Com. v. Murphy, A.

J-A19044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMEER MURPHY :
:
Appellant : No. 1301 EDA 2018
Appeal from the Judgment of Sentence April 6, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005908-2015
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 21, 2019
Appellant Ameer Murphy appeals the judgment of sentence entered by
the Court of Common Pleas of Philadelphia County after a jury convicted
Appellant of first-degree murder, conspiracy to commit murder, possession of
an instrument of crime and two violations of the Uniform Firearms Act (VUFA).
Appellant claims the trial court erred in allowing the Commonwealth to admit
the prior statement of a prosecution witness. After careful review, we affirm.
The trial court aptly summarized the factual background of the case as
follows:
On March 16, 2015, just before 10:00 p.m., Leon Williams
sat on his porch at 6053 Irving Street in West Philadelphia,
between 60th and 61st Streets. As he sat on the porch smoking
cigarettes, he noticed his nephew, the decedent Marquan Royster,
approaching him from the opposite side of Irving Street via 61 st
Street. After Williams called out, “Hey Nephew!” to the decedent,
[Appellant], Ameer Murphy, and an unidentified individual walked
onto the block from 61st Street and started following the decedent.
____________________________________
* Former Justice specially assigned to the Superior Court.
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In response, the decedent began to jog away from the pair. After
the three passed Williams’ home, [Appellant] and his accomplice
drew laser-sighted pistols and fired what Williams thought was
three to four shots at the decedent in the middle of the street. As
the decedent lay dying, [Appellant] and his accomplice turned
around, ran past Williams’ house for a second time, entered a red
vehicle parked on 61st Street, and drove away. Williams saw
[Appellant’s] face after [Appellant] passed by the home for a
second time.
From his living room at 6052 Irving Street, across the street
from Williams’ home, Norman Gay heard gunfire as he watched
television. After going onto his porch to investigate, Gay observed
[Appellant] and his co-conspirator, wearing sweatshirts and
hoodies, run towards his house from the middle of the street to
the near sidewalk, carrying laser-sighted pistols in their hands. As
he ran past Gay’s home, [Appellant’s] hood came off his head,
permitting Gay to observe his face as he approached and ran
under a streetlight. After [Appellant] reached the front stairs onto
Gay’s porch, Gay’s wife pulled him inside the home. Minutes later,
Gay returned to the porch and observed a crowd in the middle of
the street.
At 9:54 p.m., Philadelphia Police Officer Gary Mercando and
Sergeant Mirriam Joseph received a radio call for a shooting near
60th and Irving Streets. Upon arrival, the officers worked their
way through a crowd of about eight people to the decedent’s body,
which lay face down in the middle of Irvine Street. After
discovering that the decedent was non-responsive, the officers
carried him into the back of their squad car and drove him to
Presbyterian Hospital, where he was pronounced dead.
Dr. Edwin Lieberman, a forensic pathologist formerly with
the Philadelphia Medical Examiner’s Office, performed the
decedent’s autopsy and generated a report. The decedent
suffered two gunshot wounds, including a perforating gunshot
wound to the rear-left side of his head, which was immediately
fatal, and a perforating gunshot wound to his right shin. Each
gunshot wound was consistent with the decedent running away
from his assailants. Assistant Medical Examiner Dr. Khalil Wardak,
an expert in forensic pathology, conducted an independent review
of Dr. Lieberman’s report and photographs associated with the
instant offense. At trial, Dr. Wardak testified, to a reasonable
degree of medical certainty, that [the] manner of death of
homicide, caused by a gunshot to the back of the head.
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Officer Michael Lombardi arrived at Irving Street shortly
after the shooting and secured the area. There, he discovered
five fired cartridge casings (“FCCs”) on the street. The
Philadelphia crime scene unit ultimately recovered three .380
caliber FCCs and four .45 caliber FCCs and one .30 caliber [sic]
and .45 projectile, respectively. Ann Marie Barnes, an expert in
ballistics, reviewed the ballistics recovered from the scene and
determined that each .380 caliber FCC and each .45 caliber FCC
were fired from the same weapon for each respective caliber.
Homicide detectives Frank Mullen and Thorsten Lucke
recovered a surveillance video from the Baez Grocery Store on
61st Street near the scene of the shooting. While the video did
not show the shooting itself, it does show a red vehicle parking
near Irving Street before the shooting, and the decedent walking
out of the store immediately prior to the shooting.
At approximately 11:37 p.m. on March 16, 2015,
[Appellant] arrived at the Camden Medical Center in Camden, New
Jersey suffering from a gunshot wound to the foot. After he
arrived, Officer Jeffrey Kostopolis of the Camden City Police
Department interviewed [Appellant], who identified himself as
Quateer Brown, and gave an address of 3133 Tasker Street in
South Philadelphia. At the hospital, [Appellant] explained that he
was waiting for his paramour Jevana Robinson at 4th and Erie
Streets in Camden where he was shot in the foot and after which
Robinson drove him to the hospital. Camden City Police
investigated the area around 4 and Erie and discovered no
th
evidence of a shooting.
In March 2015, Philadelphia homicide detectives received
information identifying a phone number associated with
[Appellant]. Detective John Verrecchio prepared a search warrant
for the phone number (215) 251-3547, associated with
[Appellant] and on March 31, 2015, Detective Verrecchio received
the cell phone records. Detective Thorsten Lucke also reviewed
the records and discovered that at 7:15 p.m. on March 16, 2016,
the user of the cell phone texted an unidentified contact, “This is
Meer Meer.” The phone further contained selfies of [Appellant]
and a photo of [Appellant] in the hospital with a foot wound. The
internet search history of the phone also revealed that the user,
on March 17, 2015, searched for a news article concerning the
instant shooting. The Phone’s user history was further littered
with images of dirt bikes and pornographic videos.
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At 6:00 a.m. on April 1, 2015, Philadelphia police officers
obtained and executed a search warrant for [Appellant’s] home at
3138 Tasker Street in South Philadelphia. There, officers
recovered the iPhone 5c associated with the (215) 251-3547
number and detained [Appellant] to question him at the homicide
unit within the Police Administration Building. That morning,
homicide detective Thomas Gaul Mirandized and interviewed
[Appellant], who gave detectives consent to search the phone.
During the interview, [Appellant] denied any involvement in
the homicide, but explained to the detective that the decedent
was killed in retaliation for the murder of his best friend Damien
James. [Appellant] further claimed that he shot himself on the
corner of 25th and Moore Streets in South Philadelphia, that he
went to Camden, New Jersey for medical treatment, and gave
doctors a fake name while he was there, but did not explain why.
Detective Gaul examined police reports for that night and
discovered a complaint about two males who were shot [] on the
1600 block of South Taylor Street in South Philadelphia.
At 8:00 p.m. that evening, Detective Verrecchio re-
Mirandized [Appellant] and conducted a second interview. Then,
[Appellant] described how he was in South Philadelphia at the time
of the shooting, and that there was an ongoing conflict between a
group of males from 20th Street against a group from 24th Street.
[Appellant] identified himself as a member of the 20th Street
group, and described the decedent as a member of the opposing
faction. James, whose death [Appellant] described as a catalyst
for the conflict between the groups and the instant shooting, was
a member of the 20th Street group with [Appellant].
Before the interview, Detective Verrecchio examined the
phone records for the 3547 number, which contained geolocation
information for each phone call. By entering the coordinates into
a Google Maps search, Detective Verrecchio was able to create a
map for each phone call, demonstrating that the user was in West
Philadelphia near the 61st and Irving Streets at the time of the
shooting. When Detective [Verrecchio] confronted [Appellant]
with this map during the interview, [Appellant] exclaimed that
“[his] life [was] over,” and asked Detective Verrecchio if he could
take the whole case himself without naming any other associates.
After further questioning, [Appellant] refused to sign a written
statement, but Detective Verrecchio prepared his own summary
of the interview.
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After [Appellant’s] arrest, Detective James Dunlap, an
expert in cell phone tower analysis, analyzed the records for the
phone associated with [Appellant] and identified more than three
dozen connections on March 16, 2015. Between 7:50 p.m. and
9:21 p.m., the phone associated with [Appellant] made seven
connections at the tower located at 63rd and Walnut Streets, near
the scene of the shooting. At 9:53 p.m., the phone associated
with [Appellant] made a call from a different sector of the same
tower. From 9:56 p.m. to 10:05 p.m., the phone travelled from
a series of towers further west, connecting with towers in Upper
Darby, Pennsylvania, the 6700 block of Baltimore Avenue in West
Philadelphia, 58th and Springfield Streets, and on 67th and
Essington Streets. By 10:19 p.m., the phone connected with a
tower on Passyunk Avenue in South Philadelphia. Between 10:19
and 11:18, the phone connected with numerous towers in an area
between Broad Street and Interstate 76 west east to west [sic]
and from South Street down to Passyunk Avenue north to south.
At 11:27 p.m., the phone connected with a tower in Camden, New
Jersey, near the Camden Medical Center. At trial, Detective
Dunlap testified that the time and location of the connections
indicate that the use of the phone was in the area of the shooting
at the time it occurred, and then was inside a vehicle that travelled
between the identified towers.
At trial, [Appellant’s] mother, Questina Woods, testified that
the 3547 numbered phone belonged to her daughter, but that she
was in possession of the phone on the evening of the shooting,
and that the phone was in her possession while she was visiting a
prospective new home at 57th and Hazel Avenue in West
Philadelphia, blocks from where the shooting occurred. On cross-
examination, when confronted about pornography discovered on
the phone, Woods testified that she often used her phone to
search for pornography, but could not explain answers to text
messages identifying the user as “Meer Meer,” [Appellant’s]
nickname.
[Appellant] elected to testify at trial and explained that he
was at 24th and Morris Streets from 6:00 to 10:30 p.m. Then,
while [Appellant] and his friend Lawrence Shiver sat in a Buick
LeSabre, an unidentified vehicle pulled up next to them and fired
into the passenger compartment, striking [Appellant] in the foot.
After that shooting, [Appellant] went to Woods’ home, and had
her drive him to a hospital in Camden, New Jersey. [Appellant]
elected to check into a New Jersey hospital and provided a
pseudonym, he explained, because he feared being arrested for a
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probation violation if he treated his wound in Philadelphia.
[Appellant] further claimed that Woods had the 3547 numbered
cell phone from 6:00 p.m. until his arrival at the Camden Medical
Center.
Trial Court Opinion (T.C.O.), 6/21/18, at 2-7 (citations omitted).
At the conclusion of the trial, the jury convicted Appellant of the
aforementioned charges on April 6, 2018. On the same date, the trial court
imposed a mandatory minimum sentence of life imprisonment without parole
on the first-degree murder charge. In addition to this life sentence, the trial
court also imposed sentences of imprisonment for his conspiracy, PIC, and
weapons charges. Appellant did not file a post-sentence motion.
On May 1, 2018, Appellant filed a timely notice of appeal. Thereafter,
this appeal was dismissed twice for Appellant’s failure to file a brief. After this
Court reinstated the appeal on two occasions, Appellant filed a counseled brief
raising one issue for review, claiming the trial court abused its discretion in
allowing the Commonwealth to introduce a witness’s prior written statement
into evidence.
It is well-established that “[t]he admission of evidence is solely within
the discretion of the trial court, and a trial court's evidentiary rulings will be
reversed on appeal only upon an abuse of that discretion.” Commonwealth
v. Le, ___Pa.___, 208 A.3d 960, 970 (Pa. 2019) (citing Commonwealth v.
Reid, 627 Pa. 151, 99 A.3d 470, 493 (2014)).
Specifically, Appellant claims the trial court abused its discretion in
allowing the Commonwealth to admit Leon Williams’ prior statement, which
Appellant characterizes as a prior consistent statement, which improperly
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bolstered Williams’ credibility. In response, the Commonwealth asserts that
the statement at issue was properly admitted as a prior inconsistent
statement.
This Court has held that a prior inconsistent statement is admissible to
impeach a witness if the statement was given under reliable circumstances
and the witness is available for cross-examination. Commonwealth v. Enix,
192 A.3d 78, 81–82 (Pa.Super. 2018). As noted above, Appellant does not
suggest that Williams’ prior statement to police was unreliable, but argues
that it was not inconsistent with his trial testimony. We disagree.
At trial, the Commonwealth elicited the following testimony from Mr.
Williams on direct examination:
[Prosecutor:] To the best you can remember, can you describe
this defendant and what he was wearing at that time?
[Williams:] The one’s that’s in the courtroom with me now?
[Prosecutor:] Yeah.
[Williams:] Like a sweatshirt with a hood. It had like a hood on
it. I don’t know what kind of sweatsuit it was, partake, but it was
a general sweatsuit. It was a darker color. That’s all.
[Prosecutor:] Okay. What about the other male?
[Williams:] He had on, like, a same, similar outfit. Another
hooded shirt or sweatsuit. But they were dressed similar.
[Prosecutor:] Was one taller or shorter than the other?
[Williams:] Yes.
[Prosecutor:] Which one was this defendant?
[Williams:] The shorter one.
Notes of Testimony (N.T.), 4/2/18, at 218-219 (emphasis added).
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At that point, the prosecutor introduced the signed statement Williams
gave to Philadelphia detectives after the shooting occurred. In this statement,
Williams had indicated that the shooter was wearing a “light gray Nike
sweatshirt with a zipped-up hood” and was the taller of the decedent’s two
assailants; Williams estimated that Appellant was 6’0’’ or 6’1” in height.
Commonwealth’s Exhibit 3, at 3. Defense counsel objected, arguing that the
prosecutor was “trying to rehabilitate her own witness.” N.T., 4/2/18, at 221.
The trial court overruled defense counsel’s objection, indicating that the
prosecutor was permitted to determine if Williams gave a different description
of Appellant at some point. N.T., 4/2/18, at 222.
We agree with the trial court’s finding that Williams’ statement was
admissible as a prior inconsistent statement. This conclusion is supported by
the fact that defense counsel also attempted to use Williams’ prior statement
to impeach his credibility based on a conflicting description of Appellant’s
clothing and stature. N.T., 4/3/18, at 47; N.T., 4/5/18, at 191-93.
Moreover, even assuming arguendo that the trial court improperly
admitted this statement, any resulting error would have been harmless.
Even where the trial court erroneously admitted evidence, this
Court may still sustain the verdict if it finds the error harmless.
See Commonwealth v. McClure, 144 A.3d 970, 975 (Pa. Super.
2016). An error is harmless only if it could not have contributed
to the verdict. See id., at 975-976. This Court will find harmless
error where the error did not prejudice the appellant, or the
prejudice was de minimis. See Commonwealth v. Brown, –––
Pa. ––––, 185 A.3d 316, 330 (2018). Similarly, where “the
properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
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insignificant by comparison that the error could not have
contributed to the verdict,” we will deem the error harmless. Id.(citation omitted).
Commonwealth v. Akhmedov, __A.3d__, 2019 PA Super 232, at *6
(Pa.Super. July 29, 2019).
In this case, the Commonwealth presented overwhelming evidence of
Appellant’s guilt. Both Williams and Norman Gay identified Appellant as the
shooter at trial and in earlier statements to the police. The prosecution
presented records from a phone that was at the location of the shooting at the
time it had occurred. The phone contained selfies of Appellant and text
messages sent from “Meer Meer” a few hours before the shooting occurred.
N.T., 4/4/18, at 144-45.
The phone’s geolocation records also showed the phone was brought
back to Appellant’s home after the shooting and eventually taken to a Camden
hospital, where Appellant admittedly checked in with a gunshot wound to the
foot. Appellant gave a fake name to the Camden medical personnel, and
indicated he had been shot in Camden. However, Camden police found no
evidence of a shooting in the area Appellant reported. When confronted with
his phone records, Appellant exclaimed that his “life [was] over” and indicated
that he would take responsibility for the murder if no one else was prosecuted.
N.T., 4/4/18, at 97.
Moreover, the Commonwealth presented evidence that would allow the
jury to infer that Appellant had a motive to kill the victim; Appellant admitted
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the victim was a member of a rival gang who was suspected to have murdered
Appellant’s best friend.
As a result, any prejudice that resulted from the admission of Williams’
prior statement was so insignificant in comparison to the overwhelming
evidence of guilt presented at trial. Accordingly, we find Appellant’s claim to
be meritless and affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/19
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