Com. v. Jackson, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON JACKSON :
:
Appellant : No. 3844 EDA 2016
Appeal from the Judgment of Sentence November 9, 2016
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005864-2015
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED JULY 17, 2018
Aaron Jackson appeals from the judgment of sentence of six to twelve
years imprisonment imposed following his conviction of third-degree murder
in the shooting death of Robert Dewees. We affirm.
The trial court set forth the relevant facts as follows:
Mr. Anthony Capetola [testified that he] rented 1113
Hancock Street in Chester. . . . He knew the victim for 14 years
and described him as his best friend. Mr. Capetola rented a
room in the house to Ms. [Maria] Occhiolini. On [September 17,
2014,] the day of the shooting[,] the victim was at Mr.
Capetola’s house. . . . Ms. Occhiolini[,] some of her girlfriends [,
including Melissa Shanahan, and Appellant were] there. . . . Mr.
Capetola knew [Appellant] as a friend of Ms. Occhiolini.
[Appellant] had been hanging around the house for a week or so
before the shooting. . . . Mr. Capetola . . . heard arguing in the
back room . . . about $600 and pills. Mr. Capetola recognized
two of the voices as belonging to the victim and [Appellant]. As
he proceeded to the back room, the arguing stopped . . . At the
time [Javier Rodriguez], [Appellant] and the victim passed by
Mr. Capetola into the living room. As the three men entered the
living room Mr. Capetola heard a loud noise. He . . . saw the
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victim down on the ground with [Appellant’s] hand around his
legs. Mr. Capetola concluded [Appellant] had tackled the victim
to the ground. Mr. Capetola went over to assist the victim. As
Mr. Capetola picked up the victim he heard someone say “should
I do it,” and then he heard [Appellant] say “yes.” Mr. Capetola
spun around and was looking at Rodriguez’s gun. At that time
Rodriguez shot the victim in the chest.
Ms. Maria Occhiolini . . . [testified that on the] day before
the shooting, . . . [she] . . . heard the victim mention that the
next day he was getting his Percocet and Xanax prescriptions.
[Appellant] told the victim he knew somebody that wanted to
buy the prescriptions. The next day, the day of the shooting, . .
. [Appellant] returned to Ms. Occhiolini’s . . . house with . . .
Rodriguez. . . . When the victim returned to the house he told
Ms. Occhiolini he didn’t feel comfortable selling Rodriguez any
pills because he didn’t know who he was. . . . Ms. Occhiolini then
told Rodriguez and [Appellant] that the victim didn’t want to do
the transaction. . . . Ms. Occhiolini started to leave. [Appellant]
walked in front of her like he was leaving to [sic]. Rodriguez
came in between the two of them. Rodriguez put a .45 handgun
to Ms. Occhiolini’s chest and attempted to rob her. [Appellant]
told Rodriguez that Ms. Occhiolini didn’t have anything.
Rodriguez told [Appellant] to detain Ms. Occhiolini so she
couldn’t call the police. Ms. Occhiolini heard Rodriguez say to
[Appellant], “should I do this?” and [Appellant] reply “yes.” . . .
[Appellant] threw the victim onto the living room floor while
Rodriguez was pointing the gun at him. . . . Ms. Occhiolini saw
the victim in the living room on his back and both Rodriguez and
[Appellant] on top of him trying to get him to release [a] Phillies
backpack he was holding. Rodriguez proceeded to point the gun
at the victim and shoot him. Rodriguez and [Appellant] then ran
out of the front door with the Phillies back pack [sic].
[Appellant] testified [that] he was a drug runner for Mr.
Capetola and Ms. Occhiolini. He would bring people to their
residence to buy drugs and would get a commission for doing so.
He denied having any knowledge that Rodriguez would rob and
shoot the victim. [Appellant] testified he knew the victim had a
prescription for Percocet and Xanax. . . . [Appellant] admitted
he brought Rodriguez to the residence to buy drugs, [and that
he knew there was a possibility that Rodriguez would get the
drugs from the victim by force (i.e., “the strong arm option”).]
[Appellant] denied [Mr.] Capetola[’s] and [Ms.] Occhiolini[’s]
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version of his involvement in the victim’s robbery and shooting.
[He claimed] Rodriguez acted alone without [Appellant’s] prior
knowledge or participation.
Trial Court Opinion, 3/16/17, at 1-8 (references to the record and footnote
omitted, formatting changed).
Appellant was arrested and charged with murder of the second degree,
murder of the third degree, robbery, and criminal conspiracy for his alleged
participation in Dewees’s murder. Following a jury trial, Appellant was
convicted of murder of the third degree. On November 9, 2016, the trial
court sentenced him to six to twelve years incarceration. Appellant filed a
post-sentence motion which the trial court denied. Appellant then filed a
timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.
Appellant raises the following issues for our review:
1. Whether the evidence presented by the Commonwealth at
trial was insufficient to convict the Appellant beyond a
reasonable doubt of murder of the third degree where the
evidence was clear that Appellant was not the shooter and did
not cause the death of the victim, and [the] jury found
Appellant not guilty of 2nd[-]degree murder, criminal
conspiracy to commit 2nd[-]degree murder and 3rd[-]degree
murder[,] and robbery?
2. Whether the trial court erred in granting the Commonwealth’s
motion in limine prior to trial which precluded the Appellant
from using the principal Commonwealth witness’[s] criminal
record for impeachment purposes, specifically the arrest and
conviction of [Mr.] Capetola for drugs, and as such was an
abuse of the court’s discretion and denied the Appellant a fair
trial?
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3. Whether the trial court erred in precluding the Appellant from
using the principal Commonwealth witness’[s] criminal record
for impeachment purposes, specifically the arrest and
conviction of [Mr.] Capetola for drugs, and as such was an
abuse of discretion and denied Appellant a fair trial, where
Commonwealth’s witness testified at trial that he did not have
a criminal record, but that Appellant was a criminal?
4. Whether the trial court erred in failing to grant the Appellant’s
various motions for mistrial raised by his counsel during the
jury trial?
Appellant’s brief at 5 (unnecessary capitalization omitted).
In his first claim, Appellant challenges to the sufficiency of the
evidence supporting his conviction. As a preliminary matter, when
challenging the sufficiency of the evidence on appeal, the “[a]ppellant’s
[court-ordered Pa.R.A.P. 1925(b) concise] statement must specify the
element or elements upon which the evidence was insufficient in order to
preserve the issue for appeal.” Commonwealth v. Gibbs, 981 A.2d 274,
281 (Pa.Super. 2009). If the appellant fails to conform to the specificity
requirement, the claim is waived. Id.
In the present case, Appellant’s 1925(b) statement merely asserts that
“[t]he evidence presented by the Commonwealth at trial was insufficient to
convict [Appellant] beyond a reasonable doubt of murder of the third degree
where the evidence was clear that [Appellant] was not the shooter and did
not cause the death of the victim, and jury found him not guilty of
2nd[-]degree murder, criminal conspiracy to commit 2nd and 3rd[-]degree
murder[,] and robbery.” Concise Statement, 12/16/16, at unnumbered 3.
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The trial court determined that Appellant’s statement was inadequate
because he failed to specify which element of the crime that the
Commonwealth had allegedly failed to prove. See Trial Court Opinion,
3/16/17, at 11. We agree with the trial court that Appellant’s statement of
his sufficiency claim was vague insofar as it did not specifically challenge the
evidence relating to any element of third-degree murder. However, as the
trial court addressed the claim, we decline to find waiver on this basis.
Our standard of review of a sufficiency claim is well-settled:
[W]e evaluate the record in the light most favorable to the
verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant’s innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa.Super. 2013) (citations
and quotation marks omitted).
Additionally,
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
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long as the evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the respective
elements of a defendant’s crimes beyond a reasonable doubt,
the appellant’s convictions will be upheld.
Commonwealth v. Tukhi, 149 A.3d 881, 886-87 (Pa.Super. 2016) (citation
omitted).
Murder is defined by statute as follows:
(a) Murder of the first degree.--A criminal homicide
constitutes murder of the first degree when it is committed
by an intentional killing.
(b) Murder of the second degree.--A criminal homicide
constitutes murder of the second degree when it is
committed while defendant was engaged as a principal or
an accomplice in the perpetration of a felony.
(c) Murder of the third degree.--All other kinds of murder
shall be murder of the third degree. Murder of the third
degree is a felony of the first degree.
18 Pa.C.S. § 2502.
A person may be convicted of third-degree murder where
the murder is neither intentional nor committed during the
perpetration of a felony, but contains the requisite malice
aforethought. Malice consists of a wickedness of disposition,
hardness of heart, cruelty, recklessness of consequences, and a
mind regardless of social duty, although a particular person may
not be intended to be injured.
Commonwealth v. Pigg, 571 A.2d 438, 441-42 (Pa.Super. 1990) (internal
quotations and citations omitted). “The elements of third[-]degree murder,
as developed by case law, are a killing done with legal malice but without
specific intent to kill required in first[-]degree murder. Malice is the
essential element of third[-]degree murder, and is the distinguishing factor
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between murder and manslaughter.” Commonwealth v. Cruz-Centeno,
668 A.2d 536, 539 (Pa.Super. 1995).
With respect to accomplice liability:
A person is deemed an accomplice of a principal if “with
the intent of promoting or facilitating the commission of the
offense, he: (i) solicit[ed the principal] to commit it; or (ii)
aid[ed] or agree[d] or attempt[ed] to aid such other person in
planning or committing it.” 18 Pa.C.S. § 306; Commonwealth
v. Spotz, . . . 716 A.2d 580, 585 ([Pa.] 1998). Accordingly, two
prongs must be satisfied for a defendant to be found guilty as an
“accomplice.” First, there must be evidence that the defendant
intended to aid or promote the underlying offense. Second,
there must be evidence that the defendant actively participated
in the crime by soliciting, aiding, or agreeing to aid the principal.
While these two requirements may be established by
circumstantial evidence, a defendant cannot be an accomplice
simply based on evidence that he knew about the crime or was
present at the crime scene. There must be some additional
evidence that the defendant intended to aid in the commission of
the underlying crime, and then did or attempted to do so. With
regard to the amount of aid, it need not be substantial so long as
it was offered to the principal to assist him in committing or
attempting to commit the crime.
Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004) (some
citations omitted).
Here, Appellant contends that the Commonwealth failed to prove that
he acted with the requisite level of malice necessary to support a conviction
of third-degree murder as an accomplice. He claims that he accompanied
Rodriguez to Mr. Capetola’s home solely to purchase drugs, and there is no
evidence that Appellant planned to injure or kill Dewees, or that he knew
that Rodriguez possessed a firearm. According to Appellant, he did not
solicit, aid or encourage Rodriguez in the shooting death of Dewees.
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Viewing the evidence adduced at trial in the light most favorable to the
Commonwealth, as the verdict winner, we conclude that a reasonable juror
could find that Appellant intended to aid, and actively aided, Rodriguez, who
shot and killed Dewees. Appellant testified that he brought Rodriguez to the
residence to buy drugs, and that he knew there was a possibility that
Rodriguez would get the drugs from the victim by force (i.e., “the strong
arm option”). N.T. Trial, 8/4/16, at 141-42. Appellant was also aware that
Rodriguez had a gun because he saw Rodriguez use it to try to rob Ms.
Occhiolini. N.T. Trial, 8/3/16, at 93. Additionally, Mr. Capetola testified that
Appellant tackled Dewees to the ground and was holding his legs when
someone asked “should I do it?” to which Appellant responded “yes”
immediately before Rodriguez shot Dewees in the chest. Id. at 13-15. Ms.
Occhiolini also testified that Appellant threw Dewees onto the living room
floor while Rodriguez was pointing the gun at him, and that both Rodriguez
and Appellant were on top of Dewees trying to get him to release the Phillies
backpack he was holding. Id. at 96-98. Ms. Occhiolini further testified that
she heard Rodriguez ask Appellant just prior to the shooting, “should I do
this?” and Appellant reply “yes.” Id. at 94.
Based on these facts, we find the Commonwealth presented sufficient
evidence to prove that Appellant acted with the requisite malice to support
his third-degree murder conviction as an accomplice by showing a
“wickedness of disposition, hardness of heart, cruelty, recklessness of
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consequences, and a mind regardless of social duty.” Pigg, supra at 441-
42. Accordingly, we conclude that Appellant’s first issue merits no relief.
In Appellant’s second and third issues, he challenges the trial court’s
order granting the Commonwealth’s motion in limine to preclude the use of
Mr. Capetola’s criminal record for impeachment purposes. In reviewing the
grant or denial of motions in limine, this Court applies an abuse of discretion
standard of review. See Commonwealth v. Stokes, 78 A.3d 644, 654
(Pa.Super. 2013). “An abuse of discretion will not be found based on a mere
error of judgment, but rather exists where the court has reached a
conclusion which overrides or misapplies the law, or where the judgment
exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.” Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014).
Additionally, this Court has stated the well-established standard of
review for admission-of-evidence claims as follows:
The admission or exclusion of evidence is within the sound
discretion of the trial court, and in reviewing a challenge to the
admissibility of evidence, we will only reverse a ruling by the
trial court upon a showing that it abused its discretion or
committed an error of law. Thus, [this Court’s] standard of
review is very narrow. To constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful
or prejudicial to the complaining party.
Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super. 2012).
First, Appellant claims the trial court erred in precluding the use of Mr.
Capetola’s criminal record to impeach him. According to Appellant, seven
months after the shooting, Mr. Capetola entered a negotiated guilty plea to
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possession of a controlled substance in exchange for one year reporting
probation. Appellant contends that Mr. Capetola may have been motivated
by his negotiated plea to fabricate a claim that Appellant encouraged
Rodriguez to shoot Dewees. Appellant argues that the trial court abused its
discretion in granting the Commonwealth’s motion in limine to preclude the
introduction of Mr. Capetola’s conviction because the jury should have been
appraised of the details of Mr. Capetola’s plea agreement for impeachment
purposes.
Pennsylvania Rule of Evidence 609(a) provides that: “[f]or the purpose
of attacking the credibility of any witness, evidence that the witness has
been convicted of a crime, whether by verdict or by plea of guilty or nolo
contendere, must be admitted if it involved dishonesty or false statement.”
It is the burden of the party seeking to introduce the crimes to demonstrate
the crimes at issue represent crimen falsi. See Commonwealth v. Davis,
17 A.3d 390, 396 (Pa.Super. 2011).
Here, Mr. Capetola’s conviction for possession of a controlled
substance did not involve dishonesty or a false statement, and is not a
crimen falsi conviction admissible under Pa.R.E. 609. See id. at 399
(observing that possession of a controlled substance is not crimen falsi).
Thus, the trial court had the discretion to exclude it from evidence at trial.
Moreover, the record reveals the trial court conducted two hearings on
the Commonwealth’s motion in limine wherein it was revealed that, during
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the criminal proceedings related to his drug charge, Mr. Capetola did not
reveal to either his defense counsel or to the assistant district attorney that
he had been a witness to a murder, and, consequently, did not receive any
benefit from the Commonwealth for his plea. N.T. Pretrial, 7/25/16, at 4-6.
Thus, at the time of Mr. Capetola’s plea agreement, the Commonwealth was
unaware that he was a potential witness in an upcoming murder trial.
Further, Mr. Capetola served the entirety of his probationary sentence before
Appellant’s trial commenced. N.T. Pretrial, 8/1/16, at 9-10; N.T. Pretrial,
7/25/16, at 6. Accordingly, we discern no abuse of discretion or error of law
by the trial court, and conclude that Appellant’s second claim warrants no
relief.
Appellant next claims that the trial court abused its discretion when it
precluded the introduction of Mr. Capetola’s conviction to impeach his
testimony regarding his criminal record. According to Appellant, Mr.
Capetola lied about his criminal history when he told the jury that “I don’t
sell drugs, I never did. I don’t have a record selling drugs or whatever,
buying drugs whatever.” Appellant’s brief at 18 (citing N.T. Trial, 8/3/16, at
70-75).
Appellant’s claim lacks merit. Although Appellant attempts to
characterize Mr. Capetola’s testimony as perjured, the record reveals it was
not. As Appellant points out, Mr. Capetola pled guilty to possession of
controlled substance. Therefore, Mr. Capetola truthfully told the jury that he
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had no criminal record for the sale or purchase of drugs. Moreover,
Appellant was permitted to question Mr. Capetola at trial regarding his drug
use, and elicit his testimony that he had used drugs in the past. See N.T.,
8/3/16, at 63. Thus, we discern no abuse of discretion or error of law by the
trial court, and conclude that Appellant’s third claim is meritless.
In his final claim, Appellant contends that the trial court erred by
denying his three motions for mistrial. We address each motion separately,
mindful of our standard of review of a court’s denial of a request for mistrial:
A motion for a mistrial is within the discretion of the trial
court. A mistrial upon motion of one of the parties is required
only when an incident is of such a nature that its unavoidable
effect is to deprive the appellant of a fair and impartial trial. It is
within the trial court’s discretion to determine whether a
defendant was prejudiced by the incident that is the basis of a
motion for a mistrial. On appeal, our standard of review is
whether the trial court abused that discretion.
Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003) (internal
citations and footnote omitted).
According to Appellant, the trial court erred by denying his first motion
for mistrial following Detective William Wright’s trial testimony that Appellant
and Rodriguez agreed to obtain Percocet pills from Dewees either by sale or,
if necessary, through a “strong arm robbery.” N.T. Trial, 8/4/16, at 57, 60.
Specifically, the detective stated that “[Appellant] said if they could not get
them and pay for them there would be a possibility they could strong arm
them. So, there was an agreement they could get them either way. Strong
arm I mean forcibly taking them from him.” Id. at 57. Appellant claims
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that Detective Wright “in essence offered his opinion that Appellant and
[Rodriguez] had entered into a conspiracy to rob [Dewees] of his narcotics.”
Appellant’s brief at 22. Although Appellant concedes that he subsequently
testified at trial regarding the strong arm robbery option, he nevertheless
contends that he was prejudiced and denied a fair trial by the detective’s
“damning and prejudicial testimony.” Id.
Notably, Appellant does not claim that Detective Wright’s testimony
was inadmissible. Rather, he summarily contends, without discussion of or
citation to any relevant legal authority, that he was unfairly prejudiced by it.
Without any developed discussion of why the trial court erred by considering
Detective Wright’s testimony as an admissible opinion by a lay witness, see
Pa.R.E. 701,1 Appellant has not demonstrated that the court’s decision was
an abuse of discretion. See Pa.R.A.P. 2119(a) (stating that the parties’
____________________________________________
1 Rule 701 provides:
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or
to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.E. 701
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briefs must include a discussion of each question raised on appeal and a
“citation of authorities as are deemed pertinent.”).
Moreover, the trial court determined that, even if it erred by not
striking the detective’s testimony, Appellant suffered no prejudice because
he testified at trial that he voluntarily told police that he knew there was a
possibility that Rodriguez would get the drugs from the victim by “strong
arm.” See Trial Court Opinion, 3/16/17, at 20; see also N.T., 8/4/16, at
141-42. As we discern no abuse of discretion by the trial court, Appellant’s
challenge to the trial court’s denial of his first motion for mistrial warrants no
relief.
Appellant next claims that the trial court erred by denying his motion
for mistrial following Detective Wright’s trial testimony that the jury should
disregard Ms. Shanahan’s post-incident statements because of his
observations of her demeanor during police interviews. Appellant contends
that the detective’s statements invaded the province of the jury by
“cast[ing] a cloud over the testimony and credibility of Ms. Shanahan,” and
thereby “wholly eviscerated” Appellant’s right to a fair trial. Appellant’s brief
at 23.
The trial court determined that no mistrial was warranted as the
detective testified to his personal observations of Ms. Shanahan’s demeanor.
See Trial Court Opinion, 3/16/17, at 18-19. We discern no abuse of
discretion by the trial court. See Commonwealth v. Boczkowski, 846
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A.2d 75, 97 (Pa. 2004) (holding that a lay person is permitted to testify as
to personal observations of someone’s demeanor, and to offer an opinion on
matters falling within the realm of common knowledge experience and
understanding); see also Pa.R.E. 602 (providing that a witness may testify
to matters within his personal knowledge). Accordingly, Appellant’s
challenge to the trial court’s denial of his second motion for mistrial warrants
no relief.
Finally, Appellant argues that the trial court erred by denying his third
motion for mistrial based on the Commonwealth’s failure to provide the
defense with a copy of Mr. Capetola’s written statement to police following a
photo array. According to Appellant, the Commonwealth “shockingly
claimed that no statement was taken from [Mr.] Capetola coincident with the
showing of the photo array.” Appellant’s brief at 24. Appellant claims that
the Commonwealth destroyed or withheld the statement from the defense,
in violation of Brady v. Maryland, 373 U.S. 83 (1963), and
Commonwealth v. Cam Ly, 980 A.2d 61 (Pa. 2009).
The trial court determined that no mistrial was warranted because no
written statement was taken from Mr. Capetola following the photo array.
See Trial Court Opinion, 3/16/17, at 18 (citing N.T. Trial, 8/3/16. At 70-75).
Based on our review, we discern no abuse of discretion by the trial court.
Appellant’s claim is based on pure conjecture, whereas the trial court was
presented with credible representations at trial that no written statement
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was made by Mr. Capetola following the photo array. See N.T. Trial,
8/3/16. At 71, 74-75. Accordingly, Appellant’s challenge to the trial court’s
denial of his third motion for mistrial based on a suspected Brady violation
warrants no relief.
Judgment of sentence affirmed.
Judge Musmanno joins the memorandum
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/18
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