Com. v. Neely, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KHALIYFA NEELY :
:
Appellant : No. 1910 EDA 2021
Appeal from the Judgment of Sentence Entered August 23, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009418-2017
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 23, 2023
Khalifya Neely (“Appellant”) appeals from the judgment of sentence of
twenty to forty years of incarceration, entered following his convictions for
homicide in the third degree for the murder of De’Vonn Pickett, aggravated
assault against Eric Reese, and possession of an instrument of crime. We
affirm.
Pickett died as the result of multiple stab wounds following an altercation
in the early morning hours of February 18, 2015, outside Che’s Bar, located
in the West Mount Airy section of Philadelphia. Pickett had been drinking in
the bar with Eric Reese, Marcus Kincy, Detrick Lowman, and Devon Doram.
Pickett, Reese, and Kincy worked in the music industry and were in
Philadelphia rehearsing for an upcoming tour with Nicki Minaj. Lowman was
also employed in the music business and knew the three men. He was living
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in Philadelphia and the four decided to meet and catch up with each other.
Lowman’s cousin, Devon Doram, joined them.
The five men initially met at another bar, Cavanaugh’s. At some point,
the group decided to visit Che’s Bar, partly because the bartender, Travia
Allen, knew several of the men, including Reese. Allen and Reese had known
each for two or three years and had a romantic relationship. N.T., 2/24/20,
at 56. Allen and Reese tended to get together when they were in the same
town. Id. at 57. Allen was also friends with Appellant, who was drinking at
Che’s that evening, along with Anthony Torain and Pierce Boykin. Allen and
Appellant had been friends since around 2000 and the two had a “friends with
benefits” relationship. N.T., 2/19/20, at 107-08. Appellant also met up at
Che’s with another woman, Kenra Taylor.
At some point in the evening, the former owner of Che’s arrived and
caused a disruption when she went behind the bar to serve herself free drinks.
As a result of this incident, the owner decided to close the bar down for the
evening. Video surveillance established that Appellant and his friends left
before Pickett and his group.
The details vary as to who said what outside, but it is undisputed that a
melee broke out between the two groups of men, and that Reese and Pickett
were stabbed during the altercation. According to Reese, after the owner
closed the bar down, he and the rest of his group returned to Lowman’s
vehicle. N.T., 2/24/20, at 26. He texted Allen to ask if she was okay, and
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she replied that she would be outside soon. Id. at 27. He went to escort
Allen to her vehicle, as he wanted “to make sure she was okay after seeing
what happened behind the bar.” Id. at 28. Reese heard Pickett ask Allen,
“Sis, are you good? Are you okay?” Id. at 30. Reese followed Allen to her
car, and Reese “got halfway in” the passenger side. Id. at 32. He heard
someone say, “Fuck you mean is she good?” Id. He walked back into the
street. At this point, everyone from his group except Doram was there, along
with Appellant, Boykin, and Torain. Id. at 34. Reese saw Appellant throw the
first punch, targeting Pickett. Reese, who was next to Pickett, saw the two
men square up to fight. Id. at 37. Reese saw Boykin “walk[ing] as if he’s
about to jump in. I turn around. I hit him.” Id. He and Boykin, who he was
able to identify because Boykin was the only one of the men wearing glasses,
then fought. The two “pretty much were throwing fists” and Boykin managed
to put Reese in a headlock. Id. at 39. Both men ended up tussling on the
ground. At some point Reese “felt like I was getting kicked, maybe four[,] …
five times.” Id. at 42. He felt this sensation on his “whole left side, and then
in the middle of my back toward my right.” Id. at 43.
Reese believed that Lowman picked him up shortly thereafter. He saw
Pickett on the ground and observed blood through his clothes. As he
attempted to talk to Pickett, “Boykin ... starts coming after [him].” Id. at 46.
Boykin chased him, and Reese became lightheaded and slowed. Id. at 47.
Boykin approached Reese and accused him of sucker punching him; Reese
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replied that he did not want any problems and struck Boykin to defend Pickett.
Reese did not see Boykin with a knife at any point. Id. at 47-48. Boykin told
him, “When I catch you, you dead like your cousin.” Id. at 48. Reese started
to run away, and Lowman pulled up in his car and picked up Reese. Id.
Boykin was walking towards the car when they left. Id. at 49.
Lowman testified that he ended up tussling with Torain. N.T., 2/25/20,
at 31. The two did not engage much physically. It ended when a woman
yelled “[y]our friend is on the ground.” Id. at 35. He and Torain let go of
each other, and Lowman thought that Pickett may have been knocked
unconscious. He told Dorman to get the car. He and Dorman then put Pickett
in the car. Id. at 40. He recalled Marcus Kincy jumping in the car at some
point, and then picking up Reese. Id. He saw a man near Reese, whom he
recognized as “the person that [Reese] was tussling with.” Id.
Kincy testified that he ran down an alley during the melee. He returned
to the area about a minute later and saw Pickett on the ground. N.T., 2/20/20,
at 139. Some fighting was still going on, and he “heard someone say
something about going to … get a gun.” Id. at 144. That was one of the
reasons he, Lowman, and Doram put Pickett in the car and drove to Einstein
Hospital. Id. At approximately 2:42 a.m., Officer Thomas Dempsey arrived
at Einstein Hospital concerning two stabbing victims. Id. at 84. Staff
informed him that Pickett died at 2:45 a.m. Id. at 89.
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The police initially arrested Boykin and charged him with murder, in part
because Kincy identified Boykin as the man who stabbed both Reese and
Pickett. Kincy testified that he assumed Boykin did so, based on seeing “the
guy with the glasses start[] swinging” on Pickett, and when he returned to the
scene and saw Pickett on the ground, he assumed that Boykin was
responsible. Id. at 211. Additionally, police searched Boykin’s home and
found a small amount of Reese’s blood on Boykin’s jacket. Boykin was held
for trial following a preliminary hearing. Approximately eighteen months later,
with his trial date three days away, he met with representatives of the District
Attorney’s office and implicated Appellant as the murderer. Boykin ultimately
pled guilty to one count of aggravated assault for his role in fighting Reese.
Boykin testified that he threw the first punch at Pickett but missed. N.T.,
2/25/20, at 215. Reese then punched him and the two started fighting. Id.
at 218. During the ensuing fight, he saw Appellant facing Pickett, and
observed Appellant thrusting his arm once or twice. Id. at 225-26. Boykin
saw a “glimmer” in Appellant’s hand, and Pickett buckled and fell to the
ground. Id. at 227. Appellant then ran over to break up Pickett and Reese,
yelling at Reese to “[g]et off him.” Id. at 230. Boykin stated that Appellant
stabbed Reese. Id.
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The Commonwealth apparently learned from Boykin1 that Appellant had
called after the attacks and said that he would be going to Abington Hospital.
Heather Abebe, a physician’s assistant at Abington Hospital, testified that she
treated Appellant on February 18, 2015. The triage form indicated that
Appellant arrived at 3:07 a.m. Id. at 141. Appellant stated he had been
drinking and tried to slash his girlfriend’s tires with a knife. Id. at 142-43.
Ms. Abebe observed a large gash over Appellant’s knuckle, at the base of his
index finger on his right hand. Id. at 143. She testified that the injury was
consistent with a knife folding over on the top part of Appellant’s hand. Id.
at 172. Appellant’s blood was found near the location where Pickett was
stabbed. N.T., 2/24/20, at 258-59.
Appellant’s first jury trial resulted in a mistrial after the jury could not
reach a unanimous verdict. Boykin did not testify at the second trial at issue
here, and the trial court permitted the Commonwealth to read in his testimony
from the first trial.
Following his convictions, Appellant filed post-sentence motions, which
were denied. Appellant timely filed a notice of appeal and complied with the
court’s order to file a concise statement. The trial court filed its opinion, and
the matter is now ready for our review. Appellant raises the following issues:
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1 During its opening argument, the Commonwealth explained that Boykin told
“the Commonwealth certain things that we then corroborated. … [W]e didn’t
know that at that point, we got the records from Abington.” N.T., 2/19/20, at
44-45.
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1. Was the evidence insufficient to convict Appellant of Murder in
the 3rd Degree and related charges for the killing of De[’]Von
Pickett, and Aggravated Assault and related charges as to the
stabbing of Eric Reese as there was insufficient evidence to prove
beyond a reasonable doubt that Appellant killed Mr. Pickett and
stabbed Mr. Reese?
2. Did the [t]rial [c]ourt abuse its discretion by not finding the
guilty verdicts entered against … Appellant were against the
weight of the evidence?
3. Did the [t]rial [c]ourt err by granting the Commonwealth’s
[m]otion to [a]dmit the [p]rior [t]estimony of Pierce Boykin by
finding that he was unavailable as defined by Pa.R.E. 804(a)?
4. Did the [t]rial [c]ourt err by not granting a mistrial after
learning that a deliberating juror performed her own research into
facts which were not presented into evidence?
5. Did the [t]rial [c]ourt err by denying Appellant’s [m]otion to
[r]econsider [s]entence when the sentencing hearing, which
permitted participation by members of the victims’ family via
Zoom, was ‘live-streamed’ on various social media platforms,
permitting multiple unidentified individuals to participate in the
hearing and to publicly comment on Appellant’s case and demand
an excessive sentence?
Appellant’s Brief at 3-4.
Appellant’s first claim is that the evidence was insufficient to support all
convictions. Our standard of review is well-settled:
We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a light
most favorable to the Commonwealth as verdict winner, support
the conviction beyond a reasonable doubt. Where there is
sufficient evidence to enable the trier of fact to find every element
of the crime has been established beyond a reasonable doubt, the
sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute our
judgment for that of the fact-finder. The Commonwealth’s burden
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may be met by wholly circumstantial evidence and any doubt
about the defendant’s guilt is to be resolved by the fact finder
unless the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012).
Appellant does not challenge the elements of any of the crimes. Instead,
he argues that “[t]he evidence presented … with regards to who actually
stabbed Mr. Pickett and Mr. Reese is simply contradictory to such a degree
that no reliable verdicts could have been reached.” Appellant’s Brief at 27-
28. Appellant does not cite any caselaw. The principle that Appellant invokes
was cogently summarized by our Supreme Court in Commonwealth v.
Farquharson, 354 A.2d 545 (Pa. 1976):
Traditionally under our system of jurisprudence, issues of
credibility are left to the trier of fact for resolution. While there
may be some legitimacy for a trial court, who has also observed
the witnesses as they testified, to consider the weight of the
evidence and to that extent review the jury’s determination of
credibility, there is surely no justification for an appellate court,
relying solely upon a cold record, to exercise such a function.
....
This concept, however, must be distinguished from an equally
fundamental principle that a verdict of guilt may not be based
upon surmise or conjecture. Following this principle, courts of this
jurisdiction have recognized that where evidence offered to
support a verdict of guilt is so unreliable and/or contradictory as
to make any verdict based thereon pure conjecture, a jury may
not be permitted to return such a finding.
Id. at 550 (citations omitted).
This is not one of those rare situations where the jury could not
rationally conclude that Appellant was the perpetrator. The fight outside Che’s
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was assuredly chaotic, and the eyewitnesses offered differing accounts of
what, if anything, happened in the bar before Tavia Allen left. There were
also competing versions of who said what outside, as well as who threw the
first punch. Appellant lists reasons to doubt the testimony of seven witnesses.
Allen “did not testify to seeing anyone with a knife, nor did she specifically
state she saw Appellant assault anyone.” Appellant’s Brief at 28. Taylor “did
not give any specific testimony” regarding the fight. Id. Devon Doram
likewise did not see anyone stab the victims. Id. at 29. Kincy initially
identified Boykin as the man who fought Pickett, which contradicts Reese’s
account. Id. at 28. Additionally, Reese did not see a knife or any stabbing.
Appellant also points out that Reese testified to Boykin chasing Reese and
telling him he would be dead, which “indicate[s] that he (Boykin) knew that
Pickett was fatally injured[.]” Id. Lowman denied seeing Appellant near
Reese. Finally, Boykin claimed that he only struggled with Reese, but he pled
guilty to one count of aggravated assault. Id. at 29. Boykin also had Reese’s
DNA on his clothing.
We agree with the Commonwealth that Appellant’s arguments attempt
to portray the evidence in the light most favorable to him. See
Commonwealth’s Brief at 10. For instance, it is true that Allen did not testify
that she saw Appellant attack anyone. However, jurors are free to credit the
testimony as they see fit. Commonwealth v. Hill, 210 A.3d 1104, 1112 (Pa.
Super. 2019) (“It is within the province of the fact-finder to determine the
weight to be accorded to each witness’s testimony and to believe all, part, or
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none of the evidence.”). The jurors could rationally conclude that Allen was
not forthright in her testimony. She claimed to experience “blackouts” about
what happened during the rest of the night. N.T., 2/19/20, at 161-62. The
Commonwealth obtained her phone records from that evening, which showed
a seventeen-minute phone call at 3:02 a.m., and several phone calls between
herself and Appellant between 2:35 a.m. and 5:48 a.m. Id. at 176-81. Allen
stated that she did not remember any of these calls or what she discussed.
By focusing only on inferences in his favor, Appellant minimizes the
evidence, both direct and circumstantial, establishing that he struck Pickett
and Reese. First, Boykin implicated Appellant as stabbing both victims, and
specifically identified seeing a “glimmer” as Appellant made a stabbing motion.
Boykin obviously had a motive to implicate Appellant, and the jury received
the corrupt and polluted source instruction. That is a credibility determination
that was properly for the jury to make. In any event, Boykin’s testimony is
supported by other evidence circumstantially connecting Appellant to the
stabbings. First, Reese, who had the best opportunity to observe Boykin’s
actions, was adamant that Boykin never fought Pickett. Reese was presented
with his prior testimony given at Boykin’s preliminary hearing, wherein he
stated that Boykin never fought Pickett. N.T., 2/24/20, at 155-56. He also
stated at the preliminary hearing that he never saw Boykin with a knife and
that Boykin had him in a headlock throughout. Id. at 155. Second, Appellant
fled the scene and sought treatment at Abington Hospital, and had a hand
injury consistent with a knife.
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We add that the trial court, which observed the lengthy proceedings and
had a firsthand view of the video surveillance, wrote in its opinion that the
video shows all actors except Appellant and Pickett:
The security video shows Ms. Allen coming out of the building and
Eric Reese going over to her to escort her to her vehicle. Words
are exchanged between the two groups. Some pushing and
shoving leads to swinging and fighting. Pierce Boykin swings at
Pickett and misses, and then Eric Reese punches Boykin.
Fighting goes on until they realize [Pickett] has been stabbed and
has fallen to the ground and is dying. The video accounts for
everyone during the altercation except the decedent and
[Appellant], who are out of frame. The video then shows Reese
on top of Boykin when [Appellant] comes over to get Reese off his
friend. Reese [is] stabbed and [A]ppellant then runs off and
jumps in his car and drives off.
Trial Court Opinion (“TCO”), 12/10/21, at 3-4.
Given the short timeframe involved, the fact that Appellant and Pickett
are off camera supplies circumstantial evidence that Appellant was the only
person realistically capable of stabbing Pickett. Taken together, the evidence
supports a rational inference that Appellant stabbed both Pickett and Reese.
This is not one of the rare situations in which the verdict must have been the
product of pure conjecture.
Appellant’s second claim challenges the weight of the evidence. This
claim is simply a repackaging of the first claim, as demonstrated by Appellant’s
argument in support. “The same arguments set forth above, in Appellant’s
sufficiency claim, are raised here and incorporated in his weight claim.”
Appellant’s Brief at 30-31. Thus, our rejection of the foregoing claim
effectively resolves this claim as well.
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A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no
obligation to view the evidence in the light most favorable to the
verdict winner. An allegation that the verdict is against the weight
of the evidence is addressed to the discretion of the trial court. A
new trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. A trial judge must do more than
reassess the credibility of the witnesses and allege that he would
not have assented to the verdict if he were a juror. Trial judges,
in reviewing a claim that the verdict is against the weight of the
evidence do not sit as the thirteenth juror. Rather, the role of the
trial judge is to determine that “notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.”
Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (footnote
and citations omitted). On appeal, our review is “distinct from the standard
of review applied by the trial court[.]” Commonwealth v. Clay, 64 A.3d
1049, 1055 (Pa. 2013). We do not review the underlying weight of the
evidence question. Instead, we examine the judge’s exercise of discretion in
ruling on that claim. Id. The trial court determined that the verdict did not
shock its conscience, and the analysis set forth above applies here. We find
no abuse of discretion.
In his third issue, Appellant argues that the trial court erroneously
permitted the Commonwealth to read in the testimony of Pierce Boykin from
the mistrial. Former testimony is an exception to the rule against hearsay,
provided that the declarant is unavailable. Pa.R.E. 804(b)(1). The Rules of
Evidence state the qualifying conditions for deeming a witness as unavailable.
Pa.R.E. 804(a). The provision applicable in this case states that a witness is
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unavailable if the declarant “is absent from the trial or hearing and the
statement’s proponent has not been able, by process or other reasonable
means, to procure … the declarant’s attendance, in the case of a hearsay
exception under Rule 804(b)(1)[.]” Pa.R.E. 804(a)(5)(A). There is a
constitutional component at issue as well, as Boykin’s statements are clearly
testimonial. Crawford v. Washington, 541 U.S. 36, 68 (2004) (“Whatever
else the term covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations.”). Thus, the Commonwealth was required to establish that
Boykin was unavailable. Id. (“Where testimonial evidence is at issue,
however, the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.”). In
Commonwealth v. Melson, 637 A.2d 633 (Pa. Super. 1994), this Court
explained the principles applicable to this type of claim:
The test for availability under the Sixth Amendment is broad: a
witness is unavailable if the prosecution has made a good faith
effort to introduce its evidence through the live testimony of the
witness and, through no fault of its own, is prevented from doing
so. Ohio v. Roberts, [448 U.S. 56, 74 (1980)] (the “ultimate
question is whether the witness is unavailable despite good-faith
efforts undertaken prior to trial to locate and present that
witness”)[.]
Id. at 637. “The length to which the prosecution must go to produce the
testimony is a question of reasonableness.” Id. at 638.
The facts surrounding the Commonwealth’s efforts to present Boykin
were established at two points during the trial. First, on February 19, 2020,
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one day before trial was set to begin, the trial court stated that the
Commonwealth filed a motion, apparently informally as it was not docketed,
seeking the admission of Boykin’s testimony. The Commonwealth stated that
it wanted a ruling for purposes of what information it could discuss in opening
statements. Appellant objected, citing the right to confront his accusers and
the right to a fair trial. N.T., 2/19/20, at 4. Appellant argued that Boykin was
not unavailable as contemplated by the law. The Commonwealth
acknowledged that it “must prove that … a good-faith effort was made on the
part of the prosecution to produce the witness[.]” Id. at 8. The
Commonwealth represented that “several detectives” as well as the assistant
district attorneys prosecuting the case “over the course of the last two
months” had attempted to find Boykin. Id. at 8-9. Boykin’s attorney “made
abundantly clear to the Commonwealth that he was not going to be
cooperating with the Commonwealth’s case this time around.” Id. at 9.
That was the very first statement that he made through that
attorney, and he continued to make that through the attorney.
He continued to tell that to his probation officer, who is, again, an
officer of the court, over, over, and over, that he was not going
to. The probation officer told him he would be in violation.
Indeed, this Court on this case … in the past two weeks has issued
a material witness petition, with some of that same information,
understanding that Mr. Boykin was purposefully absenting himself
from this proceeding and refusing to cooperate.
Id. at 9-10. The Commonwealth also stated that it would “continue to” try to
locate Boykin. Id. at 11. The trial court granted the motion, permitting the
Commonwealth to mention Boykin’s testimony in its opening.
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On February 24, 2020, the parties discussed some potential jury
instructions, including instructions as to why Boykin was absent. The court
stated, “Boykin is not showing because why? I’m not privy to that.” N.T.,
2/24/20, at 7. The Commonwealth stated, “[A]t some point, we will put
detectives up to talk about their efforts in trying to find him…. There has to
be some testimony unless there’s some stipulation by you, and we can read
that into the record.” Id. at 8. Appellant agreed to stipulate, and the trial
court instructed the parties to work out a stipulation. Id. Boykin’s prior
testimony was then read into the record on February 26, 2020. Immediately
following that testimony, Appellant informed the court that the parties
“worked out a stipulation with regard to Mr. Boykin.” N.T., 2/26/20, at 83.
The Commonwealth then read the following to the jury:
Ladies and gentlemen, there’s been a stipulation by and between
counsel that Pierce Boykin cannot be located. Despite numerous
attempts by Homicide Detectives Graf, Morton, Scally, and
Livewell, Boykin has not been located at this time.
Mr. Boykin’s probation officer Mark Firm (ph) has given the
Commonwealth his address. Mr. Firm also told Mr. Boykin about
the court date and to honor the subpoena. Probation Officer Firm
has also spoken to Boykin’s father, who he lives with, about the
court date and subpoena.
Detective Morton has personally gone to the listed property for
Mr. Boykin several times, day and night, and has not found Mr.
Boykin. He has left subpoenas at that residence.
Counsel for the D.A.’s Office has called Mr. Boykin numerous times
regarding the subpoenas and trial dates. Counsel for the D.A.’s
Office has also informed Mr. Boykin’s personal attorney about the
subpoena and trial date.
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Detective Morton has also checked all area hospitals and morgues
for Mr. Boykin, with negative results.
Id. at 84-85.
As a prefatory matter, Appellant argues that the trial court erred
because the Commonwealth failed to present any evidence. “No testimony
was taken by the [t]rial [c]ourt as to Boykin’s whereabouts.” Appellant’s Brief
at 32. The Commonwealth bore the burden of establishing that Boykin was
unavailable. Ohio v. Roberts, 448 U.S. 56, 74-75 (“The ultimate question is
whether the witness is unavailable despite good-faith efforts undertaken prior
to trial to locate and present that witness. As with other evidentiary
proponents, the prosecution bears the burden of establishing this predicate.”).
However, Appellant stipulated to the testimony that would have been
presented. While this stipulation was prepared after the trial court had already
granted the motion and was read into the record after Boykin testified, in
context we discern no error in permitting the stipulation to be entered at that
time. The Commonwealth sought an anticipatory ruling before opening
statements out of an abundance of caution, anticipating that Boykin would not
appear. The Commonwealth noted that it would continue to try and locate
Boykin in the interim, and his testimony was read into the record one week
later. When Boykin failed to appear, the parties agreed on a stipulation.
Of course, the fact that Appellant stipulated to the testimony does not
equate to a stipulation that those efforts satisfied the applicable legal
standard. The remaining question is thus whether the trial court abused its
discretion in determining that these efforts established that Boykin was
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unavailable in the constitutional sense.2 In resolving this claim, we note that
the Commonwealth is not required to take every potential measure. In
Commonwealth v. Douglas, 737 A.2d 1188 (Pa. 1999), the appellant
asserted that the police should have established video surveillance inside the
housing project where the witness lived. The Douglas Court determined that
the trial court did not abuse its discretion in finding that the Commonwealth
made a good faith effort to locate a witness despite the lack of surveillance.
Police officers took several measures, including
repeatedly searching at his apartment, at his mother’s apartment,
at a number of bars he was known to frequent, at his girlfriend’s
house, and elsewhere. The police also contacted McLaurin’s
mother, his sister, his girlfriend, his neighbors, the security
officers at the housing project, and others to try to find McLaurin,
all to no avail. Notwithstanding the lack of surveillance at the
housing project, we cannot conclude that the trial court abused its
discretion in finding that the Commonwealth made a good faith
effort to locate McLaurin.
Id. at 1195–96.
Douglas cited Commonwealth v. Wayne, 720 A.2d 456 (Pa. 1998),
which rejected a claim similar to Appellant’s present contention that the
Commonwealth did not act reasonably because it had advance knowledge that
Boykin did not intend to appear. The appellant in Wayne did not claim that
the efforts undertaken were not thorough in themselves, but that those
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2 We note that the trial court did not make any explicit findings concerning
whether these efforts qualified as a good faith effort under the circumstances,
concluding only that “Mr. Boykin was unavailable.” TCO at 15. The
Commonwealth cited the correct principles of law when arguing the motion,
and we therefore conclude that the trial court made the required finding.
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“efforts should have begun more than four days prior to … trial. [Wayne]
argues that the Commonwealth knew that [the witness] might not be
available, thus they were under an obligation to act with greater tenacity in
securing his presence.” Id. at 467. The Court disagreed. “The
Commonwealth is held to making a reasonable effort to secure the witness’s
presence, not to being omniscient regarding the potential for a witness to
leave the jurisdiction.” Id. In Commonwealth v. Blair, 331 A.2d 213 (Pa.
1975), cited with approval by Wayne, the Supreme Court of Pennsylvania
stated that the Commonwealth need not “establish that the witness has
disappeared from the face of the earth; it demands that the Commonwealth
make a good-faith effort to locate the witness and fail.” Id. at 215.
Appellant directs our attention to McCandless v. Vaughn, 172 F.3d
255 (3d Cir. 1999), a decision granting habeas relief based on the
Commonwealth’s failure to establish that a witness was unavailable.3 In that
case, police found a victim who had been killed by gunfire. An eyewitness told
police that he had heard gunshots coming from a garage rented by
McCandless. The witness had seen the victim crash through a garage door.
He then saw a man, later identified as John Barth, running from the garage,
then returning to help another man remove a collapsed garage door from a
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3 McCandless involves an application that was filed prior to the 1996
amendments to the federal habeas corpus statute. After the 1996
amendments, a federal court cannot grant relief unless the state decision
“resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1).
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Chevrolet. That other man then fled the scene in the Chevrolet, and
McCandless owned a Chevrolet like the one observed by the witness.
Police arrested Barth for murder. Barth then implicated McCandless and
another man. Prosecutors agreed to “(i) facilitate his release on bail, and (ii)
at the successful conclusion of the case, drop the charges against him” if Barth
cooperated and his information could be corroborated. Id. at 259. At a
preliminary hearing, Barth testified that McCandless shot the victim. After the
hearing, Barth disappeared and did not appear at trial. The Commonwealth
was permitted to read in Barth’s preliminary hearing testimony. The Superior
Court concluded that the Commonwealth sufficiently established that Barth
was unavailable.
A panel for the Third Circuit of the United States Court of Appeals
reversed, concluding that the Commonwealth failed to establish that Barth
was constitutionally unavailable. The McCandless Court stated that the
reasonableness of the Commonwealth’s efforts “must be evaluated with a
sensitivity to the surrounding circumstances and the defendant’s interest in
confronting the absent witness.” Id. at 266. “McCandless’s interest in
confrontation with Barth could not have been higher.” Id. The prosecution
sought the death penalty, and Barth was the only eyewitness to the shooting
and provided the only substantial evidence implicating McCandless. Nor was
Barth an impartial witness, as he had been charged with murder and agreed
to testify in exchange for his release and later dismissal of charges.
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The panel then addressed the Commonwealth’s efforts to secure Barth’s
presence at trial. A detective “testified that he told other police officers to
keep an eye out for Barth and that he personally looked for him when he was
in Barth’s neighborhood ‘on other business.’” Id. at 267. But “he made no
effort to locate Barth during the two months prior to … trial.” Id. Another
detective “slipped a subpoena under the door” of Barth’s house, and
questioned a grocer and a neighborhood youth regarding Barth’s
whereabouts. Less than a week before trial, that detective spoke with a
neighbor who said that Barth’s wife was at the shore. Nobody sought to
contact Barth’s father, mother, or siblings. A third detective visited the Barth
residence one week before trial. Barth’s wife and “a man he assumed to be
Barth’s brother” said they had no knowledge of Barth’s whereabouts. Id.
Additional testimony from a representative of the pretrial services unit
discussed their efforts to locate Barth. The McCandless Court summarized
the efforts as follows:
The government supported a bail reduction that allowed Barth to
gain his freedom. After two failures to appear, two bench
warrants and two rearrests, it sought no alteration in conditions
of his bail. In early May of 1982, three months before trial, Barth
failed to appear for the third time and a bench warrant was issued.
Follow-up calls by Barth’s pre-trial services officers established
that Barth could not be expected to voluntarily cooperate. As of
mid-May, two and a half months prior to trial, it is fair to say that
Barth’s presence at trial would not be assured unless the
prosecution took affirmative action to secure it. Its response to
this situation over the next ten weeks can only be described as
casual.
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Id. at 268. The McCandless Court made a legal finding that, in effect,
determined the Commonwealth acted in bad faith:
Given Barth’s crucial role in the prosecution’s case, we are left
with the firm conviction that the prosecution’s efforts to assure
Barth’s presence would have been far less casual had the shoe
been on the other foot. If the prosecution had not had Barth’s
preliminary hearing testimony and had needed Barth’s presence
at trial, we are confident that the resources and effort devoted to
finding him prior to trial would have been greater than they in fact
were.
Id. at 267.
We decline to make the same type of bad faith finding here.
McCandless is not binding on this Court, Martin v. Hale Prod., Inc., 699
A.2d 1283, 1287 (Pa. Super. 1997), and the case merely represents a holding
that the necessarily fact-intensive inquiry of what is reasonable under the
circumstances was not met in that case. See also United States v. Smith,
928 F.3d 1215, 1228 (11th Cir. 2019) (finding that the government made a
good-faith, reasonable effort to obtain witness; “we do know from the
Supreme Court that there is no brightline rule for reasonableness, and that a
reasonableness inquiry necessarily is fact-specific and examines the totality
of the factual circumstances of each particular case.”). The Commonwealth’s
efforts here were not as deficient as in McCandless, where the prosecution
apparently never informed Barth of the trial date. Here, in contrast, Boykin
was apparently aware of his obligation to appear. The Commonwealth
admittedly could have offered more detail regarding what efforts its detectives
took to find Barth during the trial; the stipulation’s recitation that four
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detectives made “numerous attempts” to locate Boykin tells us next-to-
nothing. However, the stipulation states that Boykin’s probation officer spoke
to Boykin’s father, who lived with Boykin, and informed him of the court date
and subpoena. A detective personally visited Boykin’s listed property several
times, and informed Boykin’s attorney of the trial date and subpoenas. A
material witness warrant was issued shortly before trial. The Commonwealth
did not act as casually as the prosecutors in McCandless.
Appellant posits that the latter point cuts both ways, in that the
Commonwealth admitted that it knew well in advance of trial that Boykin did
not intend to appear. We agree that this is pertinent. See McCandless, 172
F.3d at 268 (“[C]alls by Barth’s pre-trial services officers established that
Barth could not be expected to voluntarily cooperate. As of mid-May, two and
a half months prior to trial, it is fair to say that Barth’s presence at trial would
not be assured unless the prosecution took affirmative action to secure it.”).
But Appellant does not argue that the Commonwealth was mandated to jail
Boykin. In this regard, we note that Rule of Criminal Procedure 522 permits
the detention of witnesses, including material witnesses. The Comment
indicates that “a witness may be released on his or her own recognizance
conditioned upon the witness’ written agreement to appear as required.”
Comment, Pa.R.Crim.P. 522. In other words, Boykin’s own liberty interests
are relevant, and in the absence of focused arguments on this point, we are
unprepared to hold that, as a matter of law, the Commonwealth was required
to arrest Boykin at some undefined point in time prior to trial. The
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Commonwealth made efforts to have Boykin appear at trial, Boykin appeared
to have been made aware of the subpoena, and the stipulation indicates that
officers attempted to execute the material arrest warrant. Cf. Hardy v.
Cross, 565 U.S. 65, 71 (2011) (“We have never held that the prosecution
must have issued a subpoena if it wishes to prove that a witness who goes
into hiding is unavailable for Confrontation Clause purposes[.]”). The trial
court did not conclude that the Commonwealth acted in bad faith and the
concomitant legal conclusion that Boykin was unavailable is supported by the
record.
Appellant’s fourth claim concerns the fact that one of the jurors admitted
to independently examining the weather conditions for the evening of the
murder. On the morning of February 28, 2020, the court officer found
notebooks belonging to two separate jurors. N.T., 2/28/20, at 4. The court
examined the material and then brought in both jurors to confirm that the
material was “only a recap of what they heard[.]” Id. at 5. The first juror
confirmed that the notebook was just a summary and denied conducting any
other research. Id. The second juror also confirmed that the notebook
contained a summary of witness testimony. Id. at 9. The court asked if the
juror did “any research … that would involve anything other than the testimony
you heard in this courtroom.” Id. The juror responded, “I looked at the
weather.” Id. Specifically, the juror “looked at the high and the low
temperature that day.” Id. The juror confirmed that this research did not
have any bearing on their ability to assess the evidence presented and agreed
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to decide the case based only on the evidence presented. Id. at 10. The
attorneys declined the court’s opportunity to ask any follow-up questions. Id.
Appellant then made a motion for mistrial. The judge denied the request
based on the juror’s answers and the fact that the independent research was
limited to “the weather conditions on the day in which the event occurred.”
Id. at 11.
Appellant contends that “prejudice must be presumed” when a juror
conducts independent research. He cites three cases involving removal of
jurors: Commonwealth v. Marrero, 217 A.3d 888 (Pa. Super. 2019);
Commonwealth v. Rush, 162 A.3d 530 (Pa. Super. 2017); and
Commonwealth v. Smith, 206 A.3d 551 (Pa. Super. 2019). These cases
are inapposite.
In Marrero, a juror informed the trial court that another juror made
remarks concerning “the concept of facing trial before ‘a jury of your peers,’”
with the juror saying that “none of us are [sic] his peers.” Marrero, 217 A.3d
at 889 (bracketing in original). The reporting juror construed this as “possibly
referring to [a]ppellant’s Latino heritage.” Id. The trial court questioned the
juror, who explained that the comment referenced the disparity in age. Id.
at 890. The court deemed the juror’s explanation credible and declined to
discharge the juror, and this Court found no abuse of discretion.
In Rush, the appellant was charged with, inter alia, torture of a police
dog, for stabbing a police dog that later died due to the wound. The canine’s
handler cried during the playback of a 911 call, which included his police dog
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barking in the background. One of the jurors began crying as well. During a
break, the appellant asked that the juror be removed on the basis that her
crying “causes me to question whether she can decide this case impartially[.]”
Rush, 162 A.3d at 539. The trial judge declined, explaining that it was not
clear why the juror cried. “I … cry at weddings and funerals of people I don’t
know, because I respond to other people’s sorrow. So the fact that the officer
cried on the stand may have triggered that[;] we don’t know.” Id. The court
stated that “the law presumes that the jury will be able to follow the
instructions given,” and the judge stated that the closing instructions will
remind the jurors to decide “based on the evidence” and not due to emotional
considerations. Id. This Court found no abuse of discretion by the trial judge,
noting that appellant “did not ask that the juror be questioned,” and “offered
nothing more than speculation about [the juror]’s possible bias or influence
on the rest of the jury.” Id. Accordingly, the appellant failed to “meet his
burden to show that the jury was not impartial.” Id.The Marrero and Rush cases both involve whether the trial court
abused its discretion in declining to discharge a juror prior to the jury entering
its verdict, whereas here the question is whether Appellant was entitled to a
mistrial. Appellant has not cited any case involving a mistrial as opposed to
seeking the juror’s removal. The cases are therefore of little help to Appellant
in that both suggest that a request for removal was the appropriate remedy.
Moreover, similar to the appellant’s failure in Rush to ask the court to question
the juror, Appellant did not ask the juror what bearing her research had on
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her view of the case, if any, and it is unknown whether the juror shared the
information with her fellow jurors. Nor did the juror indicate whether this
piece of information contradicted anything presented at trial. Thus, neither
case is helpful.4
The Commonwealth’s citation to Commonwealth v. Szakal, 50 A.3d
210 (Pa. Super. 2012), is closer to the mark as it involved a post-sentence
motion for a new trial based on alleged juror impartiality. There, the juror
informed the appellant’s counsel that he felt coerced into finding the appellant
guilty of second degree homicide and stated that during deliberations “he
asked his daughter to locate jury instructions for first, second and third degree
murder on the internet and read them to him.” Id. at 223. The Szakal Court
explained that jurors are generally barred from testifying about what
happened during deliberations, but there is an exception for “testimony of
extraneous influences which might have affected (prejudiced) the jury during
their deliberations.” Id. (quoting Commonwealth v. Messersmith, 860
A.2d 1078, 1085 (Pa. Super. 2004)). “Extraneous influence” is defined by
information “not provided in open court or vocalized by the trial court via
instructions.” Id. In the case of a “potentially prejudicial extraneous
____________________________________________
4 The Smith case involved the trial court granting the Commonwealth’s motion
to discharge a juror during trial, based on its discovery that the juror had
previously been adjudicated delinquent of indecent assault, which was the
crime at issue in Smith. The panel concluded that the trial court did not abuse
its discretion in discharging the juror. It is unclear what relief would have
been available if the panel had determined that the court erred.
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influence,” then a three-prong test is applied to determine if there was a
“reasonable likelihood of prejudice[.]” Id.Szakal is arguably of minimal value as it too does not suggest that
mistrial is a proper remedy. Appellant acknowledges that the cases he cites
are not on point but suggests that his case presents an even stronger basis
for relief because the juror admitted to violating the court’s prior orders not
to conduct independent research. Putting aside the fact that it is unknown
whether the juror shared the information she learned with the other jurors, as
Appellant declined to ask any questions of the juror when given the
opportunity, Appellant offers no reason why, at minimum, he would not be
required to show a reasonable likelihood of prejudice as in Szakal. Instead,
he merely argues that “prejudice must be presumed.” Appellant’s Brief at 41.
We disagree. The three-prong Messersmith test quoted by Szakal states
that judges should consider whether the information “merely involves a
collateral issue,” whether it involved information “they did not have before
them at trial,” and whether the information “was emotional or inflammatory
in nature.” Messersmith, 860 A.2d at 1085. As the Commonwealth states,
Appellant “does not even try to explain why the juror’s curiosity about the
weather denied him of his right to a fair and impartial jury.” Commonwealth’s
Brief at 19. Even if we accept that a mistrial could be granted under these
circumstances in lieu of discharging the juror, the fact remains that Appellant’s
rule would require judges to grant mistrials as a per se remedy. We fail to
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see why courts should be required to take that drastic step even when the
information learned, as here, appears to be largely inconsequential.
Appellant’s final issue concerns the trial court’s use of technology to
permit the parties to remotely participate in Appellant’s sentencing
proceeding. The COVID-19 pandemic suspended rules generally barring the
use of technology to conduct remote proceedings, see Pa.R.Crim.P. 119, and
the trial court permitted parties to participate via Zoom. The trial court’s
opinion states that it believed each side would gather their respective
participants in a conference room, as Appellant did. The Commonwealth,
however, distributed the Zoom link to individual persons. One of those
recipients then distributed the link to others, and the sentencing proceeding
was broadcast to other social media sites. This led to unknown participants
using the chat functionality to offer comments during sentencing. TCO at 23.
The trial court took responsibility for the mishap. “Clearly, the court
erred in failing to adequately restrain individuals from obtaining the [Z]oom
link and give others access to the proceedings.” Id. at 25. Simultaneously,
the court made clear that it did not see the comments posted to the chat
room, let alone consider them. “This court was not connected to the chat, but
when it was brought to our attention that individuals were acting improperly,
all were ordered to stop any messaging.” Id. at 23.
Appellant contends that the trial court must have considered the
comments. “Most importantly, the [c]ourt must have been impacted, not only
by the large number of individuals who were present, unknown and
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unidentified, but by the comments which were made by unknown individuals
during the hearing.” Appellant’s Brief at 43. We agree with the
Commonwealth that this claim challenges the discretionary aspects of his
sentence. Those appeals are not as of right.
When challenging the discretionary aspects of the sentence
imposed, an appellant must present a substantial question as to
the appropriateness of the sentence. Two requirements must be
met before we will review this challenge on its merits. First, an
appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence. Second, the appellant
must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. That is,
the sentence violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process. We
examine an appellant’s [Pa.R.A.P.] 2119(f) statement to
determine whether a substantial question exists. Our inquiry
must focus on the reasons for which the appeal is sought, in
contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.
Commonwealth v. Christman, 225 A.3d 1104, 1107 (Pa. Super. 2019)
(quoting Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super. 2010)).
Appellant does not include the required separate statement, but the
Commonwealth has not raised an objection. Thus, we may overlook it. “[I]n
the absence of any objection from the Commonwealth, we are empowered to
review claims that otherwise fail to comply with Rule 2119(f).”
Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa. Super. 2005). Turning
to the substantial question component, Appellant’s allegation that the trial
court must have considered the comments presents a substantial question.
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See Commonwealth v. King, 182 A.3d 449, 454 (Pa. Super. 2018) (finding
a substantial question where the appellant asserted that the court erred in
considering impact victim testimony by the victim’s wife).
However, Appellant’s claim fails because the trial court explicitly states
that it did not consider the comments and, in fact, did not even read their
contents. TCO at 25. Appellant’s claim that the trial court “must have”
considered the facts because it imposed the statutory maximum for homicide
in the third degree is not a convincing argument. It cannot be the case that
imposing the statutory maximum acts as a prima facie demonstration that the
trial court must have considered improper material.
To the extent that Appellant’s claim can be construed as a challenge to
its legality, we note that Appellant’s claim is the opposite of the more common
scenario in which a criminal defendant argues that a court erred by unlawfully
excluding the public. See Commonwealth v. Jordan, 212 A.3d 91 (Pa.
Super. 2019) (holding that right to public trial was violated when trial court
excluded family members during voir dire). These errors may be deemed
structural and, if so, require a new proceeding even if the error had no
discernible impact. Id. at 103 (“The violation of the right to a public trial
constitutes a structural defect, a specific type of constitutional error
warranting a new trial without any showing of prejudice.”); see also Weaver
v. Massachusetts, --- U.S. ----, 137 S. Ct. 1899, 1910 (2017) (“The public-
trial right also protects some interests that do not belong to the defendant.
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After all, the right to an open courtroom protects the rights of the public at
large, and the press, as well as the rights of the accused.”). That concept
recognizes that the outcome from a new proceeding may well be the same,
but the values protected by opening the proceedings to the public are served
by ensuring that the process is carried out in the open. Appellant’s complaint
that the proceeding was “too public” would not be remedied by a new, more
restrictive sentencing proceeding. Whatever harms were caused by having
the proceeding broadcast, the damage has already been done. Because the
trial judge did not consider the comments of the public participants, there is
no basis to order a new sentencing hearing.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2023
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