Com. v. Burbage, C.

J. S30018/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CLARENCE BURBAGE, : No. 1799 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, May 31, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0001040-2012,
CP-51-CR-0001045-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 21, 2015
Clarence Burbage appeals from the judgment of sentence of May 31,
2013, following his conviction of first-degree murder, aggravated assault,
robbery, conspiracy, and possession of an instrument of a crime. We affirm.
These charges arose out of a dispute over drug
sales between Appellant and decedent,
Danny Williams (“Williams”). On May 22, 2011,
between 1 A.M. and 2 A.M., Appellant, Rakeem
Divers (“Divers”), and co-defendant, Dyshan Aursby
(“Aursby”), attacked Jerry Holloman (“Holloman”),
also known as “Mike”. Appellant, Divers, and Aursby
asked Holloman where Williams was and Holloman
told them that Williams was with his girlfriend,
Delisha Foy (“Foy”), at her house. Appellant,
Aursby, and Divers told Holloman to call Williams on
the phone. When Holloman hesitated, Appellant
took Holloman’s phone and called Williams. The
three gentlemen held Holloman at gunpoint as they
walked to Foy’s house on South 66th Street to see
Williams. When they arrived at Foy’s home,
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Holloman was told to stand at the door while
Appellant, Aursby, and Divers hid. When Williams
opened the door, Holloman yelled “run”. Williams
attempted to slam the door shut but Appellant
headed inside before the door closed. Holloman ran
down the alleyway across the street from Foy’s home
while Aursby and Divers followed Appellant into the
home. As Appellant, Aursby, and Divers went into
the home, Williams ran up the stairs to the second
floor. Williams then jumped out of a second floor
window, hit the ground, and began limping away.
Aursby and Divers followed Williams, Aursby drew
his gun, and fired it at Williams, striking Williams in
his left buttock. After Appellant, Aursby, and Divers
left, Holloman found Williams laying [sic] on the
ground and stayed with him until the police arrived.
Williams was taken to the Hospital of the University
of Pennsylvania (HUP). That same day, Williams was
interviewed inside HUP and told Detective Maurizio
that Aursby, whom he referred to as “Sha”, and
Burbage, whom Williams referred to as “C Murder”
shot him. Based on the identifications made by
Williams and Holloman, arrest warrants were filed for
Aursby and Appellant. At approximately 10:20 P.M.
on May 22, 2011, Philadelphia Police Officers
McLaughlin and McKiernon arrested Aursby.
At approximately 3 A.M. on May 27, 2011,
Appellant and Divers again attacked Holloman and
demanded Holloman call Williams to meet him.
Holloman called Williams and told him to meet him in
the area of 65th Street & Greenway Avenue. When
Williams arrived, he began arguing with Appellant.
Upon seeing Williams reach under his shirt, to
appear as if he had a gun, Divers gave Appellant a
gun and Appellant advanced towards Williams.
Appellant then shot Williams at least eight (8) times
across the chest, mid-section, arms, and legs. Fire
Rescue arrived and Williams was pronounced dead at
3:20 A.M.[]
Trial court opinion, 11/15/13 at 2-3.
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On May 31, 2013, following a jury trial, appellant was found guilty of
the above charges. Appellant received the mandatory sentence of life
imprisonment without parole for first-degree murder, and a concurrent
sentence of 5 to 10 years for robbery. No further sentence was imposed on
the remaining charges. A timely notice of appeal was filed on June 5, 2013.
Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial
court has filed an opinion.
Appellant has raised the following issues for this court’s review:
1. Did not the trial court err when it denied
appellant’s motion in limine pursuant to
Pa.R.E. 403 and Pa.R.E. 404 and permitted the
Commonwealth to repeatedly introduce
evidence that appellant’s nickname was
“C-MURDER” or “MURDER”, which the jury
heard 80 times over the course of appellant’s
homicide trial, where such evidence had little
probative value, was extremely prejudicial to
the defense, and was inadmissible character
evidence?
2. Did not the trial court improperly deny
appellant’s motion for a mistrial after the
court’s anticipatory admission of Kyree Ball’s
out of court statement, “Murder killed Danny”,
when Kyree Ball later refused to testify at trial,
and the defense had no opportunity to
cross-examine this witness?
3. Was not the evidence legally insufficient to
establish appellant’s guilt of murder beyond a
reasonable doubt where the Commonwealth
introduced evidence about the crime scene,
including ballistic evidence that contradicted
the purported eyewitness testimony?
Appellant’s brief at 4.
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In his first issue on appeal, appellant argues that the trial court erred
in permitting the Commonwealth witnesses to refer to appellant by his
nickname, “Murder” or “C-Murder.” Appellant states that they should have
been instructed to refer to him by his given name, Clarence, and their prior
statements should have been redacted to identify him as “C.” Appellant
argues that repeatedly using the nickname “Murder” or “C-Murder” during
trial was highly prejudicial and the evidence had no real probative value
where identity was not at issue.
“The admissibility of evidence is a matter
of trial court discretion and a ruling
thereon will only be reversed upon a
showing that the trial court abused that
discretion.” Commonwealth v. Malloy,
579 Pa. 425, 856 A.2d 767, 775 (2004).
An abuse of discretion may not be found
merely because an appellate court might
have reached a different conclusion, but
requires a result of manifest
unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.
Commonwealth v. Brougher, 978 A.2d
373, 376 (Pa.Super.2009).
Commonwealth v. Barnett, 50 A.3d 176, 182
(Pa.Super.2012). “Evidence is relevant if it logically
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.” Commonwealth v.
Fransen, 42 A.3d 1100, 1106 (Pa.Super.2012).
However, even relevant evidence “may be excluded
if its probative value is outweighed by the potential
prejudice.” Id.-4-
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Commonwealth v. Williams, 58 A.3d 796, 800 (Pa.Super. 2012), appeal
denied, 68 A.3d 908 (Pa. 2013).
In Williams, this court held that the trial court did not abuse its
discretion in allowing the Commonwealth’s witnesses and the prosecutor to
refer to the appellant by his nickname, “Killa,” where the witnesses who
implicated the appellant in the victim’s murder only knew him by the name
“Killa.” Id. The appellant in Williams conceded that he was known by his
nickname, which he gave himself. Id. The Williams court explained,
Our review of the record shows that the
Commonwealth did not use Appellant’s nickname to
suggest Appellant had a violent character, but used
it to show that the witnesses recognized Appellant
and could identify him as one of the perpetrators
even though the witnesses did not know Appellant’s
real name. Moreover, we find that the evidence’s
probative value in identifying Appellant outweighed
any prejudice that resulted from the use of his
nickname.
Id. at 800-801. Instantly, with the exception of Foy, all the witnesses knew
appellant as “Murder” or “C-Murder” and identified him to police as such.
(Notes of testimony, 5/20/13 at 25.) The witnesses identified appellant in
the photographic array as “C-Murder.” (Id.) As the Commonwealth argued,
this was relevant identification evidence. (Id. at 26.) While appellant
claims identification was not at issue, his defense at trial was that he was
not the shooter. (Appellant’s brief at 21.) Clearly, then, the evidence had
probative value in identifying appellant as the gunman. In addition, the trial
court ruled that the Commonwealth could not use appellant’s nickname in
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making argument to the jury, thereby limiting the prejudicial effect of the
evidence. (Notes of testimony, 5/20/13 at 36.) The trial court did not
abuse its discretion in denying appellant’s motion in limine to exclude any
reference to his nicknames “Murder” and “C-Murder” where he was identified
as such by several eyewitnesses.
Next, appellant argues that the trial court should have granted his
motion for mistrial where the prior consistent statement of Kyree Ball, that
“Murder killed Danny,” was admitted into evidence over defense objection.
Ball subsequently refused to testify, thereby denying the defense the
opportunity to cross-examine him regarding this statement.
With regard to the denial of mistrials, the following
standards govern our review:
In criminal trials, the declaration of a
mistrial serves to eliminate the negative
effect wrought upon a defendant when
prejudicial elements are injected into the
case or otherwise discovered at trial. By
nullifying the tainted process of the
former trial and allowing a new trial to
convene, declaration of a mistrial serves
not only the defendant’s interests but,
equally important, the public’s interest in
fair trials designed to end in just
judgments. Accordingly, the trial court is
vested with discretion to grant a mistrial
whenever the alleged prejudicial event
may reasonably be said to deprive the
defendant of a fair and impartial trial. In
making its determination, the court must
discern whether misconduct or
prejudicial error actually occurred, and if
so, . . . assess the degree of any
resulting prejudice. Our review of the
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resulting order is constrained to
determining whether the court abused its
discretion.
Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super. 2012),
appeal denied, 69 A.3d 600 (Pa. 2013) (citations omitted). “The remedy
of a mistrial is an extreme remedy required ‘only when an incident is of such
a nature that its unavoidable effect is to deprive the appellant of a fair and
impartial tribunal.’” Id. at 878 (citations omitted).
Here, appellant had attacked Ball’s credibility, arguing that he had a
motive to fabricate. The trial court allowed Foy to testify regarding Ball’s
out-of-court statement that “Murder killed Danny.” (Notes of testimony,
5/22/13, p.m. session at 43.) This was admitted as a prior consistent
statement in anticipation of Ball testifying the following day. Pennsylvania
Rule of Evidence 613 provides, in relevant part:
(c) Witness’s Prior Consistent Statement to
Rehabilitate. Evidence of a witness’s prior
consistent statement is admissible to
rehabilitate the witness’s credibility if the
opposing party is given an opportunity to
cross-examine the witness about the
statement and the statement is offered to
rebut an express or implied charge of:
(1) fabrication, bias, improper
influence or motive, or faulty
memory and the statement was
made before that which has been
charged existed or arose[.]
Pa.R.E. 613(c)(1).
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“To the extent that prior consistent statements are offered to prove
the truth of the matter asserted therein, they are plainly inadmissible
hearsay. However, when they are offered to corroborate in-court testimony,
prior consistent statements are not hearsay.” Commonwealth v. Willis,
552 A.2d 682, 691 (Pa.Super. 1988), appeal denied, 559 A.2d 527 (Pa.
1989 (citations omitted).
Usually, evidence of a prior consistent statement
may not be introduced until after the witness’s
testimony has been attacked on cross-examination in
one of the two ways specified in Rule 613(c).
Pa.R.E. 613(c) cmt. Occasionally, however, it is
clear before cross-examination that the defense will
focus on impeachment of the witness, either by
showing fabrication, bias, etc., or by introducing a
prior inconsistent statement. In such cases, the trial
court is afforded discretion to admit the prior
consistent statement in anticipation of impeachment.
Commonwealth v. Cook, 952 A.2d 594, 625 (Pa. 2008), citing
Commonwealth v. Wilson, 861 A.2d 919, 930 (Pa. 2004).
As stated above, Ball refused to testify and was held in contempt of
court. (Trial court opinion, 11/15/13 at 6.) Therefore, the defense did not
have the opportunity to cross-examine Ball regarding his prior out-of-court
statement. As such, Ball’s statement should not have been admitted.
However, we determine that the trial court properly denied appellant’s
motion for mistrial where Jerry Holloman made the identical statement, i.e.,
“Murder killed Danny.” (Notes of testimony, 5/22/13, p.m. session at 43;
5/23/13, a.m. session at 37.) Appellant does not contest that Holloman’s
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statement was admissible under Rule 613(c). At most, then, the trial court’s
ruling was harmless error.
Harmless error exists where: (1) the error did not
prejudice the defendant or the prejudice was
de minimis; (2) the erroneously admitted evidence
was merely cumulative of other untainted evidence
which was substantially similar to the erroneously
admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error
was so insignificant by comparison that the error
could not have contributed to the verdict.
Commonwealth v. Simmons, 541 Pa. 211, 662
A.2d 621 (1995) citing Commonwealth v.
Williams, 524 Pa. 404, 573 A.2d 536 (1990).
Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998), cert.
denied, 528 U.S. 1082 (2000).
Instantly, Holloman also told Foy that “Murder killed Danny.” Although
he raised an objection at trial, appellant does not argue on appeal that
admission of Holloman’s statement was error. Therefore, Ball’s statement
was merely cumulative and any error was harmless. The trial court did not
abuse its discretion in denying appellant’s motion for mistrial on this basis.
Finally, appellant challenges the sufficiency of the evidence to support
his convictions. Appellant points to several alleged inconsistencies, e.g.,
there was testimony that appellant shot Williams as he was running away,
but all eight fired cartridge casings were found near Williams’ body.
(Appellant’s brief at 28.) According to appellant, if he were chasing Williams
while firing at him, the cartridge casings would have been spread around the
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area. (Id. at 28-29.) Appellant also argues that the medical examiner’s
report indicated that two of the bullets removed from the victim’s body were
different than the others. (Id. at 29-30; notes of testimony, 5/22/13,
a.m. session at 41-42.) Appellant contends that this evidence is inconsistent
with Holloman’s testimony that only appellant had a firearm.
In determining sufficiency of the evidence, the Court
must review the evidence admitted at trial, along
with any reasonable inferences that may be drawn
from that evidence, in the light most favorable to the
verdict winner. Commonwealth v. Kimbrough,
872 A.2d 1244, 1248 (Pa.Super. 2005), appeal
denied, 585 Pa. 687, 887 A.2d 1240 (2005). A
conviction will be upheld if after review we find that
the jury could have found every element of the crime
beyond a reasonable doubt. Commonwealth v.
Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003). The
court may not weigh the evidence or substitute its
judgment for that of the fact-finder.
Commonwealth v. DiStefano, 782 A.2d 574, 582
(Pa.Super. 2001), appeal denied, 569 Pa. 716, 806
A.2d 858 (2002). “Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be
drawn from the combined circumstances.”
Commonwealth v. Sheppard, 837 A.2d 555, 557
(Pa.Super. 2003).
Commonwealth v. Judd, 897 A.2d 1224, 1233-1234 (Pa.Super. 2006),
appeal denied, 912 A.2d 1291 (Pa. 2006).
Clearly, Holloman’s testimony that appellant shot the victim repeatedly
at close range was sufficient to support the verdict. Appellant’s arguments
regarding certain contradictions or inconsistencies in the Commonwealth’s
evidence were for the jury to resolve.
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The law is well settled that a sufficiency argument
that is founded upon a mere disagreement with the
credibility determinations made by the fact finder, or
discrepancies in the accounts of the witnesses, does
not warrant the grant of appellate relief, for [i]t is
within the province of the fact finder to determine
the weight to be accorded each witness’s testimony
and to believe all, part, or none of the evidence
introduced at trial.
Commonwealth v. Johnson, 910 A.2d 60, 65 (Pa.Super. 2006) (internal
quotation marks and citations omitted). Regarding the cluster of fired
cartridge casings found near the victim’s body, as the Commonwealth
observes, there was testimony that Williams was unable to run because he
had been shot in the buttocks by appellant’s accomplice, Aursby, five days
earlier. (Commonwealth’s brief at 24.) Appellant retrieved the gun from
Divers who was only a few feet away. (Id.) Therefore, there was a rational
explanation for why the fired cartridge casings were not dispersed over a
wider area. At any rate, these were issues for the jury, and they obviously
found the testimony of Holloman and Foy to be credible.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2015
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