Com. v. Davis, L.

J. S20001/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LELAND DAVIS, : No. 618 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, December 4, 2012,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0015949-2010
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 11, 2015
Leland Davis filed this timely appeal from the judgment of sentence
entered on December 4, 2012, in the Court of Common Pleas of Allegheny
County. We affirm.
The facts, as stated by the trial court, are as follows.
On October 25, 2008, Tamir Thomas attended
a birthday party for Jason Lewis at the Elks Club in
McKeesport, Allegheny County. Appellant was also
in the Elks Club that evening, wearing a black and
white baseball cap. Parts of his movement inside the
club were captured by video surveillance equipment.
Shortly before 3:00 A.M., Thomas and Lewis left the
Elks Club and began to walk down Walnut Street
toward their car. At the same time, several police
officers were patrolling the area for crowd control as
patrons exited the Elks Club.
As Thomas and Lewis were walking on Walnut
Street toward 12th Street, Appellant approached
Thomas from behind and shot him once in the back
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of the head. Thomas immediately fell to the ground.
Lewis did not see Appellant but instead fell to the
ground for cover when he heard the gunshot. After
a few seconds[,] Lewis tried to help Thomas stand
up until he realized that Thomas had been shot in
the head and was fatally wounded. Thomas was
pronounced dead on the scene; he died as a result of
a single penetrating gunshot wound to the head
which caused immediate lethal injury to the left
cerebellum and brain stem.
Several officers arrived on scene almost
immediately after hearing the single gunshot. As
Officer Jon Harrison was driving towards the scene
on 12th Street, he saw Appellant running towards
him with a gun in his hand and away from the area
of the shooting. Appellant was wearing the same
black and white baseball cap he was wearing in the
Elks Club. Officer Harrison immediately exited his
vehicle, drew his weapon, and ordered Appellant to
stop. Appellant ignored him and ran down Tube
Works Alley.
Officer Harrison pursued Appellant down the
alley, continuously yelling for Appellant to stop.
Appellant lost his footing and fell in front of a white
vehicle, and Officer Harrison took cover behind the
vehicle. As Officer Harrison approached Appellant,
he came within ten feet of him and noticed that his
firearm and hat were gone. Appellant continued to
disobey Officer Harrison’s orders to remain still.
Appellant managed to regain his footing and ran
away from Officer Harrison, this time climbing over a
fence and ultimately escaping.
Police recovered a semiautomatic pistol
([.]40 caliber Smith & Wesson Glock) and a black
and white hat from underneath the white vehicle that
Appellant fell in front of during the foot chase. A
jacket was also found where Appellant climbed over
the fence. The recovered gun was test fired; the
cartridge casings were compared to the cartridge
casing recovered outside the Elks Club where
Thomas was shot, and the bullet fragment found
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within Thomas’s brain was also compared to a test
fired bullet. Based on this analysis, the crime lab
determined that both the cartridge and the bullet
fragment were discharged from that firearm. Based
on the identification of Appellant from the
surveillance video, a warrant was obtained to collect
Appellant’s DNA. DNA evidence recovered from the
pistol and hat indicated that Appellant could not be
excluded as a contributor.
Trial court opinion, 6/10/14 at 5-7 (citations to the record omitted).
Appellant was charged with one count of criminal homicide,
18 Pa.C.S.A. § 2501(a), for the shooting death of Thomas, one count of
carrying a firearm without a license, 18 Pa.C.S.A. § 6106(a), and one count
of person not to possess a firearm, 18 Pa.C.S.A. § 6105. An omnibus
pre-trial motion was filed seeking suppression of Officer Harrison’s
identification and also to suppress the DNA and accompanying test results.
Following a hearing on January 5, 2012, the motion was denied.
A jury trial commenced on August 30, 2012. At the close of the
evidence, the defense moved for judgment of acquittal, which was denied by
the court. On September 4, 2012, appellant was convicted of third degree
murder and carrying a firearm without a license. Immediately thereafter,
the Honorable Edward J. Borkowski found appellant guilty of persons not to
possess a firearm. On December 4, 2012, appellant was sentenced to 20 to
40 years’ imprisonment for third-degree murder and a consecutive term of
3 to 6 years for carrying a firearm without a license; no further penalty was
imposed for the other firearms count. On December 6, 2012, a
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post-sentence motion was filed challenging the weight of the evidence; the
motion was denied on March 12, 2013.
A timely notice of appeal was filed. (Docket #20.) Appellant complied
with the trial court’s order to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial
court has filed an opinion. Appellant presents the following claims for
review:
[I]. Did the trial court err when it denied
[appellant’s] Motion to Suppress
Officer Harrison’s in[-]court identification when
evidence of record demonstrated that
Officer Harrison lacked the ability to make a[n]
independent identification of [appellant] at the
time of the incident here in question and only
identified [appellant] when he saw him at a
preliminary hearing dressed in a jail uniform?
[II.] Did the trial court err when it denied
[appellant’s] Motion to Suppress the search
warrant for [appellant’s] DNA where said
search warrant was not based on probable
cause and/or where said search warrant
contained material misrepresentations of
Jameelah Miller[1] thereby rendering it invalid?
[III.] Did the trial court err when it denied
[appellant’s] Motion for Judgment of Acquittal
where the Commonwealth failed to prove
beyond a reasonable doubt that [appellant]
was the individual who shot the victim herein?
1
Miller identified appellant after watching the video surveillance footage.
Miller, who had known appellant for six or seven years, was introduced to
appellant by appellant’s brother. Miller had also dated one of appellant’s
friends.
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Appellant’s brief at 10.2
The first two issues concern the denial of appellant’s motion to
suppress. Our scope and standard of review from the denial of a
suppression motion are well settled:
An appellate court’s standard of review in addressing
a challenge to a trial court’s denial of a suppression
motion is limited to determining whether the factual
findings are supported by the record and whether
the legal conclusions drawn from those facts are
correct. [Because] the prosecution prevailed in the
suppression court, we may consider only the
evidence of the prosecution and so much of the
evidence for the defense as remains uncontradicted
when read in the context of the record as a whole.
Where the record supports the factual findings of the
trial court, we are bound by those facts and may
reverse only if the legal conclusions drawn therefrom
are in error.
Commonwealth v. Reese, 31 A.3d 708, 721 (Pa.Super. 2011) (citations
omitted).
Appellant first argues that the trial court erred in denying his motion to
suppress the identification of him by Officer Harrison. Appellant argues that
due to the “brief nature of their encounter, the highly charged atmosphere
immediately subsequent to a shooting incident, the lack of adequate lighting,
and the period of time between the shooting and the highly suggestive
in[-]court identification” Officer Harrison’s identification was unreliable.
2
Additional issues contained in his Rule 1925(b) statement have not been
presented by appellant to our court in his brief; hence, we deem them to
have been abandoned.
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(Appellant’s brief at 14.) While appellant concedes that the officer
demonstrated certainty at the preliminary hearing when he identified
appellant, he points out that this occurred when appellant was in a prison
jumpsuit and in shackles, “leaving no possibility of mistaking who was in
Court to answer the charge of criminal homicide.” (Id. at 19-20.)
After a thorough review of the record, appellant’s brief, the relevant
law, and the well-reasoned opinion of the trial court, we hold this issue is
without merit. The trial court’s opinion correctly disposes of this suppression
issue, and accordingly, we dispose of appellant’s issue on the basis of that
opinion. (See trial court opinion, 6/10/14 at 7-11.)3
Next, appellant claims the trial court erred in failing to grant his
motion to suppress DNA evidence. Appellant argues the search warrant for
the DNA was not supported by probable cause. (Appellant’s brief at 22.)
3
Regardless, the error was harmless. We agree with the Commonwealth
that any error in the admission of the officer’s identification would be
harmless as expert testimony established that appellant was a major
contributor of the DNA evidence detected on both the gun and the baseball
cap found. Dr. Mark Perlin, an expert in the field of DNA analysis, concluded
that a match between the DNA evidence collected from the firearm and
appellant’s DNA was 18.6 billion times more probable than a coincidental
match to an unrelated African American. (Notes of testimony, 8/30/12-
9/4/12 at 411.) Dr. Perlin also opined that the match between the DNA
evidence collected from the baseball cap and appellant’s DNA was 89
quadrillion times more probable than a coincidental match to an unrelated
African American. (Id.) Additionally, Walter Lorenz, an expert in forensic
biology and DNA analysis, determined that with regard to the baseball cap,
the probability of randomly selecting another African American with the
same DNA profile as appellant was 1 in 5.7 quadrillion. (Id. at 354-355.)
Thus, even if the identification had been erroneously admitted, such an error
would have been harmless given the DNA evidence.
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Appellant also claims that the search warrant contained material
misrepresentations by Miller. (Id. at 23.)
At the outset, we agree with the trial court and the Commonwealth
that appellant’s argument concerning Miller is waived. This claim was not
raised in the motion to suppress or at the suppression hearing. It is well
settled that issues not raised in the trial court are waived for purposes of
appeal. Pa.R.A.P. Rule 302(a), 42 Pa.C.S.A.
We now turn to the claim concerning whether the warrant was
supported by probable cause. Our standard of review, however, does not
look at each individual circumstance in determining if there is probable
cause, rather we look to the circumstances as a whole.
The standard for evaluating whether probable cause
exists for the issuance of a search warrant is the
totality of the circumstances test as set forth in
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983) and adopted by the
[Pennsylvania] Supreme Court in Commonwealth
v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925
(1985). Commonwealth v. Jones, 542 Pa. 418,
424, 668 A.2d 114, 116 (1995). A magistrate is to
make a practical common-sense decision whether,
given all the circumstances set forth in the affidavit
before him, including the veracity and basis of
knowledge of persons supplying hearsay information,
there is a fair probability that contraband or evidence
of a crime will be found in a particular place. Id. at
424, 668 A.2d at 116-117 (citations omitted).
Commonwealth v. Gindlesperger, 706 A.2d 1216, 1219 (Pa.Super. 1997)
(internal quotation marks omitted), affirmed, 743 A.2d 898 (Pa. 1999),
cert. denied, Pennsylvania v. Gindlesperger, 533 U.S. 915 (2001). In
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reviewing the validity of a search warrant, the “reviewing court is limited to
determining whether there is substantial evidence supporting the issuing
authority’s decision to approve the warrant.” Commonwealth v.
Cramutola, 676 A.2d 1214, 1216 (Pa.Super. 1996).
Reviewing the affidavit here, we find the trial court properly concluded
there was a substantial basis for the issuing magistrate to conclude probable
cause existed that appellant was connected to the murder of Thomas. The
following circumstances were set forth in the affidavit: Thomas was shot in
the back on October 25, 2008, at approximately 3:12 a.m. near the Elks
Club; Officer Harrison heard the gunshot and immediately observed a black
male holding a handgun running east on 12th Street; Officer Harrison
ordered the man to stop and he did not comply; during the pursuit, a
baseball cap fell off the suspect’s head and the suspect dropped a Glock 23
.40 caliber S&W handgun; the suspect also stripped off the jacket he was
wearing and it fell to the ground; the suspect evaded capture;
Officer Harrison described the suspect as a light skinned black male
approximately 6’0” tall with a thin build in his early 20s; the officer stated
the suspect was wearing a dark coat and a striped baseball cap; the mobile
crime unit collected the gun, hat, and jacket for DNA testing; a detective
reviewed surveillance video from the Elks Club and observed an individual
fitting Officer Harrison’s description; on July 8, 2010, Miller viewed the video
surveillance and identified the individual in the video wearing a baseball cap
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with a large letter “B” as appellant; Miller based her identification on the fact
that she had known appellant for six or seven years, knew appellant’s
brother, and had previously dated appellant’s friend. (See Docket #6.)
Clearly, the affidavit of probable cause was sufficient for a search warrant to
issue. An officer chased a person observed running from the scene of
Thomas’ shooting. The officer observed this person carrying a gun which he
discarded during the chase. The police were also able to obtain the ball cap
the suspect was wearing as well as the coat he took off. The Commonwealth
was able to obtain an identification of appellant via a surveillance tape from
a person who had known appellant for approximately six or seven years.
There was more than a fair probability that appellant’s DNA could match that
recovered from the gun and baseball hat collected from the scene. Contrary
to appellant’s assertions, the affidavit of probable cause contained detailed
information which established a fair probability that the requested search
would uncover DNA evidence resulting in a match with appellant’s DNA.
Appellant’s third claim concerns whether the trial court erred when it
denied appellant’s motion for judgment of acquittal. Appellant argues the
Commonwealth failed to prove beyond a reasonable doubt that appellant
was the individual who shot the victim. (Appellant’s brief at 27.) Appellant
states that the Commonwealth’s evidence only demonstrates that Thomas
was shot and killed by a firearm that had appellant’s DNA on it but there was
no evidence to indicate appellant fired the weapon. (Id. at 31.) Rather,
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appellant argues the jury engaged in “speculation and conjecture” as they
were presented with nothing more than circumstantial evidence when it
concluded he acted with malice. (Id. at 28.) We disagree.
Our standard of review of appellant’s claim that the court erred in
denying his motion for judgment of acquittal is as follows:
A motion for judgment of acquittal challenges the
sufficiency of the evidence to sustain a conviction on
a particular charge, and is granted only in cases in
which the Commonwealth has failed to carry its
burden regarding that charge.
Commonwealth v. Foster, 33 A.3d 632, 634-635 (Pa.Super. 2011).
Following our review of the record, appellant’s brief, the relevant law,
and the well-reasoned opinion of the trial court, we hold this issue is without
merit. The Commonwealth presented sufficient evidence to establish
appellant was the individual who shot the victim and possessed the firearm.
The trial court’s opinion correctly disposes of this issue, and accordingly, we
dispose of appellant’s issue on the basis of that opinion. (See trial court
opinion, 6/10/14 at 15-20.)
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2015
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