Com. v. Andrews, M.

J-S28023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MAURICE ANDREWS
Appellant No. 598 EDA 2015
Appeal from the Judgment of Sentence October 7, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004380-2013
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 15, 2016
Maurice Laverne Andrews appeals from the judgment of sentence
entered in the Court of Common Pleas of Montgomery County following a
jury trial in which he was convicted of third-degree murder,1 conspiracy to
commit third-degree murder,2 firearms not to be carried without a license,3
and criminal trespass.4 Andrews challenges the trial court’s denial of his
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2502(c).
2
18 Pa.C.S. § 903(a)(1).
3
18 Pa.C.S. § 6106(a)(1).
4
18 Pa.C.S. § 3503.
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suppression motion, as well as the sufficiency of the evidence and
discretionary aspects of sentencing. After careful review, we affirm.
The trial court summarized the facts of this matter as follows:
[A]t approximately 1:30 a.m. on March 22, 2013, [Andrews] and
his cousin and co-conspirator – Michael Romain Hinton – arrived
in the vicinity of Brian’s Café, a bar located in Pottstown,
Montgomery County, Pennsylvania, with the purpose of
confronting Victor “Short Man” Baez. [Andrews] was armed with
a 9[]mm Glock handgun, and Hinton was armed with a .357
Smith & Wesson revolver. The pair lay in wait for [Baez],
ambushing him when he exited the bar shortly after 2:00 a.m.
While [Baez] struggled with Hinton for control of Hinton’s
revolver, [Andrews] shot [Baez] five times, killing him. Hinton
was also hit by [Andrews’] gunfire and was wounded in the leg
and hand.
Hinton’s .357 Smith & Wesson revolver was discovered lying
next to the body of [Baez]. [Andrews’] 9[]mm Glock was never
recovered. [Andrews] and Hinton fled the scene separately. The
wounded Hinton was apprehended several hours later on the
streets of Pottstown and was transported to Reading Hospital,
following which he gave several statements to police in which he
implicated [Andrews] as the shooter. [Andrews] left the area
following the shooting, and was ultimately arrested in
Philadelphia at the home of his Aunt – Danielle “Dee” White – on
April 18, 2013. It was the Commonwealth’s theory of the case
that [Baez] was murdered because [Andrews] had previously
engaged in a botched robbery and kidnapping of [Baez’s]
nephew, and [Andrews] was afraid that [Baez] planned to
retaliate against him.
Trial Court Opinion, 7/29/15, at 1-2.
After Hinton was released from Reading Hospital on the afternoon of
March 22, detectives transported him to the Pottstown Police Department
where they recorded a statement. Hinton’s statement to Detective Richard
was read to the jury during trial.
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Although the 9 mm Glock used in the killing of Baez was never
recovered, conversations recorded while Andrews was incarcerated at the
Montgomery County Correctional Facility (MCCF) indicated that Andrews
planned to discuss the location of the missing firearm with his mother, Julia
White, when they met in person in a holding room of District Court 38-1-11
in Pottstown on May 10, 2014. Based on this information, the
Commonwealth sought and obtained an order from this Court authorizing
the interception and recording of Andrews’ conversation with his mother at
the district court. The Commonwealth sought to present the recorded
conversation into evidence. Andrews filed a pretrial motion to suppress this
evidence, the disposition of which was summarized by the trial court, as
follows:
On January 17, 2014, [Andrews] filed an omnibus pre-trial
motion contending, inter alia, that the intercepted conversation
should be suppressed pursuant to 18 Pa.C.S. § 5721.1. More
specifically, [Andrews] claimed in his motion that the
interception should be suppressed because:
a) It was not supported by probable cause;
b) The May 8, 2013 order of the Honorable James J.
Fitzgerald, III, of the Superior Court of Pennsylvania
that authorized the interception was materially
insufficient on its face; and
c) The interception materially deviated from the
requirements of the order of authorization.
A hearing on [Andrews’] motion to suppress was held before the
undersigned on February 18, 2014. During the course of this
hearing defense counsel withdrew [Andrews’] claim that the
interception materially deviated from the requirements of the
order of authorization. Counsel stated that his argument,
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instead, was that “the Affidavit of Probable Cause lacked
sufficient facts to support the granting of the wiretap order” and
that the information that was in the affidavit was stale because it
related to conversations engaged in by [Andrews] on and before
April 24, 2013, and the interception authorized did not take
place until May 10, 2013. The affidavit was entered into
evidence as CS-1.
Trial Court Opinion, 7/29/15, at 19-20 (citations omitted). The trial court
denied Andrews’ motion to suppress.
After a five-day trial, a jury found Andrews guilty of third-degree
murder, conspiracy to commit third-degree murder, firearms not to be
carried without a license, and criminal trespass. On October 7, 2014,
Andrews was sentenced to an aggregate term of thirty-five to seventy years’
incarceration, including consecutive sentences of twenty to forty years’
incarceration for third-degree murder and fifteen to thirty years for
conspiracy to commit third-degree murder, as well as a concurrent sentence
of one to two years for firearms not to be carried without a license. 5 The
trial court imposed no further penalty on Andrews’ criminal trespass
conviction. The trial court denied Andrews’ post-sentence motions on
February 6, 2015, and Andrews filed a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) on March 24, 2015.
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5
Andrews was also sentenced to one to two years’ incarceration for
possession with intent to distribute and one to two years’ incarceration for
possession of a firearm with an obliterated serial number. These sentences
stemmed from guilty pleas entered by Andrews and were ordered to run
consecutively to his sentences for third-degree murder and conspiracy to
commit third-degree murder, bringing his total aggregate sentence to thirty-
seven to seventy-four years’ incarceration. N.T. Sentencing, 10/7/14, at 32.
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On appeal, Andrews raises the following issues for our review:
I. [Whether the trial court] committed an error of law and
abuse of discretion in failing to suppress the audio and
video recording of [Andrews] and his [m]other Julia White
because the Commonwealth’s Application for Wiretap
Authorization lacked probable cause and contained stale
information.
II. [Whether the trial court] committed an error [of] law in
denying [Andrews’ post-sentence motion] for judgment of
acquittal based upon the fact that evidence introduced at
trial was not legally sufficient to support the verdict
because the evidence failed to establish each material
element of the crimes charged and the commission thereof
by [Andrews] beyond a reasonable doubt.
a. [Whether the] Commonwealth failed to present
sufficient evidence that [Andrews] had committed
the killing of Victor Baez with [m]alice.
b. [Whether the] Commonwealth failed to present
sufficient evidence that [Andrews] had entered into a
[c]onspiracy with Michael Hinton to commit the
[c]rime of [third-degree murder].
c. [Whether the jury’s verdict for conspiracy to commit
third-degree murder was] contrary to [the] law and
[whether] the Commonwealth failed to prove the
specific intent to kill for [c]onspiracy.
III. [Whether, in] sentencing [Andrews], the [t]rial [c]ourt
committed an abuse of discretion, whereby the sentence
imposed by the court was unduly harsh and excessive and
the court failed to take into account the mitigating factors
presented at sentencing relating to [Andrews’] [a]ge and
[c]hildhood.
Brief for Appellant, at 4-5.
First, we address whether the trial court abused its discretion by
admitting audio and video evidence of Andrews’ conversation with his
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mother. Andrews contends that the Commonwealth’s Application for
Wiretap Authorization lacked probable cause and was based on stale
information.
When reviewing a challenge to the denial of a suppression motion, our
scope and standard of review is:
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct. When reviewing the rulings of a suppression court, this
Court considers only the evidence of the prosecution and so
much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. When the
record supports the findings of the suppression court, we are
bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation
omitted).
Here, the Honorable James J. Fitzgerald, III,6 issued an order on May
8, 2013 authorizing the interception of anticipated oral communications
between Andrews and his mother at the district court in Pottstown on May
10, 2013. In that order, Judge Fitzgerald determined that there was
probable cause to believe that communications between Andrews and his
____________________________________________
6
We recognize that this claim requires us to review a wiretap order issued
by a member of this Court, and that it is generally improper for a judge to
overrule an order by another judge of the same court in the same case.
However, because jurisdiction for wiretap authorizations is vested in this
Court by the Wiretapping and Electronic Surveillance Act, see 18 Pa.C.S.A. §
5708, the rule of necessity requires that we review such decisions when
raised on direct appeal.
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mother would “provide evidence of the commission of the murder of [Baez]
as well as provide evidence aiding in the apprehension of the perpetrators
responsible for the murder of [Baez].” Order, 5/8/13, at 2.
The trial court summarized the evidence contained in the affidavit of
probable cause as follows:
During the early morning hours of March 22, 2013, Corporal
Stephen Hatfield of the Pottstown Police Department discovered
the body of [Baez] lying in the street outside Brian’s Café. An
autopsy performed on the body of [Baez] determined that
[Baez] was a homicide victim killed by multiple gunshot wounds.
During processing of the crime scene, Montgomery County
Detective Edward Schikel discovered six fired 9[]mm cartridge
casings. During the course of interviews with law enforcement,
[Hinton] stated that he and [Andrews] had gone to Brian’s Café
on March 22, 2013 because of a dispute between [Andrews] and
[Baez], and that [Andrews] had told him that he wanted to kill
[Baez]. Hinton also reported that [Andrews] was armed with a
Glock 9 mm semi-automatic handgun, and that [Andrews] had
shot [Baez].
The affidavit of probable cause further averred that, between
March 25, 2013[,] and April 18, 2013, the police were actively
searching for [Andrews], and that Julia White told the police
that, even if she knew where [Andrews] was, she would not tell
the police.
The affidavit averred that [Andrews] was arrested in Philadelphia
on April 18, 2013, and remanded to [MCCF] without bail. While
incarcerated at MCCF, [Andrews] was permitted to make
telephone calls and to have visits with family members.
[Andrews] was advised that these conversations would be
monitored and recorded.
The crux of the request for approval of interception of the
anticipated meeting between [Andrews] and his mother on May
10, 2013[,] was the fact that the gun used in the killing of
[Baez] had not been recovered, and the authorities’ assertion
that the lawfully-monitored conversations between [Andrews]
and his family members between April 20, 2013[,] and April 24,
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2013 established compelling reasons to believe that [Andrews]
and his mother would discuss the location of that gun during
their May 10, 2013 meeting.
On review of the affidavit, the undersigned found no reason
whatever to reject Justice Fitzgerald’s determination that the
affidavit presented sufficient facts to support the interception of
the May 10, 2013 conversation on this basis.
Stated directly, the affidavit contains transcriptions of multiple
conversations between [Andrews] and family members during
which – employing vague and coded language – [Andrews]
discusses the location of an unidentified item at the residence of
“Aunt D.” This series of conversations culminates in a
conversation taking place between [Andrews] and his mother on
April 24, 2013, during a visit by [White] to her son in MCCF.
During the course of this visit, [White] appears to castigate
[Andrews] for his previous conversations with relatives on the
telephone, and tells him: “I swear to God shut your f*cking
mouth on the phones.” When [Andrews] persists in trying to
talk to her in vague language, [White] responds: “Don’t try any
codes. Don’t . . . we’ll talk at the hearing.” [Andrews] replies:
“Oh yeah, the hearing’s next Thursday.”
Trial Court Opinion, 7/29/15, at 20-22. Based on these facts, the trial court
held that the wiretap authorization was supported by sufficient probable
cause, and we agree.
Andrews also contends that the information contained in the
Application for Wiretap Authorization and affidavit of probable cause was
stale. Andrews’ contention appears to be based on the fact that the
conversation between Andrews and his mother occurred on May 10, 2013,
while the wiretap authorization and affidavit of probable cause relied on
conversations recorded on or before April 24, 2013. See Brief for Appellant,
at 10. Andrews offers no other facts in support of this claim. Therefore, we
hold that Andrews’ challenge to the staleness of the information in the
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wiretap authorization has not been fully developed and is therefore waived.
See Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014)
(issue waived where appellant fails to develop argument and provide
discussion of relevant authority).
Andrews next claims that the Commonwealth presented insufficient
evidence to support his convictions for third-degree murder and conspiracy.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[finder] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Commonwealth v. Best, 120 A.3d 329, 341 (Pa. Super. 2014) (citations
omitted).
With respect to the crime of third-degree murder, our Supreme Court
has stated:
Section 2502 of the Crimes Code defines the three degrees of
murder. This section sets forth the mens rea for first[-]degree
murder, see 18 Pa.C.S. § 2502(a) (an intentional killing), and
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defines second[-]degree murder as that occurring during the
perpetration of a felony. See id., § 2502 (b). Regarding third[-
]degree murder, however, the statute simply states, “All other
kinds of murder shall be murder of the third degree.” Id., §
2502 (c). Importantly, § 2502(c) does not set forth the requisite
mens rea for third[-]degree murder; however, § 302(c) of the
Crimes Code provides, “When the culpability sufficient to
establish a material element of an offense is not prescribed by
law, such element is established if a person acts intentionally,
knowingly or recklessly with respect thereto.” Id., § 302(c).
Case law has further defined the elements of third-degree
murder, holding:
[T]o convict a defendant of the offense of third-degree
murder, the Commonwealth need only prove that the
defendant killed another person with malice aforethought.
This Court has long held that malice comprehends not only
a particular ill-will, but . . . [also a] wickedness of
disposition, hardness of heart, recklessness of
consequences, and a mind regardless of social duty,
although a particular person may not be intended to be
injured.
Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005)
(alteration in original) (internal citation, quotation, and emphasis
omitted); see also Commonwealth v. Drum, 58 Pa. 9, 15
(1868) (defining malice as quoted above).
Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013). This Court has
previously found malice where the defendant has employed a deadly
weapon;7 where the defendant has attempted to conceal his crime or
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7
See Commonwealth v. Marks, 704 A.2d 1095 (Pa. Super. 1997).
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destroy evidence;8 and where the defendant has perpetrated a shooting
motivated by a prior incident involving the victim or a relative.9
Andrews argues that the evidence at trial was insufficient to establish
the elements of third-degree murder beyond a reasonable doubt. Brief for
Appellant, at 11. Andrews contends that the Commonwealth’s case was
based solely on the testimony of his co-defendant, Hinton, and the
Commonwealth offered “no credible collaborative evidence . . . that
[Andrews] was responsible for the malicious killing of [Baez].” Brief for
Appellant, at 13.
Here, we find that the evidence presented at trial was sufficient to
establish that Andrews committed the third-degree murder of Baez.
Specifically, the evidence was sufficient for a jury to find beyond a
reasonable doubt that Andrews acted with a reckless disregard of the fact
that his actions could cause death or serious injury when Andrews armed
himself with a 9 mm Glock, laid in wait for Baez outside of Brian’s Café, and
then shot Baez several times. Hinton’s testimony detailed how he and
Andrews acquired firearms and travelled to Brian’s Café with the intention of
ambushing Baez. N.T. Trial, 6/25/14, at 142-44. Hinton also testified that
Andrews had told him that he was scared that Baez was going to retaliate
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8
See Commonwealth v. Gonzalez, 858 A.2d 1219 (Pa. Super. 2004).
9
See Commonwealth v. Marquez, 980 A.2d 145 (Pa. Super. 2009).
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against him after his failed robbery of Baez’s nephew. Id. at 139-41.
Finally, Hinton described how, when Baez emerged from Brian’s Café,
Andrews shot him several times with a 9 mm Glock. Id. at 147.
Hinton’s testimony was largely corroborated by the Commonwealth’s
other witnesses. Benjamin Alford, a prisoner on Andrews’ cellblock, testified
about a conversation he had with Andrews after his arrest. See id. at 68-
54. Alford testified that Andrews told him that a man named “Vic” had been
looking to retaliate against Andrews after Andrews’ failed robbery attempt on
his nephew. Id. at 61-63. Alford then related Andrews’ statements about
how he waited for “Vic” outside of a bar in Pottstown with his cousin and
then shot “Vic” several times. Id. Saquanna Harrell, a cousin of Hinton,
testified that she took a bus trip with Hinton and Andrews from Norristown
to Pottstown on the night Baez was murdered. N.T. Trial, 6/24/14, at 147.
Harrell also testified that Andrews led her and Hinton to an abandoned
house, where Andrews armed himself and Hinton with firearms. Id. at 155-
57.
In addition, the Commonwealth also presented telephone records
establishing that Andrews’ cell phone was in the vicinity of Brian’s Café both
shortly before and after Baez’s death. N.T. Trial, 6/26/14, at 39-45.
Several 9 mm shell casings were found at the scene of the murder and a 9
mm bullet was recovered from Baez’s body. Additionally, Andrews’ aunt,
Dee White, testified that she observed Andrews with a handgun that was
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similar in appearance to a 9 mm Glock shortly after the murder. N.T. Trial,
6/25/14, at 41-43.
Viewed in the light most favorable to the Commonwealth as verdict
winner, see Best, supra, the trial court properly concluded that the
Commonwealth presented evidence sufficient to establish that Andrews
killed Baez and did so with malice. See Fisher, supra.
Next, Andrews contends that there was insufficient evidence at trial to
convict him of conspiracy to commit third-degree murder. The Crimes Code
defines criminal conspiracy, in relevant part, as follows:
(a) Definition of conspiracy.—A person is guilty of conspiracy
with another person or persons to commit a crime if with the
intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
...
(e) Overt Act.—No person may be convicted of conspiracy to
commit a crime unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him or by
a person with whom he conspired.
18 Pa.C.S. § 903(a), (e). Therefore, to sustain a conviction for criminal
conspiracy, “the Commonwealth must establish that the defendant (1)
entered into an agreement to commit or aid in an unlawful act with another
person or persons, (2) with a shared criminal intent and, (3) an overt act
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was done in furtherance of the conspiracy.” Fisher, supra at 1190
(citations omitted).
Here, the trial court correctly noted that:
Fisher specifically holds that, where the crime at issue is
conspiracy to commit third-degree murder, there exists no
requirement that the intended result of the conspiracy was the
death of the victim. Fisher holds, rather, that for conspiracy to
commit third-degree murder what is required is an agreement to
engage in an intentional malicious act that results in death,
regardless of whether death was the intended result.
Trial Court Opinion, 7/29/15, at 15-16. Based on this standard, the trial
court properly concluded that there was sufficient evidence for the jury to
determine beyond a reasonable doubt that Andrews and Hinton agreed to
commit the criminal and malicious act of arming themselves with firearms
and confronting Baez outside of Brian’s Café.
Specifically, sufficient evidence was presented at trial that Andrews
possessed the intent to carry out a malicious act, that he shared this intent
with Hinton, and that he carried out an overt act in furtherance of the
conspiracy. Andrews told Hinton that he wanted to kill Baez. Andrews then
armed himself and Hinton and the two travelled to Brian’s Café to carry out
their plan to ambush Baez. Hinton then entered Brian’s Café to determine
whether Baez had arrived yet, while Andrews lay in wait outside of the bar.
Furthermore, not only did Andrews and Hinton conspire to arm themselves
with firearms and proceed to Brian’s Café to ambush Baez, but Andrews
actually shot Baez several times, causing his death.
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Viewed in the light most favorable to the Commonwealth as verdict
winner, see Best, supra, the trial court properly concluded that the
Commonwealth presented sufficient evidence to establish that Andrews
engaged in a conspiracy to commit third-degree murder.10 See Fisher,
supra.
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10
Andrews also argues that a conviction for conspiracy to commit third-
degree murder requires that the Commonwealth prove a “specific intent to
kill.” Our Supreme Court has squarely rejected the proposition that specific
intent to kill is an element of conspiracy to commit third-degree murder:
The absence of intent to kill does not preclude a defendant from
being convicted of conspiracy to commit third-degree murder.
Absence of specific intent is not an element of third-degree
murder; the third-degree murder statute does not list elements
or specify a requisite mens rea, but rather categorizes this
degree of homicide as “[a]ll other kinds of murder” not falling
within the definition of first or second degree murder. 18
Pa.C.S. § 2502(c).
...
If a defendant acts with his co-conspirators in brutally attacking
the victim with the intention of killing him, he conspires to
commit first degree murder; if the defendant performs the same
action but does not care whether the victim dies or not, he
conspires to commit third-degree murder. In the latter example,
the defendant did not . . . intend to aid an unintentional murder;
rather, he intended to aid a malicious act resulting in a killing.
Malice is not the absence of any intent, just the specific intent to
kill. Where, as here, the defendant intends the underlying act . .
. which results in death, the evidence supports the charge of
conspiracy to commit third-degree murder.
Fisher, supra at 1195.
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Finally, Andrews contends that his sentence was unduly harsh and
excessive, which presents a challenge to the discretionary aspects of
sentencing. An appellant is not entitled to review of the discretionary
aspects of sentencing unless he or she satisfies a four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en
banc) (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011)).
Instantly, Andrews filed a timely notice of appeal and preserved his
issues in a post-sentence motion. However, Andrews’ brief does not include
a statement of the reasons relied upon regarding the discretionary aspects
of his sentence pursuant to Pa.R.A.P. 2119(f). The Commonwealth has
objected to Andrews’ failure to include a Rule 2119(f) statement in his brief.
See Brief for Appellee, at 29. Accordingly, Andrews is not entitled to review
of the discretionary aspects of sentencing. See Caldwell, supra.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2016
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