Com. v. Walker, D.

J-S06020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEVIN WALKER
Appellant No. 150 EDA 2014
Appeal from the Judgment of Sentence December 19, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010823-2010
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 09, 2015
Devin Walker appeals from his judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his conviction, by a
jury, for one count each of aggravated assault,1 carrying a firearm without a
license,2 carrying a firearm in public in Philadelphia,3 criminal conspiracy,4
and two counts of robbery.5 After careful review, we affirm.
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2702.
2
18 Pa.C.S. § 6106.
3
18 Pa.C.S. § 6108.
4
18 Pa.C.S. § 903.
5
18 Pa.C.S. § 3701.
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Walker and his co-conspirator, Terrence Evans,6 were implicated in an
armed robbery that occurred on May 19, 2010, at Elzina’s Lounge on West
Master Street in the City of Philadelphia. At approximately 12:05 p.m., two
individuals brandishing guns and wearing hooded sweatshirts entered the
bar. One perpetrator demanded money from the patrons while the other
held a gun to the bar owner’s neck. Bar surveillance video shows that one of
the perpetrators was wearing black Nike sneakers with a white Nike
“swoosh” logo. At the time of the robbery there were three patrons in the
bar as well as the bar owner; one of the patrons, an armed retired police
officer, exchanged gun fire with a perpetrator and was shot in the finger.
Immediately following the shooting, one of the perpetrators ran out of
the bar; the other perpetrator put his hands up and said he had had enough,
put down his gun and the money, and ran out the back door of the bar.
Fifteen minutes following the robbery, Police Officer Daniel Mason was
responding to a robbery in progress call when he observed Walker standing
in the street less than one block from the bar. When the officer exited his
police vehicle, Walker fled into his house; the officer pursued Walker into the
house, secured him, and brought him back to the establishment. None of
the bar patrons was able to identify Walker because of the hood that had
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6
Co-conspirator Evans entered a guilty plea to robbery and conspiracy and
was sentenced to 22-44 months in prison, followed by five years of
probation.
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obscured his face during the robbery. A later search of Walker’s second floor
bedroom uncovered a pair of black Nike sneakers with a white “swoosh”
logo; however, no weapons or ammunition were found in Walker’s residence.
At the preliminary hearing, the owner of the bar, Tracy Ricketts,
testified that a short man with light complexion held a gun to her neck
during the armed robbery. This was the same perpetrator who shot the
police officer patron in the finger. Evans, Walker’s co-conspirator, admitted
his own guilt at trial but recanted his prior statement to police and sworn
guilty plea testimony identifying Walker as the other perpetrator. However,
a text message sent from Evans’ cell phone on the day of the robbery
stating, “I got shot at and Dev shot him and now the block is crazy hot
now,” corroborated his original statement. Evans also identified Walker from
a police photo array. In addition, Ronald Kelly was standing outside the bar
at the time of the robbery when he observed Walker exit out the back door
and run towards 57th and Thompson Streets. The following day Kelly gave a
formal statement to police identifying Walker as the individual who ran from
the bar.
After a four day trial, Walker was convicted of the above-named
offenses. He was sentenced to concurrent terms of 5-10 years’
imprisonment on the aggravated assault charge, 5-10 years in prison on
each of the robbery charges, 2-4 years’ imprisonment on the carrying
firearm without a license charge, 1-2 years in prison on the carrying firearm
in public charge, and a consecutive term of 1-2 years’ imprisonment on the
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conspiracy charge. No post-sentence motions were filed. This timely direct
appeal followed.
On appeal, Walker presents the following issues for our consideration:
(1) Was the evidence insufficient to convict the defendant of
aggravated assault, robbery, violation of the uniform
firearms act, and conspiracy?
(2) Is the defendant entitled to a new sentence hearing?
(3) Did the trial court err in allowing the Commonwealth to
introduce the preliminary hearing testimony of the witness,
Ronald Kelly, at trial?
Walker first challenges the sufficiency of his convictions. Specifically,
he claims that there was insufficient identification testimony to prove,
beyond a reasonable doubt, that he was a perpetrator of the crimes where
there was no eyewitness identification testimony and where the co-
defendant recanted his prior statement that Walker was the other individual
involved in the armed robbery.
The standard of review regarding challenges to the sufficiency of the
evidence is well-settled. In reviewing the sufficiency of the evidence, the
appellate court must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as the verdict winner, is sufficient to prove
every element of the offense beyond a reasonable doubt. Commonwealth
v. Jones, 954 A.2d 1194 (Pa. Super. 2008); see Commonwealth v.
Wiley, 432 A.2d 220, 221 (Pa. Super. 1981) (“In considering the sufficiency
of the evidence of appellant's identification, [the appellate courts] regard the
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evidence and all inferences arising from it in the light most favorable to the
Commonwealth.”).
Instantly, the bar owner testified that a shorter man with light
complexion, wearing a hood, held a gun to her neck. N.T. Preliminary
Hearing, 8/25/10, at 14-16. She was able to see him jump over the counter
and approach her from a distance of three feet. Id. at 14. The police
officer-patron, who was shot in the finger, testified that although he saw the
face of the “shorter man with the gun” during the robbery, he did not
recognize him in court during the preliminary hearing. Id. at 20-22. He
described the shooter as having reddish-brown hair, weighing approximately
125 pounds, and 5’6” in stature. Id. at 29.
Ronald Kelly, a bystander who was outside of the bar when the
robbery occurred, gave a statement to police days after the robbery
indicating that he saw “Dev”7 run out of the back door of the bar, after shots
were fired, wearing a gray hoodie and blue jeans. Id. at 39-40. Kelly also
positively identified Walker from a police photograph. Id. at 40-41. Kelly
testified that he had known Dev from the neighborhood for almost one year.
Id. at 39.
At the preliminary hearing Kelly recanted his identification of Walker,
testifying that the only reason he told the police that Walker was involved in
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7
“Dev” is short for the defendant/appellant, Devin Walker.
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the robbery was because he saw Walker in the police cruiser, that Kelly was
scared because he had just been released from jail himself and he was afraid
he would be charged as a conspirator in the robbery. Id. at 43. At the time
he made the statement to the police, Kelly was in a holding cell for his
potential involvement in the matter; he had been there for one and one-half
days. Id. 46-47. Kelly was unable to be located for trial. However, the
Commonwealth introduced his statement and preliminary hearing testimony
at trial.
Detective Timothy McCool, the officer who investigated the robbery,
also testified at the preliminary hearing. He confirmed that he took Kelly’s
statement after the robbery and that Kelly positively identified a picture of
Walker that he showed him during the investigation. Id. at 49-51. Finally,
at trial Evans, Walker’s co-conspirator, recanted his prior incriminating
statement made to the police that implicated Walker in the armed robbery.
N.T. Trial, 10/30/13, at 79-80.
In Commonwealth v. Coleman, 264 A.2d 649 (Pa. 1970), our
Supreme Court stated that recantation is the least reliable form of proof.
Moreover, affidavits made by Commonwealth witnesses recanting their
testimony given at trial are exceedingly unreliable. Commonwealth ex rel.
Leeper v. Russell, 184 A.2d 149 (Pa. Super. 1962).
Despite the fact that the co-conspirator and Kelly subsequently
recanted, based upon the witnesses’ initial identification testimony, coupled
with the circumstantial evidence offered at trial (inculpatory text message
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sent by Walker’s co-conspirator, proximity of Walker to crime scene
immediately following robbery, Walker’s flight from police, and Nike shoe
match), we believe that there was sufficient evidence for the factfinder to
believe, beyond a reasonable doubt, that Walker was the other perpetrator
involved in the armed robbery. See Commonwealth v. Stays, 70 A.3d
1256 (Pa. Super. 2013) (doubt about defendant's guilt to be resolved by fact
finder unless evidence so weak and inconclusive that, as matter of law, no
probability of fact can be drawn from combined circumstances;
Commonwealth’s burden of proof may be sustained by wholly circumstantial
evidence where evidence, coupled with reasonable inferences drawn
therefrom, overcomes presumption of innocence). Considering the evidence
and all inferences arising from it in the light most favorable to the
Commonwealth, there was sufficient evidence to prove that Walker was the
other perpetrator. Wiley, supra.
With regard to his second claim, an attack on the discretionary aspect
of his sentence, we note that Walker neither raised the issue at sentencing
or post-trial. Therefore, it is waived on appeal. See Commonwealth v.
Felder, 75 A.3d 513 (Pa. Super. 2013).
Finally, in his third issue on appeal, Walker asserts that the trial court
improperly permitted the Commonwealth to introduce Kelly’s statement and
preliminary hearing testimony at trial. Walker claims that the statement is
hearsay, that the Commonwealth failed to exercise due diligence in locating
Walker prior to trial, and that the defense was not given a full and fair
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opportunity to cross-examine Kelly at the preliminary hearing regarding his
criminal record.
Pennsylvania common law permits, as an exception to the hearsay
rule, the admission of prior recorded testimony from a preliminary hearing
provided that: (1) the witness responsible for that testimony is presently
unavailable; (2) the defendant had counsel;8 and (3) the defendant had a
full and fair opportunity to cross-examine the declarant during the earlier
proceeding. See Commonwealth v. McGrogan, 568 A.2d 924 (Pa. 1990);
see also Pa.R.E. 804(b)(1) (hearsay exceptions; former testimony);
Commonwealth v. Nelson, 652 A.2d 396 (Pa. Super. 1995).
With regard to the first prong of Rule 804, the true test for
unavailability of a witness is whether the prosecution has made a good faith
effort to produce the live testimony of the witness and, through no fault of
its own, is prevented from doing so. Commonwealth v. Melson, 637 A.2d
633, 638 (Pa. Super. 1994). How far the prosecution must go to produce
the recalcitrant witness' testimony is a question of reasonableness. Id. It is
within the discretion of the trial court to determine what constitutes a good
faith effort to locate a missing witness and court’s decision will not be
overturned absent an abuse of discretion. Commonwealth v. Douglas,
737 A.2d 1188, 1196 (Pa. 1999).
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8
This prong is not challenged. Walker was represented by counsel.
-8-
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Here, the Commonwealth attempted to locate Kelly on August 12,
2012, more than one year before trial commenced. Police Officer Joseph
Porretta first attempted to serve a witness subpoena 9 on Kelly at his last
known address of record on North 57th Street in Philadelphia. N.T. Trial,
10/31/13 at 67. After remaining outside the residence for almost 90
minutes with no one answering the door, the officer went to a neighboring
house to ask if anyone had seen Kelly and went to a corner store owner to
inquire whether the owner had seen Kelly recently. Id. at 68. Over the
next fourteen months, officers attempted to locate Kelly in that vicinity
between 10-12 more times. Id. at 69. Not until one week before trial did
Officer Porretta speak to a woman who identified herself as Kelly’s
grandmother and told him Kelly had moved to Atlanta two months prior, but
she had no contact information for him. Id. at 71.
Based upon the record evidence, we conclude that the court did not
abuse its discretion in determining that the Commonwealth made a good
faith effort to secure Kelly. At least 14 attempts were made to locate him at
and near his last known address, for more than 14 months, to no avail. See
Commonwealth v. Blair, 331 A.2d 213, 215 (Pa. 1975) (Act does not
require that Commonwealth establish witness has disappeared from face of
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9
According to the trial court opinion, at the time of trial Kelly was also
subject to an active bench warrant for his involvement in a possession of
marijuana case.
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earth; it demands that Commonwealth make good faith effort to locate the
witness and fail).
With regard to prong two of Rule 804, Walker claims that the defense
was not given the opportunity to fully and fairly cross-examine Kelly at the
preliminary hearing regarding his criminal history. Specifically, Walker
asserts that defense counsel was not informed of the fact that at the time
Kelly was questioned by the police he was on parole and/or probation and
what effect this would have had on his statement implicating Walker in the
robbery. Walker claims that this fact was “vital impeachment evidence” that
should have been available to the defense in order to test the witness’s
veracity and bias, citing Commonwealth v. Bazemore, 614 A.2d 684 (Pa.
1992), to support his argument.
In Bazemore, the defendant was charged with criminal attempt to
commit burglary. Defense counsel was unaware or had not been informed
at the preliminary hearing that: (1) the sole Commonwealth witness had
made a prior inconsistent statement to the police; (2) the witness had a
criminal record; and (3) the D.A. was contemplating filing criminal charges
against the witness for homicide and conspiracy in connection with the same
criminal incident. When the witness invoked his 5th Amendment right
against self-incrimination and decided not to testify at trial, the
Commonwealth sought to admit his preliminary hearing testimony at trial.
The defendant argued that the witness’s statement was inadmissible
because he was denied a full and fair opportunity to cross-examine the
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witness during the preliminary hearing “due to the Commonwealth’s failure
to provide the defense with complete and vital information concerning [the
witness].” Id. at 685.
Our Supreme Court determined that the defendant in Bazemore was
not given a “fair” opportunity to cross-examine the witness at the
preliminary hearing due to the Commonwealth’s failure to disclose relevant
impeachment evidence prior to the witness’s initial testimony. Id. at 686.
Since the defense was unaware of this relevant evidence at the preliminary
hearing, the Court held that no “indicia of reliability” could be attributed to
the defense’s cross-examination, especially where the Commonwealth
sought to admit that prior testimony as substantive evidence against the
defendant at trial and where the Commonwealth asserted that not admitting
that prior testimony would effectively bar prosecution of the defendant. Id.
at 687.
The constitutional concerns and implications regarding the use of an
unavailable witness’s preliminary hearing testimony illustrated in Bazemore
are simply not present in the instant case. Here, the Commonwealth avers
in its brief that Kelly was not even on probation or parole at any relevant
time in the instant case. Commonwealth’s Brief, at 20. Moreover, the fact
that counsel for Walker did not have Kelly’s criminal extract at the
preliminary hearing was not prejudicial where Kelly’s recantation testimony
was favorable to the defense and, as such, it would not have been
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strategically sound to try to impeach Kelly on his credibility or bias through
cross-examination.
While defense counsel objected to the admission of Kelly’s statement
as hearsay, N.T. Preliminary Hearing, 8/25/10, at 37-38, counsel did
extensively cross-examine him on why he initially implicated Walker, noted
that Kelly had just been released from jail, and asked Kelly if he identified
Walker because “he was scared because as a matter of face [sic] you were a
suspect in this robbery?” Id. at 43-45. Defense counsel continued to
pursue a line of questioning regarding Kelly being placed in a holding cell for
three days during the investigation of the instant robbery and whether fear
of being charged in the case was the reason why he identified Walker. Id.
at 44-45. See Nelson, supra (where defendant’s counsel fully challenged
witness’s credibility and potential bias based on available evidence, and
where additional evidence would not have substantially affected exploration
of witness’s credibility or bias during cross-examination, 6th Amendment and
due process rights not violated by admission of former testimony).
Under these facts, we believe that Walker was given a full and fair
opportunity to cross-examine Kelly at the preliminary hearing and that
Kelly’s statement and preliminary hearing testimony were properly admitted
at trial.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2015
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