendously compelling witness, who
clearly became involved in this case against her best interests and all of the
advice of her family and friends. It was obvious that she was terrified as she
testified during the pre-trial motion proceeding, and again when she gave her trial
testimony. Ms. Robinson shook and trembled throughout the entirety of her
testimony. As to the misidentification, it is possible that she indicated to police
that someone else "looked like" Mr. Ebo. It is also possible that she remembers
thinking that someone looked like Mr. Ebo, but did not actually verbalize that
thought to the detectives. Ms. Robinson even indicated at one point in her
testimony that she did not tell the officers when she picked out the wrong person,
with her answer being somewhat ambiguous as to whether she told the officers
that she had picked someone or whether she told the officers that it was the
wrong person. (T.R. 8/20/12, p. 67). It is also possible that she mentioned
someone looking like Defendant Ebo to the detectives, but was so vague about it
that the detectives did not consider it to be an "identification" as they understand
that word. No matter what occurred at the time, there was no clear evidence of a
discovery violation having occurred, and, therefore, this court did not err in
failin.g to exclude evidence or testimony in order to cure a non-existent violation.
14
B. Alleged Error Regarding Tainted Identification Given by Saday Robinson
Defendant Crumbley's second allegation of error, and Defendant Eba's
third allegation of error, is that this court erred in permitting Saday Robinson to
testify because her identification was the product of taint and bias. More
specifically, the Defendants assert that her identification of them on July 24, 2012
resulted from taint, bias and influence from the media exposure related to this
case, from information provided to her by neighbors or friends, and from
comments made by the police to her prior to that identification.
Questions regarding the admission and exclusion of evidence are within
the sound discretion of the trial court and will not be reversed on appeal absent
an abuse of discretion. Com. v. Kendricks, 30 A.3d 499, 503 (Pa. Super. 2011). An
abuse of discretion may not be found merely because an appellate court might
have reached a different conclusion, but requires a showing that the trial court's
conclusion was the result of manifest unreasonableness, or partiality, prejudice,
bias or ill-will, or such lack of support as to be clearly erroneous. Com. v.
Brougher, 978 A.2d 373, 376 (Pa. Super. 2009).
A photographic identification is unduly suggestive if, under the totality of
the circumstances, the identification procedure creates a substantial likelihood of
15
misidentification. Com. v. DeJesus, 860 A.2d 102, 112 (Pa. 2004). Photographs
used in photo array line-ups are not unduly suggestive if the suspect's picture
does not stand out more than those of the others, and the people depicted in the
array all exhibit similar facial characteristics. Com. v. Fisher, 769 A.2d 1116, 1126
(Pa. 2001 ). The photographs in the array should all be the same size and should
be shot against similar backgrounds. Kendricks, supra, at 504. When an out-of-
court identification is alleged to be tainted, an in-court identification may still
stand if, again considering the totality of the circumstances, the identification had
an orig in sufficiently distinguishable to be purged of the primary taint.
Kendricks, supra, at 506. The factors a court should consider in determining
whether there was an independent basis for identification include: (1) the
opportunity of the witness to view the criminal at the time of the crime; (2) the
witness's degree of attention; (3) the accuracy of the witness's prior description
of the criminal; (4) the level of certainty demonstrated by the witness during the
confrontation; and (5) the length of time between the crime and the confrontation.
Com. v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996).
Before Ms. Robinson testified in front of the jury at trial, this court heard
lengthy testimony by her regarding the circumstances surrounding her
identification of the Defendants, including her interviews by police, her exposure
to media coverage of the case prior to her July 2012 identification of the
Defendants, and information that she may have heard in the community regarding
this murder. She was subjected to extensive cross-examination on these issues
16
by the attorneys for both Defendants. This court ultimately ruled that Ms.
Robinson was permitted to testify and that she was permitted to provide
testimony regarding her July 2012 identification of the Defendants. She was
further permitted to make an in-court identification of the Defendants.
The Defendants assert that several factors tainted the identification of the
Defendants by Ms. Robinson, including media exposure, information from
neighbors identifying the alleged shooters and improper comments from the
· police. In terms of media exposure, it is true that there was media coverage of
this case, which included televised and printed photos of the Defendants
following their arrest, and there may have been media coverage of Mr. Crumbley
as a result of the shooting in which he was a victim in early June 2011. Ms.
Robinson denied seeing any such coverage repeatedly during her testimony
regarding the pre-trial motion in limine.
Ms. Robinson moved from Allegheny County across the country in mid-
October 2011. (T.R. 8/20/12, pp. 41, 68). Aside from a brief return to Pittsburgh in
November 2011 for the funeral of her grandmother, she did not return to the area
until July 2012, when· detectives asked her to return to make an identification of
the shooters. (T.R. 8/20/12, p. 42). Ms. Robinson testified that she saw no media
coverage, pictures or video of the Defendants either before she left the area or
after. (T.R. 8/20/12, p. 42). She specifically indicated that she saw no photos of
17
Defendant Crumbley prior to being shown the first photo array in September
2011. (T.R. 8/20/12, pp. 64, 68). She also denied seeing any media coverage from
the time of the shooting until being contacted by telephone by detectives in late
June, early July, 2012. (T.R. 8/20/12, pp. 70-71 ). She advised the detectives during
that phone contact that she had seen no media coverage ragarding the case. (T.R.
8/20/12, pp. 158-159). She also indicated that she did not have a computer until
she started school, which did not occur until after October 2011, when she left
Pennsylvania. (T.R. 8/20/12, pp. 157-158). The credible testimony in the case was
that Ms. Robinson had seen no media coverage related to the Defendants prior to
her identification of them in July 2012 as the shooters. It should be noted that
Ms. Robinson testified consistently to this lack of exposure to media coverage
during her trial testimony. (T.R. 8/20/12, pp. 624, 626-628).
During her pre-trial motion testimony, Ms. Robinson also addressed the
issue of whether her identifications were the product of information from
community members. On the night of the murder, a neighbor indicated to Ms.
Robinson that "Mo" was the shooter. (T.R. 8/20/12, pp. 42-43). Later, a friend
named Ace told her that "Mat-Mat" was responsible. (T.R. 8/20/12, p. 58). Ms.
Robinson was clear that: she did not know Defendant Ebo to be called "Mo" prior
to the shooting (T.R. 8/20/12, pp. 42-43); she did not know anyone named "Mo"
prior to the shooting (T.R. 8/20/12, p. 169); she never learned Defendant
Crumbley's name (T.R. 8/20/12, p. 68); she did not know Defendant Eb o's name
when she saw him at the apartment complex (T.R. 8/20/12, pp. 169-170); she did
18
not know anyone named "Mat-Mat" (T.R. 8/20/12, p. 171 ); she never found out who
"Mat-Mat" was (T.R. 8/20/12, p. 71 ); and she did not know anybody named "Mo" or
"Mat-Mat" when she picked out Defendant Eba's photo. (T.R. 8/20/12, pp. 178-179).
Ms. Robinson was very clear that she selected the Defendants' photos from the
photo arrays because she saw them shoot Mr. Mattox. (T.R. 8/20/12, pp. 44, 178-
179). Again, the credible testimony did not support that Ms. Robinson's
identification was in any way tainted, biased or even influenced by the comments
made by her neighbor and friend.
Lastly, the issue of whether police comments had tainted Ms. Robinson's
identification was explored. Ms. Robinson was contacted in late June or early
July by detectives who asked her to return to Pittsburgh to look at photo arrays.
At the time that she was contacted, she was told that two gentlemen had been
arrested (T.R. 8/20/12, pp. 182, 183) and that the detectives thought that these
men were responsible for the murder of Todd Mattox. (T.R. 8/20/12, pp. 174-175).
At no point did the detectives tell her the names of who they thought was
responsible for the shooting. (T.R. 8/20/12, p. 175). The detectives also did not
suggest who they thought was responsible for the murder when they showed Ms.
Robinson the photo arrays. (T.R. 8/20/12, p. 175). Ms. Robinson did have an
understanding that photos of the responsible people were contained in the photo
arrays that she was shown, but no detective told her that. (T.R. 8/20/12, pp. 183-
185). Additionally, she was unaware that a trial was scheduled to begin at the
point when the police contacted her in July, 2012. (T.R. 8/20/12, p. 183). The
19
credible testimony eliminated from further consideration this issue of possible
taint from police comments in the identification of the Defendants by Ms.
Robinson at the photo array in July, 2012.
Even though this court does not believe that there was any taint, bias or
suggestion in Ms. Robinson's identifications, the court will note that there are
strong independent bases supporting Ms. Robinson's identifications here. It has
never been disputed that Ms. Robinson's vantage point from her apartment
window gave her a clear view of Todd Mattox's murder. Her window was
approximately 8-10 feet from the front door of the building and 70-80 feet from the
parking lot. (T.R. 8/20/12, pp. 283, 1179; Ex. 28). According to Detective Perry,
Ms. Robinso'n had the best vantage point to see the events that night. (T.R.
8/20/12, p. 377). There were no obstructions of her view of the parking lot from
her window. (T.R. 8/20/12, p. 167). The Defendants were only ten (10) feet away
from her during the incident, and it occurred while it was still light outside. (T.R.
8/20/12, pp. 168-169). Additionally, she indicated that the entire incident lasted
ten (10) minutes, that she watched the entire incident, (T.R. 8/20/12, p, 178), and
she had seen both Defendants in her apartment building prior to the shooting,
(T.R. 8/20/12, pp. 44, 177-178), making them familiar to her at the time of the
shooting.
20
What Ms. Robinson witnessed was a brutal, unprovoked shooting of a man
begging for his life, and then the execution of a wounded, fallen man. Images
from such violent events tend to remain imprinted in one's mind, especially the
faces of the perpetrators of such a horrific event. Ms. Robinson indicated this
herself during her trial testimony, stating that the faces of the Defendants were
"stuck in her head." (T.R. 8/20/12, p. 547). While not exceptionally descriptive, Ms.
Robinson did provide relatively accurate descriptions of the two men involved in
this shooting, including skin tone, relative size and clothing. (T.R. 8/20/12, pp.
413, 590-593, 1166-1170). Even if her identification was in some way tainted by
media coverage or comments from nelqhbors, friends or police, which this court
strongly believes is not the case, Ms. Robinson certainly had independent bases
upon which to make her July, 2012 identifications.
Although defense counsel focused on Ms. Robinson's failure to select
either Defendant from previous photo array lineups as strong evidence that her
July, 2012 identification must have been the product of taint or bias, this court
instead focused on Ms. Robinson's understandable fear to be a witness in this
case. Ms. Robinson was immediately interviewed after the shooting and made
herself available for questioning. (T.R. 8/20/12, p. 540). However, even from this
beginning interaction with the police, she was afraid, telling the police officers of
her fear on the night of the shooting and inviting them into her apartment so that
she would not be seen talking with them. (T.R. 8/20/12, p. 53). As was mentioned
earlier, Ms. Robinson shook through the entirety of her testimony, both during
21
the pre-trial proceedings and at trial. Her entire demeanor reflected her fear of
being involved in this case.
Ms. Robinson also certainly verbalized her fear during her trial testimony,
indicating that she did not want involved in this case because of the culture in her
community that perpetuated the phrase "snitches get stitches" (T.R. 8/20/12, pp.
535-536), a sentiment echoed by another witness to the shooting, John Gard one.
(T.R. 8/20/12, pp. 493-494). Her fear throughout her involvement in the case was
clear through her actions: by her waiting until her neighbors left before she talked
to the police (T.R. 8/20/12, p. 535); by her taking the police into her apartment so
no one would see her talking to them (T.R. 8/20/12, p. 53); by only agreeing to
meet detectives elsewhere for subsequent meetings so that no one would see her
talking to them (T.R. 8/20/12, p. 583); by her testimony that she deliberately failed
to identify the Defendants in photo arrays even though she was sure that they
were there (T.R. 8/20/12, p. 552); by the fact that she told Detective Perry that she
moved because she was fearful (T.R. 8/20/12, p. 381); and by the fact that she
finally identified the Defendants only after moving across the country and being
informed that suspects were in custody. (T.R. 8/20/12, p. 550). Ms. Robinson's
own family warned her that she should not become involved in this case for fear
that something would happen to her if she did. (T.R. 8/20/12, p. 548).
22
This court does not believe that prior failures to identify the Defendants in any
way support a contention that the identifications in July, 2012 were the result of
taint, bias or suggestion. Rather, the prior failures to identify the Defendants
were the product of a fear so intense that Ms. Robinson exhibited physical
manltestatlons of that fear over fifteen (15) months atter the incident that she
witnessed. This court permitted Ms. Robinson to testify at trial regarding her
eyewitness identification of the Defendants, finding that there was no media taint
and no taint from community or police sources. There was an independent basis
for her identification. (T.R. 8/20/12, pp. 214-215). This court's ruling in this regard
is well-supported by the record and should be upheld.
C. Alleged Error Regarding Admission of Evidence of June 2, 2011 Shooting
Defendant Crumbley's third allegation of error, and Defendant Ebo's
second, is that this court erred in admitting testimony regarding the June 2, 2011
shooting in which Defendant Crumbley was a victim. More specifically, the
Defendants assert that this evidence was improperly admitted under Pa. Rule of
Evidence 404(b)(2), that this court erred in not granting the Defendants' Motion in
Limine regarding the evidence and that the court erred in not providing a limiting
instruction during trial.
There were two (2) arguments held on the issue of the admissibility of the
June 2, 2011 shooting. The first took place on July 27, 2012, and the court ruled,
23
after argument, that the subsequent shooting involving Defendant Crumbley
would be admissible as to the issue of identity only, i.e. to show that, because' the
same gun, a .40 caliber, was used in a shooting that occurred two (2) weeks after
Mr. Mattox's shooting where Defendant Crumbley was present, it is circumstantial
evidence that he was present at the Todd Mattox shooting where shell casings
from the same gun were found. (T.R. 7/27/12, pp. 58-59).
On August 21, 2012, a second argument on the issue of the June 2, 2011
shooting took place. In this argument, the court entertained Defendants' Motion
in Umine re~arding a Ruger handgun found at the scene of the June 2, 2011
shooting in Swissvale. A Ruger handgun was found outside of the vehicle where
the shooting had occurred, and Defendant Crumbley's blood was found on it.
(T.R. 8/20/12, p. 10). Defendant Crumbley argued that the evidence of the Ruger
was irrelevant to the May 6, 2011 shooting of Todd Mattox and was prejudicial to
the Defendants in that all that it showed was that Defendant Crumbley must have
had a gun in his hand in the Swissvale shooting so he must also have had a gun
at the Todd Mattox shooting. (T.R. 8/20/12, pp. 11, 17). The Commonwealth
argued that photos of the Ruger showed blood on the side of the gun and the
barrel, which was identified as Defendant Crumbley's. (T.R. 8/20/12, p. 12). It was
the intention of the prosecution to argue that Defendant Crumbley had the .40
caliber gun at the time of the Swissvale shooting, providing it with circumstantial
evidence that Defendant Crumbley must have had that same gun two (2) weeks
earlier when Todd Mattox was killed. (T.R. 8/20/12, p. 14). This court, with some
24
misgiving, ruled that evidence regarding the Ruger would be permitted, but would
be limited to the issue of identity only. (T.R. 8/20/12, p. 20).
On August 30, 2012, counsel and this court discussed the closing jury
instructions, including a court suggested limiting instruction based on Standard
Jury Instruction 3.08 -- Evidence of Other Offenses as Proof of Guilt. (T.R.
8/20/12, p. 1317). Defendant Crumbley's attorney, Ms. Wendy Williams, stated that
she did not want a limiting instruction regarding the June 2, 2011 shooting. (T.R.
8/20/12, p. 1318). This court read its proposed limiting instruction to all counsel:
I [sic] have heard evidence tending to prove that the defendant Thaddeus
Crumbley was involved in a shooting incident for which he is not on trial.
I'm speaking of testimony to the effect that Mr. Crumbley was involved in a
shooting incident in Swissvale on June 2, 2011. This evidence is before
you for a limited purpose, that is for the identity of Mr. Crumbley as a
participant in the May 16, 2011 incident at Leechburg Gardens. This
evidence must not be considered by you in any way other than for the
purpose I just stated. You must not regard this evidence as showing that
the defendant, Mr. Crumbley, is a person of bad character or criminal
tendencies from which you might be inclined to infer guilt. (T.R. 8/20/12,
pp. 1318-1319).
The Commonwealth did not object to the limiting instruction, but Defendant
Crumbley's attorney did, indicating that she would like time to think about it
overnight, and would advise the court the next day prior to the closing
instructions being read to the jury whether she wanted the instruction. (T.R.
8/20/12, p. 1321).
25
The following day, during Defendant Crumbley's closing argument, his
attorney, Ms. Williams, addressed the June 2, 2011 shooting at length and
reiterated the defense position that he was nothing more than a victim in that
shooting. (T.R. 8/20/12, pp. 1363-1368). This court then again discussed its
proposed limiting instruction with counsel outside the presence of the jury. (T.R.
8/20/12, p. 1411 ). Counsel for both Defendants agreed that they did not want the
limiting instruction read to the jury. (T.R. 8/20/12, p. 1411). As such, this court did
not give a limiting instruction in its closing charge to the jury.
A trial court's decision to grant or deny a Motion in limine is subject to an
evidentiary abuse of discretion standard of review. Com. v. Reese, 31 A.3d 708,
715 (Pa. Super. 2011 ). Admission of evidence is within the sound discretion of
the trial court and will be reversed only upon a showing that the trial court clearly
abused its discretion. Com. v. Drumheller, 808 A.2d 893, 904 (Pa. 2002).
Admissibility depends on relevance and probative value. IQ. Evidence is relevant
if it tends to establish a material fact in the case, tends to make a fact at issue
more or less probable, or supports a reasonable inference or presumption
regarding a material fact. .Lg.
Evidence of other crimes may be admitted for other relevant purposes,
such as "proof of motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident," though such evidence should only be
26
admitted if the probative value of the evidence outweighs its potential for
prejudice. Pa. R.E. 404(b)(2)-(3), Com. v. Tedford, 960 A.2d 1, 37 (Pa. 2008). The
particular prejudice that Rule 404(b)(3) seeks to prevent is the misuse of other-
offense evidence. Specifically, the rule is designed to generally eliminate other-
offense evidence, unless admissible for some specific purpose as indicated
above, so that jurors do not convict a defendant simply because they perceive
that the defendant has a bad character or a propensity to commit crimes. Reese,
supra, at 723. Evidence that the defendant possessed a device or instrument that
could have been the murder weapon is admissible. See Com. v. Miller, 897 A.2d
1281 (Pa. Super. 2006). Evidence will not be prohibited merely because it is
. harmful to the defendant. Com. v. Dillon, 925 A.2d 131, 141 (Pa. 2007). When
other-offense evidence is admitted, the Defendant is entitled to request a jury
instruction explaining to the jury that the specific evidence was only admitted for
a limited purpose. Com. v. Billa, 555 A.2d 835, 841-842 (Pa. 1989). The trial court
is permitted to use its own form of expression to explain difficult legal concepts
to the jury. Com. v. Spotz, 759 A.2d 1280, 1287 (Pa. 2000).
Here, the evidence regarding the shooting on June 2, 2011 and the
presence of the Ruger handgun were properly admitted. While certainly
prejudicial to the Defendants, as all evidence tends to be, the evidence of the
subsequent bad acts was relevant to make a fact in the case, i.e., whether
Defendant Crumbley was present at the scene of the Todd Mattox murder two (2)
weeks earlier, more or less probable. The evidence also was relevant to support
27
the inference that Defendant Crumbley was in possession of the .40 caliber gun
used in Mr. Mattox's murder. Clearly, the evidence of the June 2nd shooting is not
dispositive of these issues, but there is no requirement in the law that the
evidence of other bad acts be dispositive on some disputed issue. The jurors
had the opportunity to hear. effective cross-examination on the evidence
presented, as well as hear the informed arguments of all counsel on the relevance
of the subsequent shooting.
The fact that the jurors found the Defendants guilty of all charges does not
mean that they misused the evidence of the June 2nd shooting. Certainly, the
strength and compelling nature of the eyewitness testimony from the time of Mr.
Mattox's murder led more to the verdict than evidence of this subsequent event.
This court committed no error in the admission of this evidence.
D. Error Reaarding "Angel of Death" Comment in Commonwealth'sclosing
Defendant Crumbley's fourth allegation ~f error is that this court failed to
strike the "Angel of Death" comment made by Assistant District Attorney
Stadtmiller in his closing, and that this court failed to give a curative instruction
to the jury regarding this same comment. On appeal, Defendant Crumbley also
asserts that he was denied effective assistance of counsel when his attorney
failed to object to the comment or request a curative instruction.
28
In his closing on behalf of the Commonwealth, Assistant District Attorney
Steven Stadtmiller made the following statement: "She (Saday Robinson) wasn't
afraid to say that and describe him (Matthew Ebo), but that angel of death over
there, Thaddeus Crumbley, with his hood up, that has what it takes to walk up to
a man, stand over him and blow his brains out, she wasn't as hot on identifying."
(T.R. 8/20/12, p. 1437). No objection was made by either defense attorney at the
time that the comment was made or immediately following the Commonwealth's
closing. In fact, this issue was not raised at all until Defendant Crumbley's Post-
Trial Motion.
A prosecutor must have reasonable latitude to present his case to the jury,
and he must be free to present his arguments with "logical force and vigor." Com.
v. D'Amato, 526 A.2d 300, 309 (Pa. 1987). Comments by a prosecutor do not
constitute reversible error unless the "unavoidable effect of such comments
would be to prejudice the jury, forming in their minds fixed bias and hostility
toward the defendant so that they could not weigh the evidence objectively and
render a true verdict." & The prejudicial effect of the prosecutor's remarks must
be evaluated in the context in which they occurred. Id. When no objection has
been made to the allegedly improper comments, the trial court has been deprived
of its opportunity to rule on the propriety of the comments and then render
cautionary instructions to cure any potentially prejudicial impact. ~ at 312. The
29
reviewing court must assess counsel's performance in failing to make an
objection or request other relief by examining the effectiveness of counsel's
representation. Id. Specifically, the trial court should examine whether the
objection or. request would have had arguable merit, and, if so, whether counsel
had any reasonable basis to not make the objection, which would further his
client's interests. kL. The court should also consider whether the omission by
counsel could have prejudiced the defendant. Id.
It must first be noted that Assistant District Attorney Stadtmiller's comment
was a brief, isolated statement. The language quoted above was the only such
reference to the "Angel of Death" or anything that could be construed to be
Biblical in nature made during the Commonwealth's closing or, as a matter of
fact, at any time during the trial. Assistant District Attorney Stadtmiller certainly
did not attach this phrase to Defendant Crumbley's name at each mention of him
or refer to Defendant Crumbley by this phrase instead of using his name. Given
the context of the single use of the phrase, this court does not deem its use in
this instance to be improper, inflammatory or unduly prejudicial. This court did
not err by failing to sua sponte give a curative instruction. This court was never
asked to give such an instruction, and so did not do so. Throughout the closings
by the Defendants and the Commonwealth, numerous sidebars were held to
address statements made by counsel (T.R. 8/20/12, pp. 1369-1370, 1386-1388,
1394-1395), and, at one point, this court gave a curative instruction to address an
improper comment by Defendant Crumbley's counsel. (T.R. 8/20/12, p. 1396).
30
-,
)
Counsel for all parties were certainly aware that this court would hear them on
any objection and was willing to provide curative instructions to the jury.
Further, this court does not believe that Ms. Wendy Williams, Defendant
Crumbley's counsel, was in any way ineffective for failing to object or request a
curative instruction. Had Ms. Williams did as Defendant Crumbley now suggests,
she would have been calling attention to a phrase that most people in the
courtroom never registered in their minds, given the brevity of the mention. Had
she objected and requested a curative instruction, this court would have been
forced to repeat the phrase in order to tell the jury to disregard it. This would
have done nothing more than increase the impact of the comment and lodge it
more firmly in the jurors' minds. Counsel for Defendant Crumbley is very a
experienced and skilled trial lawyer, and she is most certainly not ineffective in
this court's eyes for allowing a comment to pass essentially unnoticed and
unregarded, as opposed to drawing significantly more attention to it. It must also
be noted that this court, in its opening comments and closing instructions to the
jury, advised the members of the jury on several occasions that the arguments of
counsel are not evidence. (T.H. 8/20/12, pp. 101-102, 1455). The jurors were
certainly aware that Mr. Stadtmiller's singular comment regarding Defendant
Crumbley was no more than passionate, and perhaps overstated, argument.
31
This court did not err in regard to this single comment made by the
Assistant District Attorney. This court neither struck the comment nor gave a
curative instruction, because neither was requested. Defendant Crumbley's
attorney was not ineffective. She made a judgment call that was in the best
interest of her client to not call attention to the phrase. This court should be
upheld in this regard.
E. Alleged Discovery Violations regarding "Jeimouse" Witnesses
Defendant Crumbley's fifth allegation of error is that this court erred in
permitting jailhouse informants to testify without the Commonwealth delivering
timely discovery in violation of Pa. R. Crim. Proc. 573. This allegation of error
pertains specifically to discovery involving "[ailhouse" witnesses· Richard
Carpenter and Thomas Julian Brown.
Defendant Crumbley filed a discovery motion on June 8, 2012, which was
argued before this court on July 27, 2012. During this motion, Defendant
Crumbley requested additional information regarding Richard Carpenter's
involvement in the witness protection program. At that time, Detective Perry
answered defense counsel's questions regarding the details of this program.
(T.R. 7/27/12, pp. 30-32). This appears to have satisfied Defendant Crumbley's
discovery request regarding the witness protection program as no further
requests were made regarding this subject.
32
Discovery issues were raised again by Defendant Crumbley on the morning
of August 22, 2012, prior to the beginning of the jury trial. Defense counsel
requested additional discovery on Thomas Julian Brown (T.R. 8/20/12, pp. 84-87,
88-89) and Richard Carpenter (T.R. 8/20/12, pp. 87-88). This court advised the
Commonwealth that, if this discovery was not provided to the Defendants, these
witnesses would not be permitted to testify. (T.R. 8/20/12, pp. 88-89). Later that
same afternoon, on August 22, 2012, Defendant Crumbley again raised issues
regarding discovery requests not being provided to the defense, specifically in
relation to Mr. Brown's testimony in other cases on behalf of the Commonwealth.
(T.R. 8/20/12, pp. 216-219). This court advised the Commonwealth that this
discovery would have to be provided to the Defendants prior to Mr. Brown
testifying at trial. (T.R. 8/20/12, p. 219). Counsel received the requested discovery
the following day, on August 23, 2012. (T.R. 8/20/12, p. 326).
Mr. Brown took the witness stand and began his testimony on August 24, ·
2012. On August 28, 2012, after Mr. Brown's first day of testimony, Defendant
Crumbley requested additional discovery related to Mr. Brown, including records
from his prior criminal cases and detainers related to those cases. (T.R. 8/20/12,
pp. 753-755). The Commonwealth indicated that it did not have these records,
and this court instructed the Commonwealth to provide whatever it had related to
Defendant Crumbley's request to the Defendants. (T.R. 8/20/12, p. 754). It should
33
be noted that Mr. Carpenter ultimately failed to appear for trial and did not testify.
Thus, any allegations of error to exclude his testimony are moot.
Despite these alleged discovery issues, defense counsel conducted a
thorough cross-examination of a variety of witnesses regarding Richard
Carpenter and Thomas Brown. For example, Detective Perry was questioned
extensively regarding money paid to Richard Carpenter as part of the witness
protection program. (T.R. 8/20/12, pp. 1026-1044, 1037-1040, 1041-1043).
Assistant District Attorney Mark Tranqullll, who was called as a Commonwealth
witness regarding Richard Carpenter's detainer on a Judge Cashman case, was
also subjected to a thorough cross-examination by defense counsel. (T.R.
8/20/12, pp. 1117-1132, 1142-1148). Mr. Tranquilli, now Judge Tranquilli, was also
questioned at length regarding Thomas Brown's involvement as a witness in
other criminal cases. (T.R. 8/20/12, pp. 1132-1142). Defendant Crumbley called as
a witness Assistant District Attorney Christopher Stone to discuss Mr.
Carpenter's sentence on the Judge Cashman case (T.R. 8/20/12, pp. 1219-1236),
and he also called Thomas Brown's probation officer, Robert Tutko, who provided
detailed information on his dealings with Mr. Brown, including the detainers that
he had and the terms of his probation. (T.R. 8/20/12, pp. 1187-1216).
As was previously stated, questions regarding the admission and
exclusion of evidence are within the sound discretion of the trial court and will
34
not be reversed on appeal absent an abuse of discretion. Kendricks, supra, at
503. An abuse of discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a showing that the trial
court's conclusion was the result of manifest unreasonableness, or partiality,
prejudice, bias or ill-will, or such lack of support as to be clearly erroneous.
Brougher, supra at 376. Rule 573(e) provides that, if a party has failed to comply
with a discovery request, the court may, inter alia, prohibit a party from
introducing the evidence not disclosed, or may order any other remedy that it
deems just under the circumstances. Pa. R. Crim. P 573. The Commonwealth
does not violate Rule 573 when it fails to disclose to the defense evidence that it
does not possess and of which it is unaware. Collins, supra, at 253.
Furthermore, a discovery violation does not automatically warrant relief in
the form of a new trial. Com. v. Jones, 668 A.2d 491, 513 (Pa. 1995). A defendant
seeking relief from a discovery violation must demonstrate prejudice. Com. v.
Hood, 872 A.2d 175, 181 (Pa. Super. 2005). Courts have held that discovery turned
over the day prior to trial is nonetheless admissible if the defendant is not
otherwise prejudiced by the delay. See Jones, supra; Co_m. v. Boring, 684 A.2d
561 (Pa. Super. 1996); Com. v. Gordon, 528 A.2d 631 (Pa. Super. 1987).
Here, the appropriate remedy for any discovery violations was not to
exclude the testimony of either witness. All information possessed by the
35
Commonwealth was turned over to the Defendants, albeit late. The defense
attorneys never complained that they had insufficient time to review the
information, nor did they request additional time to do so. This court certainly
would have granted any such requests. The attorneys for the Defendants were
able to thoroughly question all witnesses after receiving this information.
Additionally, given the lengthy and thorough cross-examlnatlons of Mr. Brown
and witnesses having knowledge of Mr. Brown, as well as the ability to call
witnesses with knowledge of Mr. Brown on behalf of the Defendants, any delay in
turning over discovery certainly did not hamper or adversely impact the defense
in this case. Not every discovery violation justifies exclusion of witness
testimony. This court ensured that discovery was turned over, and the
Defendants ability to effectively cross-examine and present witness testimony
was not impeded by any delays. This court committed no error in failing to
exclude Mr. Brown's testimony.
F. Alleged Error for Failure to Give a Missing Witness Charge
Defendant Crumbley's sixth allegation of error is that this court erred in
failing to charge the jury on the missing witness instruction with regard to
Richard Carpenter. Defendant Crumbley also asserts that, in its closing charge to
the jury, this court committed error by mentioning "testimony" by Richard
Carpenter even though Mr. Carpenter never appeared and never took the witness
stand.
36
The missing witness adverse inference rule provides that, when a potential
witness is available to only one of the parties to a trial, and it appears that the
witness has special information material to the issues at trial, and the witness's
testimony would not merely be cumulative, if such party does not produce the
testimony of this witness, the jury may draw an inference that the witness's
testimony would have been unfavorable to the party having control of the
witness. Com. v. Boyle, 733 A.2d 633, 638 (Pa. Super. 1999).
The missing witness instruction should not be given every time that a
witness does not testify. In fact, our appellate courts have set forth
circumstances under which the missing witness instruction should not be given,
including circumstances where: (1) the witness is so hostile or prejudiced against
the party expected to call him that there is a small possibility of obtaining
unbiased truth; (2) the testimony of such a witness is comparatively unimportant,
cumulative, or inferior to that already presented; (3) the uncalled witness is
equally available to both parties; (4) there is a satisfactory explanation as to why
the party failed to call such a witness; (5) the witness is not available or not within
the control of the party against whom the negative inference is desired; and (6)
the testimony of the uncalled witness is not within the scope of the natural
interest of the party failing to produce him. Com. v. Evans, 664 A.2d 570, 573-574
(Pa. Super. 1995). The relevant inquiry in reviewing a trial court's failure to give a
37
jury instruction is whether such charge was warranted by the evidence in the
case. Boyle, supra, at 639. If the instruction proffered is inapplicable and
improper, the court should not charge on it. lg.
In the case at issue, Detective Perry provided testimony during cross-
examination by Defendant Crumbley's attorney that Richard Carpenter positively
identified the Defendants in photo arrays on December 5, 2011. (T.R. 8/20/12, pp.
364-365). This identification led to the arrest of Defendant Crumbley on
December 7, 2011. (T.R. 8/20/12, p. 366). Carpenter was in jail when he became a
witness in this case, and he is identified as Witness #1 in the Affidavit of Probable
Cause. (T.R. 8/20/12, pp. 367, 373). Mr. Carpenter never appeared to testify
during the trial, despite being served with a subpoena. (T.R. 8/20/12, pp. 324-325).
In fact, a bench warrant was issued due to his failure to appear. (T.R. 8/20/12, p.
325). Although he was referenced many times throughout the trial by all parties,
he was unable to be located by the Commonwealth and would not answer phone
calls to determine his whereabouts. (T.R. 8/20/12, p. 325).
Before discussion of the closing charge, Ms. Wil Iiams requested, on behalf
of Defendant Crumbley, that Standard Criminal Jury Charge 3.21A be given by the
court. As proposed by Defendant Crumbley, the missing witness instruction
wou Id have read as follows:
38
3.21A (Crim) FAILURE TO CALL POTENTIAL WITNESS
1. There is a question about what weight, if any, you should give
to the failure of the Commonwealth to call Richard Carpenter as a
witness.
2. If three factors are present, and there is no satisfactory
explanation for a party's failure to call a potential witness, the jury is
allowed to draw a common-sense inference that his testimony would
have been unfavorable to that party. The three necessary factors are:
First, the person is available to that party only and not to the other;
Second, it appears the person has special information material to the
issue; and ·
Third, the person's testimony would not be merely cumulative.
3. Therefore, if you find these three factors present, and there is
no satisfactory explanation for the Commonwealth's failure to call
Richard Carpenter to testify, you may infer, if you choose to do so,
that his testimony would have been unfavorable to the
Commonwealth.
During discussion of the closing jury instructions, this court advised
counsel that it would not give Standard Criminal Jury Instruction 3.21 A in regards
to Richard Carpenter, reasoning that it was not an accurate representation of the
situation involving Mr. Carpenter. The Commonwealth did not fail to call Mr.
Carpenter as a witness. The Commonwealth, rather, could not locate him
because he failed to comply with his subpoena. (T.R. 8/20/12, p. 1310).
Additionally, this court believed that the charge, if given, would have required the
jury to speculate as to whether the criteria in the charge had been met since no
information was provided to the jury regarding the first factor in the charge.
There was no testimony or discussion from which the jury could find that Mr.
Carpenter was available only to the Commonwealth. While certainly it was in the
Commonwealth's interest to call Mr. Carpenter as a witness in its case, there was
nothing to preclude or prohibit the defense from contacting and/or calling Mr.
Carpenter as far as this court is aware. The situation that was presented to the
court regarding the missing witness charge was squarely addressed in Evans,
supra, and Boyle, supra.
Additionally, to assert the missing witness instruction against the
Commonwealth, not only must the witness be solely and only available to the
Commonwealth, but none of the other exceptions above must apply. Com. v.
Culmer, 604 A.2d 1090, 1098 (Pa. Super. 1992). As was stated previously, there
was no evidence that Mr. Carpenter was only available as a witness to the
Commonwealth. Even if it is the case that he was only available to the
Commonwealth, another exception applies, namely, that there is a satisfactory
explanation as to why the Commonwealth failed to call the witness. The
Commonwealth was unable to call Mr. Carpenter because he failed to appear
pursuant to his subpoena, which resulted in a bench warrant being issued for his
arrest. Thus, the court did not err in refusing to charge the jury with the missing
witness instruction.
As to the Defendant's assertion that this court referred to Mr. Carpenter's
testimony in its closing, this court read the following instruction to the jury:
You have heard evidence that some of the witnesses- John Gardone- they
have been convicted of crimes. John Gardone was convicted of the crime
of theft by unlawful taking; Richard Carpenter was adjudicated delinquent
for burglary and Thomas Julian Brown pied guilty to theft by unlawful
40
taking and has been convicted of theft by unlawful taking and burglary.
The only purpose for which you may consider this evidence of prior
conviction is deciding whether or not to believe all or part of the testimony
of John Gardone, Richard Carpenter or Thomas Julian Brown. In doing so,
you may consider the type of crime committed and how it may effect the
likelihood that John Gardone, Richard Carpenter or Thomas Julian Brown
have testified truthfully in this case. (T.R. 8/20/12, pp. 1470).
Mr. Carpenter himself did not testify in this case. However, his
identification of the Defendants as the shooters in this case was testified to by
Detective Perry under cross-examination by Defendant Crumbley's attorney.
(T.R. 8/20/12, pp. 364-367). When Detective Perry was recalled to the stand on
August 29, 2012, he was extensively questioned again regarding Richard
Carpenter by both defense attorneys and the Commonwealth on re-direct. (T.R.
8/20/12, pp. 1026-1034, 1043~1044, 1037-1040, 1041-1043). Mr. Carpenter was also
discussed extensively by Assistant District Attorneys Mark Tranquilli and Chris
Stone, especially in regard to his criminal record. Defense witness Rachel Bundy
also testified with regard to Richard Carpenter; stating that he could not have
witnessed the shooting. (T.R. 8/20/12, pp. 127, 1273, 1275).
Given all of the testimony with regard to Richard Carpenter, which included
his identification of the Defendants, the jurors were placed in a position where
they cou Id be required to evaluate Mr. Carpenter's credibility, even though he did
not testify himself. Because of this potential issue with Mr. Carpenter's credibility
and the extensive discussion of his criminal record, this court believed it to be
most prudent to include him in the afore-mentioned charge. If this mention of
41
"testimony" with regard to Richard Carpenter was error, it was clearly harmless
error, as everyone involved in this matter was aware that Richard Carpenter had
not actually testified. The harmless error doctrine reflects the reality that the
accused is entitled to a fair trial, not a perfect trial. Reese, supra, at 719.
G. Alleged Error with Regard to Granting a Continuance.
Defendant Crumbley's seventh allegation of error is that he was denied his
right to a speedy trial when th is court granted the Commonwealth's request for a
postponement on June 8, 2012 due to the unavailability of several Commonwealth
witnesses. The Defendant asserts that the Commonwealth did not show due
diligence in bringing the case to trial, and he was prejudiced because Saday
Robinson identified the Defendants subsequent to this postponement.
The trial for the Defendants was scheduled to begin on June 7, 2012. On
June 7, counsel for Defendant Ebo, Mr. Randall McKinney, submitted a
postponement, stating that he was not prepared to begin trial and had not had an
opportunity to review all of the discovery that he had received from the
Commonwealth. (T.R. 6/7/12, p. 3). Counsel for Defendant Crumbley objected to
the postponement because he was prepared to proceed to trial. (T.R. 6/7/12, pp.
42
3-5). The Commonwealth consented to the postponement. (T.R. 6/7/12, p. 5). On
June 8, 2012, counsel for Defendant Ebo withdrew his request for a continuance,
prompting the Commonwealth to ask for a continuance because it needed
additional time to locate three (3) essential Commonwealth witnesses. (LR.
6/8/12, pp. 2~3). Both Defendants objected to the Commonwealth's request for a
postponement, as they indicated that they were both ready to proceed, despite
the fact that Defendant Ebo claimed that he was not ready to proceed just the day
before, and that the 180 days to bring an incarcerated defendant to trial,
mandated by Pa. R. Crim. Proc. 600, would run on June 17, 2012. (T.R. 6/8/12, p.
5).
This court granted the postponement due to the fact that the missing
Commonwealth witnesses were essential to the Commonwealth's presentation of
its case. This court then scheduled a new trial date, as well as set dates for jury
selection, pre-trial motions and a status conference. (T.R. 6/8/12, p. 7). Both
Defendants indicated that they would be filing bond motions given that the new
trial date was beyond 180 days. (T. R. 6/8/12, p. 5).
On June 13, 2012, this court held a bail hearing. The Defendants asserted
that the Commonwealth did not exercise due diligence in locating the missing
witnesses that necessitated the postponement on June 8, 2012. Detective
Anthony Perry of the Allegheny County Police, homicide division, testified
43
regarding his efforts to locate two missing Commonwealth witnesses, Saday
Robinson and Yurri Lewis. (T.R. 6/13/12, pp. 30-38). Detective Perry stated that,
on May 22, 2011, he had been given subpoenas for witnesses in advance of trial
and began serving the subpoenas on May 24, 2012. (T.R. 6/13/12, pp. 33, 35).
Trial preparation interviews were scheduled for May 30, 2012, e.nd Detective Perry
was unable to serve the subpoenas for Ms. Robinson and Mr. Lewis by that time.
(T.R. 6/13/12, pp. 31, 34).
Detective Perry testified regarding his methods for locating witnesses,
which began with checking the addresses on driver's licenses for witnesses and
speaking with neighbors. (T.R. 6/13/12, p. 32). He also searched the Allegheny
County jail search screen and public assistance records. (T.R. 6/13/12, pp. 31,
38). Despite using these search methods, Detective Perry was unable to locate
the witnesses. (T.R. 6/13/12, pp. 31, 32). With regard to Yurri Lewis, Detective
Perry also went to his address on three (3) separate occasions, but could not
locate Mr. Lewis. (T.R. 6/13/12, p. 38). During his search for Saday Robinson, he
went to at least four (4) addresses, but cou Id not find her. (T.R. 6/13/12, pp. 31,
38). One address was abandoned and several were vacant. (T.R. 6/13/12, pp. 31,
38). He visited many of the addresses on more than one occasion, and he left
business cards with people who might have contact with either witness. (T.R.
6/13/12, pp. 36-38). Detective Perry continued to look for both witnesses for the
entire period between May 24, 2012 and the date of the bail hearing on June 13,
2012. (T.R. 6/13/12, pp. 32, 33-35). In fact, Detective Perry was finally able to
44
reach Ms. Robinson and speak with her on the night before this bail hearing.
(T.R. 6/13/12, p. 33). This court denied the Defendant's request for bond and
found that the Commonwealth had exercised due diligence in attempting to find
the Commonwealth witnesses. (T.R. 6/13/12, p. 43).
Ru le 600 serves two equally important functions: (1) the protection of the
accused's speedy trial rights, and (2) the protection of society. Com. v. Hunt, 858
A.2d 1238 (Pa. Super. 2004). In determining whether an accused's right to a .
speedy trial has been violated, consideration must be given to society's right to
effective prosecution of criminal cases, both to restrain the guilty of crime and to
deter those contemplating it. Id. However, the administrative mandate of Rule
600 was not designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth. 1..Q..
An appellate court's standard of review in evaluating Rule 600 issues is
whether the trial court abused its discretion. Com. v. McNear, 852 A.2d 401, 404
(Pa. Super. 2004). The proper scope of review in determining the propriety of the
trial court's ruling is limited to the evidence on the record of the Rule 600
evidentiary hearing and the findings of the lower court. lg. In reviewing the
determination of the hearing court, an appellate court must view the facts in the
light most favorable to the prevailing party. Id. Due diligence is a fact-specific
concept that is determined on a case-by-case basis. Id. Due diligence does not
45
require perfect vigilance and punctilious care, but rather a showing by the
· Commonwealth that a reasonable effort has been put forth . .Lg.
While a mere assertion by the Commonwealth that a witness is unavailable
does not establish due diligence, the unavailability of a witness is a relevant
factor in determining whether a. continuance should be granted. Com. v. Ehredt,
401 A.2d 358, 360-361 (Pa. 1979). Mere assertions of due diligence and unproven
facts do not establish cause for an extension. Com. v. Tyler, 555 A.2d 232, 234-
235 (Pa. Super. 1989). Rather, the Commonwealth makes a reasonable effort to
locate a witness and insure his presence at trial when the Commonwealth
demonstrates that it has used several methods to locate a witness and subpoena
him for trial. See Tyler, supra.
In this case, Detective Perry put forth reasonable efforts to locate the
essential witnesses. He visited the last known addresses of the witnesses on
multiple occasions. He checked the addresses against driver licensing
information. He spoke to neighbors about the witnesses' whereabouts. He also
checked public records. While Detective Perry perhaps could have done more,
this court found that his efforts were reasonable, and this court's findings of fact
should not be disturbed on appeal.
46
H. Allegations that the Verdict Was Against the Weight of the Evidence and
Insufficient to Sustain a Conviction.
The Defendants' final allegations of error are that there was insufficient
evidence to sustain the verdict and that the verdict was against the weight of the
evidence.
The standard of review regarding claims of insufficiency of the evidence is
well-settled. In reviewing the sufficiency of the evidence, the appellate court
must determine whether the evidence admitted at trial, and all reasonable
inferences drawn therefrom, viewed in the light most favorable to the
Commonwealth as the verdict winner, is sufficient to prove every element of the
offense beyond a reasonable doubt. Com. v. Jones, 954 A.2d 1194 (Pa. Super.
2008). An appellate court may not re-weigh the evidence and substitute its
judgment for that of the fact-finder. J..g. The weight of the evidence is exclusively
for the finder of fact, who is free to believe all, part or none of the evidence and to
determine the credibility of the witnesses. When evidence conflicts, it is the sole
province of the fact finder to determine credibility and to believe all, part or none
of the evidence. Com. v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003). An appellate
court may only reverse the lower court's verdict if it is so contrary to the evidence
as to shock one's sense of justice. Com. v. Hunzer, 868 A.2d 498, 506 (Pa. Super.
2005). Any question of doubt is for the fact-finder unless the evidence is so weak
47
and inconclusive that, as a matter of law, no probability of fact can be drawn from
the combined circumstances. Com. v. Perez, 931 A.2d 703 (Pa. Super. 2007).
There is no requirement that the Commonwealth prove a homicide charge
by direct evidence; indeed, in many instances, no witnesses are available to
describe the incident which resulted in the death of the victim. Rather the
Commonwealth may prove the homicide by circumstantial evidence. Com. v.
Smith, 568 A.2d 600, 602 (Pa. 1989).
Here, the jury found the Defendants guilty of all charges after hearing both
direct and circumstantial evidence of the Defendants' involvement in .the brutal
murder of Todd Mattox. Although the Defendants attempt to argue that there was
no direct evidence implicating them in Mr. Mattox's murder, the jury clearly found
the testimony of Saday Robinson to be compelling. She was an eyewitness to the
events of May 16, 2011, and she was able to describe what she saw and heard to
the jury in great detail. (T.R. 8/20/12, 525-644). Even though defense counsel
enqaqsd in a lengthy cross-examination of Ms. Robinson in an attempt to
discredit '
her and sully her credibility, the jury chose to believe her version of
what happened that day, which is within their province. (T. R. 8/20/12, pp. 561-637,
641-647). As this court stated earlier, Ms. Robinson was a compelling witness. It
certainly does not shock this court's conscience or sense of justice that the
jurors found her credible. In fact, this court found her to be credible and truthful
48
)
as well. Her testimony, alone, when believed, is sufficient evidence to uphold this
)
verdict. It should also be noted that there were witnesses present who
corroborated Ms. Robinson's testimony, thereby lending it even more credibility.
See Trial Court Opinion, II. Factual Background, p. 5.
In addition to the testimony of Ms. Robinson, the jury heard testimony
regarding the eyewitness identification of Richard Carpenter. (T.R. 8/20/12, pp.
365-366). The jurors also listened to the testimony of Mr. Thomas Brown, another
fearfu I witness (T.R. 8/20/12, pp. 673-676), who heard Defendant Crumbley
essentially admitting to the murder of Todd Mattox (T.R. 8/20/12, pp. 698-699), and
who identified Defendant Ebo as "Mat-Mat." (T.R. 8/20/12, p. 748). They heard the
testimony of Anthony Snyder, who identified "Mat-Mat" as Defendant Ebo (T.R.
8/20/12, p. 657), and who had previously told detectives that the victim had told
him that he was going to see Mat-Mat just prior to the shooting. (T.R. 8/20/12, pp.
657-661). The jurors heard Ms. Robinson relate that she had been told by "Ace"
that Mat-Mat was involved in the shootings. (T.R. 8/20/12, pp. 601-603). The jurors
also had evidence of the presence of the murder weapon at the scene of a
shooting involving Defendant Crumbley two (2) weeks later. (T.R. 8/20/12, 885,
927-928, 1011, 1017).
While it is true that no forensic evidence linked the Defendants to this
murder, that fact does not mean that the evidence presented at trial was
49
the scene of a shooting involving Defendant Crumbley two (2) weeks later. (T.R.
8/20/12, 885, 927-928, 1011, 1017).
While it is true that no forensic evidence linked the Defendants to this murder,
that fact does not mean that the evidence presented at trial was insufficient to sustain
the convictions here. It is often the case that forensic evidence is lacking at the scene
of a crime. Here the jury had the powerful and compelling testimony of a frightened
eyewitness, as well as circumstantial evidence supporting that testimony. The jury's
verdict was well-supported by the evidence in the case, and it should be upheld on
appeal.
IV. Conclusion
This court committed no errors during this trial. Its rulings should be upheld. The
jury's verdict was well-supported by the evidence, and its verdict should also be upheld.
The Defendants' request for a new trial should be denied, and the verdict and
sentencing in this case should be affirmed.
Date
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