Com. v. Warren, S.

J-S13041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAHEED WARREN :
:
Appellant : No. 1124 EDA 2016
Appeal from the Judgment of Sentence November 25, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008204-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAHEED WARREN :
:
Appellant : No. 1125 EDA 2016
Appeal from the Judgment of Sentence November 25, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008205-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAHEED WARREN :
:
Appellant : No. 1126 EDA 2016
Appeal from the Judgment of Sentence November 25, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008206-2014
J-S13041-17
BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 30, 2017
Appellant, Shaheed Warren, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his
bench trial convictions at three separate docket numbers of two counts of
first-degree murder,1 and one count each of firearms not to be carried
without a license,2 attempted murder,3 and aggravated assault.4 Appellant
challenges the weight of the evidence as well as the trial court’s denial of his
request for a mistrial. We affirm.
The trial court’s opinion summarized the relevant facts of this case as
follows:
In the early morning hours of May 2, 2014, [Appellant]
contacted [Cinquetta] Perrin for a ride to the Mark V
Lounge (the “Lounge”) to buy alcohol. Perrin parked her
car on the street outside the Lounge while [Appellant]
entered, and she waited while [Appellant] was inside.
While [Appellant] was in the bar, he had a confrontation
with another Lounge patron, Dontae Brown, after one
bumped into the other and the two had an argument about
apologizing.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(a).
2
18 Pa.C.S. § 6106(a)(1).
3
18 Pa.C.S. § 901(a).
4
18 Pa.C.S. § 2702(a).
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At approximately 1:25 a.m. the Lounge began closing
and ushered all the patrons out onto the street. Upon
exiting the Lounge with the other patrons, while
[Appellant] was next to Brown, [Appellant] pulled a firearm
out from his pants waistband and shot Brown and two
other victims, firing approximately five or six times.
[Appellant] shot Brown from only a few inches away.
After shooting Brown, [Appellant] fled towards a “hack
stand.” [Appellant] then took a hack taxi to 56th Street
and Lansdowne Ave. [Appellant] later called Perrin and
asked if she was all right.
Police responded to the area and found three gunshot
victims on the street. Police found James Byrd bleeding on
the east side of 52nd Street in front of the ABC Discount
store. Police found Brown and Ronald Edwards on the east
side of 52nd Street, a few buildings north from Byrd. Police
loaded the victims into police vehicles and transported
them to the hospital. Brown and Byrd were pronounced
dead at the hospital. Edwards provided flash identification
information to police, describing the shooter as a black
male, bald head, wearing a blue shirt with a white collar.
Perrin provided a statement to police on May 7, 2014,
in which she identified [Appellant] as the shooter.
[Appellant] was later identified [] in a photo array by
eyewitness Jerry Carroll. While incarcerated pending trial,
[Appellant] made a series of phone calls, asking individuals
to go and “talk to” the various witnesses who had testified
or made statements against [Appellant].
Police recovered two projectiles in front of the Lounge,
one on [the] street and one in the front door. Police also
recovered video surveillance footage from a business on
the corner of Wilton St. and Girard Ave., which recorded
[Appellant] leaving the scene.
Brown suffered a total of six gunshot wounds: one to
his right hand, a close range wound through his left
shoulder that penetrated his lungs and heart, and four
shots to his back. Brown died as a result of internal
bleeding due to the gunshot wounds. Two projectiles were
recovered from Brown. Byrd was shot once in his left
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chest, which penetrated his left lung, left atrium, and left
ventricle. One projectile was recovered from Byrd. Byrd
died as a result of internal bleeding due to the gunshot
wound. Medical records indicate that Edwards underwent
multiple surgeries as a result of a gunshot wound, which
damaged Edwards’ liver. Analysis of the projectiles
revealed that they were all fired from the same firearm.
Trial Ct. Op., 7/25/16, at 2-4 (footnotes and record citations omitted). At
trial, Cinquetta Perrin also testified to the following on direct examination:
[Commonwealth:] Now, after you went to―you said you
went to the deli and you called your friend. Where did you
go to?
[Witness:] I just sat in the deli. I just waited for him to
come get me and that’s when [Appellant] called me and he
asked me was I’m [sic] all right and I said no, and he just
said, “I ain’t meant to kill the old head, but he was in the
way.”
[Defense Counsel]: Objection.
[Witness]: And I hung up.
[Defense Counsel]: Objection.
[Court]: What’s the basis for your objection?
[Defense Counsel]: Statement of [Appellant]. It’s never
been provided to the defense.
[Commonwealth]: She says in her statement she called
[Appellant]―he called her rather.
[Defense Counsel]: She says that part.
[Court]: The content of what was said is not in the
statement?
[Commonwealth]: Parts of it.
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[Court]: Do you want me to have a look and see what part
of it was turned over? Statement of [Appellant] is
mandatory discovery.
[Commonwealth]: She said, “Right after it happened
[Appellant] called my phone and asked me if I was all
right.”
[Court]: That’s all it says?
[Commonwealth]: It does, Your Honor.
[Court]: Is this the first time you’re hearing this?
[Defense Counsel]: Pretty much.
[Court]: Is today the first time you heard it?
[Commonwealth]: Yes, Your Honor.
[Court]: Did you let him know?
[Commonwealth]: I did not. I just before we went in, I
asked her the content of the call and I neglected to tell
[defense] counsel. I wanted to be sure, I just didn’t so we
can―I would agree that that could be stricken if you wish.
[Defense Counsel]: It’s kind of hard to unring the bell.
[Court]: What are you asking?
[Defense Counsel]: I’m asking for a mistrial.
[Court]: All right. That would be a remedy for―I think it
would be inappropriate since the Commonwealth, first of
all, just learned about it today. I’m not 100% sure why
she didn’t let you know that before we came back in here,
which would be the ordinary thing to do.
[Commonwealth]: Right.
[Court]: So I’ll exclude it and I won’t consider it and we’ll
move on. Go ahead.
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N.T., 11/23/15, at 132-34.
Thereafter, on November 25, 2015, the trial court convicted Appellant
of the aforementioned offenses, and sentenced him to an aggregate term of
two life sentences without the possibility of parole, plus twenty to forty
years’ imprisonment. Appellant timely filed post-sentence motions, which
the court denied on March 21, 2016. Appellant filed a timely pro se notice of
appeal on April 7, 2016.5 The court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and Appellant complied.
Appellant raises the following issues for our review:
1. Did the [Trial] Court err in failing to grant [] Appellant’s
post sentence motion that the verdict was against the
weight of the evidence?
2. Did the [Trial] Court err in failing to grant a mistrial
when a witness, with the knowledge of the prosecutor,
testified that [] Appellant confessed to the crime, without
disclosing that statement to the defense?
Appellant’s Brief at 7.
In his first issue, Appellant argues his verdicts were against the weight
of the evidence, as the eyewitness testimony of both Cinquetta Perrin and
Jerry Carroll was unreliable. Appellant contends each of these witness’
testimony was full of inconsistencies, specifically regarding Appellant’s
5
On May 27, 2016, this Court granted trial counsel’s application to
withdraw, and the trial court subsequently appointed appellate counsel.
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appearance and clothing on the night of the shooting. Appellant concludes
his convictions should be reversed. We disagree.
Our standard of review regarding challenges to the weight of the
evidence is as follows:
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. An
appellate court cannot substitute its judgment for that of
the finder of fact. Thus, we may only reverse the . . .
verdict if it is so contrary to the evidence as to shock one’s
sense of justice.
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011)
(citations omitted).
Instantly, in its opinion, the trial court discussed Appellant’s weight of
the evidence claim as follows:
Cinquetta Perrin, who knew [Appellant] for several years
prior to the shooting, testified that she watched as
[Appellant] pulled out a gun from his waistband, prompting
her to duck, and that she then heard shooting. Perrin
testified that she did not see anyone else with a firearm.
Perrin also testified that she watched as [Appellant] fled
the scene following the shooting. While Perrin did not
initially disclose [Appellant’s] identity to police, this was
not due to her inability to identify [Appellant], but because
she was scared and was hoping to “get out of the situation
. . . .” That [Appellant] was the only person with a gun
was corroborated by the ballistics evidence, which showed
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that all the recovered projectiles from this shooting were of
the same caliber and fired from the same firearm.
Jerry Carroll, an eyewitness who was walking past
[Appellant] on the sidewalk just prior to the shooting,
testified that he turned and saw [Appellant] pull out a gun
and begin shooting. Carroll’s testimony at the preliminary
hearing, reiterated at trial, detailed how Carroll watched
[Appellant] shoot Brown from only a few inches away, a
distance that was confirmed by the medical examiner, Dr.
Edwin Lieberman. Carroll testified that [Appellant] then
fled the scene, running towards 52nd Street. Carroll also
identified [Appellant] in a photo array six days after the
shooting.
Andre Shaw, who did not see the shooting, testified at
trial that [Appellant] and Brown got into a verbal
confrontation inside the Lounge shortly before Shaw
ushered everyone out onto the street. Shaw testified that
he heard gunshots after [Appellant] and Brown went
outside.
Randolf Joyner, the hack taxi driver who operated on
the corner of 52nd Street and Girard Ave., testified that he
was approached by [Appellant], whom he recognized from
the neighborhood, for a ride away from the area. Joyner
testified that he described [Appellant] to police as a black
male, bald, and wearing a black rugby shirt with a gray
collar. This description substantially matched the
description of the shooter provided by the surviving
gunshot victim, Ronald Edwards, immediately after the
shooting. Edwards told Officer Mauricio Acevedo that the
shooter was a black male, bald, and wearing a blue shirt
with a white collar. Detective Billy Golphin testified that
police later executed a search warrant at [Appellant’s]
home and recovered a black shirt with a white collar under
the porch. By stipulation of the parties, [Appellant’s] DNA
was present on this shirt.
The testimony of Perrin, Carroll, and Joyner concerning
[Appellant’s] flight from the area after the shooting was
corroborated by video surveillance footage recovered from
a Stop and Go store on the corner of Girard Avenue and
Wilton Street. Additionally, the Commonwealth presented
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recorded telephone calls from prison during which
[Appellant] attempted to enlist people to “talk with” the
witnesses who had made statements against him.
[Appellant] specifically mentioned Perrin, Carroll, and
Joyner in these phone calls. During one such
conversation, [Appellant] asked his mother to contact
“Manny” to help with the witnesses. Perrin testified that
she subsequently was approached and threatened by a
man named Manny Black regarding her testimony.
Similarly, Joyner testified that [Appellant’s] “dogs” had
come to Joyner and told him not to snitch. These attempts
at witness intimidation were compelling evidence of
[Appellant’s] consciousness of guilt.
* * *
The evidence outlined above plainly established that
[Appellant] committed the crimes of which he was
convicted. Because the evidence fully supported the
identifications of [Appellant] as the shooter, the [c]ourt did
not abuse its discretion in denying [Appellant’s] motion for
a new trial.
Trial Ct. Op. at 5-7, 8 (record citations omitted). We agree with the trial
court’s conclusions. Despite any inconsistencies regarding Appellant’s
physical description, the court’s determination of the credibility of the
Commonwealth’s witnesses was reasonable given Cinquetta Perrin and Jerry
Carroll’s eyewitness identification of Appellant as the shooter. See Devine,
26 A.3d at 1146. Thus, Appellant’s weight of the evidence issue merits no
relief.
In his second issue, Appellant argues that the introduction of his
confession into evidence without prior disclosure to the defense warranted a
mistrial. Specifically, Appellant contends Cinquetta Perrin’s testimony that
Appellant confessed to the shooting was prejudicial, as the Commonwealth
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was aware of her testimony and provided no justification for the failure to
disclose the information to defense counsel prior to trial. Appellant
concludes that fairness requires that he be granted a new trial. We
disagree.
The court may grant a mistrial “[w]hen an event prejudicial to the
defendant occurs during trial[.]” Pa.R.Crim.P. 605(B). A mistrial is a
remedy of last resort; “[a] trial court is required to grant a mistrial only
where the alleged prejudicial event may reasonably be said to have deprived
the defendant of a fair and impartial trial.” Commonwealth v.
Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (citation omitted).
Furthermore, “a trial court, acting as the finder of fact, is presumed to know
the law, ignore prejudicial statements, and disregard inadmissible evidence.”
Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014) (citation
omitted). The decision to deny a mistrial is subject to review for abuse of
discretion. Fortenbaugh, 69 A.3d at 193.
Here, the trial court concluded:
[T]he record demonstrates that since the challenged
statement has not been provided to defense counsel, the
[c]ourt excluded it from evidence and explicitly stated that
the statement would not be considered. Because the
[c]ourt was fully capable of ignoring the excluded
evidence, there were no valid grounds for a mistrial.
Trial Ct. Op. at 9 (citation omitted). We agree with the trial court’s
conclusions. Following defense counsel’s objection and request for a
mistrial, the court clearly stated on that record “I’ll exclude [the confession]
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and I won’t consider it and we’ll move on.”6 N.T. at 134. Accordingly, the
trial court properly denied Appellant’s request for a mistrial, and we affirm
Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2017
6
In any event, we find the error of Cinquetta Perrin’s testimony regarding
Appellant’s confession as harmless because it did not prejudice Appellant
and the evidence of guilt was so overwhelming that any prejudicial effect of
the error could not have contributed to the verdict. See Commonwealth v.
Melvin, 103 A.3d 1, 20 (Pa. Super. 2014).
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