Com. v. Kinnard, R., II

J-A11013-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
RICHARD W. KINNARD, II
Appellant No. 1296 MDA 2017
Appeal from the Judgment of Sentence Entered March 22, 2017
In the Court of Common Pleas of Lebanon County
Criminal Division at No: CP-38-CR-0000443-2016
BEFORE: STABILE, NICHOLS, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 24, 2018
Appellant, Richard W. Kinnard, II, appeals from the March 22, 2017
judgment of sentence imposing life in prison without parole for first-degree
murder. We affirm.
The trial court summarized the pertinent facts:
This case arises from events that occurred on September
19, 2015 at Vinny’s Good Time Night Club (hereafter “Vinny’s”) in
the city of Lebanon. About ten minutes before the club was
scheduled to close, a dispute erupted between [Appellant], Jared
Donovan Jones (hereafter “Jones”) and a security officer
employed by Vinny’s. The defendants were ejected from the
premises. After a short hiatus, [Appellant] returned to the
nightclub. Shots were fired. Corey Bryan (hereafter “Bryan”) was
struck and killed. Despite the fact that Vinny’s was crowded when
the shooting occurred, most patrons left the premises at or before
the arrival of police. No one professed to have seen the shooting.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A11013-18
An investigation ensued. Eventually, that investigation was
chronicled in a jury trial that took place in February of 2017.
The centerpiece of the Commonwealth’s case in chief was
footage from a videotape surveillance system at Vinny’s. The
videotape showed [Appellant] and Jones engaged in an argument
with security officer Bryan. The tape also depicted [Appellant]
and Jones leaving Vinny’s and entering the parking lot. Shortly
thereafter, the video depicted [Appellant] returning to the bar
entrance. Another camera showed Bryan at the door toward
which [Appellant] had been walking. The video depicted Bryan
clutching his stomach and falling to the ground. Thereafter, most
patrons scurried away. [Appellant] was caught on video running
to a car. None of the camera views depicted the shooter or anyone
else in possession of a firearm.
Vinny’s surveillance system showed [Appellant] enter[ing] a
car in the parking lot. The car then departed the parking area and
turned north on Route 343. Shortly thereafter, North Lebanon
Township Police were called to the scene of a one-vehicle accident
north of the City of Lebanon. Sergeant Timothy Knight of the
North Lebanon Township Police Department arrived at the scene
of the crash, which was approximately two miles from Vinny’s.
When he arrived, no one was present in the vehicle. Upon
additional investigation, Sergeant Knight learned that the vehicle
was registered to [Appellant]. Blood was located throughout the
vehicle. Wedged in behind the right rear headrest was a gun.
Sergeant Knight checked the serial number of the firearm and
learned that it had been stolen. When the vehicle was
subsequently processed more completely, police also found a
payment receipt for a loan registered to [Appellant], a medical
paper pertaining to [Appellant], a letter from the Harrisburg Area
Community College addressed to Jones, an LA Fitness paper in the
name of [Appellant], a MoneyGram with [Appellant’s] name on it,
health documents from Memorial Hospital pertaining to
[Appellant], and insurance paperwork in the name of [Appellant].
The gun found inside the BMW vehicle was sent for ballistics
testing. In addition, bullets were found inside Vinny’s and a
projectile was recovered from the body of Bryan. Trooper Todd
Neumyer, a firearms expert with the Pennsylvania State Police,
testified that the bullets recovered from the body of Bryan and
Vinny’s were fired from the gun that had been located in the BMW
vehicle that crashed.
-2-
J-A11013-18
The parties reached a stipulation that the blood recovered
from the BMW vehicle was transmitted to the Pennsylvania State
Police Crimes Laboratory for serology and DNA testing. There, a
forensic DNA scientist by the name of Sabrine Panzer-Kaelin
completed testing that revealed the existence of blood from
[Appellant] and Jones inside the crashed BMW vehicle.
Following the crash of their BMW vehicle, both Jones and
[Appellant] left the area. With respect to [Appellant], police
learned that he purchased a bus ticket to travel from York,
Pennsylvania, to Tucson, Arizona. The United States Marshals
were contacted for assistance. Eventually, the Marshalls located
[Appellant] in Tucson on January 26, 2016. […]
Following his apprehension, Jones provided a recorded
statement to police. This statement became the focus of
extensive pre-trial litigation[.] Eventually, the court crafted a
statement that could be read to the jury. This statement
incorporated some of [Appellant’s] own words and some
paraphrasing. The statement of Jones read to the jury focused
upon the conduct of Jones and not the conduct of [Appellant].
Specifically, Jones admitted that he was at Vinny’s on the night of
the murder. He admitted that he had an argument with Bryan.
He admitted that he drove the BMW vehicle belonging to William
[Appellant] away from Vinny’s. He acknowledged that he crashed
the vehicle. After regaining consciousness following the crash,
Jones acknowledged that he left the scene of the accident and that
he left Lebanon County. In the statement, Jones denied having
any knowledge or connection to the shooting death of Bryan.
Trial Court Opinion, 7/17/17, at 5-8 (record citations and some capitalization
omitted).
At the conclusion of a lengthy joint trial, the jury found Appellant guilty
of first-degree murder, third-degree murder, two counts of aggravated
assault, receiving stolen property, discharge of a firearm into an occupied
structure, flight to avoid apprehension, recklessly endangering another
-3-
J-A11013-18
person, and six counts of conspiracy.1 Appellant filed a timely post-sentence
motion, which the trial court denied on July 17, 2017. This timely appeal
followed. Appellant raises eight assertions of error:
1. Did the Commonwealth fail to present sufficient evidence at
trial to prove beyond a reasonable doubt Appellant was the
person who shot and killed the victim[?]
2. Did the trial court err by denying [Appellant’s] pretrial motion
to sever his case from [Jones]?
3. Did the trial court err by deferring decisions regarding
[Appellant’s] motion in limine until the time of trial where the
deferment denying defense counsel’s ability to effectively
prepare for trial and Appellant’s right to a fair trial? [sic]
4. Did the trial court err by admitting prison recorded phone calls
between Charles Williams? [sic]
5. Did the collection of the prison recorded telephone calls and
visitation recordings violated [sic] the Pennsylvania Wiretap
Act and the Pennsylvania Supreme Court’s decision in
Commonwealth v. Fant[, 146 A.3d 1254 (Pa. 2016)]?
6. Did the trial court err by admitting [Appellant’s] recorded
phone calls and visitation recordings at the Lebanon County
Correctional Facility where the contents of those recorded
phone calls and visits provided the jury no relevant evidence
regarding [Appellant’s] consciousness of guilt and were
extremely prejudicial in that his conversations exposed the jury
to what sentence [Appellant] could receive if convicted,
referenced privileged plea conversations between [Appellant]
and defense counsel, and the admission of those phone calls
placed defense counsel in the impossible position of explaining
these conversations to the jury without simultaneously
divulging privileged communications between himself and
[Appellant]?
____________________________________________
1 18 Pa.C.S.A. § 2502(a) and (c), 2702, 3925, 2701.1, 5126, 2705, and 903,
respectively.
-4-
J-A11013-18
7. Did the trial court err by admitting a letter allegedly written by
Appellant stating that [Jones] was not involved in the shooting
where Jones’ handwriting expert’s report was not based on a
valid and widely accepted scientific means of identifying a
person’s handwriting and Jared Jones’ handwriting expert’s
conclusion stated that there was only a strong possibility that
[Appellant] authored the text of the letter[?]
8. Did the trial court err by denying [Appellant’s] motion in limine
to exclude Detective Keith Uhrich’s statement that he identified
[Appellant] from the use of a JNET photograph and the
surveillance video from the night of the shootings?
Appellant’s Brief at 4-5 (reordered and some capitalization omitted).
Appellant first challenges the sufficiency of the evidence. Our standard
of review is well settled. We must determine “whether the evidence, viewed
in the light most favorable to the Commonwealth as the verdict winner,
supports the jury’s finding that every element of the offense was proven
beyond a reasonable doubt.” Commonwealth v. Hicks, 156 A.3d 1114,
1123 (Pa. 2017). “The Commonwealth may sustain this burden by wholly
circumstantial evidence and the jury is free to believe all, part, or none of the
evidence.” Id. “To obtain a first-degree murder conviction, the
Commonwealth must demonstrate that a human being was unlawfully killed,
the defendant did the killing, and the defendant acted with a specific intent to
kill.” Commonwealth v. Markman, 916 A.2d 586, 597 (Pa. 2007).
Moreover, the jury may convict the defendant as an accomplice so long as the
facts adequately support the conclusion that he or she aided, agreed to aid,
or attempted to aid the principal in planning or committing the offense, and
acted with the intention to promote or facilitate the offense.” Id.-5-
J-A11013-18
In his two-paragraph argument addressing this point, Appellant notes
that no eyewitness observed him shoot Bryan, no eyewitness observed
Appellant in possession of a gun, and the surveillance footage did not capture
the shooting. Appellant does not acknowledge that the Commonwealth may
prove its case with circumstantial evidence. Commonwealth v. Brown, 23
A.3d 544, 559 (Pa. Super. 2011). The evidence summarized in the trial court’s
opinion demonstrates that the Commonwealth produced an overwhelming
body of circumstantial evidence implicating Appellant as the shooter.
Appellant’s sufficiency of the evidence argument fails.
Next, Appellant argues that the trial court erred in denying his pretrial
motion to sever his case from that of Jones.
The decision of whether to sever trials of co-defendants is
within the sound discretion of the trial court. Both this Court and
the United States Supreme Court have recognized that joint trials
of co-defendants play a crucial role in the criminal justice system.
It would impair both the efficiency and the fairness of the
criminal justice system to require ... that prosecutors bring
separate proceedings, presenting the same evidence again and
again, requiring victims and witnesses to repeat the inconvenience
(and sometimes trauma) of testifying, and randomly favoring the
last tried defendants who have the advantage of knowing the
prosecution’s case beforehand. Joint trials generally serve the
interests of justice by avoiding inconsistent verdicts and enabling
more accurate assessment of relative culpability.
Commonwealth v. Travers, 768 A.2d 845, 846–47 (Pa. 2001). Normally,
an appropriate jury instruction will suffice to address any evidence that is
admissible against one defendant and not another. Id. at 847. However, in
Bruton v. United States, 391 U.S. 123 (1968), the United States Supreme
-6-
J-A11013-18
Court held that the confession of a non-testifying defendant is inadmissible,
regardless of any jury instruction, if it facially incriminates a co-defendant.
Subsequently, courts have admitted such confessions if they are edited to
omit direct references to a co-defendant. For example, in Commonwealth
v. Travers, 768 A.2d 845 (Pa. 2001), the Pennsylvania Supreme Court held
that a confession edited to refer to a co-defendant as “the other man,”
accompanied by a limiting instruction, was appropriate under Bruton.
Appellant’s argument addresses the following portions of the trial court’s
summary of Jones’ statement: “Jared Jones traveled with two other guys
to Lebanon to celebrate [Jones’] birthday,” and “[d]uring the evening of
September 19, the three gentlemen ended up at Vinny’s Goodtimes club.”
Appellant’s Brief at 22 (emphasis added by Appellant). Appellant bolded the
portions that the trial court redacted to omit Appellant’s name.
We discern several fatal flaws in Appellant’s argument. First, the
statement is not facially incriminating. The fact that Jones went out Vinny’s
to celebrate his birthday with “two other guys” is not incriminating to any of
the three men. Those facts become incriminating, if at all, only when linked
with evidence that Jones was implicated in a murder that occurred at Vinny’s
that evening. Second, the redaction does not invite the jury to conclude that
Appellant was one of the “two other guys.”
By way of contrast, are the facts of Gray v. Maryland, 523 U.S. 185(1998):
-7-
J-A11013-18
The witness who read the confession told the jury the
confession (among other things) said,
‘Question: Who was in the group that beat [the
victim]?
‘Answer: Me, deleted, deleted, and a few other
guys.’ [we will refer to this exchange as the first
question and answer]
Why could the witness not, instead, have said:
‘Question: Who was in the group that beat [the
victim]?
‘Answer: Me and a few other guys.’ [we will
refer to this exchange as the second question and
answer]
Id. at 196 (record citation omitted). The United States Supreme Court held
the first question and answer (from the trial record) inadmissible under
Bruton. According to Gray, the use of the word “deleted” invites the jury to
conclude that a co-defendant’s name was deleted, and to rely on that fact as
evidence of the co-defendant’s guilt regardless of any jury instruction to the
contrary. The Supreme Court wrote, “Consider a simplified but typical
example, a confession that reads, ‘I, Bob Smith, along with Sam Jones, robbed
the bank.’ To replace the words ‘Sam Jones’ with an obvious blank will not
likely fool anyone.” Id. at 193. The Gray Court, however, reasoned that the
second question and answer (the Court’s own hypothetical), would not violate
Bruton, because “statements that did not refer directly to the defendant
himself and which became incriminating ‘only when linked with evidence
-8-
J-A11013-18
introduced later at trial’” are admissible under Bruton and its progeny. Id.(quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987)).
Following Gray’s example, the Pennsylvania Supreme Court in Travers
found no Bruton violation where a redacted confession referred to a co-
defendant as “the other man.”2 Id. at 851-52. “The redacted statement here
neither referred to appellant by name (the Bruton proscription) nor did it
contain an obvious indication of a deletion or an alteration that was the
functional equivalent of naming him (the Gray proscription).” Id. at 851.
“Since the statement was not powerfully incriminating on its face, the general
rule to which Bruton and Gray are a limited exception, i.e., the almost
invariable assumption of the law that jurors follow their instructions […]
applies and controls.” Id. (internal citations and quotation marks omitted).
Here, unlike Gray, the redacted portion of the confession did not answer
an incriminating question (who beat the victim?) but an innocuous one (where
and with whom did Jones go out to celebrate his birthday?). The redacted
confession became potentially incriminating only when linked to other
evidence, i.e., facts implicating Jones in a murder that occurred at Vinny’s that
night. In light of all of the foregoing, we discern no Bruton violation in the
____________________________________________
2 The co-defendant told police he drove Travers to the scene with the intent
of looking for a person with whom Travers had an argument earlier that day.
Id. at 846. The co-defendant also admitted that he knew Travers was in
possession of the gun used in the killing, and that he punched the victim and
directed Travers to shoot him. Id. References to Travers were replaced with
the “other man.” Id.
-9-
J-A11013-18
redacted confession, and we discern no abuse of discretion in the trial court’s
denial of Appellant’s severance motion.
Next, Appellant argues the trial court erred in deferring decision on
various pre-trial motions seeking exclusion or admission of certain evidence,
because the deferral hampered the effectiveness of Appellant’s opening
statement. Appellant claims the trial court deprived him of due process, but
he cites no law pertaining to this specific issue.
A motion in limine is a pre-trial application before a trial
court made outside the presence of a jury, requesting a ruling or
order from the trial court prohibiting the opposing counsel from
referring to or offering into evidence matters so highly prejudicial
to the moving party that curative instructions cannot alleviate an
adverse effect on the jury. The purpose of a motion in limine is
twofold: 1) to provide the trial court with a pre-trial opportunity
to weigh carefully and consider potentially prejudicial and harmful
evidence; and 2) to preclude evidence from ever reaching a jury
that may prove to be so prejudicial that no instruction could cure
the harm to the defendant, thus reducing the possibility that
prejudicial error could occur at trial which would force the trial
court to either declare a mistrial in the middle of the case or grant
a new trial at its conclusion. Further, a ruling on a pre-trial motion
in limine provides counsel with a basis upon which to structure
trial strategy.
Commonwealth v. Noll, 662 A.2d 1123, 1125 (Pa. Super. 1995), appeal
denied, 673 A.2d 333 (Pa. 1996).
Nonetheless, trial courts are permitted to defer rulings.
Commonwealth v. Metier, 634 A.2d 228, 232 n.3 (Pa. Super. 1993). As
our Supreme Court has explained, in certain circumstances, a deferred ruling
is preferable:
- 10 -
J-A11013-18
Here, the trial court excluded proffered testimony pre-trial
pursuant to Rule 403, a rule that, as explained infra, is generally
not susceptible to accurate pre-trial evaluation. Unlike other rules
of evidence, Rule 403 requires a trial court to weigh probative
value and prejudice—the costs and benefits of relevant evidence—
viewing it as part of a whole and not in isolation. Inherent in the
rule is the assumption that the court has an adequate record, one
that will mirror or provide great insight into what will develop at
trial. In the majority of cases, and particularly manifested in this
one, the trial court has no way of knowing beforehand exactly
what evidence will be presented at trial. Depending on the case
and the inevitable vagaries of litigation, the pre-trial record may
be entirely different than the record that eventuates as matters
unfold. Even if the evidence the parties intend to present is set,
a trial rarely follows the anticipated script. The actual value of
evidence may differ substantially from pre-trial expectations,
depending on all manner of factors, such as the availability,
appearance, memory, or demeanor of a witness, admissions on
cross-examination, the defense theory, or the defendant’s
decision whether or not to testify. Even a relatively developed
pre-trial record will be of limited utility in predicting the probative
value or prejudice a particular piece of evidence will ultimately
have.
Therefore, the ruling is better deferred until the situation is
clear, not speculative.
Commonwealth v. Hicks, 91 A.3d 47, 52–53 (Pa. 2014).
Appellant argues the trial court erred in deferring judgment on his
motion to exclude Jones’ handwriting expert, his motion to exclude testimony
regarding his gang affiliation and his motion to exclude the use of recorded
phone calls. The trial court explained that it was unable to conduct a sufficient
analysis prior to trial. Having reviewed the law, the parties’ briefs, and the
record, we reject Appellant’s argument for the reasons explained on pages
26-32 of the trial court’s July 7, 2017 opinion.
- 11 -
J-A11013-18
Next, Appellant argues the trial court erred in denying Appellant’s pre-
trial motion to exclude recorded phone calls Appellant made from prison.
Detective Keith Uhrich, the Commonwealth witness who identified Appellant’s
voice in the recorded telephone call, testified that he never spoke with
Appellant. Rather, he identified the voice in the recording as consistent with
the voice in all of Appellant’s phone calls recorded while he was in prison.
In reviewing the ruling of a suppression court, our task is to
determine whether the factual findings are supported by the
record. If so, we are bound by those findings. Where, as here, it
is the Commonwealth who is appealing the decision of the
suppression court, we must consider only the evidence for the
prosecution as read in the context of the record as a whole
remains uncontradicted. Moreover, if the evidence supports the
factual findings of the suppression court, this Court will reverse
only if there is an error in the legal conclusion drawn from those
findings.
Commonwealth v. Fant, 146 A.3d 1254, 1259 (Pa. 2016). We review the
trial court’s evidentiary rulings for abuse of discretion. Commonwealth v.
Serrano, 61 A.3d 279, 290 (Pa. Super. 2013).
Rule 901 of the Pennsylvania Rules of Evidence governs the
authentication of evidence, including voice identification:
(5) Opinion About a Voice. An opinion identifying a person’s
voice—whether heard firsthand or through a mechanical or
electronic transmission or recording—based on hearing the voice
at any time under circumstances that connect it with the alleged
speaker.
Pa.R.E. 901(b)(5). “[W]hen seeking to introduce testimony as to the content
of a telephone conversation, the identity of the caller may be established by
circumstantial evidence.” Commonwealth v. Stewart, 450 A.2d 732, 733
- 12 -
J-A11013-18
(Pa. Super. 1982). Thus, a person familiar with the alleged speaker’s voice
may testify as to the identity of the speaker. Commonwealth v. Carpenter,
450 A.2d 732, 733 (Pa. Super. 1982).
Nothing in Rule 901(b)(5) or our jurisprudence requires a face-to-face
conversation between the identifying witness and the alleged speaker. The
law simply requires familiarity with the alleged speaker’s voice. The trial court
explained:
Detective Uhrich testified that during the course of his
investigation, he listened to 150 telephone calls that were
intercepted from [Appellant] while he was an inmate at the
Lebanon County Prison. Detective Uhrich stated that some of
these telephone calls were twenty minutes in length[,] and that
he listened to [Appellant] telephone calls ‘for a long period of time’
extending up to one week before the date of trial. Detective
Uhrich also stated that [Appellant] repeatedly prefaced many of
his remarks with the phrase ‘Do you understand what I’m sayin’?’
Detective [Appellant] stated that during the conversation the
Commonwealth sought to admit, [Appellant’s] voice sounded
identical with the voice he heard 150 times previously[,] and
[Appellant] used the phrase ‘Do you understand what I’m sayin’?’
Trial Court Opinion, 7/7/17, at 39.
Thus, Detective Uhrich was familiar with Appellant’s voice from having
listened to 150 recordings—some of those lengthy—of a voice that he knew
to be Appellant’s. He was also familiar with Appellant’s speech patterns,
particularly a phrase that he used frequently, “do you understand what I’m
sayin?” The record supports the trial court’s findings of fact, and we discern
no legal error in its ruling.
- 13 -
J-A11013-18
Next, Appellant argues that the Lebanon County prison violated the
Wiretap Act, 18 Pa.C.S.A. § 5701, et. seq., when it recorded his telephone
calls. The Wiretap Act provides in relevant part:
It shall not be unlawful and no prior court approval shall be
required under this chapter for:
[…]
(14) An investigative officer, a law enforcement officer or
employees of a county correctional facility to intercept, record,
monitor or divulge any telephone calls[3] from or to an inmate in
a facility under the following conditions:
[…]
(B) Unless otherwise provided for in this paragraph, after
intercepting or recording an oral communication, electronic
communication or wire communication, only the superintendent,
warden or a designee of the superintendent or warden or other
chief administrative official or his or her designee, or law
enforcement officers shall have access to that recording.
18 Pa.C.S.A. § 5704(14)(B), subsequently amended, 2017 P.L. 304, No. 22,
§ 2.
Appellant argues, without citation to authority, that Detective Uhrich did
not qualify as a “designee” under § 5704(14)(B). Appellant quotes
§ 5704(14)(B) in his brief, but he omits the portion stating that law
enforcement officers may have access to a recording of a prison phone call.
Appellant’s Brief at 26.
____________________________________________
3 The General Assembly subsequently deleted the phrase “telephone calls”
and inserted “oral communications, electronic communications, or wire
communications.” 18 Pa.C.S.A. § 5704(14)(B), as amended.
- 14 -
J-A11013-18
Appellant also cites Commonwealth v. Fant, 146 A.3d 1254 (Pa.
2016), for the proposition that in-person conversations between an inmate
and visitor, separated by a glass screen using and speaking to each other
using a telephone-like handset, are not subject to interception under the
Wiretap Act because they are not telephone conversations. Fant shortly
predated Appellant’s trial, and he filed a pre-trial motion to exclude the
recordings of his conversations in prison. However, Appellant fails to cite any
evidence that the recorded conversations took place in person, rather than
over a telephone line to a person outside of the prison. Indeed, his brief
specifies that the calls were to an “outside number.” Appellant’s Brief at 16.
Appellant therefore cannot obtain relief under Fant. For the foregoing
reasons, we reject Appellant’s arguments under the Wiretap Act.
In his final three arguments, Appellant claims that the recorded
telephone conversations were irrelevant and therefore inadmissible; that the
trial court erred in admitting a letter allegedly written by Appellant because
Jones’ expert could not state that the signature was Appellant’s; and that the
trial court should not have permitted Detective Uhrich to identify Appellant by
comparing a JNET photo to video surveillance footage. Appellant’s Brief, at
27-28. Appellant fails to cite any pertinent legal authority or any record
evidence in support of any of these arguments, and the final two arguments
consist of a single sentence. Appellant has waived his final three arguments.
- 15 -
J-A11013-18
Pa.R.A.P. 2119(b) and (c); Commonwealth v. Williams, 959 A.2d 1252,
1258 (Pa. Super. 2008).
Because we have found no merit in any of the arguments Appellant
preserved for Appellate review, we affirm the judgment of sentence. We direct
that a copy of the trial court’s July 7, 2017 opinion be filed along with this
memorandum.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2018
- 16 -
Circulated 08/31/2018 11:32 AM
CLEH� Of COUftTS
LEBMIOIL Pi�
frJ7�� touiftl«SFiaoMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL
COMMONWEAL TH OF PENNSYLVANIA: NO. CP-38-CR-443-2016
VS
RICHARD W. KINNARD, II
COMMONWEALTH OF PENNSYLVANIA: NO. CP-38-CR-424-2016
vs
JARED DONOVAN JONES
APPEARANCES:
NICOLE EISENHART, Esquire For The Commonwealth
First Assistant District Attorney
MEGAN RYLAND-TANNER, Esquire
First Deputy District Attorney
IAN M. EHRGOOD, Esquire For Defendant Kinnard
JON W. ARNOLD, Esquire
NICHOLAS J. SIDELNICK, Esquire For Defendant Jones
ELIZABETH JUDD, Esquire
Opinion, Charles, J., July 17, 2017
Richard W. Kinnard, II and Jared Jones (Hereafter collectively
referred to as DEFENDANTS) were convicted of shooting and killing a
bouncer who had ejected them minutes before the Vinny's Good Times
Nightclub was scheduled to close. The trial that resulted in the
DEFENDANTS' convictions took place in February of 2017. Rarely have
we presided over any Criminal Trial that produced as many esoteric legal
issues as this one. Today, we wrll address many of those issues via
4
DEFENDANTS' Post-Sentence Motions. For reasons articulated below. we
will deny all of the DEFENDANTS' Post-Sentence Motions.
I. FACTS
Th is case arises from events that occurred on September 19,
2015 at Vinny's Good Time Night Club (hereafter, "VINNY'S") in the city of
Lebanon. About ten minutes before the club was scheduled to close, a
dispute erupted between Ric ha rd Kinn a rd, 11 (he re after 11K I NNAR D"), Jared
Donovan Jones (hereafter "JONES") and a security officer employed by
VINNY'S. The DEFENDANTS were ejected from the premises. After a short
hiatus, KINNARD returned to the nightclub. Shots were fired. Corey Bryan
(hereafter "BRYAN") was struck and killed. Despite the fact that VINNY'S
was crowded when the shooting occurred, most patrons left the premises
at or before the arrival of police. No one professed to have seen the
shooting. An investigation ensued. Eventually, that investigation was
chronicled in a jury trial that took place during February of 2017.
The centerpiece of the Commonwealth's case in chief was footage
from a videotape surveillance system at VINNY'S. The videotape showed
KINNARD and JONES engaged in an argument with security officer BRYAN.
The tape also depicted KINNARD and JONES leaving VINNY'S and entering
the parking lot. Shortly thereafter, the video depicted KINNARD returning
to the bar entrance. Another camera showed BRYAN at the door toward
5
which KINNARD had been walking. The video depicted BRYAN clutching
his stomach and falling to the ground. Thereafter, most patrons scurried
away. KN NARD was caught on video running to a car. None of the camera
views depicted the shooter or anyone else in possession of a firearm. (See,
e.g. N.T. 28-29; Exhibit 14).
VINNY'S surveillance· system showed KINNARD enter a car in the
parking lot. The car then departed the parking area and turned north on
Route 343. (See, Exhibit 14). Shortly thereafter, North Lebanon Township
Police were called to the scene of a one vehicle accident north of the City
of Lebanon. Sergeant Timothy Knight of the North Lebanon Township
Police Department arrived at the scene of the crash, which was
approximately two miles from VINNY'S. (N.T. 227). When he arrived, no
one was present in the vehicle. (N.T. 228). Upon additional investigation,
Sergeant Knight learned that the vehicle was registered to William Kinnard.
(N.T. 229). Blood was located throughout the vehicle. (N.T. 229). Wedged
in behind the right rear headrest was a gun. (N.T. 229). Sergeant Knight
checked the serial number of the firearm and learned that it had been
stolen. (N.T. 230). When the vehicle was subsequently processed more
completely, police also found a payment receipt for a loan registered to
KINNARD, a medical paper pertaining to KINNARD, a letter from the
Harrisburg Area Community College addressed to JONES, an LA Fitness
paper in the name of KINNARD, a MoneyGram with KINNARD's name on it,
6
health documents from Memorial Hospital pertaining to KINNARD, and
insurance paperwork in the name of Patty Kinnard (N.T. 256-258).
The gun found inside the BMW vehicle was sent for ballistics testing.
(N.T. 260). In addition, bullets were found inside VINNY'S and a projectile
was recovered from the body of BRYAN. (N.T. 261). Trooper Todd
Neumyer, a firearms expert with the Pennsylvania State Police, testified
that the bullets recovered from the body of BRYAN and at VINNY'S were
fired from the gun that had been located in the BMW vehicle that crashed.
(N.T. 286-287)
The parties reached a stipulation that the blood recovered from the
BMW vehicle was transmitted to the Pennsylvania State Police Crimes
Laboratory for serology and DNA testing. There, a forensic DNA scientist
by the name of Sabine Panzner-Kae lin completed testing that rev ea led the
existence of blood from KINNARD and JONES inside the crashed BMW
vehicle. (N.T. 307-309).
Following the crash of their BMW vehicle, both JONES and KINNARD
left the area. Detective Keith Uhrich chronicled the efforts made by police
to locate both men. With respect to KINNARD, police learned that he
purchased a bus ticket to travel from York, Pennsylvania, to Tucson
Arizona. (N. T. 419). The United States Mars halls were contacted for
assistance. (N. T. 419; 421 ). Eventually, the Marshalls located Kl N NARD in
Tucson on January 26, 2016. (N.T. 421-422). With respect to JONES,
7
Detective Uhrich communicated with his sister and his mother. On January
27, 2016, JONES was apprehended in Hershey, Pennsylvania. (N.T. 423).
Following his apprehension, JONES provided a recorded statement to
police. This statement became the focus of extensive pre-trial litigation
that will be chronicled within the body of this Opinion. Eventually, the Court
crafted a statement that could be read to the jury. This statement
incorporated some of JONES' own words and some paraphrasing. The
statement of JONES read to the jury focused upon the conduct of JONES
and not the conduct of KINNARD. Specifically, JONES admitted that he
was at VINNY'S on the night of the murder. He admitted that he had an
argument with BRYAN. He admitted that he drove the BMW vehicle
belonging to William Kinnard away from VINNY'S. He acknowledged that
he crashed the vehicle. After regaining consciousness following the crash.
JONES acknowledged that he left the scene of the accident and that he left
Lebanon County. In the statement. JONES denied having any knowledge
or connection to the sh coting death of BRYAN. (See, Exhibit 32: N. T. 425-
4 31)
After Kl N NARD and JON ES were apprehended by police, they were
confined at the Lebanon County Correctional Facility. The Correctional
Facility possesses a system by which telephone calls involving inmates can
be monitored and recorded. Every inmate is advised in advance that his/her
telephone calls are subject to interception and recording. (February 6, 2017
N.T. 4-6). Several telephone calls of note involving KINNARD were
8
intercepted and recorded. Specifically, the phone calls inc I uded the
following:
• On March 27, 2016, KINNARD told an unidentified female that "I got
some time to do" and the time would be measured in "years". (N. T.
433)
• On March 29, 2016, KINNARD told an unknown individual "I am
looking at some time" and he references that he will be in prison at
least ten years. He indicated that he wanted to "prepare" his family
for that reality. (N.T.433)
• On May 7, 2016, the DEFENDANT complained to an unknown female
about how the Lebanon District Attorney wanted to lock him up for
life. In that conversation, he indicated that he would take a
"reasonable" plea bargain deal. ( N. T .433)
These telephone calls were the focus of a pre-trial proceeding. On
February 6, 2017, this Court issued a nine-page Opinion. We overruled
KINNARD's objections based upon relevance and the plea bargain
privilege. A final decision regarding the phone calls was deferred until trial.
At trial, we permitted the jury to hear the phone calls and we afforded wide
latitude for the defense to explain why the statement made by KINNARD
during the telephone calls should not reflect his consciousness of guilt.
After a trial that lasted more than one week, a jury rendered numerous
verdicts. Those verdicts, and the charges to which they pertained are set
forth on the following ch arts:
9
COMMONWEALTH v , KINNARD
----- . --·-··-·····-·····--
COUNT NUMBER
------------------------------ CHARGE VERDrcr -----
' -----------·-· _F_irst De�e Murder Guilty:1 _
11 ----------�-..··- Q_�n-�piracy-First Degree Murder _ Guilty -----------
Ill A ravated Assault____ ...... G}JiltL_ _
IV Cons iracy-Aggravate_d Assault Guilty --,
y_________ __ Aggravated Ass_ault _QyJ.[!.�---·-----
-�L ··--· Cons pi ra cy-Agg r av a ted__6��-�!!_lt Gu iJJy -·--·-------,
Vl I Conspiracy-Person Not to Possess Guilty
Use, Manufacture, Control, Sell or
Transfer Firearms
----�---- .......-------t-----------··-·�---
VIII
·-·----·--···--·.... ·-·····-------·-- - Recelvin__g_ Stolen Proper_ty Guilty_ _
IX Discharge of a Firearm Into an Guilty
____________________ Occupied Stru_c_ture _
x Flight to Avoid Apprehension, Trial Guilty
·----•·•r••••··---
or Punishment
-••--�------ �-----··- -�--,.---·-·------
XI Conspiracy, Flight to Avoid Guilty
---------------------------- Apprehension, Trial or Punishment _
XI I Recklessly Endangering Another Guilty
Person --- ------------ -------------�-
XIII . - Criminal Homicide-Third Degree Guilty
Murder
---------
XIV Conspiracy, Criminal Homicide Guilty
__________________._____T_h_i_qr_ _D e g ree Mu f_d_e_r _ -�---····-··-·---------
COMMONWEAL TH v. JONES
:c·ou fit ..� url BER cH_AR GE=-- - --
· - ---------- vE RoTcT
�
I ·------- f irst_Degree Murder _ G_�U!_y__ ·
II -·-·····- Conspiracy-Ffrst R.�gree Murder Guf�t_y _
Ill 6-ggravateg__t'ssault Guilt _
__ l.Y'._______________ Conspiracy-A.9.9..!:avated Assault __ Guil _
____. t
�------
V A ravated Assault Guilty�-
VI Conspiracy-Aggravated Ass a ult -� uj!!Y_ _
VII Flight to Avoid Apprehension, Trial Guilty
--�----------- or Punishment -------+---·--------- -
VII I Conspiracy, Flight to Avoid Guilty
A rehension, Trial or Punishment -···---------
IX Criminal Homicide-Third Degree Guilty
Murder
x --------------··-----·--t- ----- ----·-------
Con spi racy, Criminal
-- -----------
Homtclde Guilty
______________________ ..IbJ rd De_g_.c�e Mu rd_�!:___ _ _ ___ j
10
The DEFENDANTS appeared for sentencing March 22, 2017. We did
our duty by imposing the mandatory life imprisonment sentence for first
degree murder for both OE FEN DAN TS. In addition, we also imposed
additional terms of imprisonment on other counts.
!L_ ISSUES
Both JONES and KINNARD have raised numerous issues for our
consideration. Several issues are identical and many others intersect with
one another. That is why we have chosen to address both co-defendants'
issues within this one joint opinion. The issues we will be addressing, and
the party who raised the issue are listed below:
(A) Weight and sufficiency of evidence (JONES and KINNARD)
(B) Refusal of the Court to sever the cases against each Defendant
(JON ES and KINNARD)
(C) Voluntary Intoxication (JONES)
(0) Refusal of the Court to compel KINNARD to give handwriting
exemplar (JONES)
(E) Handwriting Authentication (KINNARD)
(F) Deferring decisions on Motion in Limine until Trial (KINNARD)
(G) Admitting recorded phone calls intercepted from prison
(KINNARD)
(H) Permitting identification of DEFENDANT from a JNET photo
(KINNARD)
11
111.
-''
DISCUSSION
A. Weight & Sufficiency of Evidence (Jones & Kinnard)
When reviewing a sufficiency of the evidence claim, we apply a two-step
inquiry. First, we consider all of the evidence in the light most favorable to
the Co mm onwealth, accepting as true al I evidence up on which the fact-
finder could have based the verdict. Second, we must ask whether that
evidence, along with all reasonable inferences to be drawn therefrom, was
sufficient to prove guilt beyond a reasonable doubt. Commonwealth v.
Azim, 459 A.2d 1244, 1246 (Pa. Su per. 1983). In passing upon the
credibility of witnesses and the weight of the evidence, the jury is at liberty
to believe all, part, or none of the evidence. Commonwealth v. Price, 610
A.2d 488 (Pa. Super. 1992). We are not to engage in post-verdict credibility
discussions, nor are we permitted to substitute our opinion regarding the
facts for that of the jury. Commonwealth v. Brown, 486 A. 2d 441 (Pa.
Su per. 19 84). If the fact-find er co u Id have reasonably determined from the
evidence that all of the necessary elements of the crime were established,
then that evidence will be deemed sufficient to support the verdict
Commonwealth v. Hopkins, supra. at 913-14. With the above in mind, we
will proceed to analyze the facts of this case and the various charges
against these Defendants.
12
Although closely related, there is a distinction between challenges to
sufficiency and lack of weight of evidence. That distinction was explained
in Commonwealth v. Whiteman, 485 A.2d 459 (Pa. Super. 1984):
A motion for new trial on grounds that the verdict is contrary to
the weight of the evidence concedes that there is sufficient
evidence to sustain the verdict but contends, nevertheless, that
the verdict is against the weight of the evidence. Whether a new
trial should be granted on grounds that the verdict is against the
weight of the evidence is addressed to the sound discretion of
the trial judge ... The test is not whether the court would have
decided the case in the same way but whether the verdict is so
contrary to the evidence as to make the award of a new trial
imperative so that right may be given another opportunity to
prevail.
Id. at page 462, citing Commonwealth v. Taylor, 471 A.2d 1228, 1229-
1230 (Pa. Super. 1984). If there is insufficient evidence to support a jury's
verdict, the double jeopardy clause of the Fifth Amendment to the United
States Constitution precludes retrial. See Commonwealth v. Whiteman,
supra, citing Hudson v. Louisiana, 450 U.S. 40, 67 L.Ed.2d 30 (S.Ct.
1981 ). On the other hand, "a new trial is a proper remedy when the verdict
is found to be against the weight of the evidence". Commonwealth v.
Whitman, supra at page 461.
The standard to be applied when assessing a challenge to the weight
of evidence imposes a "heavy burden" upon the defendant.
Commonwealth v. Staton, 1998 WL 1297080 (Pa. C.P. 1998). A jury's
verdict will be overturned only when it is "so contrary to the evidence as to
shock one's sense of justice ... " Commonwealth v. Schwartz, 615 A.2d
13350, 361 (Pa. Super. 1992). Of course, when addressing a weight of
evidence claim, it is not our role to substitute our credibility judgment for
that of the jury. "[Credibility decisions] is a function that is solely within
the province of the finder off act which is free to believe all, pa rt or none of
the evidence." Commonwealth v. Murray, 597 A. 2d 111, 114 (Pa. Super.
1991).
In this case, the Commonwealth has presented significant evidence
that is more than sufficient to establish the DEFENDANTS' guilt. Without
being inclusive, the evidence presented by the Commonwealth included the
following:
• Video evidence that both JONES and KINNARD were present at
VINNY'S on the evening of the homicide.
• Testimony from witnesses and through videotape that an
argument ensued between JONES, KINNARD and BRYAN that
resulted in the ejection of JONES and KINNARD from VINNY'S.
• Videotape evidence revealed that JONES left VINNY'S in a
highly agitated state.
• The video depicted that JONES and KINNARD left the club and
proceeded to a car. KIN NARD then was depicted coming back
to the entrance of VIN NY' S. A separate camera depicted
BRYAN being shot at or near the time when KINNARD walked
toward the entrance.
14
• The video depicted JONES and KINNARD leaving VINNY'S and
proceeding north on Route 343.
• A BMW vehicle was involved in a one car crash approximately
2 miles to the north of VINNY'S at or near the time when police
were called to the scene of a shooting at VINNY'S.
• The occupants of the vehicle fled from the scene of the crash.
• The BMW vehicle involved in the crash was registered to William
Kinnard, who is a relative of KINNARD. Numerous documents
were found in the vehicle that linked KINNARD to it. One
document that was pertaining to JONES was also found in the
vehicle.
• Blood from both JONES and KINNARD was found inside the
vehicle.
• A gun was located inside the vehicle. Ballistics testing I inked
this gun to bullets found in VINNY'S and inside the corpse of
BRYAN.
• Following the crash of the BMW vehicle, both KINNARD and
JONES left the geographic area. KINNARD went to Arizona.
• JONES provided a statement in which he acknowledged being
present at VINNY'S, he acknowledged being involved in an
argument with BRYAN and he acknowledged driving the BMW
vehicle away from VINNY'S. In his statement, JONES also
15
admitted that he left the scene of the crash and left the Lebanon
area following the shooting.
• KINNARD made statements to numerous people in which he
acknowledged that he was facing significant time in prison. One
of the conversations included a statement by KINNARD that he
would enter a plea of guilty if he received a plea bargain that
was to his liking.
All of the above information, when viewed in the light most favorable
to the Commonwealth, is sufficient to establish the guilt of both KINNARD
and JONES. Moreover, nothing about the juries' verdict shocks our
conscience. Therefore, the DEFENDANTS' arguments based upon
sufficiency and weight of the evidence must be and are rejected.
B. Severance (Jones & Kinnard)
Both KINNARD and JONES believe that they should have been tried
separate and apart from one another. In fact, the issue of severance is one
th at Kl N NARD 's counsel raised at practically every opportunity.
KINNARD's argument in favor of severance was predicated upon a
statement provided by JONES to Police that was read in part at trial.
Kl N NARD argued that th is statement "facially incriminated" him.
(KIN NAR D's brief at page 18) We disagree both factually and legally with
KINNARD'S argument.
16
From a factual perspective, we examined carefully the statement from
JONES that we permitted the jury to hear.1 Even had KINARD's name been
emblazoned in the statement, it would not have implicated him in the crime
of homicide. JONES never described any fight or argument between
KINNARD and the victim. JONES never stated that he saw a gun or heard
any shots. He denied knowing anything at all about the hornlcide. At no
time did JONES place KINNARD in possession of a gun and at no time did
JONES label KINNARD as the trigger man. The most that could be gleaned
about "the other guy" from the statement we allowed the jury to hear was
that he arrived and left with JONES on the night of the homicide. Numerous
other witnesses also placed KINNARD at the scene and KINNARD'S
attorney never attempted to challenge that his client was present. Under
such circumstances, we do not view the statement we permitted the jury to
hear as "facially incriminating" of KINNARD.2
From a legal perspective, KINNARD himself recognized: "The
Pennsylvania Supreme Court and the United States Supreme Court have
recognized that joint trials of co-defendants play a crucial role in the
1 This statement was marked "Final Draft 1-19-2017".
2 To be sure, had we adopted the Commonwealth's position that the entire thirty-seven
page transcript be read, except that the term "the other guy" should be used in place of
KINNARD, then the statement would have been much more incriminating toward "the
other guy", especially given the nature of the questions asked by Police Officers. As it
is, our paraphrasing of JONES' statement focused on JONES' own conduct, and not that
of his co-conspirators.
17
Criminal Justice System ... " (KINNARD's brief at page 17). The
Pennsylvania Rules of Criminal Procedure permit a joint trial where the
DEFENDANTS are alleged to have participated in the same criminal event.
Pa. R. Crim. P. 582. Our Supreme Court has declared that when conspiracy
is charged, a joint trial is "preferred". Commonwealth v. King, 721 A. 2d
763, 771(Pa. 1998). In fact, our Commonwealth's highest court has stated:
"The mere fact that there is hostility between defendants, or that one
may try to save himself at the expense of the other, is in itself not
sufficient grounds to require separate trials. In fact, it has been
asserted that the fact that defendants have conflicting versions of
what took place, or the extents to which they participated in it, is a
reason for rather than against a joint trial because the truth may be
more easily determined if all are tried together." Commonwealth v.
Birdsong, 24 A. 3d 319, 336 (Pa. 2001) (citations omitted).
With the above general rule having been acknowledged, we would be
remiss if we did not recognize that "a common problem [in a joint trial]
arises in situations where evidence is admissible against one co-defendant
but inadmissible against another." Commonwealth v. Travers, 768 A. 2d
845, 846 (Pa. 2001 ). In legal parlance, this problem has been referred to
as the "Bruton Dilemma" in recognition of the key case of Bruton v. United
States, 391 U.S. 123 (1968}.
Bruton involved an armed robbery of a post office. A postal inspector
testified that one of the co-co nsp irato rs orally confessed to him and
implicated his accomplice. In a joint trial conducted against both the
defend ant and the co-conspirator who confessed, the confession was
admitted. The United States Supreme Court reversed the conviction,
reasoning that "The introduction of [the co-conspirator's] confession posed
18
a substantial threat to Petitioner's right to confront the witnesses against
him, and this is a hazard we cannot ignore." Id at page 137.
Shortly after Bruton was decided, prosecutors attempted to avoid the
confrontation issue inherent in statements by co-conspirators by redacting
the name of the non-confessing defendant from the confession. The
efficacy of this practice made its way to the United States Supreme Court
in 1998. In Gray v. Maryland, 523 U.S. 18 5 (1998), our nation's highest
court declared that rep la cement of the non-confessing name with a neutral
pronoun such as "the other guy" was consistent with the Sixth Amendment
to the United States Constitution. However, the Court in Gray cautioned
that if a redacted statement "facially incriminates" the defendant, it could
still violate the Sixth Amendment.
Needless to say, Bruton and Gray spawned a literal library of
decisions about when and how a co-conspirator's confession can be
admitted in a joint trial. In the four decades that have transpired since
Bruton, practically every permutation of tacts pertaining to confessions of
co-defendants have been addressed by Courts across this country. In
Pennsylvania, the body of Bruton-spawned case law is about as mature as
it gets.
Our Commonwealth's highest court has repeatedly declared that when
a confession can be redacted so that it does not refer specifically to the
defendant and can retain its narrative integrity, the defendant's Sixth
Amendment right to confrontation is not violated. Commonwealth v.
19
Johnson, 378 A. 2d 859 (Pa. 1977); Commonwealth v. Wharton, 607 A.
2d 71 O; Commonwealth v. Lopez, 739 A. 2d 485 (Pa. 1999). As the
Commonwealth repeatedly argued during trial, redaction of a statement to
remove the defendant's name and refer to him merely as "the other guy" is
a practice that has been approved in our Commonwealth. Commonwealth
v. Travers, 768 A. 2d 845 (Pa. 2001 ). The mere fact that it would be
possible for the jury to speculate that the defendant was "the other guy" is
not enough to cause a violation of the Sixth Amendment. Commonwealth
v. Lopez, 739 A. 2d 485 (Pa. 1999).
In this case, the Commonwealth presented a thirty-seven (37) page
transcript from the recorded interview of Jared JONES. The Commonwealth
asked the Court to admit the statement verbatim with the exception of
redacting Mr. Kl N NARD' s name to insert "the other guy". Instead of
adopting this approach, we reviewed and summarized the statement of
Jared JONES and forwarded a copy of our work product to all counsel. The
Commonwealth consistently objected based upon the theory that the entire
statement should have been read with only Mr. KINNARD's name redacted.
Both KINNARD and JONES also objected because they found the Court's
paraphrasing of JONES' statement to be "misleading."
We considered the arguments set forth by all counsel. Letters were
written back and forth between counsel and the Court regarding the
contents of the statement. (See Gou rt Ord er of January 19, 2017 and
20
·.
attachments). From the beginning. we rejected the Commonwealth 's
request to read the entire statement.3 We also disagreed with some of the
arguments proffered by defense counsel, but we did modify what we had
initially prepared based upon other arguments presented. After proceeding
through several iterations of a Court approved statement, we ended up
sending a letter to counsel on January 19, 2017. In that letter we stated:
"At the risk of repeating myself, will not grant the
Commonwealth's request to simply insert "the other guy" in the
transcript whenever Mr. KINNARD's name is listed. I have reached
this decision for many reasons. The most important are:
(1)That much of the transcript reflects opinions of Police Officers in
the form of questions that were not adopted by Mr. JONES; and
(2) Simply inserting "the other guy" makes it too obvious that JONES
is speaking about KINNARD.
In reading Mr. Sidelnick's submission, it is obvious that what Mr.
KINNARD actually seeks is severance of his case from that of Mr.
JONES. I will not sever the two cases and allow both defendants to
point the finger at each other in absentia. It is my belief that if
separate trials were to be conducted, the truth of what occurred would
suffer. As noted above, I have employed paraphrase in an effort to
soften any link between Mr. JONES and Mr. Kl NNARD. I have done
my best to strike a balance between Mr. KINNARD's rights under
Bruton and the Commonwealth's legitimate desire to present the
essence of what Mr. JONES stated about his own conduct.
With respect to Mr. Ehrgood's comments, I find them to be largely
hyperbolic. I have read and re-read Mr. JONES' statement. I believe
that the latest draft of that statement captures the essence of what
Mr. JONES stated to Police Officers. Whenever possible, I used Mr.
JONES' own words. I do not believe that the document I drafted is
misleading.
3 There were numerous reasons for this decision. (See Court Order of January 19, 2017
and attachments.) One of the biggest reasons was the concern of the Court about the
nature of the questions asked by police that were not answered affirmatively by JONES;
the questions themselves implicated KINNARD in ways that JONES' responses did not.
21
I have heard it said by many Judges that "If everyone is unhappy,
that means the decision must be fair." In some ways, I adhere to that
precept as it relates to the statement of Jared JONES. Other than
modifying the language of the statement slightly, I stand by the
statement that I drafted. To the extent necessary, the objections
submitted by each of you are overruled." (Letter to counsel of January
19, 2017)
As is obvious, this Court expended considerable effort to strike a
balance between the Commonwealth's need to present Mr. JONES'
statement and the DEFENDANTS' stated concerns. In doing so, our goal
was to focus the statement upon JONES' own conduct without significant
emphasis upon what "the other guy" did or did not do. This task was
admittedly difficult, but after numerous iterations and consultation with all
counsel, we believe that the Final Draft dated January 19, 2017,
accomplished both goals.
In the opinion of this Court, the existence of JONES' statement cannot
and will not justify severance of a case that could result in mutual finger
pointing by defendants in separate trials. Had we severed the above-
referenced case, it would have been easy for KINNARD to point the finger
at JON ES and say ''He did it." In a separate trial, JONES could have taken
the stand and pointed to KINNARD as the trigger man. Without conclusive
video evidence and without the other defendant present to defend himself,
the truth of what occurred at VINNY'S could have been obscured. This ts
a result that this Court did not want to risk. By reaching this conclusion,
22
\
we did not err.4
C. Intoxication {Jones)
JONES argues that this Court erred by failing to instruct the jury on
the concept of Voluntary Intoxication. This is an issue that we address in
a fifteen page written opinion authored during trial on February 11, 2017.
To the extent necessary, we incorporate our February 11, 2017, opinion by
reference and rest based upon what we set forth in that opinion.
D. Handwriting Exemplars (Jones)
In his Post-Sentence Motion, JONES complains that the Court refused
his request to require that Kl NNARD provide handwriting exemplars. These
exemplars were requested because JONES wanted to introduce a letter
written by KINNARD that exculpated him. Frankly, we do not completely
understand JONES' complaint about this issue.
The issue of handwriting exemplars was first raised at a Pre-Trial
hearing _on December 19, 2016. At that time, counsel for JONES indicated
that he had hired a handwriting expert to authenticate a letter written by
KINNARD. He asked the Court to order that KINNARD prepare handwriting
exemplars. We did not immediately grant JONES' request because we were
4 Our Appellate Courts have declared that a harmless error analysis can apply in a
Bruton situation Given the non-accusatory nature of JONES' statement as it relates
to KINNARD, this case illustrates the concept that even if the Court erred, its error was
harmless because it did not impact the case presented by the Commonwealth against
KINNARD.
23
concerned about Kl N NARD's right against self-incrimination. ( 12-19-16
N.T. 20-21) During the course of conversation, we learned that the
handwriting expert could possibly produce an opinion based upon existing
documents disclosed during the course of discovery. We decided that an
attempt should be made to analyze handwriting via existing documentation
before a Court Order was entered to require action on the part of KINNARD.
The following exchange occurred:
"The Court: Okay. But before we undertake a coercive
requirement that Mr. Kinnard write out exemplars, I'm going to make
you exhaust your other options. Because if your expert can render
an opinion based upon those other letters that are not affected by any
taint whatsoever, I'm going to have her do that.
Mr. Ehrgood: That's understandable.
The Court: [If you} absolutely, positively must have the
exemplars, then I'll address it, and you may not get them. But before
we even go there, I want your expert to look at the resources that are
available right now without having to make Mr. Kinnard do anything
that could implicate himself.
Mr. Ehrgood: Understood. (12-19-16 N.T.23)"
We did not hear anything further about the handwriting expert until
the time of trial. Prior to the submission of her opinion to the jury, JONES'
expert, Sandra Miller-Raudabaugh (hereafter MILLER) was questioned
extensively about her opinion and the level of certainty that served at its
foundation. We advised the parties in advance: "In terms of her ultimate
opinion, whatever that ultimate opinion is has to be to a reasonable degree
of certainty. That is what your question has to be." (N.T. 458).
Unfortunately, we did not get an answer to that question. Therefore, after
24
extensive questioning by counsel, the Court excused the jury from the Court
Room and directly asked MILLER whether she could express an opinion
regarding the handwriting on the proffered letter "to a reasonable degree of
certainty". Because MILLER responded to this question in the affirmative,
this Court admitted the letter in evidence and permitted the jury to hear its
contents.
There are multiple reasons why JONES' argument regarding
handwriting exemplars must fail. First and foremost, we never reached a
final decision regarding JONES' request for exemplars. As highlighted in
the transcript, our decision on December 19 was to order JONES to explore
his other options. We clearly advised JONES' attorney that if he was
unsuccessful in obtaining an op inion from his expert, we would then "rev is it"
the issue. We never revisited the issue because counsel never asked us
to do so.
Even more important, the lack of handwriting exemplars ultimately
had no impact on the trial. The letter that triggered the request for
exemplars was ad'!litted at trial without the exemplars. Thus, the jury saw
and had the opportunity to consider the contents of the letter. This fact, by
itself, repudiates JONES' argument that our decision regarding handwriting
exemplars somehow requires a new trial.
25
E. Deferring Motion in Limine (Kinnard)
KINNARD proffers the creative but misplaced argument that this Court
erred by failing to immediately rule on his Motions in Limine. KINNARD
argued in his brief:
"Because the Trial Court deferred judgment and made no final
decisions regarding KlNNARD's Motions in Limine, defense counsel
was forced to give a very general opening statement with little to no
reference to facts because defense counsel did not know what
evidence would be deemed admissible at trial." (KINNARD's brief at
page 20)
The purpose of a Motion in Limine is two-fold: (1) to provide the Trial
Court with a pre-trial opportunity to weigh evidentiary objections; and (2) to
give the Trial Court the opportunity to prevent evidence from ever reaching
a jury that may prove to be so prejudicial that no instruction could cure the
harm to a defendant. See, e.g. Commonwealth v. Noll, 662 A. 2d 1123,
1125 (Pa. Super. 1995). No court is required to immediately rule on a
Motion in Limine. As our Superior Court has stated: "Although a Motion in
Li mine is generally made before trial, the Trial Court may elect to rule upon
the application at a later time." Commonwealth v. Metier, 634 A. 2d 228,
232 (N. 3) (Pa. Super. 1993 ). One Tri al Court has even declared "Plaintiff's
assertion that the Court erred in not adjudicating his Motion in Limine is
nonsense. A party does not have the right to pre-trial ruling upon legal
issues from the Trial Judge." Gillen v. Trovato, 14 Pa. D & C 5th 380 (2010).
When the admissib ilitv issue implicates a probative value versus
prejudicial effect analysis, our Commonwealth's highest court has
26
instructed that Trial Courts should wait until trial before deciding the issue.
In Commonwealth v. Hicks, 91 A. 3d 47, 52-53 (Pa. 2014), the Court
stated:
"Here, the Trial Court excluded proffered testimony pre-trial pursuant
to Rule 403, a rule that, as explained infra, is generally not
susceptible to accurate pre-trial evaluation. Unlike other Rules of
Evidence, rule 403 requires a Trial Court to weigh probative value and
prejudice - the cost and benefits of relevant evidence - reviewing it
as part of a whole and not in isolation. Inherent in the Rule is the
assumption that the Court has an adequate record, one that will mirror
or provide great insight into what will develop in trial. In the majority
of cases, and particularly manifested in this one, the Trial Court has
no way of knowing beforehand exactly what evidence will be
presented at trial. Depending on the case and the inevitable vagaries
of litigation, the pre-trial record may be entirely different than the
record that eventuates as matters unfold. Even if the evidence the
parties intend to present is set, a trial rarely follows the anticipated
script. The actual value of evidence may differ substantially from pre-
trial expectations, depending on all manner of factors, such as the
availability, appearance, memory or demeanor of a witness,
adrn iss ions on cross-examination, the defense theory, or the
defendant's decision whether or not to testify. Even a relatively
developed pre-trial record wi II be of limited utility in predicting the
probative value or prejudice a particular piece of evidence will
ultimately have. Therefore, the ruling is better deferred until the
situation is clear and not speculative." Id at page 52-53
In this case, KINNARD complains that we deferred decisions
regarding admissibility of JONES' handwriting expert, testimony of gang�
affiliation, and the Commonwealth's use of prison phone calls until the time
of trial. All of the above decision implicated a probative value versus
prejudicial effect analysis. In an opinion we authored regarding a Motion
in Umine on February 6, 2017, we wrote: "As we stated to both counsel
repeatedly, we do not have anything close to a perfect understanding of
what will be presented at this trial ... and we are not prescient." (Slip Opinion
27
at pages 8-9)5 With this in mind, we will address each of KINNARD's claims
pertaining to Motions in Limine.
1. Phone Calls
Of all the issues KINNARD believes we should have addressed prior
to trial, by far the most significant is the one involving the Commonwealth's
use of recorded phone calls from the Lebanon County Prison. With respect
to that issue, we authored a nine page written opinion prior to trial. While
KINNARD is correct that we deferred a final decision until we were able to
hear all of the evidence necessary for a probative value versus prejudicial
effect decision, KINNARD conveniently overlooks the fact that we conducted
extensive research and apprised the parties of the results of that research
before trial even began. In fact, our opinion of February 6, 2017, stated:
"We simply cannot and will not render a final decision regarding
admissibility of the Commonwealth's proffered telephone
conversations. However, we will communicate the following to all
parties:
( 1) The DEF ENDA NT's objections to the Comma nwea Ith' s proffer
based upon the plea bargain privilege and relevance are overruled.
(2) The Commonwealth will be directed to delay presentation of the
evidence regarding the intercepted prison telephone calls until the
end of its case in chief. At that time, we will conduct an argument
outside the presence of the jury regarding the probative value
versus prejudicial effect question.
5
Prior to trial, we were aware that video surveillance evidence existed of events on the
night of the homicide. However, we had not seen the video and did not know the detail
of what it depicted. Had clear video evidence existed that tled one or both of the
Defendants to the shooting that would have impacted our probative value versus
prejudicial effect analysis.
28
(3) lf we decide to admit the evidence proffered by the Commonwealth
we will afford the defense with broad latitude to educate the jury
regarding the plea agreement process, and the difficult decisions
that the process sometimes creates for defendants charged with
crimes.
(4) If the Commonwealth's evidence is admitted, we will carefully craft
instructions to the jury that outline how they can and cannot
consider the evidence contained in the telephone conversations.
Of course, we will solicit input from all counsel regarding these
instructions before they are offered." (Slip opinion at page 9)
Given that the phone call issue triggered a probative value vs. prejudicial
effect analysis, and given that the communicated our decisions about
relevance to privilege prior to trial, the Court did not err in how it addressed
the phone call issue.
2. Handwriting
With respect to the issue of JONES' handwriting expert, a discussion
commenced at a pre-trial proceeding on December 19, 2016. At that time,
JONES asked this Court to order KINNARD to provide handwriting
exemplars. In response, the following exchange occurred:
"The Court: What authority do I have to order a defendant to
provide handwriting exemplars to another defendant?
Mr. Ehrgood: I haven't - I researched that case law after
reviewing Mr. Sidelnick's motion. I haven't seen anything that says
that a defendant can't request those things. If I can subpoena
documents, if I can subpoena a person to bring documents into Court
and the Commonwealth could compel a defendant to provide a
handwriting sample, why couldn't another defense attorney?
The Court Because Mr. Kinnard has a constitutional right
against self-incrimination." (12 • 19-16 N. T. 2 0-21)
29
At the end of the discussion, the Court directed that original letters in the
possession of the D.A.'s office be provided to the DEFENDANT's expert.
The Court then stated:
"Before we undertake a coercive requirement that Mr. Kinnard write
out exemplars, l 'm going to make you exhaust your other options.
Because if your expert can render an opinion based upon those other
letters that are not affected by any taint whatsoever, I'm going to have
her do that." (12-19-16 N.T. 23)
We next encountered the handwriting issue when Kl NNARD filed a
Pre-Trial Notion. On January 20, 2017, we issued a Court Order which
read, in pertinent pa rt:
"A decision regarding the DEFENDANT's Motion to Exclude
Testimony of Sandra Miller Raudabaugh is deferred to trial as it
relates to the text of the letters marked as Q-1, Q-2 and Q-3. As it
relates to the signatures on Q-1, Q-2 and Q-3, the DEFENDANT's
Motion to Exclude Testimony of Sandra Miller Raudabaugh is denied.
In addition to the above, the Court finds DEFENDANT KINNARD's
challenge to the methodology employed by Sandra Miller Raudabaugh
to be somewhat disingenuous. By a prior proceeding, counsel for
JAR ED JON ES requested that Mr. Kl N NARD provide handwriting
exemplars to be used by Ms. Raud abaugh in her analysis. Counsel
for DEFENDANT KINNARD vehemently objected and stated that his
client could not be forced to provide handwriting exemplars. If in fact
DEFENDANT KINNARD has now changed his mind and is willing to
provide handwriting exemplars, we would direct that said exemplars
be provided immediately to Sandra Miller Raudabaugh. Providing
said exemplars would then eliminate the concerns raised by
DEFENDANT KINNARD in paragraphs 13 and 14 of his Motion."
(Court Order at pages 1-2)
This Court next met with counsel at a pre-trial proceeding on February 6,
2017. The handwriting issue was never discussed at this meeting. As far
as the Court knew, Kl NNARD could have provided handwriting exemplars
30
to MILLER and the entire issue raised in the Motion in Limine would then
have been obviated. Given this procedural posture, it would not have been
prudent for the Court to enter a pre-trial ruling regarding the handwriting
exemplars.
Eventually, the Court was required to conduct a hearing outside the
presence of the jury during the middle of trial that addressed MILLER's
opinions. It was not until this hearing occurred during trial that the Court
possessed pertinent information needed to render a final ruling. The
information disclosed by MILLER at the hearing during trial was not
available to the Court prior to trial, and it would not have been possible for
us to have rendered a decision based upon this information prior to trial.
Given the procedural posture of the handwriting issue, it would have been
neither appropriate nor possible for this Court to have entered any sort of
pre-trial ruling. s
3. Gang Affiliation
With respect to testimony of gang affiliation of the DE FEN DAN TS, this
Court entered an Order on January 20, 2017. As it related to gang
affiliation, the Order stated:
6
Following the December 19, 2016, pre-trial meeting with counsel, this Jurist embarked
upon a two-week mission trip to the country of Ecuador. The next time that the Court
met on the record with counsel was February 6, 20J7. Nothing was contained in the
record of that meeting regarding handwriting exemplars.
31
"A decision regarding DEFENDANT KINNARD's Motion to Preclude
Testimony regarding gang affiliation is deferred until the time of trial.
Without further context that can only be provided by testimony at trial,
this Court does not have enough information to ascertain whether Mr.
KINNARD's gang affiliation will or will not be relevant. Before the
Commonwealth seeks to produce evidence of Mr. KINNARD's gang
affiliation, it should approach the Bench so that the issue can be
discussed outside the presence of the jury." (Court Order at page 2)
At no time during trial did the Commonwealth seek to present information
regarding the DEFENDANTS' purported gang affiliation. Therefore, the
issue addressed in KINNARD's Motion in Limine was rendered moot.
Legally, there is no duty on the part of a court to render a pre-trial
ruling regarding Motions in Limine. Moreover, the factual evolution of this
particular trial would have rendered improvident the type of pre-trial rulings
that KINNARD now requests. With respect to the most important of the
Motions in Limine - the ones regarding the prison phone calls - KINNARD's
counsel had a written opinion by the Court that rejected his arguments
regarding relevance and the plea bargain privilege. The Court did its best
to treat all parties fairly and transparently as it relates to evidentiary
disputes. We did not abuse our discretion in the way we addressed those
issues.
F. Prison Phone Call Intercepts {Kinnard)
Considerable time was expended at trial to address the admissibility
of telephone conversations between KINNARD and friends that were
32
intercepted by staff at the Lebanon County Correction al Facility. 7 Five
separate issues have been raised by Kl NNARD regarding admissibility of
the intercepted phone calls:
(1)That the contents of the intercepted phone calls were not relevant;
(2) That the intercepted phone calls implicated the so-called plea
bargaining privilege;
(3) That the phone interception violated Pennsylvania's Wire Tap Act;
(4) That KINNARD's voice on the phone calls was not properly
authenticated; and
(5) That the probative value of the phone call information was
outweighed by its prejudicial effect.
( 1) Relevance
(2) Plea Bargain Privilege
The issues pertaining to relevance and the plea bargaining privilege
were addressed in an Opinion we authored on the first day of trial dated
February 6, 2017. We incorporate by reference what we wrote. Moreover,
7
Upon admission, every inmate at the Lebanon County Prison is told that all telephone
calls will be recorded and every inmate signs a statement fndicating awareness of that
fact. Before any telephone call is placed or received, a recording is played reminding
the inmate that the call will be recorded and is subject to monitoring. The efficacy of
this telephone monitoring practice has been approved by this Court and the
Pennsylvania Superior Court. See, e.g. Commonwealth v. Shayne Bechtel, No. 2011-
01670 (Tylwalk, PJ March 23, 2012)
33
we wish to provide some additional context to supplement what we wrote
on February 6, 2017.
As we promised in our February 6, 2017 Opinion, we afforded "broad
latitude" for the defense to educate the jury regarding the plea bargaining
process. KINNARD did just that by calling Christopher Coyle, Esquire, who
is one of the senior criminal defense lawyers in Lebanon County. Attorney
Coyle described the plea bargaining process for the jury and explained that
plea bargains afford a defendant with some assurance in terms of the
amount of time he would have to serve.
In addition, we afforded the jury with a specific instructlon regarding
the telephone calls in question. We stated:
"The second effect of consciousness of guilt the Commonwealth
has presented for your consideration involves the statement of Mr.
Kinnard to friends and family members during phone calls that were
intercepted by the prison. If you recall, Mr. Kinnard stated to
someone that he would accept a plea bargain in this case. He told
other family [members] to be prepared, that he would be facing a
lengthy period of incarceration.
The Commonwealth alleges that these statements are proof that
defendant Kinnard knew that he had done something wrong. The
Commonwealth alleges that Mr. Kinnard knew that he had been
involved in a homicide and there would be consequences to attach to
that homicide, and that is why he told family members that he was
interested in a plea bargain and that he was facing a considerable
number of years in prison.
On the other hand, the defendant argues to you that the
statements of Mr. Kinnard merely reflected the reality of the situation
confronting him. The defense points out that Mr. Kinnard was facing
various serious charges, including homicide, and that Mr. Kinnard
knew that these serious charges carried with them serious potential
penalties that could include life in prison.
34
The defense argued Mr. Kinnard was simply preparing his family
for the possibility that he would be away from them for many years.
To support this argument, the defense points out that Mr. Kinnard at
no time overtly admitted guilt during these conversations. He even
stated that it would serve justice if he won.
It is up to you and you alone to decide whether Mr. Kinnard's
statements to friends and family were in fact statements evidencing a
guilty conscious. Or whether they were statements made to family
members merely communicating the possibility of what could occur.
When you make these decisions, you must consider the content
of the statements themselves, and the context in which they were
uttered. You must also consider the testimony of Attorney Coyle, who
explained the plea bargaining process to you. You should consider
what he told you about how plea bargaining will often result in a
sentence of less than what the defendant would face if he went to trial
and lost. Because of this, people accused of crimes sometimes can
be tempted to accept a plea bargain as a sure thing instead of taking
their chances at trial and risking even harsher punishment.
These are all factors that you must consider in weighing Mr.
Kinnard's statements to his friends and family. Ultimately, you decide
whether or how Mr. Kinnard's statements should be considered." (N.T.
776-778.)
As is obvious from the above, the telephone calls presented by the
Commonwealth were not considered by the jury in a vacuum. The jury had
the benefit of detailed information from Attorney Coyle plus it had the
benefit of an instruction from the Court that outlined how the telephone
conversations could be considered by the jury. In light of everything we
articulated in our February 6, 2017 Opinion and considering everything that
occurred at trial thereafter, this Court did not err by allowing the jury to
hear KINNARD's telephone calls intercepted from the Lebanon County
Prison.
35
(3) Wire Tap Violations
KINNARD references somewhat in passing that the interception of his
telephone calls at the Lebanon County Prison violated Pennsylvania's Wire
Tapping and Electronic Surveillance Control Act. This is not an argument
that was focused upon at trial. Nevertheless, we will briefly address it.
Pennsylvania's Wiretapping and Electronic Surveillance Contra I Act
outlaws the intentional interception of a wire, electronic or oral
communication. 18 Pa. C.S.A. §5703(1 ). The purpose of Pennsylvania's
Wiretap Act is to protect private communications. Commonwealth v.
DeMarco, 578 A. 2d 942 (Pa. Super. 1960). An exception to the Act exists
when the parties to a conversation con sent to its interception. 18 Pa. C. S .A.
5704(2)(ii).
The question of whether a telephone conversation at a prison can be
lawfully recorded by police is one that has been addressed by the
Pennsylvania Supreme Court and by this Court. In Commonwealth v.
Baumhammers, 960 A. 2d 59 (Pa. 2008), our Commonwealth's highest
Court declared that when a defendant is notified that his telephone
con versa ti ons in prison cou Id be recorded, it is not unlawful for prison
officials to do just that and the subsequent recording of the conversation is
not subject to suppression.
In Commonwealth v. Shayne Bechtel, No. 201·1-01670 (Tylwalk, PJ
March 23, 2012), President Judge Tylwalk of this Court addressed the
36
lawfulness of intercepting telephone calls at the Lebanon County
Correctional Facility. In rejecting an argument by the defendant based upon
a so-called right to privacy, Judge Tylwalk wrote:
"Althouqh Bechtel raises the issue of a violation of his right to
privacy, we find no support tor his averment that he had an
expectation of privacy during his telephone calls placed from
LCCF. Exhibit # 1 clearly contains language putting inmates,
and in this case specifically, Bechtel, on notice that all
telephone calls are subject to possible monitoring and
recording. (Exhibit #1 ). In addition, at the beginning of each
call, as recorded on Exhibit #3, there is an oral admonishment
"This call may be monitored or recorded." In light of these facts,
we believe that it is disingenuous to argue that an inmate has
an expectation of privacy during telephone calls placed from
LCCF ... where there is both written notice provided to an inmate
and a computer generated message on the telephone itself
audible to both the inmate and the call's recipient, there exists
[no] expectation of privacy and no violation of Pennsylvania's
Wiretap Act."
In this case, Michael Stuckey of the Lebanon County Correctional
Facility testified in a Pre-Trial hearing conducted on the morning of the first
day of trial. Mr. Stuckey testified that he managed the prison phone system.
(N. T. 4). He testified that all inmates are advised when they enter LCC F
that their phone calls and visits will be monitored and recorded and that
each inmate signs a statement verifying his/her awareness of this policy.
(February 6, 2017 N.T. 4) Mr. Stuckey provided a copy of a document
signed by KINNARD indicating "I understand and agree that telephone calls
and visitation calls are subject to monitoring, recording and may be
37
intercepted or divulged." (February 6, 2017 N.T. 5-6)8 Clearly, any
argument made by KINNARD based upon the Wiretap Act must be rejected.
KINNARD was advised by the prison that his telephone calls and his
telephone visitations would all be recorded. He therefore had no
expectation of privacy. His argument based upon the Wiretap Act will
therefore be rejected.
(4) Voice Identification
At Trial, the Commonwealth proposed to authenticate KINNARD's
voice through the testimony of two police officers. We conducted a hearing
outside the presence of the jury to dig deeper into the voice identification.
Sergeant Jonathan Hess testified that he was one of the officers that
transported KINNARD from the location of his arrest in Arizona to
Pennsylvania. {N.T. 347). Sergeant Hess had numerous conversations
with KINNARD during this time. (N.T. 348). However, the transport
conducted by Sergeant Hess occurred approximately one year before he
listened to the intercepted telephone conversation and Sergeant Hess
acknowledged that he did not speak with KINNARD during the intervening
time period. Moreover, when Sergeant Hess was asked whether there was
8
The focus of Mr. Stuckey's testimony was upon the interception of one of KINNARD's
c o nver sations with a visitor at the Prison via the Prison visitor phone system. Mr.
Stuckey stated that "As soon as the inmate and the visitors pick up the phone, the first
thing that comes over the phones is the call will be monitored and recorded." (February
6, 2017N.T. 8). We are aware from prior proceedings that this identical admonition is
played whenever a telephone call is placed from the prison to an outside telephone line.
38
anything unusual about KINNARD's voice, he stated simply: "The thing that
sticks out to me in my mind is he's a large man. I would expect a deeper
voice out of a large man. His voice was a little bit of a higher pitch that I
would have expected from him." (N.T. 352-353). We held that Sergeant
Hess' testimony was not sufficient to authenticate KINNARD's voice on the
recorded telephone call.
The Commonwealth also presented Detective Keith Uhrich. Detective
Uhrich testified that during the course of his investigation, he listened to
150 telephone calls that were intercepted from KINNARD while he ws an
inmate at the Lebanon County Prison. (N.T. 354). Detective Uhrich stated
that some of these telephone calls were twenty minutes in length. (N.T.
363) and that he listened to KINNARD's telephone calls "for a long period
of time" extending up to one week before the date of trial. (N. T. 356).
Detective Uhrich also stated that KINNARD repeatedly prefaced many of
his remarks with the phrase "Do you understand what I'm sayln'?" Detective
Uhrich stated that during the conversation the Commonwealth sought to
admit, KINNARD's voice sounded identical with the voice he heard 150
times previously and KINNARD used the phrase "Do you understand what
I'm sa yin'?". We concluded based upon all of the above information that
Detective Uhrich 's knowledge of KIN NARD' s voice was significantly better
than was Sergeant Hess and we permitted Detective Uhrich to testify about
his identification of KINNARD's voice.
39
"It is well settled that a witness may make an identification by voice
alone." _Commonwealth v. Miller, 560 A. 2d 229 (Pa. Super. 1989). The
Court of Common Pleas of Lehigh County recently addressed a case similar
to this one where voice identification was proffered through a police officer.
In Commonwealth v. Ramos, 3 Pa. O & C 5th 514 (2008), the Court stated:
"The identity of a speaker on an audiotape may be identified by a
person who recognizes the voice on the tape recording as belonging
to a certain individual. In order to accomplish the identification in this
manner the Commonwealth must lay a foundation that the witness has
a basis for familiarity with the voice he is identifying. See, Pa. R. Ev.
901 (b)(5). See, Commonwealth v. Carpenter, 372 A. 2d 806 (Pa.
1977) (Identification by acquaintance who then passed receiver to
officer); See also, U.S. v. McCartney, 264 F. 2d 628 {71h Cir. 1959)
(Police officer can identify voice after hearing voice several times
over the telephone and talking to defendant once in person). Here,
Officer Cruz can identify the voice of the defendant on the tape
because he has heard the voice of the defendant on several
occasions. Officer Cruz overheard the defendant speak with the
confidential informant on June 20, 2006, he reviewed the tape
recording of the conversations between the defendant on the
confidential informant on several occasions and he spoke with the
defendant for thirty to forty minutes at the police station on October
11, 2006. In addition, Officer Cruz has listened to approximately
twenty telephone conversations involving the defendant from prison.
Each of these prison telephone conversations were about fifteen
minutes in length. These experiences give Officer Cruz the requisite
familiarity with the defendant's voice to offer identification testimony
at trial.
It is noteworthy th at other courts have permitted voice
identification testimony even in cases where the identifying witness
had only a very brief conversation with the accused. See, U.S. v,
Vento, 533 F. 2d 838, 864-6 5 (3rd. Cir. 1976). The frequency of the
contact between the witness and the defendant goes to the weight of
the evidence not to its admissibility. Hence, it is the province of the
jury to decide whether Officer Cruz's prior interactions with the
defendant are a sufficient basis to identify the defendant's voice." Id
at page 521.
40
The voice identification in this case by Detective Uhrich clearly meets
the standard articulated in Ramos. Accordingly, this Court did not err by
allowing Detective Uhrich to identify K/NNARD's voice.
(5.) Probative Value vs. Prejudicial Effect
Pennsylvania Rules of Evidence contains an omnibus provision
authorizing Trial Courts to employ a probative value vs. prejudicial effect
analysis with respect to controversial evidence. See, Pa. R. Ev. 403. When
an objection under Rule 403 is proffered, Trial Courts are required to
conduct a "cost and benefit" analysis that considers the entirely of the
record. Commonwealth v. Hicks, 91 A. 3d 47 (Pa. 2014).
In this case, we authored an Opinion of February 6, 2017, regarding
the Commonwealth's desire to introduce conversations from KINNARD that
were intercepted while he was an inmate at the Lebanon County
Correctional Facility. We specifically deferred a probative value vs.
prejudicial effect ruling until the time of trial. Once the Commonwealth had
presented most of its evidence, we heard argument from counsel regarding
KINNARD's Rule 403 objection. Specifically, KINNARD raised the following
allegations of prejudice:
• Possible confusion of the jury. (N.T. 370)
• Allowing the jury to hear evidence of punishment, which is ordinarily
not admissible. (N.T. 370)
41
• What KINNARD was actually communicating in the intercepted calls
was that he understood the reality of his situation; the calls were not
confessions. (N.T. 371).
Following argument by the Commonwealth, the Court rendered a decision
that allowed the tape recorded evidence to be heard by the jury. In
rendering this decision, the Court stated:
"This is not a case where we have an eyewitness - even - I take
that back. I am not going to say that. I want to say this correctly.
There were a whole bunch of eyewitnesses. But there is not anyone
who has come forward to say what they saw or that they were in a
position to see anything in terms of who shot the gun.
We don't have any eyewitnesses come in here and said, Richard
Kinnard was the shooter. The videotapes are helpful, but none of
them show the actual shooter. None of them show the gun actually
in the hands of anyone.
So what we have here is largely a case of circumstantial
evidence. In that context, I think the jury should have as many pieces
of the puzzle as they possibly can have. So I am under the
circumstances inclined to admit this evidence and allow both of you
to argue its import and its weight to the jury." (N.T. 376)
To supplement what we articulated at Trial, we will today respond to
the three specific arguments of prejudice outlined by KINNARD. Our
response is as follows:
• We do not perceive a risk of significant confusion based upon
the contents of the telephone calls. While we understand that
plea bargaining is often misunderstood by lay people, the risk
of that occurring in this case is minimal because we permitted
KINNARD to call Attorney Coyle as a witness to describe the
42
plea bargaining process and the difficult decisions that
defendants must make once a plea bargain is offered. To the
extent that the telephone calls could have created confusion,
that confusion was cert a inly ameliorated or eliminated
altogether by the testimony of Attorney Coyle.
• With respect to punishment, we do not believe that the contents
of Kl N NARD's telephone call informed the jury of anything it
already did not know. The jury knew that it was deciding a
homicide. Every citizen knows that homicide carries with it
serious consequences. Jurors likely recognized that life in
prison was among the possible consequences for a homicide.
• KINNARD's final argument of prejudice focuses upon his intent
that formed the foundation for his statements. The
Commonwealth argued that KINNARD's statements evidenced
his consciousness of guilt. KINNARD alleged that they simply
reflected an understanding of the reality of what was confronting
him. Ultimately, it was the juries' job to decide how to interpret
and weigh the information contained in the telephone calls. We
afforded the jury with an extensive instruction to assist it in
making this decision (N.T. 776-778). With this instruction, we
are confident that the jury could discern how and to what extent
the intercepted calls should or should not be considered.
43
Generally speaking, a Trial Judge is vested with broad authority to
weigh tile probative value and prejudicial effect of proffered evidence. See,
Commonwealth v. Hoover, 107 A. 3d 723 (Pa. 2014). Appellate Courts
may reverse an evidentiary ruling only when the Trial Court has "abused its
discretion". Commonwealth v, Laird, 988 A. 2d 618 (Pa. 2010). "A
determination that a Trial Court abused its discretion in making an
evidentiary ruling 'may not be made 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. Hoover, Supra.
at page 610, quoting Commonwealth v. Sherwood, 982 A. 2d 483 (Pa.
2009).
In the context of Rule 403, it is incumbent upon the Court to remember
that fill evidence presented by the prosecution is intended to be prejudicial
to the defense. bur Appellate Courts have often stated "Evidence will not
be prohibited merely because it is harmful to the defendant."
Commonwealth v. Dillon, 925 A. 2d 131, 141 (Pa. 2007). Rather, our
Commonwealth's highest court has described an analysis under Pa. R. Ev.
404(b) as follows:
"The probative value of the evidence might be outweighed by the
danger of unfair prejudice, confusion of the issues, misleading the
jury, undue delay, pointlessness of presentation, or unnecessary
presentation of cumulative evidence. Pa. R. Ev. 403. The comment
to Pa. R. Ev. 403 instructs that: 'Unfair prejudice means a tendency
to suggest decision on an improper basis or to divert the jury's
attention away from its duty of weighing the evidence impartially.' Pa.
44
R. Ev. 403 comment. Additionally, when weighing the potential for
prejudice, a Trial Court may consider how a cautionary instruction
might ameliorate the prejudicial effect of the proffered evidence. Pa.
R. Ev. 404(b) comment. .. " Id at page 141
In this case, the Court undertook its duty to weigh probative value
and prejudicial effect of the intercepted telephone calls. We ruled in favor
of giving the jury "all available pieces of the puzzle" so that it could make
a decision as fair as possible under the circumstances. By so ruling, this
Court did not err.
G. Handwriting Authentication (Kinnard}
As part of his defense, JONES proffered an exculpatory letter that he
alleged was written by KINNARD. Both KINNARD and the Commonwealth
objected to the authenticity of this letter. Because of this, JONES hired
MILLER. Prior to trial, MILLER was given numerous documents known to
have been written by KINNARD9. She stated in a report that she could
positively declare that the signature on the exculpatory letter was that of
KINNARD. She also stated that there was a "strong probability" that the
rest of the letter was also written by KINNARD. Both the Commonwealth
and KINNARD objected to JONES' effort to authenticate the exculpatory
letter based upon MILLER's testimony.
9 The letters known to have been written by KINNARD included a letter identified by the
mother of one of KINNARD's children (N.T. 460-461) and numerous records from the
Lebanon County Prison. (N. T. 465,46 7-468,470-4 71 ).
45
Before the exculpatory letter was admitted, the parties questioned
MIL LE R extensively about her analysis and opinion. (N. T. 4 73-515 ).
Unfortunately, MILLER refused to be tied down regarding the nature of her
opinion. After about one and one-half hours of dealing with the handwriting
authentication issue, the Court excused the jury from the Court Room and
cut to the proverbial chase by asking outside the presence of the jury:
"Q. Do you have an opinion to a reasonable degree of certainty as
to whether the totality based on everything that you've looked at
whether the author of the Q document was the author of the K
document?
A. I do.
Q. What is that opinion?
A. The K-1 writer did write it." (N.T. 522).
Following this affirmation by MILLER that her opinion was rendered to a
reasonable degree of certainty, the Court issued the following ruling:
"I will allow her to give that opinion in that way ... if you guys want to
parse words and go in and dig deeper, you can parse words and dig
deeper. The jury will determine the weight. .. I am going to rule that it
[the letter] is authentic. There is no objection as to its substance. So
it can be read. When we come back after a break, it can be read to
the jury after she renders her opinion as she has just done." (N. T.
522-523)
In order to admit any document, the moving party must prove its
authentication. The bar for establishing authentication is not difficult to
hurdle; 'To satisfy the requirement of authenticating or identifying an item
of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is." Pa. R. Ev. 901 (a).
46
Our Superior Court has stated that "The ultimate determination of
authenticity is for the jury. A proponent of a document need only present
a prima facie case of some evidence of genuineness I order to put the issue
of authenticity before the tact finders." Commonwealth v. Brooks, 508 A.
2d 316, 320 (Pa. Super. 1986). The Court in Brooks also stated:
"A document may be authenticated by direct proof, such as the
testimony of a witness who saw the author sign the document.
acknowledgment of execution by the signer, admission of authenticity
by an adverse party, or proof that the document or its signature is in
the purported author's handwriting." Id at page 318
Absent a clear abuse of discretion, a trial court's decision regarding
authenticity will not be disturbed on appeal. Commonwealth v. Davies,
811 A. 2d 600 (Pa. Super 2002).
With respect to a handwritten document, the style of an author's
handwriting can be used to authenticate the document. Experts familiar
with handwriting analysis can provide testimony to establish such
authentication. The standard is whether the expert can identify the author's
handwriting "to a reasonable degree· of certainty". See Pa. R. Ev. 702.
In tnis case, MILLER was asked by the parties about her analysis of
KINNARD's signature as well as the handwritten narrative. She was
definitively able to identify Kl N NARD' s signature on the exculpatory letter.
With respect to the remaining narrative, she simply stated that there was a
"strong probability" that Kl N NARD wrote that narrative. After a II counsel
repeatedly asked questions a bout the strength of MIL LE R's opinion, the
Court noted that counsel would not ask and/or MILLER would not answer
47
the question of whether she would opine to a reasonable degree of certainty
whether the letter read as a whole (signature and narrative) was written by
KINNARD. Therefore, at a time when the jury was not in the Court Room.
the Court specifically asked this critical question. In response, MILLER
stated that she could opine that the exculpatory letter was written by
KINNARD "to a reasonable degree of certainty". Accordingly, we declared
the letter to be authentic and admitted it. By doing so, we did not err.
H. Identification using JNET photo (Kinnard)
In his brief. Kl N NARD proffers a one paragraph argument that the
Court erred by permitting Detective Keith Uhrich to testify that he identified
KINNARD by using a JNET photo. The implication of KINNARD's argument
is that the jury would realize from context that KINNARD had a prior criminal
record. Kl N NARD argues that this record shou Id not have been made
known to the jury.
We have reviewed the totality of Detective Uhrich's testimony at trial.
At no point did Detective Uhrich reference a photograph of KINNARD from
JNET. In fact, all Detective Uhrich stated to the jury is that he was able to
identify numerous people during the course of his investigation. He
mentioned "Jose LeBron, Jocelyn Colon, Joseph Guzman, Michael Rivera,
lovanni Estrada, Rose Acevedo, Richard Kinnard, Jared Jones and Jose
Rivera." (N.T. 323). He did not link any of these individuals to a photo from
JNET. Given this context, we will not spend any more time addressing
KINNARD's JNET photo issue than he did in raising it.
48
IV. CONCLUSION
We freely acknowledge that this case was a challenge to try. Ari
counsel involved were capable and passionate about their respective
positions. Whenever an issue could be raised, it invariably was. Some of
these issues required us to conduct hours of research at night and during
weekends during trial. .. and one of these issues even required us to analyze
decisional precedent from as far away as California.
As much as this case presented a challenge, we are confident that in
the end, this Court was able to reach decisions that' enabled the jury to
fairly assess all available and legally permissible information. The jury
obviously considered all of this information and concluded that both
KINNARD and JONES were responsible for the murder of Corey Bryan.
Nothing that has been presented to us via Post-Sentence Motions has
caused us to second guess the decision of the jury, or any of our rulings
during Trial. We therefore deny all of the Post-Sentence Motions submitted
by the defense.
49