Com. v. Cooke, M.

J. S26030/17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
MILES COOKE, :
:
Appellant :
: No. 516 MDA 2016
Appeal from the Judgment of Sentence October 15, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0000932-2015
BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*
MEMORANDUM BY DUBOW, J.: FILED AUGUST 15, 2017
Appellant, Miles Cooke, appeals from the Judgment of Sentence
entered by the Dauphin County Court of Common Pleas following his
conviction by a jury of First-Degree Murder and Criminal Conspiracy.1 After
careful review, we affirm.
The relevant facts, as gleaned from the certified record and the trial
court’s Pa.R.A.P. 1925(a) Opinion, are as follows. On May 30, 2014,
Appellant and his brother, Justin Asaad Cooke, shot and killed the victim,
Ronald McGruder, near the corner of Hanover and Cameron Streets in
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(a) and 18 Pa.C.S. § 903, respectively.
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Harrisburg, Pennsylvania. The following events leading up to the murder are
relevant to our review.
Two nights before the murder, Appellant’s brother Justin and McGruder
had gotten into a heated argument when McGruder blamed Appellant for
killing McGruder’s friend Warren Beasley in 2013. McGruder told Justin that,
“if you want to kill me, if you feel some type of way and you want to do
something to me, my heart is on my sleeve. So if you got to take a shot,
take a shot.” Trial Court Opinion, dated 7/19/16, at 3 n.6.
On the night of May 29, 2014, McGruder went out drinking with his
friend James Moffitt and visited Double D’s bar. Surveillance video showed
that both Appellant and his brother Justin were at Double D’s at the same
time. The video also showed Appellant, Justin, and McGruder leave Double
D’s together and enter a tan Audi. Justin entered the front passenger seat,
Appellant entered the driver’s seat, and McGruder entered the back seat.
The three men left Double D’s parking lot at 1:46 A.M. on May 30, 2014.
Jasmine Bullock, an eyewitness to the murder who resided on Hanover
Street, awoke to screaming from the street and looked out her window to
see Appellant, Justin, and McGruder. She witnessed one of the men stand
over McGruder on the ground and shoot him twice in the head. Bullock
called 911 at 1:58 A.M. Although she could not see the faces of the two
standing men, Bullock provided clothing descriptions matching Justin as the
shooter and Appellant nearby. After the shooting, Appellant and Justin ran
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toward their running car, entered the vehicle in the same positions as when
they left the bar, and drove away.
Appellant and Justin provided identical voluntary statements to police
shortly after the murder. They confirmed the clothing that they were
wearing, the precise route they took after leaving the bar with McGruder,
and that they were driving a tan 2000 Audi owned by Appellant’s girlfriend.
Police arrested Appellant on October 2, 2014, the day police obtained
arrest warrants for both Appellant and Justin. Police were unable to arrest
Justin that same day after media coverage widely publicized Appellant’s
arrest and the fact that they were looking for Justin. Police in North Carolina
arrested Justin on October 22, 2014.
Appellant filed a Motion in Limine seeking to preclude evidence of
Appellant’s cell phone records at trial. Appellant argued that the
Commonwealth provided these records to Appellant “too late.” Appellant
also objected to: (1) Detective Glucksman’s testimony about cell phone
tower data and “ping analysis” as inappropriate expert testimony, and (2) a
demonstrative map displaying information contained in Appellant’s cell
phone records. N.T. Motion, 10/7/15, at 22-26. The trial court admitted the
cell phone records, Detective Glucksman’s testimony, and the map. Id. at
26.
Appellant also filed a Motion in Limine to preclude Courtney Williams’
testimony about McGruder’s statements to Justin two days before the
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murder, arguing that the statements were irrelevant and constituted
inadmissible hearsay. On October 7, 2015, the trial court conducted a
hearing prior to trial. The Commonwealth argued that this testimony was
evidence of Appellant’s motive to kill McGruder. The trial court denied
Appellant’s Motion on October 8, 2015.
Appellant and Justin proceeded to a joint jury trial. The
Commonwealth presented the testimony of the eyewitness Jasmine Bullock,
McGruder’s friend James Moffitt, investigating detectives, a forensic
pathologist, emergency responders, a forensic investigator, and a North
Carolina detective. The Commonwealth also presented video surveillance
evidence from a church near the crime scene, Appellant’s cell phone records,
and cell phone tower data.
Appellant presented the testimony of his girlfriend Dorian Bradford, a
second resident, John Stoddart, who heard gunshots the night of the murder
and purportedly observed the fleeing car’s taillights, and an investigator
from the Dauphin County Public Defender’s Office.
The jury convicted Appellant of First-Degree Murder and Criminal
Conspiracy. On October 15, 2015, the trial court sentenced Appellant to the
statutorily mandated term of life in prison.2 Appellant filed a timely Post-
Sentence Motion, which was denied by operation of law on February 23,
2016.
2
42 Pa.C.S. § 9711.
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Appellant filed a timely Notice of Appeal on March 23, 2016.3 Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents five issues for our review:
[1.] Did the trial court err by denying Appellant’s pre-trial motion
in limine to preclude cell phone records from being offered into
evidence by Detective Glucksman [] by the Commonwealth since
they were provided to the Appellant only after a jury was
selected and seated?
[2.] Did the trial court err by denying Appellant’s pre-trial motion
in limine to disqualify Detective Glucksman from testifying to
those records with respect to cell phone tower “pinging?”
[3.] Did the trial court err by denying Appellant’s pre-trial motion
in limine to preclude the testimony of Courtney Williams with
respect to 404(b) evidence of defendant’s prior bad acts through
hearsay testimony regarding the decedent’s statements to co-
defendant Justin Cooke regarding decedent’s belief that
Appellant was involved in another murder?
[4.] Was the evidence presented at trial insufficient for a jury to
return a verdict of guilty?
[5.] Did the trial court err by denying Appellant’s post-sentence
Motion for New Trial or Arrest of [Judgment] because the verdict
was against the weight of the evidence and based on
inconsistent testimony and speculation from vague
circumstantial evidence so as to shock one’s sense of justice?
Appellant’s Brief at 9 (reordered for convenience, underlining omitted).
3
We note that the trial court docket incorrectly indicates that Appellant filed
his Notice of Appeal on March 31, 2016. This appears to be the date that
the Dauphin County Clerk of Courts forwarded Appellant’s Notice of Appeal
to this Court. Our review of the certified record shows that the Notice of
Appeal is clearly stamped, received, and filed by the Dauphin County Clerk
of Courts on March 23, 2016.
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In his first three issues, Appellant challenges the trial court’s
evidentiary rulings. The “[a]dmission 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.” Commonwealth v. Tyson, 119
A.3d 353, 357 (Pa. Super. 2015) (citation and quotation omitted). “[A]n
abuse of discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will[,] or
partiality, as shown by the evidence or the record.” Commonwealth v.
Cameron, 780 A.2d 688, 692 (Pa. Super. 2001) (citation and quotation
omitted).
Relevance is the threshold for admissibility of evidence.
Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). Evidence is
relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in
determining the action. Pa.R.E. 401; Commonwealth v. Drumheller, 808
A.2d 893, 904 (Pa. 2002). “Evidence that is not relevant is not admissible.”
Pa.R.E. 402. In addition, “[t]he court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
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Issue 1: Timing of Cell Phone Records
In his first claim on appeal, Appellant contends that the trial court
improperly admitted Appellant’s cell phone records in violation of
Pa.R.Crim.P. 573 where the Commonwealth provided the records to
Appellant “too late.” See Appellant’s Brief at 26-27; N.T. Motion, 10/7/15,
at 23. Appellant avers that “the Commonwealth presented the records after
a jury had already been selected in the case[,]” and argues that providing
the cell phone records “so close to the start of trial was prejudicial to the
defense.” Appellant’s Brief at 27.
“Generally, on review of an order granting or denying a discovery
request, an appellate court applies an abuse of discretion standard.”
Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation
omitted).
Pre-trial discovery in criminal cases is governed by Pennsylvania Rule
of Criminal Procedure 573. The rule lists certain items and information that
are subject to mandatory disclosure by the Commonwealth when they are:
(1) requested by the defendant, (2) material to the case, and (3) within the
possession or control of the prosecutor. Mandatory discovery includes:
(a) Any evidence favorable to the accused that is material either
to guilt or to punishment, and is within the possession or control
of the attorney for the Commonwealth;
(b) any written confession or inculpatory statement, or the
substance of any oral confession or inculpatory statement, and
the identity of the person to whom the confession or inculpatory
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statement was made that is in the possession or control of the
attorney for the Commonwealth;
(c) the defendant's prior criminal record;
(d) the circumstances and results of any identification of the
defendant by voice, photograph, or in-person identification;
(e) any results or reports of scientific tests, expert opinions, and
written or recorded reports of polygraph examinations or other
physical or mental examinations of the defendant that are within
the possession or control of the attorney for the Commonwealth;
(f) any tangible objects, including documents, photographs,
fingerprints, or other tangible evidence; and
(g) the transcripts and recordings of any electronic surveillance,
and the authority by which the said transcripts and recordings
were obtained.
Pa.R.Crim.P. 573(1)(a)-(g).
The Rule also contains a remedy provision, which provides:
If at any time during the course of the proceedings it is brought
to the attention of the court that a party has failed to comply
with this rule, the court may order such party to permit
discovery or inspection, may grant a continuance, or may
prohibit such party from introducing evidence not disclosed,
other than testimony of the defendant, or it may enter such
other order as it deems just under the circumstances.
Pa.R.Crim.P. 573(E).
“[W]here the evidence is equally accessible or inaccessible to both the
Commonwealth and the defense, the defense cannot use the discovery rules
against the Commonwealth for its failure to produce the evidence.”
Commonwealth v. Dent, 837 A.2d 571, 585 (Pa. Super. 2003) (citation
omitted).
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The trial court addressed Appellant’s discovery challenge as follows:
Appellant was notified prior to his trial that his cell phone records
would be entered into evidence. This is not a case of a last[-
]minute tactic by the Commonwealth to surprise the Appellant.
In our society today, nearly every adult has a cell phone that
acts like a minicomputer that can track calls, locations, store
pictures, etc. The cell phone records in the instant matter[]
could have just as easily been obtained by the Appellant (as they
were his own phone records). Attempting to bring in cell records
did not surprise the Appellant to the extent that it should have
been excluded from evidence. Finally, evidence is relevant if (a)
it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of
consequence in determining the action. P[a].R.E. 404. Here,
the evidence was relevant.
Trial Court Opinion, dated 7/19/16, at 9-10. We agree with the trial court’s
analysis.
Moreover, insofar as Appellant complains of the Commonwealth’s
failure to provide the cell phone records earlier, our precedents make clear
that Appellant may not use the discovery rules against the Commonwealth
where Appellant had equal access to his own cell phone records.4 See
Dent, supra at 585.
Because we discern no violation of Rule 573 by the Commonwealth,
the trial court did not err or abuse its discretion by refusing to preclude
Appellant’s cell phone records at trial. Accordingly, Appellant’s first claim is
without merit.
4
Appellant does not allege in his Brief, and Appellant did not allege during
the pre-trial hearing, that the Commonwealth had intentionally withheld the
cell phone records in any way.
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Issue 2: Cell Phone Tower “Pinging” Testimony
In his second claim on appeal, Appellant avers that the trial court
improperly permitted Detective Glucksman to testify essentially as an expert
witness regarding Appellant’s cell phone records and historical tower data.
Appellant’s Brief at 28-29. Rather than “merely relaying the information
contained in Appellant’s records” as the Commonwealth claimed, Appellant
argues that Detective Glucksman’s “testimony required him to opine and
speculate, as would an expert, regarding the location of the cell phone
without the scientific and technical knowledge required.” Id. at 28.
Ultimately, the admission of demonstrative evidence is a matter within
the discretion of the trial court and, absent an abuse of discretion, its
decision must stand. Commonwealth v. Thomas, 561 A.2d 699, 707 (Pa.
1989).
Demonstrative evidence is tendered for the purpose of rendering other
evidence more comprehensible to the trier of fact and may be admitted if its
relevance outweighs any potential prejudicial effect. Commonwealth v.
Serge, 896 A.2d 1170, 1176 (Pa. 2006). See also Daniel J. Anders,
Ohlbaum on the Pennsylvania Rules of Evidence § 901.08[1] et seq. (2017
ed. LexisNexis Matthew Bender).
The offering party must authenticate such evidence, which may be
accomplished by the presentation of other evidence, such as witness
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testimony, sufficient to support a finding that the matter in question is what
its proponent claims. Serge, supra at 1176; see Pa.R.E. 901(a).
The overriding principle in determining if any evidence, including
demonstrative, should be admitted involves a weighing of the probative
value versus prejudicial effect. Serge, supra. The trial court must decide
first if the evidence is relevant and, if so, whether it is more probative than
prejudicial. Commonwealth v. Hawk, 709 A.2d 373, 376 (Pa. 1998).
The trial court addressed Appellant’s evidentiary challenge as follows:
Appellant additionally alleges that the [c]ourt erred by denying
[Appellant’s] related motion in limine to disqualify Detective
James Glucksman from testifying to those [cell phone] records
with respect to cell phone tower “pinging.” This is not the first
time that we have discussed Detective Glucksman and his
testimony in regards to cellular phone records. Detective
Glucksman testified to Appellant’s cell phone records on the
night of the incident. Based off these cell phone records,
Detective Glucksman used software by Microsoft to create a
map[,] which generally indicates a cell phone[’s] location at any
given time. Here, Detective Glucksman explained what “pinging”
is (real time location of a cell phone) versus historical data. In
the instant matter, Detective Glucksman testified that he did not
use “pinging” (real time tracking of a cell phone) but instead
engaged in historical tower data. Detective Glucksman was
given the Appellant’s cell phone records to analyze, [and]
described the difference of “pinging” and historical [tower data].
As such, this was properly submitted to the jury as evidence.
Trial Court Opinion, dated 7/19/16, at 10 (footnotes omitted). We agree
with the trial court’s analysis.
Appellant frames Detective Glucksman’s testimony as expert testimony
regarding scientific, technical, or other specialized knowledge beyond that
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possessed by the average layperson pursuant to Pa.R.E. 702. This assertion
is incorrect based on our review of the certified record.
Rather than expert opinion, Detective Glucksman’s testimony about
Appellant’s cell phone records and historical tower data constituted an
explanation of the Commonwealth’s demonstrative evidence that he had
prepared for trial. Detective Glucksman constructed and created the maps
that included the locations of cell phone towers based on Appellant’s cell
phone records. His testimony authenticated the demonstrative evidence by
explaining how he created the maps using Appellant’s cell phone records and
how they were relevant.
Further, the maps were highly relevant in this case given the timing of
the murder with respect to the video recordings and Appellant’s statement
about his particular route after leaving the bar. The trial court was well
within its discretion in concluding that the evidence was more probative than
prejudicial. As such, the trial court did not abuse its discretion in admitting
Detective Glucksman’s authentication testimony.
Issue 3: Admission of Victim’s Out-of-Court Statements
In his third claim, Appellant avers that the trial court erred in denying
his Motion in Limine to preclude certain testimony from Courtney Williams
about McGruder’s statements to Justin before the murder.
As described above, Williams overheard Justin arguing with McGruder
two nights before McGruder’s murder. McGruder blamed Appellant for killing
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McGruder’s friend Warren Beasley in 2013. McGruder told Justin that, “if
you want to kill me, if you feel some type of way and you want to do
something to me, my heart is on my sleeve. So if you got to take a shot,
take a shot.” Trial Court Opinion, dated 7/19/16, at 3 n.6.
Hearsay is an out-of-court statement offered for the truth of the
matter asserted. Pa.R.E. 801(c). It is generally inadmissible unless it falls
within one of the exceptions to the hearsay rule delineated in the Rules of
Evidence. Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012). “An
out-of-court statement is not hearsay when it has a purpose other than to
convince the fact finder of the truth of the statement[,]” such as motive or
the effect on the listener. Id. See also Daniel J. Anders, Ohlbaum on the
Pennsylvania Rules of Evidence § 801.11[1] et seq. (2017 ed. LexisNexis
Matthew Bender).
The trial court addressed Appellant’s hearsay challenge as follows:
Appellant argues that the statements made by Courtney Williams
constituted hearsay. As discussed below, Appellant’s argument
lacks merit.
Contrary to Appellant’s assertions, Ms. Williams’ statements
were not hearsay. Hearsay is an out-of-court statement offered
to prove the truth of the matter asserted. Commonwealth v.
Griffin, [] 515 A.2d 865, 870 ([Pa.] 1986). When an
extrajudicial statement is offered for a purpose other than
providing the truth of its contents, it is not hearsay and is not
excludable under the hearsay rule. Id. Thus, statements are
admissible to establish ill-will or motive where they are not being
offered for the truth of the matter asserted. See
Commonwealth v. Brown, [] 648 A.2d 1177, 1182 ([Pa.]
1994) ([o]ut-of-court statement, which was not offered for its
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truth, but only for the fact that it was made, was not
inadmissible hearsay).25
25
For a complete discussion, see Commonwealth v.
Puksar, [740 A.2d 219] ([Pa.] 1999).
In the instant matter, the Commonwealth attempted to establish
motive for killing Mr. McGruder by showing that there was ill-will
between Mr. McGruder and Justin Cooke. The Commonwealth
did not offer Ms. Williams’ testimony to prove that Justin Cooke
actually committed the killing of Mr. McGruder [or that Appellant
actually killed Beasley in 2013], but to supply a motive for killing
Mr. McGruder. Accordingly, this statement (that Mr. McGruder
and Justin Cooke got into a heated discussion over the killing of
Warren Beasley) was admissible, since it was not offered to
prove the truth of the matter asserted, but rather to establish a
motive for the killing[].
Additionally, we gave the following jury instructions in regards to
motive:
Motive is not a part of the definition of [M]urder or any
other crime. The Commonwealth is not required to prove
a motive for the commission of the crime charged.
However, you should consider the evidence of motive or
the lack of motive.... You should weigh and consider the
evidence tending to show motive, along with all other
evidence in deciding whether the defendant is guilty or not
guilty of the crime charged. It is entirely up to you to
determine what weight should be given to the evidence
concerning motive.
Now, of course there was the testimony, I believe it was
the very first witness, Courtney Williams and that
testimony was offered to show motive. She had
testified about a certain conversation she heard or
overheard and so forth and that evidence was not
offered to prove the truth or falsity of what
happened with Mr. Beasle[y]’s killing. It was only
offered to show a possible motive in the killing of Mr.
McGruder. You are to accept that evidence only for
that limited purpose.
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Accordingly, Ms. Williams’ testimony was not hearsay and it was
properly admitted as evidence.
Trial Court Opinion, dated 7/19/16, at 11-12 (footnote omitted; emphasis in
original). We agree with the trial court’s assessment.
As noted by the Commonwealth and the trial court, the
Commonwealth did not present McGruder’s statement to demonstrate that
Appellant actually shot and killed Beasley in 2013. Rather, the
Commonwealth presented the statement because it demonstrated that
McGruder told Justin this information, and such information served as the
motive for the McGruder’s murder. See Commonwealth v. Fisher, 681
A.2d 130, 140 (Pa. 1996), superseded on other grounds by 42 Pa.C.S. §
9711(a) (holding that the victim’s statements about the defendant that were
communicated to the defendant were not hearsay when the statements were
offered to prove the defendant’s motive for killing the victim). We discern
no abuse of discretion or error of law.
Issue 4: Sufficiency of the Evidence
Appellant next challenges the sufficiency of the evidence supporting
his convictions for First-Degree Murder and Criminal Conspiracy. We review
claims challenging the sufficiency of the evidence by considering whether,
“viewing all the evidence admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt.” Commonwealth
v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014).
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The trier of fact—while passing on the credibility of the witnesses and
the weight of the evidence—may choose to believe all, part, or none of the
evidence. Id. at 40. Moreover, a jury may base a conviction solely on
circumstantial evidence. Id. In conducting our review, the appellate court
may not weigh the evidence and substitute its judgment for that of the fact-
finder. Id. at 39-40.
It is well-established that “[t]o sustain a conviction for [M]urder of the
first degree, the Commonwealth must prove that: (1) a human being was
unlawfully killed; (2) the person accused is responsible for the killing; and
(3) the accused acted with malice and specific intent to kill.”
Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015); 18 Pa.C.S. §
2502(a). “Section 2502 of the Crimes Code defines murder of the first
degree as an ‘intentional killing,’” which, in turn, is defined as a “willful,
deliberate and premeditated killing.” Commonwealth v. Diamond, 83
A.3d 119, 126 (Pa. 2013) (citing 18 Pa.C.S. § 2502(a), (d)). “[T]he period
of reflection required for premeditation to establish the specific intent to kill
may be very brief; in fact[,] the design to kill can be formulated in a fraction
of a second. Premeditation and deliberation exist whenever the assailant
possesses the conscious purpose to bring about death.” Hitcho, supra at
746.
Additionally, “[a] person is legally accountable for the conduct of
another person when … he is an accomplice of such other person in the
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commission of the offense.” 18 Pa.C.S. § 306(b)(3). The statute sets forth
that “[a] person is an accomplice of another person in the commission of an
offense if … with the intent of promoting or facilitating the commission of the
offense, he … aids or agrees or attempts to aid such other person in
planning or committing it.” 18 Pa.C.S. § 306(c)(1)(ii).
“[M]ere presence at the scene is insufficient to support a conviction:
evidence indicating participation in the crime is required.” Commonwealth
v. Lambert, 795 A.2d 1010, 1024 (Pa. Super. 2002). Such a conviction
“cannot be based upon mere assumption or speculation.” Id.Moreover, “[a]ccomplice liability may be established wholly by
circumstantial evidence. Only the least degree of concert or collusion in the
commission of the offense is sufficient to sustain a finding of responsibility
as an accomplice. No agreement is required, only aid.” Commonwealth v.
Mitchell, 135 A.3d 1097, 1102 (Pa. Super. 2016) (internal citations and
quotations omitted).
To sustain the conviction for Criminal Conspiracy, there must be proof
beyond a reasonable doubt that the defendant “(1) entered into an
agreement to commit or aid in an unlawful act with another person or
persons, (2) with a shared criminal intent and (3) an overt act was done in
furtherance of the conspiracy. This overt act need not be committed by the
defendant; it need only be committed by a co-conspirator.”
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Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (citation
and quotation omitted). See also 18 Pa.C.S. § 903.
The trial court addressed Appellant’s sufficiency challenge as follows:
Instantly, the evidence of the Commonwealth and all reasonable
inferences deduced therefrom, when taken in a light most
favorable to the Commonwealth as verdict winner, support the
jury’s verdict of [F]irst-[D]egree [M]urder in the death of Ronald
McGruder. As previously stated, the Commonwealth presented
evidence that Ronald McGruder and Justin Cooke were in a
heated argument a mere day[-]and[-]a[-]half before Mr.
McGruder’s death. The Commonwealth also presented testimony
that Mr. McGruder and the Cooke brothers were together on the
night of the incident. There was video surveillance submitted
that showed that the Cooke brothers and Mr. McGruder were at
the same bar. This video surveillance showed the Cooke
brothers and Mr. McGruder getting into a vehicle (which said
vehicle also being showed in the surveillance video footage from
the church and the reenactment video).
The Commonwealth presented evidence from an eye witness
who testified that after the killing, two men got in a car and
drove towards the city. The Commonwealth presented video
surveillance from a local church that showed vehicles driving in
close proximity to the route that was taken on the night of the
incident. A forensic investigator, while the video was being
played for the jury, described the vehicles. The Commonwealth
presented testimony from Detective Goshert who created a
reenactment video using the alleged vehicle in question. This
reenactment video was taken at night and the same video
surveillance system was used. A side-by-side was played to the
jury. The jury was able to review these two videos and could
reasonably infer that the car used on the night of the incident
was the same car used in the reenactment video (same size,
same color, same shape, and each car had a sunroof)[].
The Commonwealth introduced the phone records on the night of
the incident and were able to present testimony as to the
location of [Appellant’s] cell phone on the night of the incident.29
Finally, the Commonwealth introduced evidence that Justin
Cooke was detained in North Carolina after it was discovered he
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was selling narcotics in a hotel room and it was discovered that
he had an outstanding warrant in Pennsylvania. As such, and
upon review of the record, this Court finds that the evidence and
testimony presented at trial was sufficient to allow the jury to
conclude that Appellant (Miles Cooke) committed [F]irst-
[D]egree [M]urder.
29
There was prior evidence submitted that [Appellant] and
Justin Cooke were together on the night of the incident.
Trial Court Opinion, dated 7/19/16, at 13-14 (footnote omitted, paragraph
breaks inserted). We agree with the trial court’s assessment.
In the instant case, there was sufficient evidence to support
Appellant’s convictions for First-Degree Murder and Criminal Conspiracy.
Appellant and his brother Justin left the bar with McGruder twelve minutes
before the murder, and Appellant was driving. An eyewitness identified the
three men by clothing descriptions and directly observed Justin shoot
McGruder twice in the head while Appellant was standing nearby. Appellant
drove the getaway vehicle.
Appellant and Justin provided synchronized statements to police
following the murder, which police refuted through their investigations. The
video surveillance and Appellant’s cell phone records contradicted the story
they told police and strengthened the Commonwealth’s timeline and theory.
Moreover, the argument between McGruder and Justin before the murder
provided evidence of motive. Since Appellant was an active participant in
the murder, he was criminally responsible for Justin’s crimes committed in
furtherance of their criminal endeavor as an accomplice. Thus, Appellant is
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legally responsible for First-Degree Murder even though he did not
personally pull the trigger of the gun that was used to kill McGruder.
Viewing the totality of the evidence in the light most favorable to the
Commonwealth as the verdict winner, it is clear that the Commonwealth
proved each element of the offenses. Appellant’s sufficiency challenge, thus,
fails.
Issue 5: Weight of the Evidence
In his fifth issue, Appellant avers that the jury’s verdict was against
the weight of the evidence. See Appellant’s Brief at 22-25. When
considering challenges to the weight of the evidence, we apply the following
precepts:
The weight of the evidence is exclusively for the finder of
fact, who is free to believe all, none[,] or some of the
evidence and to determine the credibility of witnesses.
Appellate review of a weight claim is a review of the
exercise of discretion, not the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear
and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
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Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015),
appeal denied, 138 A.3d 4 (Pa. 2016) (quotation marks and citations
omitted).
Resolving contradictory testimony and questions of credibility are
matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,
917 (Pa. Super. 2000). Further, “[i]n order for a defendant to prevail on a
challenge to the weight of the evidence, the evidence must be so tenuous,
vague[,] and uncertain that the verdict shocks the conscience of the court.”
Talbert, supra at 546 (quotation marks and citation omitted). It is well
settled that we cannot substitute our judgment for that of the trier of fact.
Id.
“[A] true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.
2014).
Appellant essentially asks us to reassess the credibility of the
eyewitnesses and reweigh the testimony and evidence presented at trial.
We cannot and will not do so. Our review of the record shows that the
evidence is not tenuous, vague, or uncertain, and the verdict was not so
contrary to the evidence as to shock the court’s conscience. We, thus,
conclude that Appellant is not entitled to relief on this claim.
Judgment of Sentence affirmed.
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Judge Bowes joins the memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2017
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