Com. v. Bethea, M.

J. S69016/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MONTEZ BETHEA, : No. 2967 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, September 11, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0009460-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 23, 2014
Appellant, Montez Bethea, appeals from his judgment of sentence
entered by the Court of Common Pleas of Philadelphia following a bench trial
before the Honorable Glenn B. Bronson. Appellant was convicted of two
counts of first degree murder and related offenses. The trial court imposed
the mandatory sentence of life in prison for each murder charge to run
consecutive to one another. We affirm.
Preliminarily, we must address the facially untimely filing of the notice
of appeal. Post-sentence motions were filed and denied on September 20,
2013. Because the 30th day to file the notice of appeal fell on Sunday,
October 20, 2013, appellant had until Monday, October 21, 2013 to file his
appeal. See Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A.; 1 Pa.C.S.A. § 1908.
Appellant filed his notice of appeal on October 22, 2013.
J. S69016/14
On December 20, 2013, this court issued a rule to show cause why the
appeal should not be quashed as untimely. On January 3, 2014, appellant’s
counsel filed his response in the form of a petition to show cause why notice
of appeal should be deemed timely and should not be quashed. Counsel
noted the following docket entry of the Philadelphia Court Criminal Electronic
Filing System: “09/23/13 Order Denying Motion for New Trial.” Counsel
proceeded to electronically file his notice of appeal, via the electronic filing
system, on October 22, 2013. Attached to his notice of appeal was a copy of
the electronic filing system sheet which indicated the order denying motion
for a new trial was filed on September 23, 2013. (Certified record,
document #18.)
The paper docket entry in the official record lists the order denying
motion for a new trial as filed on September 20, 2013. Thus, this case
presents two conflicting dockets that yield different results when the
timeliness of appellant’s notice of appeal is analyzed. Pursuant to the online
docket, the 30th day in which to file his appeal was October 23, 2013, and
appellant’s appeal is timely. Pursuant to the paper docket, the appeal period
expired on October 21, 2013, and appellant’s notice of appeal is untimely.
We find that this dichotomy must be resolved in appellant’s favor. See
Calabrese v. Zeager, 976 A.2d 1151, 1153 (Pa.Super. 2009) (where there
was a conflict between court’s internet and paper dockets and appellants
relied on errors contained in flawed docket published by county, we granted
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equitable relief through an appeal nunc pro tunc). Therefore, we may
proceed to review appellant’s appeal on the merits and will not quash it for
untimeliness.
The trial court opinion sets forth the relevant facts and procedural
history of this case. Therefore, we have no need to restate them here.
Appellant raises the following issues for our review:
I. Is the Defendant entitled to an arrest of
judgment on each of two Counts of First
Degree Murder where the evidence is
insufficient to sustain the verdict?
II. Is the Defendant entitled to a new trial on each
of two Counts of First Degree Murder where
the verdict is not supported by the greater
weight of the evidence?
Appellant’s brief at 3.
After a thorough review of the record, appellant’s brief, 1 the relevant
law, and the well-reasoned opinion of the trial court, we hold the sufficiency
and weight arguments proffered by appellant are without merit. The trial
court’s opinion carefully addresses and correctly disposes of the sufficiency
and weight claims raised before it by appellant. Accordingly, we dispose of
appellant’s issues on the basis of that opinion.
Judgment of sentence affirmed.
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J. S69016/14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
1
The Commonwealth filed a brief in which it relied on the trial court’s
opinion.
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rN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVAI'-IIA
CRIMINAL TRIAL DIVISION
CP-S1-CR-0009460-2011
v.
MONTEZ BilTIffiA
1111111111111111111111 III
709370694 1
BRONSON, J. December 6. 2013
On September 11 , 2013 , following a non-jury trial before thls Court, defendant Montez
Bethea was convicted of two counts of first-degree murder (18 Pa.e.S. § 2502(a)), two counts of
criminal conspiracy (18 Pa.C.S. § 903), two counts of first-degree robbery (1 8 Pa.e.S. §
3701 (a)(I)(i), one ~Ounl of carrying a fueann withoul a license (18 Pa.C.S. § 6 106(a)( I)), one
count of carrying a fircann on public streets ofPhilndelph.i1l (l8 Pa.C.S. § 6108), one count of
,
possessing a controlled substance with intent to deliver (75 Pa.C.S. § 780-1 13(a)(30)), and one
count of possessing an instrument of crime (18 Pa.C.S , § 907(a» . The Coun immediately
imposed the mandatory sentence of life in prison for each murder charge, to nUl consecutive to
one another (18 Pa.C.S. § 1102(a)(I». Defendant filed post-sentence motions , which the Court
dellied on September 20 , 2013.
Defendant has now appealed from the judgment of sentence entered by tile Court on the
grounds that: l) the evidence was insufficient to support the verdict; and 2) the verdict was
against the weight of the evidence. Statement of Matters Complained of Pursuant to Rule of
Appellate ProcedlUe 1925(b) ("Statemenl of Errors") at `` 1-2. For the reasons sel forth below,
Defendant's claims are without merit and the judgment of sentence should tx. affirmed.
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I. FACTUAL BACKGROUND
At trial, the Commonwealth presented the testimony of Shante Smith, Lester Johnson,
William Whilehouso, Patricia Guy, Darryl Rigney, Philadelphia Police Officers Charles
Kapusniak. Joseph McCabe, Joseph McCauley, Stephen Ratka, Lamont Fox, Reginald Forrest,
Jr., and Kenneth Long, Philadelphia Police Detectives Gregory Rodden and Micah Spotwood,
Philaddphia Police Corporal Gerard Mertz, Philadelphia Police Captain James Smith. and, by
stipulation. the testimony of Dr. Q-,uy Lincoln Collins and Officer Ken Weitman. Co-defendant
James presented the testimony of Kuzell Bivins and Tyrik Lark. Viewed in the light most
fa'r'orable to th(, Commonwealth as the verdlc1 winner, their testimony established the fOllowing.
On Dcc;:mhcr 8, 2010, at approximately 11 a.m., defendant Bethea called a friend, Darryl
Rigney, and asked him to accompany defendant to buy marijuana. N.T. 911 0120 13 at 115-116.
Mr. Rigney said yes, and defendant drove to Mr. Rigney's house in a Crown Victoria, N.T.
9110/2013 at 116. After he arrived at Mr, Rigney's house, defendant told Mr, Rigney to drive to
Mr. James' s house, because Mr. James knew people who sold marijuana. N .T. 9/10/2013 at 116.
Mr. Rigney dr~ve defendant to Mr. James's house in the Crown Victoria. N.T. 911012013 at 116.
When they arri:-,cd at the house, defendant got out of the car, met Mr. James at the door, and
went inside for a few minutes. N.T. 9i l 012013 at 1 16-117. The two men then returned to the
Crown Victoria in which Mr. Rigney was wa~ting. N.T. 9/1 0/2013 at [ 17.
Once in the car, Mr. James began calling his drug supplier, Jemark Daniel. N .T.
9/1012013 at 117-120. Mr. Daniel did not answer Ihe phone. N.T. 9/10/2013 al 117. Mr. James
then called a friend, Robert Williams, and told him to meet Mr. James at 171h Street and
Fairmount Avenue. N .T. 9/1012013 at Il7-1I9. At that point, Mr. Daniel called Mr. James back
and told him that he could come by Mr. Daniel's. apartment to buy marijuana. N.T, 9110/2013 at
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119. Mr. Rigney then drove the Ultee men to 11" Street and Fairmount Avenue, where Mr.
Williams was waiting. N.T. 9110/2013 at 120. Mr. Williams had a white Cadillac with him.
N.T. 911012013 at 120. Mr. James, defendant, and Mr. Rigney got into the white Cadillac, while
Mr. Williams took the Crown Victoria. N.T. 9110/2013 at 120.
Mr. Rigney drove the white Cadillac to 3001 Redner Street, where Mr. Daniellivcd..
N.T. 9/1012013 at 120. Mr. James and defendant got out of the car and went into Mr. Daniel's
apartment. N.r. 9/10/2013 at 121· 122. Upon entering the apartment, Mr. Jomes and defendant
shot and killed Mr. Daniel and his girlfriend, Palranella London, and stole his marijuana and
passports from the apanment. Mr. James and defendant then Oed the apartment, running back to
the Cadillac with a large black garbage bag. N.T. 911012013 at 122. As Mr. Rigney drove the
car away from the apartment building, Mr. James said to Mr. Rigney, "I took his shit." N.T.
911012013 at 160.
Mr. Daniel's neighbor. Lester Johnson, heard the gunshots and looked out his window.
N.T. 911012013 at 10. He saw the white Cadillac speed off from Mr. Daniel's apartment. N.T.
911 0/2013 at 10. Mr. Johnson "Wrote down what he could see oflhe license plate number, which
was "HP 7-27." N.T. 911 012013 at 11-14. A friend who was with Mr. Johnson called 911, and
the police arrived on the scene. N.T. 9/10/2013 at 12, 40, 89. Upon entering the apnrtmcnt and
seeing the bodies of Mr. Daniel and Ms. London, il was immediately apparent to police officers
Ihat they were both dead. N.T. 9/1012013 al40~41. The paramedics arrived and pronounced
both victims. N.T. 9/1012013 at 41. Mr. Daniel had been shot ten times: twice in the chest,
twice in the stomach. four times in the left arm, once in the left thigh, and once in the right thigh.
N. T. 919/2013 at 160~ 161 . Ms. London had been shot thirteen times: eight times in the back,
three times in the left thigh, once in the left arm, and once in the left leg. N.T. 91912013 at 161.
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At the same time, Philadelphia Police Officer Charles Kapusniak and his partner, .
Kenneth Long, were conducting surveillance on the 1800 block of North Judson Street, pursuant
to their assignment with the Narcotics Field Unit. N.T. 9/9/2013 at 94. TIlls location was near
Redner Street, where the murders had j ust occurred. At approximately 2:40 p.m., Officer
Kapusniak observed a white Cadillac travel southbound on Judson Street before pulling ovCr
ncar 1820 North Judson Street. N.T. 91912013 at 95. Officer Kapusniak saw Darryl Rigney exit
the vehicle's driver door. while Mr. James emerged from the front passenger scat and defendant
got out of the rear passenger seat. N,T. 9/9/2013 at 95-96. All three men then walked to the rear
afthe Cadillac, and Mr. James removed a large trash bag from the Cadillac's tnmk. N.T,
91912013 at 96. The three men then ran into 1820 North Judson Street. N. T. 91912013 at 96.
Thirty seconds after the three men ran into the house on North Judson Street, Officer
KaplIsniak received a call over police radio from Philadelphia Police Lieutenant James Smith.
N.T. 9/912013 at 96, 123. Lieutenant Smith informed Officcr Kapusniak that there had been a
shooting at 3001 Redner Street, and that a white Cadillac containing two or three black males
had been seen fleeing the scene. N. T. 9/912013 at 96, 123-125; 9/1 012013 at 16-17. Officer
Kapusniak radioed for backup. infonning Lleutenant Smith that he had just seen a white Cadillac
and that three black malcs had emerged from the Cadillac and run into a bouse. N.T. 9/912013 at
96·97, 199.
Appro~ately one minute after be radioed for backup, Officer Kapusniak observed two
men, later identified as Reginald Andrews and Maurice Morris. walk past bis vehicle. N.T.
91912013 at 97·98. Mr. Andrews and Mr. Morris approached 1820 North Judson Street, knocked
on the door. and entered tbe house. NT. 91912013 at 98. Mr. James then stuck his head out of
the door and looked around. N. T. 91912013 at 98. A short time later. a silver Kia sped down the
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block and parked in the middle of the street in front of the house. N.T. 91912013 at 98-99. Mr.
James then ran out of the house, carrying a black duffle bag. NT 91912013 at 99. He jumped
into the passenger seat of the Kia and threw the duffle bag into the backseat. N. T. 91912013 at
99. The driver of the Kia, later identified as Mohammed Bey, drove down Judson Street at a
high rate of ::;pe'!d and turned down Montgomery Avenue, at which point Officer Kapusniak lost
sight of the vehicle. N.T. 91912013 ot 99·100,120·121.
After Mr. Bey turned onto Montgomery Avenue, Officer Joseph McCabe and Officer
Miles, who were backing up Officer Kapusniak, pulled over the silver Kia based on Officer
Kopusniak's description ofthc car and its license plate number. NT. 9/912013 at 99-100. 163-
J65 . 1 As Officer McCabe approached the passenger side of the vehicle, the passenger door
popped open, and Officer McCabe smelled an extremely strong odor of marijuana emanating
from the car. N .T. 9/912013 at 165. Officer McCabe opened the passenger door the rest of the
way, and Mr. James, who was in the p36 A.3d 613 , 618 (Pa.
Super. 2012) (quoting Commonwealth v. Brombraugh, 932 A.2d 108, 109 (Pa. Super. 2007)). In
making this assessment, a reviewing court may not weigh the evidence and substitute its own
judgment for that of the fact-finder, who is free to believe all, plUt, or none- of the evidence.
Commonwealth v. Ram/ahal, 33 AJd 602, 607 CPa. 2011). 882 A.2d 496. 499 (Pa. Super.
2005) (quoling Comlllonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2000), appeal den;ed,
782 A.2d 542 (Po . 2001».
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1. Identification
Defendant's first claim regarding the sufficiency ofthe evidence is th~t the evidern;e
failed to establish that he was the perpetrator of the crimes of which he was convicted.
Statement of Errors at ~ 1. The standard governing the sufficiency of identification evidence, lS
\'Jell-established: absent a tainted identification procedure, "the Commonwealth's burden is
simply to introduce evidence solid enough to avold conjecture." Commonwealth v. Hurd,407
A.2d 41 S, 422 cPa. Super. 1979). Identification testimony need Dot be positive, and
indefiniteness or uncertainty in the testimony goes to its weight and not its sufficiency.
Commollwealth \I. Hickman, 309 A.2d 564, 566 (pa. 1973); Commonwealth \I. Cain, 906 A.2d
1242,1245 (pa. Super. 2006), appeal denied, 916 A.2d 1101 (Pa. 2007); Commanweal/II v.
Mason, 236 A.2d 548 (Pa. Super. 1967). The test is whether the evidence, viewed in lhc light
most favorable to the Commonwealth. and accepting all reasonable infc,rences therefrom, could
enable the factfinder to conclude that the defendant was the perpetrator. Hickman, 309 A.2d at
566.
Here, there was substantial testimonial evidence from which a reasonable juror could
conclude that defendant committed the crimes of which he was convicted. Darryl Rigney, who
had known defendant for 20 years, testified to defendant's involvement in the killing. Mr.
Rigney testified that, after Mr. James talked to Mr. Daniel about purchasing marijuana,
defendant., Mr; James, and Mr. Rigney switched cars with another man and drove to Mr. Daniel's
apartment in a white Cadillac. N.T. 9/1012013 at 115·120. 'Mr. Rigney testified tJ,at defendant
and Mr. Jame~ went inside Mr. Daniel's apartment [U]d~ a few minutes later, ran from ihe
apartment to the car carrying a large garbage bag. N. T. 9/1012013 at l22. Lester Johnson
testified thnt) at the same time, he heard gunshots and saw a white Cadillac fleeing the scene,
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N.T. 9/10/2013 at 10. Officer Kapusniak testified that, as he perfonned unrelated narcotics
surveillance near the scene of1he murders, he observed three black men, including defendant,
pull up in front of a house in a white Cadillac) remove a large bag from the car's trunk, and run
inside the house. NT. 9/912013 at 95-96. Officer Kapusniak aJsa testified that he had a clear,
unobstmcted view of the front afthe house from his patrol vehicle. N.T. 9/912013 at 110-111.
This testimony was compelling evidence from which lIte Court, as factfUlder, could conclude
that defendant corrunitted the murders.
Likewise, there was strong physical evidence that proved that defendant was the
perpetrator of the crimes. Officer Kapusniak testified that, after police entered the house in
which defendant was hiding after the murders, defendant and Mr. Rigney were sitting in the
living room and that next to defendant was an unzipped duffle bag containing clear Ziploc bags
full of marijuana. N.T. 9/912013 at 104. 148. Ms. Smith testified thal, ElS police awaited tIle
warrant, she, defendant, and Mr. Rigney were all placed in handcuffs as they sat in the living
room. As she sat in a chair approximately four feet away from defendant, she saw him kick a
pink bag underneath the couch. N.T. 911012013 .t41-44. The stipulated testimony of Officer
Ken Weitman established that this bag contained the murder weapons. as the guns were matched
to the ballistics found at the crime scene and recovered from the body of one of the victims. N.T.
9/ 1012013 at 66-71. Officer McCauley testified that a man leaving the house in which defendant
was fOWld was in possession of a bag containing passports belonging to Mr, Daniel. NT_
9/912013 at 192. Further, the marijuana recovered from the bag found next to defendant at the
time of his an-est matched the specific type of marijuana found at the scene of the murders. N.T.
9/1 012013 at 56. This was overwhelming evidence that defendant committed the crimes of
which he was convicted.
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2. Specific Intent to Kill
Defendant also claims that there was insufficient evidence to prove that he acted with the
requlsite intent to commit first-degree murder. Statement of Errors at"ii I. The evidence is
sufficient to establish first-degree murder "where the Commonwealth proves that ( I) a human
being was Wllawfully killed; (2) the person accused is responsible for the killing; and (3) the
accused acted with specific intent to kill." Commonwealth \I. Bedford, 50 A3d 707, 711 (Pa.
Super. 2012), appeal denied, 57 A.3d 65 (pa.) (quoting Pa.C.S. § 2502(.)). The specific intent to
kill can be inferred "from the manner in which the homicide was committed, such as, multiple
gunshot wounds." Commonwealth v. Hughes, 865 A.2d 761, 793 (Pa. 2004). Moreovcl, specific
intent to kill may be inferred from a defendant's use of a deadly wcapon on a vital part of the
victim's body. Commonwealth v. Robertson, 874 A.2d 1200, 1207 (pa. Super. 2005). To be
guilty offirsl-degree murder, a dcfendam who is member ora conspiracy to commit murder need
not commit the act thaI results in the death of the defendant since all members of il conspiracy
are "liable fo r the actions of the others if those actions were in furtherance of the common
criminal design." Commonweallh v. King, 990 A.2d 1172, 1178 (pa. Super. 2010).
Here, there was compelling evidence that defendant acted with the specific in tent to kill.
The stipulated testimony of the medical examiner established that Mr. Daniel was shot ten times
and Ms. London was shot thirteen times, by two different guns. N.T. 9/9120 13 at 160-161. The
crime scene investigator testified that 25 pieces of ballistics evidence were recovered from the
crime scene. NT. 9/10/2013 at 52-71 . Further, Mr. Rigney testified that, when he, defendant,
and Mr, James were surveying the proceeds of the robbery, Mr. James asked defendant whether
be "finish[ed)" Ms. London, to which defendant responded, "[gjuaranteed." N.T. 9/1012013 at
126. All of this was compelling evidence that defendant acted with the specific intent to kill Mr.
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Daniel and Ms. London when he repeatedly shot them. Accordingly, UIC evidence was pluinly
sufficient to support the jury' s verdict oftirst-degree murder,
B. Weight of the Evidence
Defendant claims that "the verdict is not supported by the greater weight of the evidence.
RaUter. the greater weight of the evidence did not establish that the Defendanl was a principal.
conspirator, nor an accomplice to any orthe crimes cbarged. lbe greater weight of the evidence
only estabHshed that the Defendant was in proximity to the proceeds of the crime, after the crime
occulTed. The verdict was based all speculation, conjecture. and surmise, which is not
permissible:' Statement of Errors at ~ 2. This claim is without merit.
11 is wcll·established that a new trial may only be granted by the ninl court where the
verdict was so yontrary to the weight of the evidence as to "shock one's sense of jus lice."
Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (pa. Super. 2004), appeal dellied, 878 A.2d 864(Pa. 2005) (quoting Commonweal{h v. HUrlter, 554 A.2d 550, 555) (Fa. Super. 1989)).
Moreover. credibility determinations are solely within the province of the fact-finder, and "an
appellate court may not reweigh the evidence and substitute its judgment for that of the finder of
fact." Commonwealth v. Tay/or,63 A.3d 327 (Pa. Super. 2013) (quoting Commonwealth v.
Shaffer, 40 AJd 1250, 1253 (pa. Super. 2012)). Tn considering a claim UJat the trial court erred
in refusing to find that a verdict was against the weight of the evidence, "appellate review is
limited to whether the trial court palpably abused its discretion in ruling on the weight claim."
Taylor, 63 A.3d at 327 (quoting Shaffer, 40 AJd at 1253).
The overwhelming evidence outlined above plainly established that defendant committed
the crimes of which he was convicted. Because the evidence fully supported the verdict, the
COW1 did nol abuse its discretion in denying defendant's motion for a new triaL
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Ill. CONCLUSION
For aU of the foregoing reasons, the Court's judgment of sentence should be affirmed.
BY THE COURT:
``~
GLENN B. BRONSON, J.
14