Com. v. David, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAYMOND DAVID, :
:
Appellant : No. 1798 EDA 2014
Appeal from the Judgment of Sentence January 16, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0008429-2012
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 30, 2015
Appellant, Raymond David, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, after a jury
found him guilty of third-degree murder1 and criminal conspiracy to commit
murder.2 He challenges the sufficiency of the evidence for accomplice
liability for third-degree murder. We affirm.
The trial court summarized the trial evidence in a light most favorable
to the Commonwealth:
During the last week of February 2012, one of
[Appellant’s] close friends, Nyere Jordan (Nyere) was
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(c).
2
18 Pa.C.S. § 903.
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murdered. [Appellant] and Nyere were very close, “like
bothers,” prior to his death. Nafees Jordan (Nafees),
Nyere’s brother, and Warren Johnson (Johnson), Nyere’s
cousin, asked [Appellant] if he knew who was responsible
for Nyere’s death. Both Nafees and Johnson told
[Appellant] that they believed Mark Reddy (Reddy) killed
Nyere, and that they were going to “shoot his ass up and
kill him.” About a week or two later, Johnson called
[Appellant] on his cell phone and asked him to call Reddy
to set up a meeting at a local barber shop under the
pretext of purchasing marijuana. Johnson instructed
[Appellant] to let him know which way Reddy was walking
so that Johnson could kill him.
On March 17, 2012, around 7 p.m., Reddy entered the
Rite Aid at 19th Street and Fairmount Avenue. He was
there for about 20 to 30 minutes, then received a phone
call and left. [Appellant] had telephoned Reddy and asked
if he had marijuana for sale.[fn 6] Reddy confirmed that he
did and he instructed [Appellant] to meet him at the
barber shop at 17th and Poplar Streets. [Appellant]
purchased marijuana from Reddy at the barber shop, and
Reddy left. Outside of the barber shop, [Appellant]
observed a burgundy colored Grand Prix driven by a light-
skinned African-American male, with Johnson in the front
passenger seat. After [Appellant] purchased the
marijuana, Johnson called [Appellant] to ask where Reddy
was, and [Appellant] told Johnson that Reddy was walking
on Wylie Street. A few minutes later, Johnson called
[Appellant] again, and told [Appellant] that he was parked
on Perkiomen Street near Wylie Street waiting for Reddy to
pass. [Appellant] began walking across Wylie Street when
[Appellant] heard the gunshots.[fn 7 Appellant] received a
final call from Johnson, who asked if he heard the
gunshots. [Appellant] replied that he heard the gunshots
and was going to “go up to the street to see what was
going on and what people were saying.” Reddy was found
dead next to a garage located at 1812 Wylie Street and
7:50 p.m.[fn 8]
[fn 6]
The cell phone records of [Appellant], Reddy, and
Johnson were introduced into evidence. These records
showed that on the night of the murder, each time
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[Appellant] contacted Reddy, he then contacted a phone
number later determined to be Johnson’s.
[fn 7]
Video surveillance of the 800 block of Leland Street for
March 17, 2012 was introduced into evidence, and showed
a man running down Leland Street, stopping to use an
inhaler. [Appellant] admitted in his statement to running
down Leland Street after hearing gunshots and stopping to
take his “asthma pump medicine.”
[fn 8]
Video surveillance from a camera located on the west
side of the property where the homicide took place was
introduced into evidence. The video shows a single male
approach Reddy, who was walking west on Wylie Street,
and shoot him from behind. The video then shows the
shooter traveling back east on Wylie Street, and making a
right turn onto Perkiomen Street. The quality of the video
was not good enough to identify the shooter. Reddy
suffered seven gunshot wounds: he was struck in the back
of the head, the side of the right chest, the lower right
back, the right upper arm, the left forearm, the left thigh,
and the left lower leg.
After homicide detectives analyzed phone numbers from
Reddy’s cell phone, and identified [Appellant’s] as one of
them, he was brought to the Homicide Unit of the police
department at approximately 11 p.m. on March 17, 2012.
On March 18, 2012 at 11:20 p.m., [Appellant] made a
statement to Detectives Leahy and Graf in the homicide
unit. In the statement, [Appellant] indicated: that he
purchased marijuana from Reddy at the barber shop
located at 17th and Poplar Streets; he then watched Reddy
walk off toward Wylie Street. A few moments later, when
walking down Leland Street, [Appellant] heard gunshots,
and observed Stephen Cannida (Cannida) running past
Francis Street near Perkiomen Street, wearing a black
hood and dark colored pants. The video surveillance
obtained by the detectives for the 800 block of Leland
Street corroborates the fact that the Appellant was in that
location at 7:51 p.m. on March 17, 2012.
Based on telephone records obtained through a search
warrant and based on the fact that further investigation
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established that Cannida was confined to a halfway house
on the date of the murder, detectives brought [Appellant]
into the Homicide Unit as a suspect on June 28, 2012.
[Appellant waived his Miranda3 rights and] made a
statement on this date, refuting much of the information
he had given in his prior statement. On June 28,
[Appellant] admitted to detectives that he called Reddy
under the pretext of a drug transaction, knowing that
Johnson would be nearby seeking revenge.[4 Appellant]
stated that he willfully participated in the plan to kill
Reddy, and he knew that his actions would likely result in
Reddy’s death. Telephone records from [Appellant’s],
Reddy’s, and Johnson’s cell phones corroborated the chain
of events in the Appellant’s June 28 statement. The video
surveillance placed [Appellant] in close proximity to the
crime scene just one minute after the killing.
Trial Ct. Op., 9/11/14, at 2-4 (record citations omitted). Appellant testified
at trial and denied making his second statement to police. N.T., 12/3/14, at
52.
On December 6, 2013, a jury found Appellant guilty of third-degree
murder and criminal conspiracy. On January 16, 2014, the trial court
sentenced him to an aggregate term of twenty to forty years’ incarceration.
On January 23, 2014, Appellant filed post-sentence motions, which he
amended on the following day. On May 23, 2014, the trial court denied
Appellant’s post-sentence motions. Appellant timely filed the instant appeal
and a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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Appellant presents the following questions for review:
[Whether] the evidence was insufficient to support a guilty
verdict for third-degree murder where [Appellant] was
found guilty as an accomplice but there was no evidence
that his alleged accomplice(s) actually killed the victim?
[Whether] the trial court abuse[d] its discretion in refusing
to permit trial counsel to elicit relevant, probative evidence
of whether [Appellant’s] alleged accomplices had been
arrested for being the actual killer?
Appellant’s Brief at 7.
Appellant first argues the evidence was insufficient to support a
conviction for third-degree murder, because the Commonwealth did not
establish the identity of the shooter. Appellant’s Brief at 8. He contends the
trial evidence gave rise to an equally probable inference that a person
unrelated to his and Johnson’s plan shot Reddy. Id. He thus suggests he
could not be held culpable as an accomplice in the murder because there
was no evidence he assisted Reddy’s actual killer. Id. at 11. No relief is
due.
When reviewing a challenge to the sufficiency of the evidence, our
scope of review is plenary and the standard of review is de novo.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235 (Pa. 2007).
The test for determining the sufficiency of the evidence is
whether, viewing the evidence in the light most favorable
to the Commonwealth as verdict winner and drawing all
proper inferences favorable to the Commonwealth, the
fact-finder could reasonably have determined all elements
of the crime to have been established beyond a reasonable
doubt. This standard is equally applicable to cases where
the evidence is circumstantial rather than direct so long as
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the combination of the evidence links the accused to the
crime beyond a reasonable doubt.
In applying this test, we may not weigh the evidence and
substitute our judgment for that of 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.
Commonwealth v. Cassidy, 668 A.2d 1143, 1144 (Pa. Super. 1995)
(citations and some punctuation omitted).
Third-degree murder is a killing done with legal malice, but without the
specific intent to kill which is required for first degree murder.
Commonwealth v. Geiger, 944 A.2d 85, 90 (Pa. Super. 2008). “[M]alice
may be found where the defendant has consciously disregarded an
unjustified and extremely high risk that [his] conduct might cause death or
serious injury to another.” Id.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
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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). An accomplice may be found guilty even where “the
person claimed to have committed the offense has not been prosecuted or
convicted or has been convicted of a different offense or degree of offense or
has an immunity to prosecution or conviction or has been acquitted.” 18
Pa.C.S. § 306(g); cf. Commonwealth v. Woodward, 614 A.2d 239, 242
(Pa. Super. 1992) (explaining accomplice liability only requires proof of
requisite intent and aid, agreement to aid, or attempt to aid in commission
of offense).
Following our review of the arguments and the record, we conclude
there was sufficient evidence to sustain Appellant’s conviction for third-
degree murder as an accomplice. Initially, as the trial court explained, there
was ample evidence of Appellant’s intent to aid Johnson and kill Reddy:
The Commonwealth presented evidence [proving that] the
defendant intended to facilitate the underlying offense.
The defendant was aware that Nafees and Johnson wanted
Reddy dead because they believed he killed Nyere.
Johnson discussed this plan with [Appellant], and then
telephoned [Appellant] a few weeks later to form a plan.
Johnson instructed [Appellant] to ask to purchase the
marijuana from Reddy at the barber shop at 17th and
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Poplar Streets, and to then inform Johnson of Reddy’s
location. [Appellant] complied with this plan and was
aware that by taking these actions Reddy’s death would
likely result.
Trial Ct. Op. at 6.
Further, based on evidence submitted by the Commonwealth, a
reasonable juror could conclude Appellant actively aided the principal who
shot and killed Reddy. The Commonwealth submitted phone records of calls
between Appellant, Reddy, and Johnson on the date of the murder and
Appellant’s statements to police describing the contents of his
communications. N.T., 12/3/13, at 234, 237. Appellant and Reddy met at
the barber shop at 17th and Poplar Streets where Appellant purchased
marijuana from Reddy; Appellant then informed Johnson that Reddy was
walking on Wylie Street. Id. at 212-13; N.T., 12/4/14, at 46. In another
phone conversation, Johnson informed Appellant he was parked near Wylie
and Perkiomen Streets waiting for Reddy to pass. N.T., 12/4/13, at 46.
Surveillance cameras showed that as Reddy passed that same intersection
heading west, the principal approached Reddy from behind, shot him several
times, traveled back east on Wylie Street, and turned right onto Perkiomen
Street. N.T., 12/3/13, at 245. Meanwhile, video surveillance also showed
Appellant running down Leland Street, a few blocks from the shooting, after
hearing the gunshots. Id. at 229. Appellant received another call from
Johnson, asking if he heard the gunshots. N.T., 12/4/13, at 46. Appellant
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replied he did and he would “go up the street to see what was going on and
what people were saying.” Id.
Appellant further admitted his involvement in Reddy’s death to
Detectives Leahy and Graf, explaining he called Reddy under the pretext of a
drug transaction, knowing that Johnson would be nearby seeking revenge.
Id. at 18-19. He also stated he willfully participated in the plan to kill Reddy
and knew his actions would likely result in Reddy’s death. Id. at 23-24. The
jury was free to weigh his prior statements to police against his testimony at
trial. See Cassidy 668 A.2d at 1144.
Thus, although Appellant contends that someone other than Johnson
could have shot Reddy, there was a sufficient basis for the jury to find
Appellant planned and assisted in a plot to shoot Reddy and an individual
associated with that plot shot and killed Reddy. Accordingly, we discern no
merit to Appellant’s claim that he is entitled to relief based on the failure to
introduce direct evidence of the killer’s identity. See id.Appellant next argues the trial court abused its discretion in precluding
him from asking the detectives whether his alleged coconspirators and
accomplices were arrested for shooting the victim. Appellant’s Brief at 12.
Appellant asserts the trial court erred in ruling that the identity of the
principal was not an element of the offense, and therefore, improperly
excluded evidence disproving a material fact. Id. at 12-13. We disagree.
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The scope of cross-examination is largely within the discretion of the
trial court. Commonwealth v. Dreibelbis, 426 A.2d 1111, 1117 (Pa.
1981). With respect to the admission or exclusion of evidence:
Our standard for review regarding the admissibility of
evidence is an abuse of discretion. “[T]he admissibility of
evidence is a matter addressed to the sound discretion of
the trial court and . . . an appellate court may only reverse
upon a showing that the trial court abused its discretion.”
Commonwealth v. Weiss, 776 A.2d 958, 967 (Pa. 2001)
(citations omitted). “An abuse of discretion is not a mere
error in judgment but, rather, involved bias, ill will,
partiality, prejudice, manifest unreasonableness, or
misapplication of law.” Commonwealth v. Hoover, 16
A.3d 1148, 1150 (Pa. Super. 2011).
Commonwealth v. Collins, 70 A.3d 1245, 1251-52 (Pa. Super.), appeal
denied, 80 A.3d 774 (Pa. 2013).
Having reviewed the arguments and record, we agree with the trial
court that proof that the principal committed the underlying offense was not
an element in establishing Appellant’s guilt for third-degree murder under a
theory of accomplice liability or conspiracy. See Trial Ct. Op., at 9;
Woodward, 614 A.2d at 242. We further agree Appellant’s proffer that the
police did not arrest Johnson or Nafees was immaterial to a fair
consideration of his innocence or guilt of the charges. Accordingly, we
discern no basis to conclude the trial court abused its discretion in precluding
this evidence and affirm on the basis of the trial court’s opinion. See Trial
Ct. Op., at 9-10.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2015
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