Com. v. Minor, M.

J-A30034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MYRON DARNELL MINOR,
Appellant No. 444 EDA 2013
Appeal from the Judgment of Sentence December 14, 2012
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0004414-2011
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 18, 2015
Appellant, Myron Darnell Minor, appeals from the judgment of
sentence imposed following his jury conviction of first degree murder,
criminal conspiracy to commit murder, and carrying a firearm without a
license.1 We affirm.
On June 1, 2010, officers from the City of Chester Police Department
were dispatched to the 200 block of Patterson Street for a reported shooting.
Officer Michael Dingler was first on the scene and observed the victim,
Jabree Hughes, with multiple gunshot wounds to his back. On April 7, 2011,
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(a), 903(a)(1), and 6106(a), respectively.
J-A30034-14
Appellant was arrested and charged with first degree murder and related
offenses.
Trial commenced on October 22, 2012. In its December 5, 2013
opinion, the court explained, in relevant part, that:
Alvin Herring, a Chester resident who . . . witnessed the
shooting on June 1, 2010 and who had initially been reluctant to
speak with police,[a] spoke to Sergeant [William] Gordon and
provided a written statement in January of 2011. Herring told
police that. . . he observed Appellant and [co-defendant] John
[L.] Cooper[2] . . . shoot[] Hughes. . . .
* * *
. . . Herring said that he was not promised anything in return for
his statement.
[a]
Detective [Charles] Bothwell explained at trial that
Herring was scared and concerned for his life and
very concerned for the well-being of his family.
* * *
. . . [T]he Commonwealth called Deputy District Attorney Daniel
McDevitt to testify about a plea agreement that had been made
with eyewitness Alvin Herring [in an unrelated case].[b] The
Commonwealth called McDevitt to refute the inference raised by
defense counsel that Herring had received special treatment in
exchange for his testimony at trial. McDevitt testified that
Herring had not been promised anything in exchange for his
testimony. He explained that “under the agreement, the
Commonwealth . . . agreed with Mr. Herring that when he went
to sentencing, the Commonwealth would inform the [j]udge of
the nature and extent of his cooperation in this case, but would
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2
Co-defendant, John L. Cooper, Jr., was convicted of the same charges as
Appellant and has a pending appeal in this Court at docket numbers 250 and
252 EDA 2014.
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make no other recommendation as to the sentence that the
[j]udge would impose.” (N.T. Trial, 10/23/12, at 219).
[b]
Alvin Herring pled guilty to possession of a
controlled substance, an ungraded misdemeanor,
and possession of drug paraphernalia, also an
ungraded misdemeanor. Herring entered a plea
agreement on May 1, 2012 and was sentenced to a
year of probation on each charge, running
concurrently.
When asked [on re-direct examination] why the felony
charges that had originally been charged in Herring’s underlying
case had been nolle prossed,[c] McDevitt testified that “[t]here
was insufficient evidence to prove that charge in the Court of
Common Pleas.” (Id. at 232). [Thereafter, Appellant’s counsel
joined Cooper’s motion for a mistrial, which the trial court
denied. (See id. at 233-35)]. . .
[c]
The Commonwealth asked McDevitt[,] “after
reviewing [Herring’s] file, what was the viability of
our prosecution as to the felony, with respect to the
facts.” (N.T. Trial, 10/23/12, at 230).
* * *
. . . [T]he Commonwealth [also] sought to call Wayne Vick as a
witness. Before he was called to the witness stand, the court
appointed Raymond Williams, Esquire from the Delaware County
Office of the Public Defender to represent Vick, and Vick told the
court that he wished to assert his privilege against self-
incrimination. Thereafter, the court conducted an in camera
hearing to determine if Vick’s assertion was legitimate. Present
in the room for this hearing was Vick, the judge, the judge’s law
clerk, two members of the sheriff’s department, and Attorney
Williams. At the conclusion of the hearing, the court ruled that
the assertion of Vick’s privilege was valid because the testimony
that he would provide at trial would be incriminating and could
lead to evidence which would support a prosecution for crimes
for which he had not yet been prosecuted.[d]
[d]
. . . [Appellant] did not object to the court’s ruling
following the in camera hearing. . . .
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(Trial Court Opinion, 12/05/13, at 3-4, 22-25) (some record citations
omitted; some record citation formatting provided).
On October 31, 2012, the jury convicted Appellant of the above
charges. On December 14, 2012, the court sentenced Appellant to life
without parole for his conviction of first degree murder. The court also
imposed a concurrent sentence of not less than 240 nor more than 480
months’ incarceration for the conspiracy conviction and not less than forty-
two nor more than eighty-four months of incarceration on the conviction for
carrying a firearm without a license. The court denied Appellant’s post-
sentence motions and, on February 1, 2013, Appellant timely appealed.3
Appellant raises two issues for our review:
1. [Whether the] [t]rial [c]ourt erred when it denied trial
counsel’s request for a mistrial following the testimony of Deputy
District Attorney Daniel McDevitt . . . [?]
2. [Whether the] [t]rial [c]ourt erred when it permitted
Commonwealth witness Wayne Vick to invoke his 5th
amendment right against self[-]incrimination . . . [?]
(Appellant’s Brief, at 4).4
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3
Pursuant to the trial court’s order, Appellant filed a timely Rule 1925(b)
statement on May 15, 2013. See Pa.R.A.P. 1925(b). The court filed a Rule
1925(a) opinion on December 5, 2013. See Pa.R.A.P. 1925(a).
4
Appellant’s statement of questions involved violates Pennsylvania Rule of
Appellate Procedure 2116(a), in that it contains extraneous detail. (See
Appellant’s Brief, at 4). We remind counsel that “[t]he statement of the
questions involved must state concisely the issues to be resolved,
(Footnote Continued Next Page)
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In his first issue, Appellant claims that the trial court abused its
discretion in denying his motion for a mistrial. (See id. at 5, 10-13).
Specifically, Appellant argues that the “[t]rial [c]ourt erred when it permitted
the Commonwealth witness, Deputy District Attorney Daniel McDevitt to
render an expert opinion [on redirect examination] about the sufficiency of
[the] evidence of an offense that was withdrawn as part of a plea deal with a
principle Commonwealth witness.” (Id. at 5). Appellant’s issue lacks merit.
Preliminarily, we observe that “[g]ranting a mistrial is an extreme
remedy, and we defer to the trial court’s discretion on the matter. A trial
court need only grant a mistrial where the alleged prejudicial event may
reasonably be said to deprive the defendant of a fair and impartial trial.”
Commonwealth v. King, 959 A.2d 405, 418 (Pa. Super. 2008) (citations
and internal quotation marks omitted).
Further,
[i]t is well-settled that the review of a trial court’s denial of
a motion for a mistrial is limited to determining whether the trial
court abused its discretion. An abuse of discretion is not merely
an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will . . . discretion is abused. A trial court may grant a
mistrial only where the incident upon which the motion is based
is of such a nature that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from weighing
and rendering a true verdict.
_______________________
(Footnote Continued)
expressed in the terms and circumstances of the case but without
unnecessary detail.” Pa.R.A.P. 2116(a) (emphases added).
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Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011), cert.
denied, 132 S. Ct. 2377 (2012) (citations and internal quotation marks
omitted).
Also:
The scope of redirect examination is largely within the discretion
of the trial court. An abuse of discretion is not a mere error in
judgment but, rather, involves bias, ill will, partiality, prejudice,
manifest unreasonableness, or misapplication of law. Moreover,
when a party raises an issue on cross-examination, it will be no
abuse of discretion for the court to permit re-direct on that issue
in order to dispel any unfair inferences.
Commonwealth v. Fransen, 42 A.3d 1100, 1117 (Pa. Super. 2012) (en
banc), appeal denied, 76 A.3d 538 (Pa. 2013) (citations and quotation marks
omitted).
Finally, pursuant to Pennsylvania Rule of Evidence 602, a fact witness
“may testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. Evidence to
prove personal knowledge may consist of the witness’s own testimony.”
Pa.R.E. 602.
Instantly, Deputy District Attorney McDevitt, who was in charge of the
prosecution at Herring’s trial, testified about his personal knowledge of the
addendum to Herring’s plea agreement. (See N.T. Trial, 10/23/12, at 217-
20); see also Pa.R.E. 602. He stated that, pursuant to the addendum,
which he had signed, Herring would plead guilty to lesser charges and, in
return, the Commonwealth would inform the sentencing judge of his
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cooperation in this case, but those were the entire terms of the agreement.
(See N.T. Trial, 10/23/12, at 217-20). On cross-examination, Cooper’s
counsel established that, pursuant to the plea agreement, Herring was
required to cooperate with the Commonwealth in this case, and, if he did not
do so, the agreement would be void. (See id. at 221-24). Appellant’s
counsel also questioned McDevitt about the requirement that Herring
cooperate, and what would happen if he failed to do so. (See id. at 226-
28). Finally, counsel reviewed the sentencing guidelines applicable both to
the lesser charges to which Herring had pleaded and to the felony charge
that the Commonwealth had nolle prossed. (See id. at 225-26). On re-
direct, in an effort to dispel any unfair inference created by defense counsel
that the Commonwealth withdrew the felony charge in exchange for
Herring’s cooperation, the prosecutor asked McDevitt why the felony charge
had been withdrawn. (See id. at 232). McDevitt stated that “[t]here was
insufficient evidence to prove that charge in the Court of Common Pleas.”
(Id.).
Based on the foregoing, we conclude that Appellant’s contention that
McDevitt impermissibly offered expert testimony is belied by the record, in
which he testified as a fact witness with personal knowledge of Herring’s
plea agreement and case. See Pa.R.E. 602. The trial court properly
exercised its discretion in allowing McDevitt’s testimony where it was
relevant to rebut the inference raised by defense counsel that the felony
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charges against Herring were withdrawn pursuant to the plea agreement in
exchange for his continued cooperation. See Fransen, supra at 1117.
Appellant’s first issue does not merit relief.5
In his second issue, Appellant argues that the trial court erred in
“permit[ing] Commonwealth witness Wayne Vick to invoke his 5th
[A]mendment right against self[-]incrimination.” (Appellant’s Brief, at 13)
(emphasis added). This issue is waived and lacks merit.
It is well-settled that “[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Here,
Appellant did not object to the trial court’s decision to permit Vick to invoke
his 5th Amendment right to remain silent. (See N.T. Trial, 10/23/12, at
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5
We also are not legally persuaded by Appellant’s reliance on
Commonwealth v. Carter, 589 A.2d 1133 (Pa. Super. 1991), appeal
denied, 597 A.2d 1151 (Pa. 1991), and Commonwealth v. Vitale, 664
A.2d 999 (Pa. Super. 1995), appeal denied, 674 A.2d 1071 (Pa. 1995).
(See Appellant’s Brief, at 12-13). In Carter, this Court concluded that the
trial court improperly allowed an officer qualified as an expert in the field of
narcotics to testify about the ultimate issue: that appellant was guilty of
dealing drugs. See Carter, supra at 1134. In this case, assistant district
attorney McDevitt testified as a fact witness about a Commonwealth
witness’s plea bargain in another case and Carter is inapplicable. In Vitale,
a panel of this Court affirmed the trial court’s decision to allow an expert
witness to render an opinion based on facts presented to the jury. See
Vitale, supra at 1002. Instantly, McDevitt testified as a fact witness based
on his personal experience with Herring’s plea bargain and case. Vitale is
inapposite.
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315-17). Therefore, this issue is waived. See Pa.R.A.P. 302(a). Moreover,
it lacks merit.6
“We review the sustaining (or overruling) of the privilege against
compulsory self-incrimination for abuse of discretion.” Commonwealth v.
Kirwan, 847 A.2d 61, 65 n.6 (Pa. Super. 2004) (citation omitted). Pursuant
to the Fifth Amendment to the Unites States Constitution, “[n]o person ...
shall be compelled in any criminal case to be a witness against himself. . . .”
U.S. Const. amend. V.
Additionally,
[w]hen [a witness is called to testify], he or
she is not exonerated from answering questions
merely upon the declaration that in so doing it would
be self-incriminating. It is always for the court to
judge if the silence is justified, and an illusory claim
should be rejected. However, for the court to
properly overrule the claim of privilege, it must be
perfectly clear from a careful consideration of all the
circumstances, that the witness is mistaken in the
apprehension of self-incrimination and the answer
demanded cannot possibly have such tendency.
Furthermore, if an individual possesses reasonable cause
to apprehend danger of prosecution, it is not necessary that a
real danger of prosecution exist to justify the exercise of the
privilege against self-incrimination. Moreover, the privilege
extends not only to the disclosure of facts which would in
themselves establish guilt, but also to any fact which might
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6
It is unclear why Appellant challenges the court’s decision on this issue.
Vick was a Commonwealth witness, and presumably his testimony would
support the case against Appellant. Therefore, it appears that the court’s
decision to allow Vick to invoke the privilege against self-incrimination would
have been favorable to Appellant.
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constitute an essential link in a chain of evidence by which guilt
can be established. To require the witness to prove the basis of
the claim would force the disclosure of the information against
which the Fifth Amendment was designed to protect.
Commonwealth v. Saranchak, 866 A.2d 292, 303 (Pa. 2005) (citations
and quotation marks omitted).
Here, Vick asserted his Fifth Amendment privilege against self-
incrimination. (See N.T. Trial, 10/23/12, at 298-99). The trial court then
conducted an in camera hearing in the presence of Vick, his appointed
counsel, members of the Delaware County Sheriff’s Department, and the
court’s law clerk to determine if Vick’s assertion was legitimate. (See id. at
306-15). “At the conclusion of the hearing, the court ruled that the
assertion of Vick’s privilege was valid because the testimony . . . would be
incriminating and could lead to evidence which would support a prosecution
for crimes for which he had not yet been prosecuted.” (Trial Ct. Op., at 25
(citing N.T. Trial, 10/23/12, at 315-18) (footnote omitted)). Appellant did
not object to the court’s ruling or attempt to prove that Vick was not entitled
to the privilege. See Kirwan, supra at 66 (noting that, “[o]nce it
reasonably appears that the witness may be properly privileged not to
answer, it is the duty of the objecting party to establish that the privilege
does not exist.”) (citation omitted); (see also N.T. Trial, 10/23/12, at 301-
18).
Therefore, Appellant did not meet his burden of proving that the trial
court abused its discretion when it decided that Vick’s invocation of his Fifth
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Amendment right against self-incrimination was valid. See Kirwan, supraat 65 n.6. Accordingly, Appellant’s second issue would lack merit even if we
did not deem it waived.7
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2015
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7
Appellant’s claim that the in camera hearing was deficient because he and
counsel were “excluded” is equally unavailing. (Appellant’s Brief, at 14; see
id. at 13-15). First, this issue is waived because Appellant failed to object to
the court’s decision to hold an in camera hearing out of counsel’s presence.
(See N.T. Trial, 10/23/12, at 306-06). Second, this argument lacks merit.
As acknowledged by Appellant himself, “there is no mandatory procedure for
deciding whether the privilege against self-incrimination should be allowed
[and] one acceptable procedure is to hold an in camera review.”
(Appellant’s Brief, at 15 (quoting Commonwealth v. Treat, 848 A.2d 147,
149-50 (Pa. Super. 2004), appeal denied, 863 A.2d 1146 (Pa. 2004).
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