Com. v. Mapp, S

J-S18004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN MAPP,
Appellant No. 2402 EDA 2013
Appeal from the Judgment of Sentence Entered March 8, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000118-2010
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 02, 2015
Appellant, Steven Mapp, appeals from the judgment of sentence of life
imprisonment without the possibility of parole, imposed after a jury found
him guilty of first-degree murder and related offenses. After careful review,
we affirm.
On August 4, 2009, at approximately 11:00 p.m., Jabar
Thomas ("Thomas") got out of a van that was parked on the
corner of Reed Street and South Hicks Street and entered his
mother’s home at 1413 South Hicks Street in the City of
Philadelphia. Thomas promptly exited his mother’s home and
got into his Nissan Maxima that was parked in front of the home.
Moments later, co-defendants Demetrius Cox ("Cox") (a.k.a.
"Meat”) [and Appellant] (a.k.a. "Chunky")[,] fired approximately
nine (9) gunshots at Thomas, shooting out the windshield of the
vehicle in the process. Cox and [Appellant] then ran toward
Dickinson Street before cutting through an alley between South
Hicks and 15th Street.
Thomas was found slumped over the center console of his
vehicle with a large wound to the back of his head. Thomas was
put in the back of a police vehicle and taken to Thomas Jefferson
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University Hospital. On August 7 at 1:15 p.m.[,] Thomas was
pronounced dead from multiple gunshot wounds, the fatal wound
being the one to the back of his head.
…
At trial, the jury heard testimony from numerous civilian
witnesses, police officers, detectives, as well as the medical
examiner, Dr. Collins. Multiple witnesses testified that
[Appellant] and Cox were part of a group of young men who had
an ongoing rivalry over the sale of drugs with another
neighborhood group with which Jabar Thomas was associated.
The rivalry resulted in a number of homicides, including the
instant murder of Jabar Thomas. The testimony of Neal Kitchen
established that, shortly before Thomas was killed, Cox and
[Appellant] were walking up the 1500 block of Dickinson Street
and [Appellant] was telling people to "watch the corner." The
testimony of Tangia Hargust[] and Raheem Hargust corroborated
that of Neal Kitchen, affirming [Appellant]'s instruction to "watch
the corners," and further established that Cox was telling people
to go inside the house. The testimony of these three witnesses
also established that one to two minutes after Cox and
[Appellant] passed the 1500 block of Dickinson Street, numerous
gunshots were fired and Cox and [Appellant] were subsequently
seen running back toward Dickinson Street before cutting
through an alley between South Hicks and 15th Street. As they
were running by, the back of a gun was visibly protruding from
Cox's waistband. Cox and [Appellant] were known to carry guns
and had been saying that all of the guys from the block of South
Hicks Street and Reed Street were "going to get theirs." In
addition, the jury heard testimony from Nelson Jones which
established that Thomas had gone into his mother’s home on
South Hicks Street, exited the home shortly thereafter, and was
shot in his car moments later. Mr. Jones’ testimony corroborated
the identification of Cox and [Appellant] as the shooters and
identified both Cox and [Appellant] as carrying guns.
Additionally, he saw Cox and [Appellant] cut through an alley
and run away from the crime scene. Mr. Jones' testimony also
established that a few days prior to Thomas' murder, Cox had
asked Mr. Jones how he would "get a person" to which Jones
responded that "everybody got to go see they mom or they girl."
Further, the jury heard testimony from Aaron Grimes which
established that, on the day after Thomas was shot, Cox told
Grimes that he "and another guy went down there and caught
him and we just started letting him have it." Although Neal
Kitchen, Raheem Hargust, Nelson Jones, and Aaron Grimes
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disavowed many of the averments made in their respective
statements to police, the signed statements were properly
admitted as evidence at trial through the testimony of Detectives
Singleton and Williams. The statements were admissible for
their truth as prior inconsistent statements that were signed and
adopted by the declarants.
The jury also heard testimony from numerous members of
the Philadelphia Police Department. Officers Dobbins, Lai, and
Dyrda testified that, on the night Thomas was killed, they
responded to a radio call for gunshots on the 1400 block of
South Hicks Street. Upon arrival, they observed Thomas
slumped over the console of his vehicle with a gunshot wound to
the back of his head and immediately transported him to
Jefferson Hospital. Officers Fox and Welsh provided testimony
regarding the ballistic evidence, specifically that nine (9) nine
millimeter fired cartridge casings, two (2) projectiles, and one
(1) fragment were recovered from the scene. Officer Welsh
concluded that all nine fired cartridge casings were fired from the
same firearm, but could not determine exactly how many
firearms were fired when Thomas was killed. Detectives
Williams, Singleton and Byard all testified regarding the details
of the investigation, providing the jury with information about
the various persons interviewed and the statements and
identifications given to police. Finally, Dr. Collins testimony
established that the decedent's death was a homicide caused by
a fatal gunshot wound to the back of the head.
Trial Court Opinion (TCO), 3/28/14, at 4-8 (footnotes omitted).
Appellant was charged with first-degree murder, conspiracy (murder),
carrying a firearm without a license, carrying a firearm on public property in
Philadelphia, and possession of an instrument of crime. Appellant’s joint
trial with co-defendant Cox began on January 11, 2003, and concluded when
the jury convicted Appellant of all the above-listed offenses. On March 8,
2013, the trial court sentenced Appellant to concurrent mandatory terms of
life imprisonment for first degree murder and conspiracy, and to no further
penalty for the remaining charges. Appellant’s timely filed post-sentence
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motion was denied by operation of law on July 17, 2013. Appellant filed a
timely notice of appeal on August 15, 2013. He filed a timely Pa.R.A.P.
1925(b) statement on September 12, 2013, and the trial court issued its
Rule 1925(a) opinion on March 28, 2014.
Appellant now presents the following questions for our review:
1) Whether evidence was sufficient to convict Appellant of
[m]urder, [c]onspiracy, [firearms offenses], and
[p]ossessing an [i]nstrument of [c]rime where the only
evidence connecting Appellant to the crime was a
statement by the co-defendant made to another who
testified at trial which was admitted in violation of
Bruton[1] and inadmissible hearsay admitted through
unreliable witness statements?
2) Whether the trial court erred by granting the
Commonwealth's last minute, day of trial motion to admit
"other acts evidence" over objection by defense,
particularly where the prosecutor misrepresented his
provision of discovery to defense; where the probative
value of the admitted other acts evidence was outweighed
by its prejudicial effect on the Appellant; where the
vastness or extent of the other acts evidence resulted in a
trial by ambush where evidence was highly prejudicial;
where the evidence unequivocally overshadowed the
evidence in the underlying case; tended to confuse the
jury; lacked a connection between the other homicides and
the Appellant; and involved the admission of property
receipts, 75-48s, statements, testimony from crime scene
and warrant officers, and crime scene photos of three
other homicides where no direct or indirect connection
remotely indicated that [Appellant] was involved in the
other alleged homicides?
3) Whether prosecutorial misconduct occurred where the
Commonwealth attorney represented that the discovery
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1
Bruton v. United States, 391 U.S. 123 (1968).
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regarding the three homicides had been provided to
defense, when the Commonwealth failed to supply
complete discovery prior to trial in violation of Brady[2]?
4) Whether prosecutorial misconduct occurred where the
attorney for the Commonwealth repeatedly introduced,
referred to, or presented evidence either ruled inadmissible
by the court, or agreed inadmissible among the attorneys?
5) Whether the trial court abused its discretion by []
permitting the statements by Commonwealth witnesses,
Aaron Grimes and Nelson Jones, to be presented to the
jury during deliberations resulting in undue emphasis or
undue influence on the Commonwealth evidence
particularly where the court declined to read the testimony
to the jury as requested by the jury and where the
statements were the subject of an extensive pre-trial
motion in limine?
6) Whether Appellant's rights to confrontation under the U.S.
and Pennsylvania Constitutions (Amendments VI and XIV;
Art. 1 § 9 respect[ively]) were violated where the
Commonwealth was permitted to introduce evidence
through police officers/personnel where their evidence
could only be based on hearsay or information received
from witnesses who were not present at trial and were
unavailable for cross examination?
7) Whether the verdicts were against the weight of the
evidence?
8) Whether the trial court erred in failing to grant Appellant
appropriate credit for time served in custody while
awaiting trial?
9) Whether the cumulative effect of unlawfully admitted
evidence during trial resulted in an unfair trial which
demands the grant of a new trial?
Appellant’s Brief, at 4-6.
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2
Brady v. Maryland, 373 U.S. 83 (1963).
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1.
Appellant’s first claim concerns the sufficiency of the evidence, for
which our overarching standard of review is as follows:
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support
the verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Where the evidence offered to
support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, then
the evidence is insufficient as a matter of law. When reviewing a
sufficiency claim[,] the court is required to view the evidence in
the light most favorable to the verdict winner giving the
prosecution the benefit of all reasonable inferences to be drawn
from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
In a meandering argument, Appellant contends that his conviction was
not supported by sufficient evidence due to various inconsistencies in the
testimony and prior statements of Nelson Jones. As a preliminary matter,
the Commonwealth asserts that Appellant has essentially waived his
sufficiency claim by failing to identify which elements of which crimes the
Commonwealth purportedly failed to prove. While we agree that Appellant
has not specifically identified any specific element for scrutiny, it is apparent
from the nature of his argument that he is challenging the sufficiency of the
evidence as it pertains to his identity as one of the victim’s killers.
Appellant’s identity as one of the victim’s assailants was a common element
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to every crime for which Appellant’s was convicted. Thus, we reject the
Commonwealth’s waiver argument in this regard.
Nevertheless, the entirety of Appellant’s sufficiency argument is
geared toward attacking the credibility of Jones’ account of the shooting.3 It
is axiomatic that “it is within the province of the fact finder to determine the
weight to be given to the testimony and to believe all, part, or none of the
evidence.” Commonwealth v. Moore, 648 A.2d 331, 333 (Pa. Super.
1994). Appellant’s various attacks on Jones’ credibility are directed to the
weight, rather than to the sufficiency, of the evidence. Accordingly,
Appellant’s first claim lacks merit.
We note that Appellant’s statement of the question involved appears to
interweave a Bruton claim with his sufficiency claim. On its face, this is
improper under the Rules of Appellate Procedure, which dictate that “[t]he
argument shall be divided into as many parts as there are questions to be
argued[.]” Pa.R.A.P. 2119(a). Regardless, despite Appellant’s invocation of
Bruton in his statement of the question, his first argument fails to even cite
Bruton, much less discuss any relevant Bruton-related claim. Even if there
is a Bruton-related issue in this case, it is immaterial to our analysis
regarding the sufficiency of the evidence. When reviewing a sufficiency
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3
Jones’ account of the shooting derived from statements he made to police
and at Appellant’s preliminary hearing. Those pre-trial statements were
admitted into evidence as prior inconsistent statements at Appellant’s trial
because Jones had largely recanted them when called to testify.
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claim, this Court is obligated to consider “the entire record[,]” which includes
“all evidence actually received” by the factfinder. See Commonwealth v.
Gray, 867 A.2d 560, 567 (Pa. Super. 2005). Consequently, even if certain
evidence was erroneously admitted at trial, this Court must consider it for
sufficiency review purposes.
2.
Next, Appellant argues that the trial court erred when it granted the
Commonwealth’s motion to admit “other acts evidence” concerning his
involvement in an ongoing drug-related gang war. Appellant presents
several bases for the court’s error in this regard. First, Appellant complains
that the motion to admit evidence of these acts was a form of ambush, as it
was not filed until just prior to trial. Second, Appellant argues that the court
erred because the evidence of other homicides was from police responding
to those homicides rather than by direct eyewitnesses. Third, Appellant
contends that the other-homicide evidence was insufficiently related to his
actions in this case.
The admission of evidence is solely within the province of
the trial court, and a decision thereto will not be disturbed
absent a showing of an abuse of 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.
Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (internal
citations and quotation marks omitted).
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“Evidence of a crime, wrong, or other act is not admissible to prove a
person's character in order to show that on a particular occasion the person
acted in accordance with the character.” Pa.R.E. 404(b)(1). However, the
same evidence “may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential for unfair
prejudice.” Pa.R.E. 404(b)(2).
Appellant’s first argument concerns Rule 404(b)(3). That rule provides
that: “In a criminal case the prosecutor must provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial notice on good
cause shown, of the general nature of any such evidence the prosecutor
intends to introduce at trial.” Pa.R.E. 404(b)(3). Appellant essentially
contends that he was not afforded sufficient notice because the
Commonwealth did not file its motion until just prior to his trial.
This claim fails, in part, on its face. Appellant concedes that the
Commonwealth filed a pre-trial motion to seek admission of the disputed
evidence.4 Thus, there can be no dispute that the Commonwealth sought
admission of the evidence “in advance of trial[.]” Pa.R.E. 404(b)(3).
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4
Appellant notes that the prosecutor appeared in court on January 7, 2013
to litigate the Commonwealth’s other-bad-acts motion. Appellant’s Brief, at
28. As noted above, Appellant’s trial did not begin until January 11, 2003.
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However, Rule 404(b)(3) also requires that the notice given must be
reasonable. In this regard, Appellant contends that the Commonwealth “had
three and on-half years to present its motion and failed to do so until the
day the case was scheduled for trial.” Appellant’s Brief, at 28. Appellant
essentially claims that notice was unreasonable because he was bombarded
with a large volume of documentary evidence concerning the other
homicides on the eve of trial.
This aspect of his claim also lacks merit. Appellant does not direct this
court’s attention to any request to postpone the trial premised upon his need
to review this evidence. Instead, he baldly asserts that the volume of
evidence was overwhelming, without any reference to the record or other
explanation regarding how or why he was unable to efficiently deal with or
react to the evidence in question. Relatedly, Appellant has not described
how this case would have, or even could have, transpired any differently had
he been afforded more time to review the Commonwealth’s other acts
evidence. Reasonableness is always a contextual consideration, and
Appellant has simply failed to explain how the notice in question was
unreasonable in the circumstances of this case.
Moreover, Appellant has not provided this Court with any authorities
which would suggest that the Commonwealth’s notice was unreasonable.
Appellant’s citation of Commonwealth v. Shelton, 640 A.2d 892 (Pa.
1994) is off-point. In Shelton, our Supreme Court reversed a conviction
where the appellant was not given any notice of the disputed evidence—
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testimony that he had sold narcotics to an officer—until the prosecutor
mentioned it in his opening statement at the beginning of trial.
Furthermore, the appellant in Shelton requested, but was denied, a
continuance of the trial in light of the new information.
Here, the disputed evidence was presented by the Commonwealth
days before Appellant’s trial began. Appellant has not directed this Court’s
attention to any portion of the record that demonstrates that he requested,
and was denied, additional time to deal with the new evidence. Thus,
Shelton is not on point. Consequently, we conclude that Appellant’s second
claim lacks merit.
Regarding the manner in which such evidence was admitted, Appellant
complains that no witnesses to the other homicides offered testimony, as the
Commonwealth relied on officers who responded to those homicides.
However, Appellant fails to identify where specific evidence was admitted
over his objection in the record, and he provides no legal argument as to
why such objections should have been granted, but for the overarching claim
discussed below. Accordingly, Appellant has waived any claims regarding
the manner in which such evidence was admitted.
Appellant does claim, however, that none of the evidence pertaining to
the other homicides should have been admitted because such evidence was
not sufficiently related to this case. We understand this claim to be a
challenge to the relevancy of the other-homicide evidence, as well as a
challenge to the inadmissibility of such evidence under Rule 404(b)(1).
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Evidence is relevant if “it has any tendency to make a fact more or less
probable than it would be without the evidence.” Pa.R.E. 401(a). The trial
court found the other-homicide evidence relevant as evidence of Appellant’s
motive, which simultaneously constitutes an exception to Rule 404(b)(1)
pursuant to Rule 404(b)(2). Rule 404(b)(2) provides that evidence of
another crime, wrong, or other act is admissible if it goes to prove motive.
As the trial court explains:
On appeal, [Appellant] asserts that this court erred in
admitting police testimony and documents related to other
homicides that resulted from the same ongoing neighborhood
drug rivalry that motivated the instant killing of Jabar Thomas.
This court disagrees. At trial, Cheryl Harrington and Sharon
Brightman provided testimony describing the background of the
neighborhood rivalry, based upon the circumstance of their own
drug purchases from individuals associated with the two groups.
Additionally, Officers Holmes, Peterson, and Reed testified
regarding their involvement and the police documents in the
related shootings of Darryl Pray and Tyrell Smack, that occurred
within hours of one another and two weeks prior to the shooting
of Jabar Thomas. This court permitted all of this evidence to be
introduced at trial as evidence of motive for the shooting of
Jabar Thomas, as this court found that the Thomas shooting
grew out of these prior shootings, given the context of the
ongoing neighborhood rivalry. Further, this court gave the jury
an instruction limiting any consideration of such evidence solely
to the evaluation of the defendant's intent or motive.
Specifically, this court instructed the jury as follows:
The Commonwealth is not required to prove a motive for
the commission of the crimes charged. However, you
should consider any evidence of motive or lack of motive.
Knowledge of human nature tells us that an ordinary
person is more likely to commit a crime if he or she has a
motive than if he or she has none. You should weigh and
consider any evidence tending to show motive or absence
of motive along with all the other evidence in deciding
whether each defendant is guilty or not guilty of the crimes
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charged. It is entirely up to you to determine what weight
should be given the evidence concerning motive. Now,
you have heard other evidence regarding matters involving
allegations of killings not of Jabar Thomas. Neither
defendant is charged with committing any crime other than
the charges related to the killing of Jabar Thomas, and I
will be defining these for you in a moment. You may not
take this other evidence as a substitute for proof that
either defendant committed the crimes charged here nor
alleviate the Commonwealth's burden to prove each
defendant guilty beyond a reasonable doubt of the crimes
charged, nor may you consider it as proof that either
defendant has a criminal personality or bad character.
Indeed, in a moment, I will be explaining the evidence of
good character that each defendant presented. You may
consider the other evidence solely on the limited issue of
either defendants intent or motive in the crimes charged
here.42
___
42
N.T., 1/18/2013, at 24-25.
___
In consideration of the close proximity of the three shootings,
the fact that the three victims were all associated with
neighborhood groups involved in an ongoing drug rivalry, and
the limited purpose for which the evidence could be considered
by the jury, this court found that the probative value of the
evidence outweighed its potential prejudice to the defendant
and, thus, properly permitted the evidence to be introduced at
trial.
TCO, at 15-16.
We agree with the trial court. The evidence in question was relevant
and admissible under Rule 404(b)(2) for the limited purpose of
demonstrating Appellant’s and his co-defendant’s motive for killing Thomas.
We find any resulting prejudice adequately mitigated by the thorough
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instruction issued by the trial court regarding that evidence. Accordingly,
this aspect of Appellant’s second claim lacks merit.
3.
Next, Appellant asserts that a Brady violation and/or prosecutorial
misconduct occurred in the Commonwealth’s handling of the disclosure of
the other-homicide evidence pertaining to Appellant’s motive. Appellant
contends that the related discovery promised by the prosecutor was never
provided to the defense. The trial court acknowledges that “the prosecutor’s
misrepresentations and conduct toward both the court and defense counsel
were highly inappropriate and unprofessional,” but that the court “was able
to cure the deficiencies in discovery at trial, thereby preventing prejudice
toward [Appellant] and ensuring a fair trial.” TCO, at 22.
“Our standard of review for a claim of prosecutorial misconduct is
limited to whether the trial court abused its discretion.” Commonwealth v.
Rolan, 964 A.2d 398, 410 (Pa. Super. 2008). “In considering this claim, our
attention is focused on whether the defendant was deprived of a fair trial,
not a perfect one.” Id. (quoting Commonwealth v. Harris, 884 A.2d 920,
927 (Pa. Super. 2005)).
The law governing alleged Brady violations is well-settled.
In Brady, the United States Supreme Court held that “the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83
S.Ct. at 1196–97. The Supreme Court subsequently held that
the duty to disclose such evidence is applicable even if there has
been no request by the accused, United States v. Agurs, 427
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U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976), and
that the duty may encompass impeachment evidence as well as
directly exculpatory evidence, United States v. Bagley, 473
U.S. 667, 676–77, 105 S.Ct. 3375, 3380–81, 87 L.Ed.2d 481(1985). Furthermore, the prosecution's Brady obligation
extends to exculpatory evidence in the files of police agencies of
the same government bringing the prosecution. Kyles v.
Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 1568, 131 L.Ed.2d
490 (1995); Commonwealth v. Burke, 566 Pa. 402, 781 A.2d
1136, 1142 (2001).
Commonwealth v. Lambert, 884 A.2d 848, 853-54 (Pa. 2005).
Appellant contends prosecutorial misconduct occurred when the
Commonwealth committed a Brady violation. The Commonwealth argues,
however, that Brady is not implicated because Appellant has not
demonstrated that the evidence in question is favorable to him. We agree
with the Commonwealth. In the argument portion of Appellant’s brief raising
the instant claim, Appellant only identifies the alleged Brady material as the
other-homicide evidence. He does not specifically identify which specific
evidence was undisclosed, nor does he direct us to the portion of the record
where such materials were offered into evidence by the Commonwealth.
Thus, we have no basis upon which to evaluate whether the alleged non-
disclosures constituted evidence that could be construed as favorable to him,
whether it be directly exculpatory or useful for impeachment purposes.
Accordingly, we conclude that Appellant has failed to demonstrate that the
Commonwealth violated Brady.
However, the trial court does acknowledge that the prosecutor
engaged in “highly inappropriate and unprofessional” conduct in the manner
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in which the Commonwealth provided discovery material to Appellant. It is,
therefore, at least plausible that Appellant could have a prosecutorial
misconduct claim based on prosecutor’s misrepresentations regardless of
whether Brady was violated. However, the trial court determined that any
resulting prejudice did not rise to the level of depriving Appellant of a fair
trial.
“Prosecutorial misconduct will justify a new trial where the unavoidable
effect of the conduct or language was to prejudice the factfinder to the
extent that the factfinder was rendered incapable of fairly weighing the
evidence and entering an objective verdict.” Commonwealth v. Francis,
665 A.2d 821, 824 (Pa. Super. 1995). “If the prosecutorial misconduct
contributed to the verdict, it will be deemed prejudicial and a new trial will
be required.” Id.Appellant does not discuss in any detail how he was prejudiced by the
prosecutor’s misconduct to an extent that deprived him of a fair trial, other
than to baldly assert that he was “the victim of a trial by ambush.”
Appellant’s Brief, at 34. Nor does Appellant describe, identify, or explain
how the prosecutor’s (mis)behavior “contributed to the verdict.” Francis,
665 A.2d at 824. As such, Appellant has simply failed to convince us that he
was deprived of a fair trial due to the prosecutor’s misconduct as
acknowledged by the trial court. Accordingly, we conclude that the trial
court did not abuse its discretion when it declined to grant a mistrial on that
basis.
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4.
Next, Appellant asserts that prosecutorial misconduct occurred when
the prosecutor “repeatedly introduced, referred to, or presented evidence
either ruled inadmissible by the court, or agreed inadmissible among the
attorneys[.]” Appellant’s Brief, at 34. In the argument section of his brief
pertaining to this issue, Appellant directs our attention by reference to the
record to numerous instances of purported misconduct. However, Appellant
presents these instances of misconduct in a disjointed manner. He
meanders from a complaint about discovery (alleging that the prosecutor
misrepresented the scope of other acts evidence that the Commonwealth
intended to present),5 to the Commonwealth’s failure to conform to specific
rulings by the court (regarding the prosecutor’s questioning of witnesses
about portions of their prior statements that were ordered redacted by the
court), to misconduct in the manner in which certain witnesses were
questioned (such as asking leading questions of witnesses’ regarding
information known to the prosecutor not to exist in the witnesses’ prior
statements, so as to suggest to the jury that the information was contained
therein). Simply put, Appellant has failed to confine this argument to a
single or, at least, related instances of alleged misconduct. See Pa.R.A.P.
2119(a) (“[t]he argument shall be divided into as many parts as there are
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5
This aspect of Appellant’s fourth claim is largely indistinguishable from his
third claim.
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questions to be argued[.]”) Indeed, “when defects in a brief impede our
ability to conduct meaningful appellate review, we may dismiss the appeal
entirely or find certain issues to be waived.” Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007); see also Pa.R.A.P. 2101.
Moreover, the Commonwealth contends that Appellant waived these
various claims because he “did not did not make his mistrial motion until the
end of trial. To preserve an argument that the trial court abused its
discretion in not granting a mistrial, [Appellant] was required to not only to
raise contemporaneous objections but to timely request a mistrial when
those objections were sustained.” Commonwealth’s Brief, at 24. We agree.
In Commonwealth v. Brown, 467 A.2d 393 (Pa. 1976), the
appellant objected to prosecutorial misconduct. The trial court sustained
the objection, and issued instructions to the prosecutor to “stay away from
that area of argument.” Id. at 396. However, the appellant requested
neither a mistrial nor a curative instruction. Consequently, our Supreme
Court determined that the appellant had waived appellate review of his
prosecutorial misconduct claim.
The same circumstances are present in the instant case. Following
each instance of misconduct, the trial court sustained Appellant’s objections.
Appellant did not contemporaneously request a mistrial or otherwise seek
curative instructions. Consequently, these individual claims of prosecutorial
misconduct have been waived.
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Nevertheless, were we able to reach the merits of these claims, the
diligent efforts of the trial court demonstrate that no relief would be
warranted. The trial court adequately addressed these claims of
prosecutorial misconduct in its Rule 1925(a) opinion. See TCO, at 21-29.
Therein, the court acknowledged the various instances of misconduct, and
demonstrated by extensive citations to the record that the “court responded
to the objections of defense counsel and, in correcting the prosecutor’s
missteps, was able to ensure that [Appellant] received a fair trial.” TCO, at
29. Thus, were they not waived, we would find that these prosecutorial
misconduct claims lack merit for the reasons set forth in the well-reasoned
opinion of the trial court, and that Appellant was not denied a fair trial as a
result of the prosecutor’s misdeeds. Accordingly, the trial court would not
have abused its discretion in declining contemporaneous requests for
mistrial had they been timely made.
5.
In Appellant’s fifth claim of error, he asserts that the trial court abused
its discretion when it permitted the jury, during its deliberations, to review
the written statements of witnesses Aaron Grimes and Nelson Jones. As
previously noted, the statements in question were admitted as prior
inconsistent statements of both Grimes and Jones, who, when called to
testify in this case, recanted their previous statements implicating Appellant
and his codefendant in the murder of Jabar Thomas.
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“[W]hether an exhibit should be allowed to go out with the jury during
deliberation is within the discretion of the trial judge, and such decision will
not be overturned absent an abuse of discretion.” Commonwealth v.
Dupre, 866 A.2d 1089, 1102 (Pa. Super. 2005). However, this discretion is
limited by the Pennsylvania Rules of Criminal Procedure, which dictate that,
“[u]pon retiring, the jury may take with it such exhibits as the trial judge
deems proper,” subject to several exceptions. Pa.R.Crim.P. 646(A). Rule
646(C) prohibits the jury from reviewing during deliberations:
(1) a transcript of any trial testimony;
(2) a copy of any written or otherwise recorded confession by
the defendant;
(3) a copy of the information or indictment; and
(4) except as provided in paragraph (B), written jury
instructions.
Pa.R.Crim.P. 646(C).
Appellant does not contend that the exhibits in question are prohibited
by Rule 646(C). Instead, he complains that the trial court “changed its
original ruling that the witness[es’] statements would not be presented to
the jury, to permitting them to view the redacted statements….” Appellant’s
Brief, at 42. Appellant believes the court abused its discretion in this regard
because the jury “would put undue and unjust emphasis on the statement[s]
where there had been substantial testimony from each of the witnesses
which would not be reviewed by the jury[,]” and because “[t]he extent of
the redactions” might invite the jury “to fill in the reacted portions of the
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statement[s]” with content and or conclusions “not in evidence.” Appellant’s
Brief, at 43.
At the time the jury made the request for the statements, the court
understood that two objections were being made by the defense to the
admission of those previously admitted exhibits: first, that the previous
ruling of the court had been not to permit the jury to review the statements
during deliberations, and second, that there was an issue regarding the form
of the statements available to present to the jury. The latter objection arose
because the defense was not confident that the redacted statements
available to present to the jury were the same versions that had been
admitted into evidence, because multiple versions of the redacted
statements had been circulated between the attorneys and the court.
Regarding the first objection, the trial court indicated that: “[t]he
reason that I don’t send them [witnesses’ statements] back just regularly is
I don’t believe that the jury has time to sift through all the evidence,
particularly in a case that’s lasted this long. Now that the jury has been
deliberating for however long, in theory that reason for not sending them
back is gone.” N.T., 1/22/13, at 25. After days of deliberation, the jurors
decided that it was critical to their determination of guilt, innocence, or the
degree of guilt, that they review the prior inconsistent statements of Jones
and Grimes. The trial court’s reasoning for excluding the statements from
the jury’s deliberations—ostensibly to prevent them from being overwhelmed
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by the volume of evidence presented—was no longer valid. We ascertain no
abuse of discretion in this regard.
The second objection, pertaining to the form of the statements, has
been waived for our review. Defense counsel was permitted to examine the
documents before they were given to the jury in order to ensure that all
proper redactions were made before the statements were given to the jury
as per its request. After Appellant’s counsel was afforded that opportunity,
there were no further objections lodged or instructions requested. As such,
Appellant’s objection to the form of the documents was effectively sustained
and Appellant has not preserved any additional objection to the form of
those documents. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
Appellant also claims the jury was likely to place undue emphasis on
the statements because the jury did not also receive for review the
testimony of Nelson Jones and Aaron Grimes recanting those statements
because the Court “declined to read the testimony to the jury as requested
by the jury[.]” Appellant’s Brief, at 42. Appellant’s formulation of the
purported error that occurred misconstrues the record, as is explained by
the trial court. The trial court, referring to the sequence of jury questions it
received in regard to the statements, explained:
The jury questions clearly show that the jury first asked for the
statements of Nelson Jones and Aaron Grimes and were initially
told that they would have to rely on their recollection. After
further deliberations, the jury then requested the court
transcripts of Nelson Jones and Aaron Grimes and were
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instructed that the court could not provide them with the written
transcripts, but could have the testimony read back,
acknowledging the lengthy preparation that would be required.
The jury indicated that they were interested in hearing the
testimony, but two hours later, sent a second request for the
statements of Nelson Jones and Aaron Grimes. This court then
inquired if the statements were requested instead of or in
addition to the rereading of the testimony and the jury indicated
that they preferred to have the statements instead of the
testimony. In consideration of these multiple, specific requests
for witness statements over the course of two days of
deliberation, this court properly permitted the statements of
Nelson Jones and Aaron Grimes to go back to the jury with the
necessary redactions, pursuant to this courts evidentiary rulings
throughout the trial.
TCO, at 30-31.
We agree with the trial court that it did not refuse to allow the jury to
review Jones’ and Grimes’ testimony; to the contrary, the trial court asked
the jury if it wanted to review that testimony (by having it read back to the
jury), and the jury declined to hear it. This was not a situation where the
court permitted the jury to review the witnesses’ statements while
simultaneously refusing to give the jury access to the testimony recanting
those statements. The jurors were informed on multiple occasions that the
pertinent testimony could be read back to them, but they ultimately refused.
Their refusal occurred in a context where the primary focus of Appellant’s
closing argument pertained to the credibility of those statements in light of
the in-court recantations. Thus, we have no doubt that the jury understood
the context of the statements they asked to review. Accordingly, we
conclude the trial court did not abuse its discretion when it permitted the
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jurors, as per their specific request, and after days of prior deliberation, to
review the statements of Jones and Grimes.
6.
Next, Appellant contends that his confrontation clause rights under
both the state and federal constitutions were violated when the trial court
admitted the other-homicide evidence through the testimony of several
Commonwealth’s witnesses. In Appellant’s nearly seven-page argument
presenting this claim, he does not cite to a single portion of the record
wherein such evidence was received by the court. Accordingly, we conclude
that this claim is waived. See Commonwealth v. Rozanski, 433 A.2d
1382, 1390 (Pa. Super. 1981) (holding claim of error was waived when the
“appellant … failed to cite to the record, advising us either at what point in
the trial the asserted objectionable use of the evidence occurred, or in what
manner his objection was preserved for appellate review.”).
7.
Next, Appellant claims the verdict was against the weight of the
evidence.
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
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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) (internal
citations omitted).
[W]hen reviewing a weight of the evidence claim, an appellate
court's role is not to consider the underlying question of whether
the verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim. A true weight
of the evidence challenge concedes that sufficient evidence
exists to sustain the verdict but questions which evidence is to
be believed. We also observe that [i]n criminal proceedings, the
credibility of witnesses and weight of evidence are
determinations that lie solely with the trier of fact, [which] is
free to believe all, part, or none of the evidence.
Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. 2006) (internal
citations and quotation marks omitted).
Appellant articulates his weight-of-the-evidence claim as follows:
Appellant withstood a jury trial where the prosecutor and the
court were constantly at odds with each other; where the
prosecutor and the co-defense counsel were constantly at odds
with each other; where the prosecutor repeatedly disobeyed the
orders of the court that certain evidence was inadmissible by
asking questions related to redacted or sustained evidence;
where the prosecutor repeatedly made inappropriate comments
in the presence of the jury; where inadmissible hearsay
testimony was admitted through witness statements where the
contents of the evidence was inadmissible, unreliable, and
prejudicial; where the court admitted other acts evidence in
violation of the rule that evidence shall not be admitted where its
prejudicial affect outweighs it probative value; where the trial
court erred in failing to grant a mistrial when Appellant suffered
prejudice when the Commonwealth was permitted to disclosed
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the incarceration status of the [c]o-[d]efendant's father during
the trial specifically where the co-defendant's statement
implicating Appellant was not properly redacted; and where
other acts evidence was admitted that did not connect []
Appellant or his co-defendant to commission of the other three
homicides.
Appellant’s Brief, at 54-55.
As the trial court correctly notes, Appellant waived this claim by failing
to raise it with adequate specificity in his Rule 1925(b) concise statement.
In that statement, Appellant inquired only: “Whether the verdicts were
against the weight of the evidence?” Appellant’s Rule 1925(b) Statement, at
2 ¶ 3. This court has routinely found similar bald assertions in 1925(b)
statement waived for lack of specificity. See Commonwealth v. Seibert,
799 A.2d 54, 62 (Pa. Super. 2002) (holding weight claim waived where the
appellant baldly asserted in his Rule 1925(b) statement that “[t]he verdict of
the jury was against the weight of the credible evidence as to all of the
charges.”).
In any event, it is apparent that Appellant’s argument does not adhere
to the proper form of a weight-of-the-evidence claim. Instead, Appellant
offers a smorgasbord of evidentiary and prosecutorial misconduct claims
already addressed in this memorandum to suggest the unreliability of the
Commonwealth’s evidence. Therefore, we also conclude in the alternative
that Appellant’s weight claim lacks merit on its face.
8.
Next, Appellant complains that he was not afforded the appropriate
amount of time-credit towards his sentence for the time he spent in pre-trial
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incarceration. Specifically, Appellant contends he is entitled to 1,291 days
credit for the time he spent in custody from his arrest on August 25, 2009,
until he was sentenced on March 8, 2013.
In its Rule 1925(a) opinion, the trial court indicates that it “confirmed
that [Appellant] received the proper time credit” and attached
documentation indicating as much. See TCO, at 40 (citing TCO, Exhibit B,
at 1). Therein, the trial court provides a form provided by the court to the
Superintendent of Pennsylvania’s State Correctional Institutions indicating
that Appellant is to be afforded time-credit for the period of time from
“08/28/09” to “03/08/13[.]” TCO, Exhibit B, at 1.
Appellant’s purported arrest date of August 25, 2009 conflicts with the
beginning date of the time-credit afforded by the trial court of August 28,
2009. However, our review of the certified record indicates that Appellant
was arrested on the charges for which he was convicted in this case on
August 28, 2009.6 Accordingly, we conclude that Appellant was afforded the
appropriate amount of credit for time served in pre-trial and pre-sentence
custody. Thus, his claim lacks merit.
9.
____________________________________________
6
We note that the record does indicate that Appellant was initially taken into
custody on August 25, 2009 on narcotics charges not related to the instant
case. Appellant has not provided any argument why he should be afforded
time-credit towards his convictions in this case for time spent in custody for
an unrelated offense.
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Finally, Appellant asserts that “the cumulative effect of unlawfully
admitted [evidence] during trial resulted in an unfair trial which demands
the grant of a new trial.” Appellant’s Brief, at 56. Essentially, Appellant
argues that, even if he is not entitled to relief on the multiple allegations of
evidentiary error and prosecutorial misconduct addressed above, he is
entitled to a new trial due to the cumulative effect of these purported errors.
However, Appellant has failed to successfully assert any claims of
error, and as to claims of prosecutorial misconduct, we found those claims to
have been waived, lacking in merit, or that Appellant failed to demonstrate
that he had been denied a fair trial due to the misconduct. As our Supreme
Court has stated, “[i]t is settled … that no number of failed claims may
collectively attain merit if they could not do so individually.”
Commonwealth v. Freeman, 827 A.2d 385, 416 (Pa. 2003) (internal
quotations omitted). Accordingly, Appellant’s final claim also lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2015
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