Com. v. Nelson, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
JOHNNIE LENAN NELSON
Appellant No. 2104 MDA 2016
Appeal from the Judgment of Sentence July 21, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005539-2013
BEFORE: BOWES, OLSON, AND RANSOM, JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 13, 2018
Johnnie Lenan Nelson appeals from the judgment of sentence of life
imprisonment, imposed following his convictions for first-degree murder,
conspiracy to commit murder, and possessing an instrument of crime. We
affirm.
During the late evening hours of July 4, 2013, Darryl Jones was
shot and killed in an alleyway between the 1100 block of North
12th Street and Birch Street in the City of Reading.
....
[T]he Commonwealth presented evidence from multiple sources:
. . . [including] the Commonwealth's key witness, co-defendant
Eric Harding (aka Fat Boy, Nut), who testified at length and in
detail about the events which occurred on the evening of July 4,
2013 into July 5, 2013.
Harding testified about meeting the defendant in the area of
North 12th Street on the afternoon of July 4, 2013 to ride four
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wheelers and to attend a 4th of July party at 1027 North 12th
Street. The two split up while riding the four-wheelers; the
defendant returned after dark and told Harding that he was
going to watch fireworks. Harding left the area to unload the
bikes and spend time with his children. At around 11:00 p.m.,
Harding returned to N. 12th Street with a friend, Zechariah
(Zach), and parked on Robeson Street. They met up with the
defendant at the party.
At around 11:20 p.m., Darryl Jones (aka "Sparks") arrived at the
party. Jones approached a group on the sidewalk and shook
hands with Harding, the defendant and a third individual.
Defendant and Jones engaged in friendly conversation. Harding
walked down the street to the corner of N. 12th and Robeson
Streets to avoid another individual who arrived at the party.
When he reached the corner, he turned around and saw Jones,
followed by the defendant, walking towards him. Ms. Kadijatu
Conteh also saw the defendant and Jones leave the party
together. Jones told Harding to "[s]tay right here. I'll be right
back". Defendant arrived, laughing, and told Harding, "I'll be
right back and just be ready to go".
Defendant followed Jones up towards an alleyway, then they
turned and entered the alleyway. Harding did not enter the
alleyway. Harding did not know what Defendant was going to do
in the alleyway. He assumed that Defendant was going to do
something to Jones in the alleyway, maybe beat him up, and
leave. Harding started his truck, pulled up to the alleyway but
couldn't see them, then began circling the block. As he was
circling for the third time, he heard three gunshots that sounded
very close. He braked, looked around, then started driving. As
he approached an alleyway/breezeway between two houses on
12th Street, Defendant emerged, running out with a black
firearm in his hand. . . .
....
[T]he defendant told Harding what happened in the alleyway. He
told Harding that Jones turned toward him in an aggressive
manner, with his hand in his pocket. He thought Jones had a gun
and convinced Jones to keep walking. Once they got in the
alleyway, he shot him in the back of the head, then shot him
twice more, then took off running. As Harding and the
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defendant traveled down 5th Street towards Muhlenberg
Township, the defendant, while still wearing gloves, removed
pieces of the disassembled gun from the Ziploc bag and threw
them out the widow of the car as the car was moving. The pair
then went to the West Reading Diner to get something to eat.
Darryl Jones's body was discovered in the alleyway at
approximately 4 a.m. on July 5, 2013 by Officer Sholedice. . . .
[who] began looking for evidence. Further north in the alley, he
discovered an open wallet with a PA ID card. [T]he wallet
[contained] a PA Identification card for the defendant, along with
other cards (SS, student ID, Metro Bank card) with the
defendant's name.
Trial Court Opinion, 3/17/17, at 1-7 (citations to transcript omitted).
Following his conviction, Appellant filed a timely post-sentence motion,
which was denied. He filed a timely notice of appeal and complied with the
order to file a concise statement. The Honorable Patrick T. Barrett authored
a thorough and cogent thirty-eight page opinion responding to Appellant’s
points of error. He raises the following claims on appeal:
A. Whether the trial court erred in denying defendant's pretrial
motion for discovery, which requested that the Commonwealth
provide all recorded telephone calls made by Eric Harding while
incarcerated at the Lancaster County prison because the records
custodian for those records refused to honor a defense subpoena
for those records and the court did not order the Commonwealth
to obtain those records and turn them over in discovery even
though the Commonwealth obtained and provided the defense
with all recorded telephone calls made by Eric Harding while
incarcerated at the Berks County prison?
B. Whether the trial court erred when it permitted the
Commonwealth to introduce recorded telephone calls made by
defendant while he was incarcerated in Berks County jail
because the content of the phone calls and the trial testimony of
the co-defendant about his interpretation of the meaning of
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those phone calls was unfairly prejudicial and denied defendant a
fair trial as they referred to prior bad acts and "gangs"?
C. Whether the trial court erred when it permitted the
Commonwealth to introduce a surveillance video from the West
Reading diner that allegedly depicted defendant and co-
defendant, Eric Harding because it was not relevant and was too
remote in time to the alleged crimes, which was unfairly
prejudicial and denied defendant a fair trial?
D. Whether the trial court erred when it permitted the
Commonwealth to introduce recorded DVD interview of
Commonwealth witness William Rosario because he testified he
had no recollection of the content of his earlier interview because
it was unfairly prejudicial, denied defendant his right to confront
the witness, and denied defendant a fair trial?
E. Whether the trial court erred when it refused to allow defense
counsel to fully cross examine Eric Harding, with the information
attached to the trial transcript as Defense Exhibit 4, about his
involvement as a participant/witness in a murder case in [New
Jersey], which denied defendant his right to confront the witness
and denied defendant a fair trial?
F. Whether the trial court erred in failing to grant defendant a
new trial because juror number 12 was a juror on the case and
had an undisclosed, close familial relationship with the victim,
Darryl Jones Jr. and was unable to be fair and impartial as a
juror thus denying defendant due process and a fair trial as
required by Article I, § 9 of the Pennsylvania Constitution and
the 6th Amendment to the United States Constitution?
G. Whether the trial court erred in failing to grant defendant a
judgment of acquittal or an arrest of judgment on all charges
because the verdicts of the jury were against the weight of the
credible evidence presented at trial for all the reasons set forth
in defendant's post sentence motions?
H. Whether the trial court erred in failing to grant defendant a
new trial based upon the newly discovered evidence of the
testimony of John Rushton, which could not have been
discovered prior to trial through the exercise of due diligence,
was not merely corroborative or cumulative, would not be used
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solely to impeach a witness' credibility and would likely result in
a different verdict had that testimony been presented to the jury
at trial?
Appellant’s brief at 2-4.
We have carefully reviewed the record, the parties’ briefs, and the trial
court opinion, and find that the Pa.R.A.P. 1925(a) opinion aptly disposes of
issues two, three, five, six, seven, and eight. We therefore adopt its
reasoning as our own with respect to those issues. See Trial Court Opinion,
3/17/17, at 11-13 (issue two); id. at 13-14 (issue three); id. at 16-18
(issue five); id. at 19-25 (issue six); id. at 26-29 (issue seven); id. at 29-38
(issue eight). We write separately to address claims one and four.
Issue #1 – Motion for discretionary discovery
Appellant’s first issue concerns his attempts to obtain recordings of
phone calls placed by co-defendant Eric Harding while Harding was
incarcerated at the Lancaster County Jail. Specifically, Appellant challenges
the court’s refusal to order the discovery under the discretionary provisions
of Pa.R.Crim.P. 573, which reads in pertinent part:
(B) Disclosure by the Commonwealth.
....
(2) Discretionary With the Court.
(a) [I]f the defendant files a motion for pretrial
discovery, the court may order the Commonwealth
to allow the defendant's attorney to inspect and copy
or photograph any of the following requested items,
upon a showing that they are material to the
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preparation of the defense, and that the request is
reasonable:
(i) the names and addresses of
eyewitnesses;
(ii) all written or recorded statements,
and substantially verbatim oral
statements, of eyewitnesses the
Commonwealth intends to call at trial;
(iii) all written and recorded statements,
and substantially verbatim oral
statements, made by co-defendants, and
by co-conspirators or accomplices,
whether such individuals have been
charged or not; and
(iv) any other evidence specifically
identified by the defendant, provided the
defendant can additionally establish that
its disclosure would be in the interests of
justice.
Pa.R.Crim.P. 573.
Instantly, we note that this prosecution did not occur in Lancaster
County. Harding was incarcerated in Berks County for an unspecified period
of time and was later transferred to the Lancaster County jail. Appellant
successfully obtained copies of all recordings made during Harding’s stay in
Berks County, as the Commonwealth apparently obtained those materials
and supplied them to Appellant.
The Commonwealth did not possess any of the jail recordings from
Harding’s stay at Lancaster County Jail. On June 23, 2015, Appellant filed a
motion for discovery, seeking, inter alia, those items. Appellant represented
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in his motion that he had served a subpoena upon the records custodian for
the Lancaster County Jail, who refused to honor the document and instead
told Appellant that he had to file a discovery request with the Berks County
District Attorney’s Office. Thus, Appellant requested that the
Commonwealth both obtain and provide the materials.
The trial court thereafter scheduled a hearing on the discovery request
and ordered the Commonwealth to “obtain copies of all Lancaster County
Prison call logs pertaining to Eric Harding and to produce them to Defense
Counsel on or before the hearing scheduled in this case on September 1,
2015.” Order, 8/24/15, at 1. At that hearing, the Commonwealth stated
that it had complied and produced the logs, which indicated that “there are
584 calls, approximately 15 minutes apiece. There are 557 calls to the
phone number of his wife.” N.T. Discovery Hearing, 9/1/15, at 14. The
Commonwealth also added that Appellant made no showing that the calls
contained any relevant information. Harding’s counsel was also present and
opposed the request, expressing fear for Harding’s safety due to his status
as a cooperating witness, as the calls “could disclose to the defense
information as to my client’s family’s whereabouts, which the
Commonwealth and myself have gone to lengths to try to make sure that
the [d]efendant does not have access to.” Id. at 16. The trial court took the
matter under advisement and ordered the parties to file briefs.
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Notably, the Commonwealth’s response confirmed that the Berks
County District Attorney’s Office never obtained the calls: “The
Commonwealth does not have the Lancaster County phone calls in its
possession nor does the Reading Police Department have the calls.”
Commonwealth’s Response, 10/15/15, at unnumbered 4.
The trial judge1 denied the motion, and simultaneously issued an
opinion supporting the order. As the opinion aptly explains, a defendant has
the burden of proving that (1) the request for the recorded phone calls was
material to the preparation of his defense; (2) the request was reasonable;
and (3) the information would be in the interests of justice. See
Commonwealth v. Garcia, 72 A.3d 681, 684 (Pa.Super. 2013). The judge
determined that Appellant failed to establish these prerequisites, as he
merely asserted that the tapes might possibly be useful. Opinion, 12/18/15,
at 2.
We agree with that analysis. Putting aside the fact that the
Commonwealth did not actually possess the information in question, a point
discussed infra, we find no abuse of discretion in the trial court’s
____________________________________________
1 The Honorable Paul Yatron was originally assigned to this case, and
decided, inter alia, the discovery motion. Judge Yatron later recused
himself, and the matter was assigned to Judge Barrett. Judge Yatron issued
a separate order/opinion explaining his reasons for denying the pre-trial
motion.
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determination. There was no showing of materiality and the request for the
recordings cannot be viewed as reasonable in light of the volume of calls
requested.
We write separately to address Appellant’s alternative argument: “In
the alternative, the trial court erred by refusing to order the Commonwealth
to produce all of the recorded phone calls requested in defendant's motion
for discovery pursuant to its obligations under Brady v. Maryland[, 373
U.S. 83 (1963)]”. Appellant’s brief at 14.
This argument is misplaced. Brady obligations speak to what the
prosecution is required to do from a constitutional standpoint, rather than
what must be supplied under the discretionary provisions of Rule 573.
“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.”
Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001) (quotation
marks omitted).
In this regard, Appellant fails to recognize that the Berks County
District Attorney’s Office was never in possession of the Lancaster County
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recordings.2 While it is clear that a prosecutor’s Brady obligations extend
beyond what the prosecuting agency physically has in its files, we conclude
that Brady does not extend to materials possessed by a governmental
agency not involved in a defendant’s prosecution. As our Supreme Court
explained in Commonwealth v. Weiss, 81 A.3d 767 (Pa. 2013), a
prosecutor has the duty under Brady
to learn of all evidence that is favorable to the accused which is
known by others acting on the government's behalf in the case,
including the police. Kyles v. Whitley, 514 U.S. 419, 437, 115
S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Pursuant to Kyles, “the
prosecutor's Brady obligation clearly extends to exculpatory
evidence in the files of police agencies of the same government
bringing the prosecution.” Commonwealth v. Burke, 566 Pa.
402, 781 A.2d 1136, 1142 (2001). Moreover, there is
no Brady violation when the defense has equal access to the
allegedly withheld evidence. See Commonwealth v.
Spotz, 587 Pa. 1, 896 A.2d 1191, 1248 (2006) (“It is well
____________________________________________
2 Relatedly, both trial court opinions have assumed that the discretionary
powers under Pa.R.Crim.P. 573(B)(2) encompass the ability to force the
Commonwealth to obtain information it does not already possess on the
defendant’s behalf. That is a highly questionable notion. See
Commonwealth v. Bridge, 435 A.2d 151, 157 (Pa. 1981) (“[W]e are not
aware of an affirmative obligation on the part of the Commonwealth to
search for evidence that might be supportive of a defense for the accused.”);
Mills v. Singletary, 63 F.3d 999, 1019 (11th Cir. 1995) (“The jail records,
on the other hand, were available on demand by either counsel.”);
Commonwealth v. Ribot, 169 A.3d 64, 69 (Pa.Super. 2017) (“The
Commonwealth does not violate mandatory disclosure rules by failing to
produce evidence that it reasonably does not possess.”) (citation omitted).
While these citations are discussing mandatory disclosure, whereas the
instant litigation addresses discretionary disclosure, it is difficult to conceive
that a trial court can commit an abuse of discretion by failing to order the
Commonwealth to do that which it has no constitutional or rule-based
obligation to do.
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established that no Brady violation occurs where the parties had
equal access to the information or if the defendant knew or could
have uncovered such evidence with reasonable diligence.”
(internal citation omitted)).
Id. at 783.
Thus, Brady would apply only if the county correctional facility stands
on the same footing as a police agency for purposes of “acting on the
government’s behalf” as contemplated by Kyles. No Pennsylvania
precedent appears to directly answer this question; however, other
jurisdictions have expressed the view that material gathered by a
correctional facility does not qualify as a “law enforcement agency” when the
facility itself is not involved in the prosecution.3 People v. Lewis, 125
A.D.3d 1109, 1111 (N.Y. App.Div. 2015) (“Evidence gathered by prison staff,
however, generally is not under the control or in the possession of the
People or its agents, but was instead in the possession of an administrative
agency that was not performing law enforcement functions”) (quotation
marks and citation omitted); United States v. Whitehead, 165 F. Supp. 3d
281, 283 (E.D. Pa. 2016) (government not required to review co-defendant’s
Bureau of Prisoner materials; “Nor does Brady require prosecutors to search
records of other agencies, even if prosecutors could easily acquire those
records for their own purposes.”).
____________________________________________
3 The relationship would change if the Commonwealth was prosecuting, for
example, an inmate for attacking a correctional officer.
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Additionally, our Supreme Court has stated that “the prosecutorial
duty respecting exculpatory evidence in the files of police agencies is limited
to those agencies of the same government bringing the prosecution;
Commonwealth prosecutors are not responsible to secure and disclose
information held by federal authorities.” Commonwealth v. Watkins, 108
A.3d 692, 711–12 (Pa. 2014) (citation omitted). Herein, the government
agency is a further step removed by virtue of the fact it is located outside
the jurisdiction of the prosecuting agency.
Finally, Appellant does not explain why he did not simply seek
enforcement of the subpoena served upon the Lawrence County records
custodian. Therefore, we find no merit to Appellant’s alternative argument.
Issue #4 – Introduction of Prior Recorded Recollection
The third issue pertains to the admission of a video recording of
Commonwealth witness William Rosario, which was played to the jury. The
trial court permitted the Commonwealth to play the video pursuant to Rule
of Evidence 803.1(3), which states in pertinent part:
(3) Recorded Recollection of Declarant-Witness. A
memorandum or record made or adopted by a declarant-witness
that:
(A) is on a matter the declarant-witness once knew about but
now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the declarant-witness when the
matter was fresh in his or her memory; and
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(C) the declarant-witness testifies accurately reflects his or her
knowledge at the time when made.
Pa.R.E. 803.1.
Appellant avers that the trial court abused its discretion in permitting
the Commonwealth to play the video, and argues that a new trial is required
because he could not cross-examine the witness.
Our review of a trial court’s evidentiary rulings applies the following
standard.
The admissibility of evidence is solely within the discretion of the
trial court and will be reversed only if the trial court has abused
its discretion. An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the
law, or the exercise of judgment that is manifestly unreasonable,
or the result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record.
Commonwealth v. Mickel, 142 A.3d 870, 874 (Pa.Super. 2016).
We find that the trial court abused its discretion in admitting the video.
However, we find that Appellant is not entitled to relief, as the basis for his
argument is that his Confrontation Clause rights were violated, and we deem
harmless any error in that regard due to the fact Mr. Rosario was actually
subject to cross-examination regarding the statement.
The Commonwealth’s direct examination of Mr. Rosario began with
questions regarding Mr. Rosario’s incarceration, and the fact his attorney
contacted the Commonwealth regarding his offer to supply information in
exchange for favorable treatment on Mr. Rosario’s pending case. Having
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established this background, the Commonwealth immediately transitioned to
asking questions about his recorded statement:
Q. When you came into the District Attorney’s November 3 rd or
4th of 2013, this was at City Hall in the City of Reading, Berks
County, do you remember whether that was recorded by –
A. I’m not even sure.
Q. No? Okay. Did you give a statement?
A. I believe so, I did.
Q. Were you trying to be truthful when you made that
statement?
A. Yes, sir.
Q. Did it pertain to a matter that you reached out to the District
Attorney’s Office about the death of Darryl Jones on July 4th?
A. I believe so.
Q. Okay. When you gave that statement, was the information
that you gave to the Reading Police Department, was that fresh
in your memory when you gave it to them?
A. Can you repeat that again?
Q. Was the information that you gave to the police, was that
information that you remember was fresh in your memory?
A. At that time.
Q. At that time, right. And did you tell the police that you were
giving them the truthful statement?
A. Yeah.
Q. Do you remember right now, this is almost two and a half
years later, do you remember the contents of that statement
now?
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A. No, no, it had been so long.
N.T., 5/23-27/16, at 312-15.
The Commonwealth then asked questions about what Mr. Rosario
received in exchange for his cooperation. At that juncture, Appellant moved
for a sidebar, having been informed by the prosecutor that the
Commonwealth intended to introduce the actual video recording of Mr.
Rosario’s statement. The trial court heard argument in chambers.
[COMMONWEALTH]: I would argue that it’s a hearsay exception
803.1(3). It’s not refresh the memory. It’s recorded
recollection, 803.13.
....
This is a very specific . . . hearsay rule hearsay exception,
recorded recollection. And this is not me trying to refresh his
memory. This is me playing the video as substantive evidence
and this allows under the Rule 803.1(3).
Id at 320-21. The Commonwealth insisted that it met all the requirements
of Rule 803.1(3), and claimed that the point of recording such statements
was to allow the Commonwealth to play entire tapes at trial:
[COMMONWEALTH]: If we cannot use videotape statements from
witnesses in cases through recorded recollection to this hearsay
exception, then they’re wasting a lot of time over there, because
they spent a lot of money installing that system, for what? For
this particular instance, recorded recollection, that’s exactly why
they installed that system. It is allowed. I satisfied all of the
elements of this exception.
....
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This is the exact reason why we make videotape interviews,
because even if we did written statements –
THE COURT: Are you saying you’ve done this before in common
pleas court here?
[COMMONWEALTH]: I have never done it, because it never
comes up in my particular cases. But that’s the reason why the
Reading City Police installed the recording system. . . . You can
look at the rule yourself[.]”
Id. at 323-25.
We have examined the Rule and find the Commonwealth’s argument
lacking. We find that the court abused its discretion, as we do not think that
the Rules of Evidence sanction eliminating in-court testimony in favor of
videotaped statements that were not made under oath.4
Starting with the text of the Rule, we find that the Commonwealth and
trial court have overlooked a distinction between memory of the statement
versus memory of the events. The Rule states that the Commonwealth, as
proponent of this evidence, must establish that the recording “is on a matter
the declarant-witness once knew about but now cannot recall well enough to
testify fully and accurately[.]” The Commonwealth relies on Mr. Rosario’s
negative answer to the question, “Do you remember right now, this is
almost two and a half years later, do you remember the contents of that
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4 As Appellant correctly argued to the trial court, the danger of playing a
videotaped statement in its entirety is that the jury hears statements not
made under oath, where the police control the questioning, and defense has
no opportunity to interject, object, or cross-examine.
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statement now?” as satisfying this requirement. However, it is unsurprising
that the witness agreed that he could not particularly recall the contents of
his statement. Nor does the Rule address an inability to recall the statement.
Instead, the Rule speaks to whether the witness can recall the matter. The
Rule contemplates that the questioner will ask the witness about the actual
events at issue prior to any invocation of this exception; for instance, the
Commonwealth could have asked, “Do you recall speaking to the defendant
while you were incarcerated?” This is in line with our judicial system’s basic
philosophy of presenting testimony in open court, where the jury is directed
to pay attention to things such as a witness’s demeanor, attitude, and
behavior in determining credibility. It hardly serves those purposes to
present a video of a prior statement, as if the jury’s role is to watch a movie
and give a review of an actor’s performance.
Continuing our analysis of the Rule’s text, the Commonwealth fails to
address the fact that the Rule states within the body of the exception: “If
admitted, the memorandum or record may be read into evidence and
received as an exhibit, but may be shown to the jury only in
exceptional circumstances or when offered by an adverse party.” Pa.R.E.
803.1(3) (emphasis added). Herein, the Commonwealth directly proceeded
to show the jury the video recording, which is per se improper. The
Commonwealth presented no exceptional circumstances beyond its desire to
have the jury hear and see the video. See Commonwealth v. Patterson,
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91 A.3d 55 (Pa. 2014) (“[T]he trial court did not preclude the defense from
attempting to refresh the witness's recollection with the videotape; rather, it
prohibited the playing of the tape in front of the jury, which is consistent
with Rule 803.1.”).
The foregoing analysis is in line with the body of case law interpreting
this Rule. The Comment to Rule 803.1 states that it is consistent with prior
law, citing Commonwealth v. Cargo, 444 A.2d 639 (Pa. 1982). Cargo
involved a Commonwealth witness who testified that he did not remember
the murder at issue or being interviewed by the police. The prosecutor then
introduced his prior recorded statement. Cargo set forth the prerequisites
for introducing the statements, including, as pertinent herein, that “the
witness must lack a present recollection of the event[.]” Id. at 641 (citation
omitted).
Pennsylvania case law requires only that the proponent of the
prior statement present evidence of the witness's lack of present
recollection. Such evidence may be presented by
attempting to refresh the witness's recollection, after an
initial failure of memory, by use of the prior statement. If
the witness then testifies that he still has no present recollection
of the relevant events, the third requirement . . . has been
satisfied.
The Commonwealth followed the procedure outlined above in the
instant matter. The witness testified initially that he had no
present recollection of the event, a contention he repeated at
least three times during his testimony. Whether or not this lack
of present memory was genuine, it was obvious that the witness
would not testify from present memory.
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Id. at 643–44 (footnotes omitted, emphasis added). As indicated, the law
requires that the Commonwealth demonstrate that the witness actually
lacked memory of the events, typically accomplished by refreshing the
witness’s memory with the document itself. See also Commonwealth v.
Young, 748 A.2d 166, 177 (Pa. 1999) (statement admissible as past
recollection recorded; witness “had no present recollection of the events,
even after seeing the statement”). The Commonwealth did not ask Mr.
Rosario one question regarding the topics explored on the video recorded
statement, and instead proceeded directly to introducing the tape. Due to
the foregoing analysis, we find that the trial court abused its discretion in
displaying the video to the jury.
Having established that the court erred in admitting the evidence, the
question is whether Appellant is entitled to a new trial. As our Supreme
Court explained in Commonwealth v. Robinson, 721 A.2d 344 (Pa 1998):
[O]nce it is determined that the trial court erred in admitting the
evidence, the inquiry becomes whether the appellate court is
convinced beyond a reasonable doubt that such error
was harmless. Harmless error exists where: (1) the error did
not prejudice the defendant or the prejudice was de minimis; (2)
the erroneously admitted evidence was merely cumulative of
other untainted evidence which was substantially similar to
the erroneously admitted evidence; or (3) the properly admitted
and uncontradicted evidence of guilt was so overwhelming and
the prejudicial effect of the error was so insignificant by
comparison that the error could not have contributed to the
verdict.
Id. at 350 (citations omitted).
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We find that the first of these possibilities applies herein, as
Appellant’s sole argument that he was prejudiced is that he was “denied the
. . . right to properly confront and cross[-]examine William Rosario, a
witness against him at trial.” Appellant’s brief at 26.
In Crawford v. Washington, 541 U.S. 36, 51 (2004) the United
States Supreme Court held that the Sixth Amendment bars the introduction
of testimonial hearsay statements unless the witness is unavailable and the
defendant had a prior opportunity for cross-examination. There is no doubt
that the instant statement, which the prosecutor admitted was recorded
precisely for the possibility of later use at trial, qualifies as a testimonial
statement. “Statements taken by police officers in the course of
interrogations are also testimonial under even a narrow standard.” Id. at
53.
However, Appellant’s reference to his Confrontation Clause rights fails
to account for the fact that Mr. Rosario was, in fact, subject to cross-
examination at trial. Crawford is concerned with introducing the testimony
of an unavailable witness with no opportunity for cross-examination.
Obviously, Appellant had no prior opportunity to cross-examine Mr. Rosario
with respect to what he told the authorities during the videotaped interview.
However, while introduction of the tape violated his Confrontation Clause
rights with respect to his inability to cross-examine a tape, he was able to
fully cross-examine Mr. Rosario at trial. See Commonwealth v. Atkinson,
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987 A.2d 743 (Pa.Super. 2009) (use of two-way video system violated
defendant’s Confrontation Clause rights, but error was harmless). Mr.
Rosario was present in the courtroom and Appellant had a full opportunity to
cross-examine him regarding everything that he told the police in the prior
statement, and he actually did so. Appellant does not claim that the tape
contained any irrelevant or prejudicial comments that would not have
otherwise been admissible.5 Therefore, he was not prejudiced by the
introduction of the videotape and no relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/13/2018
____________________________________________
5 We note that the jury trial transcript does not contain a transcription of
the videotaped statement. As noted, Appellant’s argument is limited to a
contention that his Confrontation Clause rights were violated.
- 21 -
Circulated 01/31/2018 05:11 PM
COMMONWEALTH OF IN THE COURT OF COMMON PLEAS
PENNSYLVANIA OF BERKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
v.
NO. CP-06-CR-0005539-2013
JOHNNIE NELSON
DEFENDANT PATRICKT. BARRETT, JUDGE
Colin Boyer, Esq., for the Corrunonwealth at Trial
Alisa Hobart, Esquire, for Commonwealth on Appeal
Michael D. Dautrich, Esq., for Defendant
PTt. ) J ..
·'
RULE 1925(a) OPINION BARRETT,J. March 17, 2017
Defendant Johnnie Nelson, by and through counsel, appeals from the judgment of
sentence entered on July 21, 2016, made final by the denial of his post-sentence motion
on November 23, 2016. Pursuant to Pa.RAP. 1925(a), we submit the following Opinion.
I. BACKGROUND AND PROCEDURAL HISTORY
During the late evening hours of July 4, 2013, Darryl Jones was shot and killed in an
alleyway between the 1100 block of North 12th Street and Birch Street in the City of
Reading. On August 29, 2013, the defendant was charged by criminal complaint with
multiple offenses arising out of the shooting death of Darryl Jones; murder of the first
degree;1 conspiracy to commit murder of the first degree; 2 murder of the third degree;
3 conspiracy to commit murder of the third degree; 4 2 counts of aggravated assault; 5 2
1 18 Pa.CS.A.§ 2502(a)
2 18 Pa.CS.A.§ 903(a)(l) and 18 P.-i.CS.A.§ 2502(a) h I :I u',•... , /... I 1"
,:Jf'I/
,·, ·�/ lfll
3 JS Pa.CS.A.§ 2502(c)
4 18 Pa.CS.A.§
903(a)(1) and 18 Pa.CS.A.§ 2502(c)
s 13 Pa.CS.A.§ 2702(.-i)(l) and 18 Pa.CS.A.§ 2702(a)(4)
counts of conspiracy to commit aggravated assault; 6 persons not to possess, use,
manufacture, control, etc. a firearm; 7 firearms not to be carried without a license; e
possessing instrument of crime; 9 simple assault; 10 and conspiracy to commit simple
assault. 11 On May 27, 2016, a jury convicted the defendant of murder of the first degree,
conspiracy to commit murder of the first degree,12 2 counts of aggravated assault, 2
counts of conspiracy to commit aggravated assault, possessing an instrument of crime.P
The 2 remaining firearms charges were severed prior to trial,
On July 21, 2016, this court sentenced the defendant to life imprisonment on count 1 -
murder of the first degree, 10 to 20 years on count 2 -conspiracy to commit murder of
the first degree, to be served consecutively to the sentence imposed on counts 1, 2 to 5
years on count 11 - possessing an instrument of crime, to be served concurrently to the
sentence imposed at count 1. Counts 9 and 10, the previously-severed firearms charges,
were withdrawn at sentencing. The remaining counts on which the defendant was
found guilty (aggravated assault, conspiracy to commit aggravated assault) merged for
sentencing purposes.
618 Pa.CS.A.§ 903(a)(l) and 18 Pa.CS.A.§ 2702(a)(l), 18 Pa.CS.A.§ 2702(a)(4)
718 Pa.CS.A. § 6105(a)(l)
a 18 Pa.CS.A. § 6106(a)(l)
918 Pa.CS.A.§ 907(a)
10 18 Pa.CS.A. § 2701(a)(l)
11
18 Pa.CS.A.§ 903(a)(l) and 18 Pa.CS.A.§ 2701(a)(l)
2
1 The jury was charged with the lesser included offense of voluntary manslaughter. However, having
reached a guilty verdict as to the first degree murder count, it did not reach the third degree murder
count or voluntary manslaughter.
13 The Commonwealth withdrew the counts of
simple assault and conspiracy to commit simple assault
prior to sending the case to the jury.
2
Defendant, through trial counsel, filed a timely motion for post sentence relief seeking
judgment of acquittal, arrest of judgment, and a new trial on August 1, 2016.14
Following an evidentiary hearing, and consideration of the record of that hearing and
the parties' various supplemental motions, responses and legal argument, this court
denied the defendant's various post-sentence and discovery motions by order dated
November 23, 2016 and docketed November 28, 2016. On December 22, 2016, the
defendant, through counsel, filed a timely Notice of Appeal from the Judgment of
Sentence, made final by the denial of the post-sentence motions. Defendant timely
complied with our Rule 1925(b) order directing the filing of a concise Statement of error
complained of on appeal.
Over the course of the five day trial beginning May 23, 2016 and ending May 27, 2016,
the Commonwealth presented evidence from multiple sources: various members of law
enforcement who investigated or prosecuted the crime; a forensic pathologist (Supriya
Kuruvilla, M.D.); assistant chief deputy coroner; a female (Aaliyah Fields) who broke
off a "relationship" (hanging out and flirting) with the defendant and later met Darryl
Jones; an inmate (William Rosario) who gave an interview to the police prosecutor
regarding a conversation he overheard in the yard while he and the defendant were at
Berks County Prison; the mother of Darryl Jones's three children and his partner of 11
years (Sierra Pacheco); the victim's brother (Delonte Jones) and his girlfriend (Kadijatu
Conteh), who were at the July 4th party attended by the defendant and Darryl Jones;
M The tenth day fell on Sunday, July 31, 2016.
3
and the Commonwealth's key witness, co-defendant Eric Harding (aka Fat Boy, Nut),
who testified at length and in detail about the events which occurred on the evening of
July 4, 2013 into July 5, 2013. N.T. Trial at 471 - 544.
Harding testified about meeting. the defendant in the area of North 12th Street on the
afternoon of July 4, 2013 to ride four wheelers and to attend a 4th of July party at 1027
North 12th Street. Id. at 471, 475. The two split up while riding the four-wheelers; the
defendant returned after dark and told Harding that he was going to watch fireworks.
Id. at 474-478. Harding left the area to unload the bikes and spend time with his
children. Id. at 478-479. At around 11:00 p.m., Harding returned to N. 12u, Street with a
friend, Zechariah (Zach), and parked on Robeson Street. Id. at 479-480. They met up
with the defendant at the party. Id. at 481.
At around 11:20 p.m., Darryl Jones (aka "Sparks") arrived at the party, Id. at 483. Jones
approached a group on· the sidewalk and shook hands with Harding, the defendant and
a third individual. Defendant and Jones engaged in friendly conversation. Id. at 486.
Harding walked down the street to the corner of N. 12th and Robeson Streets to avoid
another individual who arrived at the party. Id. at·487. When he reached the corner, he
turned around and saw Jones, followed by the defendant, walking towards him. Id. at
488. Ms. Conteh also saw the defendant and Jones leave the party together. Id. at 427-
430. Jones told Harding to "[s]tay right here. I'll be right back". Id. at 488. Defendant
arrived, laughing, and told Harding, "I'll be right back and just be ready to go". Id. at
4
 489, 491, 502-503. Defendant followed Jones up towards an alleyway, then they turned
and entered the alleyway.
Harding did not enter the alleyway. Id. at p. 490 - 492. Harding did not know what
Defendant was going to do in the alleyway. Id. at p. 502. He assumed that Defendant
was going to do something to Jones in the alleyway, maybe beat him up, and leave. Id.
at p 503. Harding started his truck, pulled up to the alleyway but couldn't see them,
then began circling the block. Id. at 492. As he was circling for the third time, he heard
three gunshots that sounded very close. Id. at 495-496. He braked, looked around, then
started driving: As he approached an alleyway/breezeway between two houses on 12th
Street, Defendant emerged, running out with a black firearm in his hand. Id. at 497- 499.
Defendant ran in front of Harding's vehicle, which was going north on 12th Street, and
then got in. Id. at 500. They returned to the area of the party to get Zach. Harding and
Defendant got out of the vehicle, Harding saw Defendant remove his t-shirt, he was
wearing a white tank top underneath. Id. at 501. Ms. Conteh also saw the defendant
remove the t-shirt when he returned to the party. Id. at 433-434 Ms. Conteh saw
Harding and the defendant return to the party in a burgundy pickup truck about 15
minutes after the defendant and Jones left the party; she never saw Jones return, Id. at
426-433. Harding, Defendant and Zach left the party a little after midnight. Id. at 502,
504, 507.
5
After driving to Harding's home, Defendant took a small, black Kel Tee gun out of his
pocket and put it on the bathroom sink. Id. at 506. Harding and the defendant left
Harding's home in a white van and drove to Harding's tattoo shop. Once inside, the
defendant put on gloves, put rubbing alcohol into a Ziploc bag, inserted a screw into
the barrel of the gun and shook it up and down, took the clip out, then started taking
the gun apart. Harding observed that the remaining bullets in the clip had neon green
tips. Id. at 509-510. Defendant placed the pieces of the gun into the Ziploc bag and
shook the bag. Id. at 508-511. Harding and the defendant left the tattoo shop in
Harding's white van. During this trip.vthedefendant told Harding what happened in
the alleyway. He told Harding that Jones turned toward him in an aggressive manner,
with his _hand in his pocket. He thought Jones had a gun and convinced Jones to keep
walking. Once they got in the alleyway, he shot him in the back of the head, then shot
him twice more, then took off running. Id. at 511 - 514. As Harding and the defendant
traveled down 5th Street towards Muhlenberg Township, the defendant, while still
wearing gloves, removed pieces of the disassembled gun from the Ziploc bag and threw
them out the widow of the car as the car was moving. Id. at 513-514. The pair then went
to the vVest Reading Diner to get something to eat. Id. at 515.
Darryl Jones's body was discovered in the alleyway at approximately 4 a.m. on July 5,
. '
2013 by Officer Sholedice. Id. at 126-127. Officer Sholedice was responding to a possible
burglary or criminal mischief call in the 1100 block of Birch Street, Id. at 126. He walked
through the caller's yard, then into the alleyway between the 1100 blocks of N. 12u, and
6
Birch Streets. He illuminated the alleyway in both directions with his flashlight; when
he turned to the right, he saw the body of a male. Id. at 127. Officer Sholedice called
dispatch to report the body. Id. at 127. When additional officers arrived, and the scene
was taped oft he began looking for evidence. Further north in the alley, he discovered
an open wallet with a PA ID card. Id. at 131-132. Officer Hawley, then a Reading P.D.
officer assigned to criminal investigations unit as a major evidence technician, was
called. Id. at 138-141. He collected evidence from the murder scene, including the wallet
with a PA Identification card for the defendant, along with other cards (SS, student ID,
Metro Bank card) with the defendant's name. Id. at 149 ,is
An autopsy was performed on the body of Darryl Jones by Dr. Supriya Kuruvilla, a
forensic pathologist and Chief of Autopsy and Forensic Services at Reading Hospital.
Dr. Kuruvilla identified three gunshot wounds on the body and removed bullet
fragments including pieces with green material. Id. at 186 - 209. In her opinion, the
cause of death was multiple gunshot wounds, with the gunshot to the back of the
victim's head as a fatal injury; the manner of death was homicide. Id. at. 207-208.
The defense presented two witnesses: the mother of one of the defendant's children
(Shyann Donaldson): and a former friend of Harding (Damian Hicks). The defendant
did not testify at the trial.
15Law enforcement on the scene initially assumed the defendant was the victim based upon the contents
of the wallet and identification card found near the victim's body. Id. at 255-257.
7
II. ISSUES PRESENTED ON APPEAL
In his concise Statement, Defendant raises 9 claims of error and seeks appellate review
of the issues presented therein, which are set forth below, verbatim:
1. The trial court erred in denying Defendant's Pretrial Motion for
Discovery, which requested that the Commonwealth provide all recorded
telephone calls made by Eric Harding while incarcerated at the Lancaster
County Prison because the records custodian for those records refused to
honor a defense subpoena for those records and the Court did not order the
Commonwealth to obtain those records and turn them over in discovery even
though the Commonwealth obtained and provided the defense with all
recorded telephone calls made by Eric Harding while incarcerated at the
Berks County Prison.
2. The trial court erred when it permitted the Commonwealth to introduce
recorded telephone calls made by Defendant while he was incarcerated in
Berks County Jail because the content of the phone calls and the trial
testimony of the co-defendant about his interpretation of the meaning of
those calls was unfairly prejudicial and denied Defendant a fair trial as they
referred to prior bad acts and "gangs".
3. The trial court erred when it permitted the Commonwealth to introduce
a surveillance video from the West Reading Diner that allegedly depicted
Defendant and co-Defendant, Eric Harding because it was not relevant and
was too remote in time to the alleged crimes, which was unfairly prejudicial
and denied Defendant a fair trial.
4. The trial court erred when it permitted the Commonwealth to introduce a
recorded DVD interview of Commonwealth witness William Rosario because
he testified he had no recollection of the content of his earlier interview
because it was unfairly prejudicial, denied Defendant his right to confront the
witness, and denied Defendant a fair trial.
5. The trial court erred when it refused to allow defense counsel to fully
cross-examine Eric Harding, with the information attached to the trial
transcript as Defense Exhibit 4, about his involvement as a
participant/witness in a murder case in NJ, which denied Defendant his right
to confront the witness and denied Defendant a fair trial.
6. The trial court erred in failing to grant Defendant a new trial because
juror number 12 was a juror on the case and had an undisclosed, close
familial relationship with the victim, Darryl Jones Jr. and was unable to be
fair and impartial as a juror thus denying Defendant due process and a fair
8
trial as required by Article I, §9 of the Pennsylvania Constitution and the 6th
Amendment to the United States Constitution.
7. The trial court erred in failing to grant Defendant a judgment of acquittal
or an arrest of judgment on all charges because the verdicts of the jury were
against the weight of the credible evidence presented at the trial for all the
reasons set forth in the Defendant's Post Sentence Motions.
8. The. trial court erred in failing to grant Defendant a new trial based upon
the newly discovered evidence of the testimony of John Rushton, which could
not have been discovered prior to trial through the exercise of due diligence,
was not merely corroborative or cumulative, would not be used solely to
impeach a witness' credibility and would likely result in a different verdict
had that testimony been presented to the jury at trial.
9. The evidence presented at trial was insufficient to support the verdicts of
the jury on all counts because the evidence presented fails to identify
Defendant as a participant in any of the crimes.
We address each of the issues in the order in which they appear.
III. DISCUSSION
A. Discovery of Telephone Calls by Co-Defendant from Lancaster County
Prison.
In his first claim of error, Defendant challenges the trial court's refusal to require the
Commonwealth to "provide all recorded telephone calls made by co-defendant Eric
Harding while incarcerated at Lancaster County Prison". On June 19, 2015, Defendant
filed a formal pretrial Motion for Discovery in which he sought, inter ali«, production of
"recorded telephone calls from Harding made subsequent to being relocated out of BCP
to Lancaster County Prison". Motion for Discovery at iJ9. In support of this request,
Defendant argued that this and other requested discovery is relevant, may be
exculpatory evidence material to his guilt or innocence under Brady v. Maryland, 373
U.S. 83 (1963), and that impeachment evidence must be disclosed under Brady. Motion
for Discovery at V 10, 11.
9
This discovery request falls within the discretion of the court. Under Pa.RCrim.P.
573(B)(2)(a), the court may, upon defendant's filing of a motion for pretrial discovery,
allow the defendant to inspect, copy 01· photograph certain items not mandated to be
disclosed by the Commonwealth upon request under subsection (B)(1) "upon a
showing that they are material to the preparation of the defense, and that the request is
reasonable". On September 1, 2015, the trial courtw held a hearing on the June 19, 2015
discovery motion; thereafter, the parties submitted briefs in support of their respective
positions.
On December 18, 2015, President Judge Yatron issued an order denying Defendant's
motion for discovery, along with an opinion in disposition of the motion. The court
concluded that Defendant failed to carry his burden under Rule 573 that the requests
were reasonable and that the requested items were material to his defense. With respect
to the Lancaster County Prison phone calls, the court concluded that Defendant's
argument was "entirely speculative"; the court could not "conclude that there is a
reasonable probability that the requested discovery would lead to evidence that would
exonerate Defendant". Opinion of 12/18/2015 at p. 3.
16
This case was originally assigned to The Honorable Paul Yatron, President Judge, who addressed this
discovery motion and certain other pretrial issues. By order dated March 17, 2016, Judge Yatron recused
himself. On March 23, 2016, the case was reassigned to the undersigned, Judge Patrick T. Barrett, who
addressed subsequent pretrial motions in limine, and presided over the jury trial, sentencing and post-
sentence motions,
10
Of the 584 Lancaster County Prison calls logged at the time of the discovery hearing,
557-were calls to Harding's wife. N.T. 09/01/2015 at 15. The remaining 27 calls were to
8 separate numbers, none of which were recognized by the Commonwealth or counsel
for Harding. Id. at 18. Additionally, counsel for Harding expressed concern over·
disclosing calls to Harding's spouse, given his status as a cooperating witness and the
safety of Harding's family. Ultimately, after considering the information and concerns
provided by counsel as to the calls, and review of the parties' briefs. Judge Yatron
denied the request. We have reviewed the transcript of the hearing on the motion before
Judge Yatron as well as the briefs submitted by the parties at the time of the motion. We
wholeheartedly agree with the conclusion reached by Judge Yatron, namely, that the
probability that the calls would yield exonerating or impeachment evidence was purely .
speculative. Defendant articulated no specific reasons to support his request that the
calls would provide such evidence. Thus, the trial court committed no abuse of
discretion in refusing to order the Commonwealth to produce the co-defendant's
Lancaster County Prison phone calls. This first claim of error is therefore without merit.
B. Co-defendant's testimony about content and interpretation of recorded
phone calls made by Defendant while at Berks County Prison.
In his second claim of error, Defendant asserts that the introduction of recorded phone
calls made by the defendant while he was incarcerated at Berks County Prison was
unfairly prejudicial because the calls referred to prior bad acts and gangs. This court
reviewed the processed (extracted portions) phone calls at a pretrial hearing on May 17,
11
2016, and ruled that they were admissible. Portions of a recorded phone conversation
between the defendant and Harding on July 30, 2013 and a recorded phone
conversation between the defendant and Melvin Parker, who was speaking to Harding
on another line, were introduced during the testimony of co-defendant Harding. N.T.
Trial at 532M540; Commonwealth's Exhibit 85. The July 29th or 30th, 2013 conversation
occurred while the defendant was in custody at Berks County Prison and Harding was
not yet in custody. Defendant called a mutual friend, Melvin Parker, while Harding and
Parker were in a car together and Parker gave the phone to Harding, Id. at 532-533.
During trial, Harding was permitted to testify to the meaning of certain phrases used by
the defendant in their conversation on July· 30, 2013, such as "stay out the way"
(meaning "stay, like, out of the city and just out of the mix, like not in anything that's
going on"), or in response to Harding's statement that he was being "pressed" by
Detective Snell to 1
' stick to protocol" (meaning II not to say nothing"), or references to
the "land line situation" (meaning the calls are recorded), or "play by play" (meaning
Defendant would keep Harding apprised of what was going on). Id. at 534-538.
By August 1, 2013, Harding, too, was in custody, Id. at 529. He called Melvin Parker
from Central Booking or Berks County Prison. Id. at 533. Parker was on the phone with
the defendant. Parker relayed Harding's statement that "they can't break us" to the
defendant, referring to Harding's conversation with Detective Snell and sticking to the
story that Harding and the defendant concocted while in New Jersey. (The two traveled
12
to New Jersey when they "figured that they had [the defendant's] wallet already so we
needed to come up with a story to cover his butt."). Id. at 539.
Given the nature of the charges, including the conspiracy charges, filed against the
defendant, Harding's interpretation of the meaning of phrases used in their recorded
conversations was helpful in assisting the jury to evaluate those charges. Considering
the content and context of the conversations, this court finds those phrases were not
particularly susceptible of multiple interpretations such that Harding's explanation or
interpretation of the defendant's words would confuse or mislead the jury. Though a
written transcript of the calls was not introduced into the record, this court recalls the
defendant's reference to gang activities was in the nature of a play on words. The record
contains no evidence that the victim's murder was gang-related. The court committed
no abuse of discretion in allowing the introduction of the recorded conversations.
Further, we find no renewed or contemporaneous objection by the defendant at the
time of their admission into the record.
C. Surveillance Video From 'West Reading Diner
In his third claim of error, Defendant asserts that the video of the defend ant and co-
defendant Harding at the West Reading Diner was irrelevant, too remote in time and
unduly prejudicial. The court reviewed this video prior to trial as part of a defense
pretrial motion in limine seeking its exclusion and permitted it to be played at trial. N.T.
13
Trial at 517-519 (Commonwealth's Exhibits 62, 63, 64, 65); Order of May 20, 2016. We
find this claim to be without merit. The surveillance video depicts the arrival of the
defendant and Harding at the Diner at approximately 2:46 a.m, on July 5, 2013. It
corroborated the details of a sequence of events which occurred in the hours following
the shooting of Darryl Jones to which Harding testified. Kadijatu Conteh testified that
after the defendant left the party on 12u, Street on foot with Harding and the victim at
approximately 11:00 p.m., he returned to the party in Harding's burgundy pickup
truck, got out of the passenger's side of the vehicle, removed a white sleeved Tvshirt
which revealed a white tank top underneath, then left the party with Harding and a
third individual, Zechariah (Zach). Id. at 433-434. The defendant was wearing a similar
tank top in the surveillance video at the Diner. Id. at 517. The witness's testimony
regarding Defendant's clothing change after the shooting corroborates Harding's
account of the events occurring in the few hours following the shooting of Darryl Jones.
This evidence is neither unduly prejudicial nor irrelevant. Nor do we find it too remote
in time, the event having occurred just a few hours after the time of the shooting and
' .
during a sequence of events following the shooting. Moreover, we cannot locate an
instance in the record where Defendant renewed his objection to the introduction of the
surveillance video during the trial. The video was properly admitted under Pa.RE. 401
and the court committed no abuse of discretion in so ruling. Therefore, this claim of
error is without merit.
14
D. Recorded DVD Interview of Commonwealth's Witness, William Rosario
In his fourth claim of error, Defendant asserts that this court erred when it permitted
the Commonwealth to introduce a recorded DVD interview of its witness, William
Rosario, when the witness testified that he had no recollection of the content of his
earlier interview, because it was unfairly prejudicial, denied Defendant his right to
confront. the witness, and denied Defendant a fair trial. William Rosario was
incarcerated in Berks County Prison in August through November 2013. N.T. Trial at
312. Rosario and/ or his attorney reached out to the District Attorney's Office about
information he acquired in prison regarding the death of. Darryl Jones. In November
2013, Rosario gave a recorded interview to the Reading Police Department at City Hall.
Id. at 314, 334. The Commonwealth called Rosario at trial, at which time he testified that
he gave a statement at City Hall regarding Darryl Jones's death; that the information
was fresh in his memory when he gave the statement; that he was trying to be truthful
when he gave it; that he told the police he was giving a truthful statement; and that he
no longer remembered the contents of the statement. Id. at 313-315, 334. Rosario
requested - and received -- favorable treatment on a pending persons not to possess a
gun charge in exchange for his statement. Id. at 315-317; 341-343. Rosario did not want
to -- or believe that he needed to -- appear at the trial, having already completed his
plea deal. Id. at 348 - 349.
The Commonwealth sought to introduce the recorded interview, and the defense
objected. Id. at 317, 332. This court overruled the objection, and the recorded DVD
15
interview was played. Id. at 333, 335-338; Commonwealth's Exhibit 87. The interview
contained Rosario's statement that he heard the defendant say in the exercise yard that
he killed Darryl Jones, and that Jones had a "dead man's look". Pennsylvania Rule of
Evidence 803.1(3) provides a hearsay exception under the following circumstances:
The following statements are not excluded by the rule against hearsay if the
declarant testifies and is subject to cross-examination about the prior
statement:
(3) Recorded Recollection of Declarant-Witness. A memorandum or record
made or adopted by a declarant-witness that:
(A) is on a matter the declarant-witness once knew about but now cannot
recall well enough to testify fully and accurate! y;
(B) was made or adopted by the declarant-witness when the matter was fresh
in his or her memory; and
(C) the declarant-witness testifies accurately reflects his or her knowledge at
the time when made.
If admitted, the memorandum or record may be read into evidence and
received as an exhibit, but may be shown to the jury only in exceptional
circumstances or when offered by an adverse party.
Upon review of the trial transcript, we find that the Commonwealth provided the
appropriate foundation under 803.1(3) for the admission of the DVD recording of the
interview -. The Court committed no abuse of discretion in permitting its admission.
Therefore, this claim of error must fail.
E. Cross-Examination of Eric Harding About His Involvement as
Participant/Witness in NJ Murder Case
During cross-examination of co-defendant Eric Harding, the Commonwealth objected
on relevancy grounds when defense counsel asked Harding about a 90 day sentence
imposed by Judge Keller beginning August 1, 2013 -- the date on which the second
16
recorded phone conversation occurred. N.T. Trial at 549-550. Defense counsel argued
that the Commonwealth opened the door to this line of questioning when it played the
recorded phone conversations on direct examination of Harding, because neither the
defendant nor Harding had been charged in this case at the time. Harding, it turns out,
was sentenced to 90 days' incarceration for contempt of court when he failed to appear
at a hearing in Berks County on a rule to show cause why he should not be compelled
to testify as a witness in a New Jersey criminal case involving his brothers. He. was
served with the subpoena to testify in New Jersey via a Berks County District Attorney's
II
Office detective under a miscellaneous docket. Id. at p. 553. Counsel sought to elicit
from Harding that he was subpoenaed to appear as a witness in a case in New Jersey
for which he had given a statement to the police; that he knew what the trial date was
but failed to appear, and was compelled by our courthouse because Harding didn't
appear" and that he rather than appearing for the trial, did not appear, got held in
contempt by Judge Keller. Ultimately, the case was dismissed against both brothers."
Id. 'at 562, 563.
Defense counsel argued that "staying out of the way" as discussed in the 'recorded
Berks County Prison phone conversations could have an alternate explanation, namely,
avoiding authorities to deliver Harding in time to testify in the New Jersey murder case.
This court permitted defense counsel to cross-examine Harding as to the 90 day
sentence because he failed to appear to testify at a trial in New Jersey when he was
under subpoena to do so, and that he failed to comply with the subpoena. Id. at 571.
17
However, we concluded that questioning Harding about a murder case in New Jersey,
in which his brothers were defendants, where the charges were dismissed due to
Harding's failure to appe�r, would confuse the jury and lead to litigating that case
within the instant trial. Id. at 575.
Defendant was free to cross-examine Harding about the alternate explanation for
"staying out of the way" - avoiding a subpoena to testify on July 30, 2013 in a New
Jersey case, without mentioning that it was a murder case or that his brothers were
defendants. In fact, defense counsel did cross-examine Harding on that issue, and
Harding acknowledged that he told C.I. Snell in March 2015 that he did have something
going on in New Jersey, that a detective was trying to serve him and that he didn't want
to come back. In other words, he was staying out of the way or laying low. Id. at 609-
613. The court committed no abuse of discretion in so limiting this line of cross-
examination. To insert a murder case in New Jersey, the fact that Harding's brothers
were defendants in the case, and that Harding may have been a material witness for the
state in that case, would needlessly divert the jury's attention from the case at hand
without adding anything to the facts involving Darryl Jones's murder. Moreover, there
was no evidence that the defendant was involved in the New Jersey case. The court
permitted the defense sufficient latitude to examine Harding on this issue. It was for the
jury to determine whether Harding was laying low because of the New Jersey case, the
instant case, or perhaps both.
18
F. Juror Number 12
In his sixth claim of error, Defendant asserts that a new trial should be granted because
Juror No. 12 (Panelist No. 35), "had an undisclosed, close familial relationship with the
victim, Darry 1 Jones, Jr. and was unable to be fair and impartial as a juror". For the
following reasons, we find that the issue was waived. Moreover, had the issue not been
waived, the trial court committed no abuse of discretion in permitting Juror No. 12 to
serve.
Pa.RAP. 302(a) sets forth the general rule regarding requisites for a reviewable .issue:
"[I]ssues not raised in the lower court are waived and cannot be raised for the first time
on appeal", Describing issue preservation as "foundational [to] proper appellate
review", the Pennsylvania Supreme Court has noted that requiring an issue to be raised
at the trial court safeguards the trials court's ability to both consider an issue and
correct any error at the earliest opportunity. In re F.C., III, 607 Pa. 45, 64, 2 A.3d 1201,
1211-1212 (2010) (citations omitted). See also, Commontoeaith v. Rosser, 135 A.3d 1077,
1086 (Pa. Super. 2016). The issue preservation requirement "advances the orderly and
efficient use of our judicial resources" and "concepts of fairness and expense to the
parties are implicated as well." F.C., 2 A.3d at 1211-1212 (citation omitted).
During uoir dire of the jury panel by the Commonwealth, the following exchange
occurred;
19
Mr. Boyer: The victim in this case, his name is Darryl Jones, Jr. Does anybody
know or knew Darryl Jones, Jr. or anybody know his family currently? If so, please
rise.
Mr. Boyer: And, yes, sir, No. 35?
Prospective Juror: Yes. Darryl Jones, Sr. is my son-in-law.
Mr. Boyer: Have you spoken to Darryl Jones, Sr. about the case?
Prospective Juror: No, I haven't.
Mr. Boyer: Okay. Could you put that relationship aside and judge the case solely
on the evidence presented during the course of this trial and apply the facts or
apply the law to the facts as you find them?
Prospective Juror: Yes.
Mr. Boyer: Okay. Thank you. You may have a seat.
N.T. Trial at 44-46. In a subsequent in camera conference to review challenges for cause,
the following exchange occurred among the Commonwealth, defense counsel and the
Court:
Mr. Dautrich: No. 35 is the Darryl Jones, Sr. is his son-in-law. Did say he
could be fair and impartial, but this is his, I guess, son-in-law's son is the
victim of this case.
Mr. Mc Naughton: I have that he never spoke to him about the case and he
thought he could be fair and impartial.
Mr. Dautrich: All right. I did see did not speak to the father, Darryl Jones, Sr.
about the case. So I guess that - - -
The Court: I remember him saying he could be impartial.
Id. at 70.
Neither the Commonwealth nor the defense requested that Prospective Juror No. 35 be
stricken for cause at that time. The panel of prospective jurors numbered 77. Id. at 71.
Of that number, 22 jurors were stricken for cause. Id. at 79. The parties each received 7
peremptory strikes in this non-capital case. See Pa.R.Crim.P. 634(A)(2); N.T. Trial at 79.
Of the original panel of 77, after 22 prospective jurors were stricken for cause and the
20
parties exercised peremptory challenges of 9 each, including peremptory challenges for
the 4 alternates, 12 principal jurors and 4 alternates were selected. Prospective Juror
No. 35 was selected as principal juror No. 12. Id. at 88-89. Following opening
statements by counsel, the Commonwealth proceeded with its case.
After the lunch break on the second day of trial, juror No. 8 was excused from serving
after it was learned that he lived outside Berks County. He was replaced with Alternate
Juror No. 1. Id. at 260, 272, 275-276. Then, the following exchange occurred in camera
regarding Juror No. 12:
Mr. Boyer; Can we talk about Juror No.12?
The Court: Okay.
Mr. Boyer: Juror No. 12, during voir dire, said that he may be the victim's
father - Darryl Jones, Sr. may be his son-in-law. I didsome checking on that
and yes, the victim's father is certainly Darryl Jones, Sr., who has -and who is
either married to or had a long relationship with a person by the name of
Camille Flowers (phonetic), I don't know if they're married or not. Camille
Flowers is not the victim's mother. Camille Flowers has a mother who is
either married to or has a long relationship with Juror No. 12. They tell me
that none of the immediate family members have ever discussed this case
with Juror No. 12, and they only see him on rare occasions, once or twice a
year. They have never - they haven't seen him in the recent past and they
have never spoken to him about this case.
The definition on here, it's 4503 of Title 42, No. A4, says spouses, children,
siblings, parents and grandparents, and grandchildren of victims of criminal
homicide shall be exempt and excused from jury duty. I'm not sure if Juror
No. 12 qualifies as a grandparent. Certainly he's not grandparent by blood. I
don't think that there's an issue. Certainly Juror No. 12 said he would be fair
and impartial and he was honest about his relationship with the victim. And I
don't think he qualifies as a grandparent under the rule, but I did want to put
it on the record because the victim's family did approach me over break and
did tell me that they recognized him. And they were concerned about him
being on the jury, whether he was qualified under the rules.
The Court: All right. So you're not making a motion to have Juror No. 12
excused, correct?
2]
Mr. Boyer: No, I am not.
The Court: If tonight you or someone in your office does some research and
somehow he would fall under that definition, we can revisit the issue. We're
still going to have three alternates left.
Mr. Dautrich: At this point.
The Court: All right. Is there anything else?
Id. at 273-274. The issue of Juror No. 12 serving on the jury did not arise again during
the course of the trial.
We find that the defendant has waived the issue of whether Juror No. 12 ought to have
been excused from serving. Defendant had multiple opportunities to raise the issue,
beginning with jury selection, on the afternoon of the second day of trial when it was
raised again by the Commonwealth, or prior to conclusion of trial. He failed to do so.
There is no evidence that either Juror No. 12 or the Commonwealth deliberately
deceived or misled the defense in any way. Defendant was present in the courtroom
when voir dire was conducted and during the passing of the book, though he claims that
he does not recall hearing Juror No. 12 state that victim's father was his son-in-law. N.T.
post-sentence motion hearing 10/18/2016 at 55, 56-57. Defendant also had a recorded
conversation from Berks County Prison with a third party, on or around August 9, 2016,
in which he discussed talking to his attorney about keeping or striking Juror No. 12
from the jury. N.T. 10/18/2016 at p. 62-63. Neither side expressed any desire to delve
further into the nature of Juror No. 12' s relationship with the victim or his family; they
were apparently satisfied with his explanation that he never discussed the case with his
II
son-in-law" and that he could be fair and impartial. We can only conclude that the
22
defendant's failure to challenge or strike Juror No. 12 was part of an overall trial
strategy (please note that both the Defendant in the above-captioned action as well as
the Juror in question are African-American). This court is unwilling to impose its views
as to what an· appropriate trial strategy might be for either party, and especially so
when neither side sought removal of the juror during trial. The various and
considerable costs associated with the trial, both monetary and nonmonetary, to the
Court system, the litigants and family members of both the victim and the defendant,
cannot be ignored or minimized. As the record reflects, three alternate jurors remained
in the event either party sought to have Juror No. 12 excused. ·
The testimony offered at the evidentlary hearing on the defendant's post-sentence
motion provides no additional depth or new dimension on this issue. Defendant
presented a witness, Michael Hardison, who was incarcerated at Berks County Prison
with the defendant following the trial. While they were in the restricted housing unit at
Berks County Prison following the trial, Hardison told the defendant that he
encountered an individual by the street name of "Barn Barn" (actual name unknown)
who was on his way to court during the trial. Barn Barn is "another guy that's married
to the [victim's] family". Barn Barn told Hardison that the grandfather of the victim was
on the jury. N.T. 10/18/2016 at 49. The information about a connection between Juror
No. 12 and the victim's father was clearly not new. Barn Barn never told the witness that
Juror No. 12 had contact with the witness. N.T. 10/18/2016 at 51. There is no credible
23
evidence that Juror 12 had contact with the victim or that he discussed the case with
members of the victim's family.
At the post-sentence motion hearing, the defendant raised for the first time the issue of
exhaustion of peremptory challenges which prevented him from striking Juror No. 12.
N.T. 10/18/2016 at 78-80. This court then reviewed the usual procedure which counsel
followed in exercising peremptory challenges in this case: the Commonwealth reviewed
2 to 3 prospective jurors at a time, in numerical order, beginning with Prospective Juror
1 and skipping those stricken for cause, then passed the juror book to defense counsel to
review the same 2-3 individuals. N.T. 10/18/2016 at· 65-69. Defense counsel's
"recollection is I executed my peremptory challenges at that P?int the ones the 7 that
pertained to the jurors that would comprise the 12 primary jurors of this trial". N.T.
10/18/2016 at 79. However, if that were the case -- counsel could not provide definitive
proof of that and the numbers suggest otherwise - the appropriate time to raise that
issue was during jury selection. T.hus, the issue is waived.
Further, this court would note that of the 34 jurors prior to the juror in question, 10 were
stricken for cause. Therefore, the Juror in question actually became the 25th sequential
juror when counsel began passing the book having all their peremptory challenges
available.
At this point, allthat can be said is that Juror No. 12 revealed a nexus to the victim's
father at the appropriate time during uoir dire. Whether he correctly labeled the
24
relationship/nexus is unclear.l? Neither side chose to further examine Juror No. 12 on
the nexus. Given what each of the attorneys knew about Juror No. 12 -- and when they
knew it -- their decision to forego two obvious opportunities (when addressing cause
challenges at voir dire and again on day 2 of trial when another Juror was questioned
and removed) to examine Juror No. 12 constitutes waiver. In addition, Defense counsel
could have saved a peremptory challenge to remove Juror No. 12. Defendant cannot
have it both ways by waiting for the outcome of a particular strategy then claiming
prejudice when a different outcome was reached.
Were we required to address the issue, however, we conclude that the court committed
no abuse of discretion in seating Juror No. 12. The court committed no ab�se of
discretion in permitting a juror with a current or past relationship to a woman whose
daughter had a relationship with the father of the victim to be seated, where neither the
Commonwealth nor the defense sought to strike the juror for cause or to exercise a
peremptory challenge to remove the juror, and the juror answered that he could be fair
and impartial.
17 The evidentiary hearing on the Defendant's post-sentence motions and motion for discovery to compel
the Commonwealth to provide defense counsel with the "specifics of the conversation ADA Boyer
referenced, including names of all people present, who said what, and all contact information for the
participants in the conversation", Motion for Discovery at �7, was held on October 18, 2016. Following
the hearing, the Commonwealth provided a written, verified response to Defendant's discovery motion
providing the correct last name (Taylor-Jones) of the woman previously identified on Day 2 of trial as
"Camille Flowers", Camille Flowers was not the mother of the victim. This information does not add any
different information about the exact nature of the relationship between U1e various individuals, and
merely reinforces our conclusion that the issue was not raised nor explored by defendant when the
opportunities presented themselves and is therefore waived.
25
G. Weight of Evidence
In the seventh issue, Defendant argues that the guilty verdicts were against the weight
of the credible evidence. Instead of listing the reasons in the concise statement,
Defendant refers the court back to "all the reasons" as to why the verdicts were against
the weight of evidence listed in his post-sentence motion for new trial. We will not
repeat each of those 7 reasons at length here. Instead, we will simply address our
reasons for rejecting them.
In Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000), the Pennsylvania Supreme
Court set forth the applicable standard when evaluating challenges to the weight of
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. Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459
(1984). Th11s, the trial court is under no obligation to view the evidence in the
light most favorable to the verdict winner, Tibbs, 457 U.S. at 38 n. 11, 102 S. Ct.
2211. An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. Commonwealth v. Brown, 538 Pa.
410, 648 A.2d 1177 (1994). 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. Thompson, suprn.18 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." Id.
18
1110111pso11 v. CihJ of Pl,i/ndelphin, 507 Pa. 592, 493 A.2d 669 (1985).
26
744 A.2d at 751-752. "A verdict is against the weight of the evidence 'only when the
jury's verdict is so contrary to the evidence as to shock one's sense of justice."'
Commonwealth v. Blakeney, 596 Pa. 510, 522, 946 A.2d 645, 652 (2008), quoting
Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025, 1036 (2007). Assessing the
credibility of witnesses is within the sole province of the jury. Blakeney, 946 A.2d at 653.
At the outset, we note that Defendant argues that the verdict was against the weight of
the credible evidence. As the foregoing summary of the law on this issue makes clear, it
is not this court's role to sit as finder of fact and conduct its own assessment of witness
credibility. The jury chose to believe the testimony of co-defendant Eric Harding even
though defense counsel aggressively cross-examined Harding and made it abundantly
clear that Harding had something to gain by agreeing to testify for the Commonwealth
as its key witness.
The jury also rejected the idea that Harding fabricated testimony by adding additional
II
details into his testimony at trial that he did not tell the police before, such as he and
Nelson returned to the scene of the shooting after eating at the West Reading Diner and
saw the police on scene using lighting that he described as stadium lighting". The trial
transcript contains Harding's testimony that he dropped defendant off at defendant's
sister's house on Washington Street, then picked up a female friend who accompanied
him to Walmart. Harding dropped off the female friend after the Walmru·t trip, then
picked up defendant and returned to Walmart to purchase items for defendant. After
27
leaving Walmart, defendant stated that he needed to find his wallet. He wanted to
return to 12u1 Street to look for it. When they approached 12u1 Street and drove down
Robeson, they saw big lights in the alleyway into which defendant and Darryl Jones
walked a few hours earlier. Defendant said he wasn't going to stop to look for his
wallet. They left the area. N.T. Trial at 519-523. Defense counsel cross-examined
Harding about whether he added details in his testimony that were not Included in his
original statement to Detective Snell, whether his memory was better at the time of the
original statement or at time of trial, eic., and whether his testimony was "scripted" or
rehearsed as to content prior to providing a statement or testifying. Id. at 591-597. The
jury accepted Harding" s answers and found him credible.
With respect to the defendant's claims that other civilian witnesses contradicted
Harding's testimony, there was no evidence of a "beef" between defendant and Darryl
Jones other than that offered by Harding, Damian Hicks testified that Harding disposed
of a gun, Defendant lost his wallet prior to 10:00 p.m., and that no artificial lighting was
used at the crime scene, we again defer to the jury as finder of fact. It is also within the
province of the jury to determine the facts of the case, whether the evidence was in
conflict, and if so, whether any conflict could be reconciled, or which conflicting
evidence was the more credible. The jury was properly instructed in this regard. Id. at
916-917. We also properly instructed the jury that motive is not an element of the crime.
Id. at 918. Finally, claims that the police investigation of Darryl Jones' murder was
deficient in certain respects was an issue for the trier of fact. Defense courisel cross-
28
examined police witnesses involved in the investigation. The jury's verdicts indicate
that they were satisfied with police accounts of the investigation.
We find nothing on the record to suggest that the jury ignored certain facts or accorded
them equal weight such that justice was denied. Considering the record as a whole, we
do not find the jury's verdicts of guilty on all counts shock one's sense of justice or that
a miscarriage of justice prevailed. The verdicts were not against the weight of the
evidence.
H. After-Discovered Evidence by John Rushton
In his eighth claim of error, defendant asserts that the trial court erred in failing to
grant his motion for a new trial due to after(newly)-acquired evidence in the form of
testimony from John Rushton. Rushton testified at the post-sentence motion evidentiary
hearing held on October 18, 2016 as follows. He became associated- with co-defendant
Eric Harding in 2009, when he bought crack cocaine from Harding. Rushton eventually
became close to Harding; he ran errands for Harding and cared for Harding's children,
lived with Harding on and off when he had no place else to stay, and spent
considerable periods of time with Harding. N.T. Post-sentence hearing, 10/18/2017 at
14-15. Rushton knew that Harding had handguns, including a black 9 mm Kel-Tec, a
compact A.C.P. 45 and 9 mm Ruger. Id. at 15-16. Rushton met Defendant one or perhaps
two times. Id. at 42. He never saw Defendant with a gun. Id. at 27, 41-42.
29
During the time Rushton was in close contact with Harding, Harding had "an incident
in New jersey". Rushton testified that "I guess [Harding] had some court situation that
he was trying to avoid, and I went with him to different locations like a female friend of
his and he stayed I think at a hotel or something like that and we were trying to avoid
contact with him." Harding was not picked up by the authorities. Id. at 16-17.
Sometime after July 4, 2013- in or around August -- while Rushton was incarcerated in
the York County Prison, Harding paid a surprise visit19 to Rushton. Id. at 17-19. Rushton
recalls their conversation:
Mr. Rushton: And I sat down and I was like, what are you doing here? And
he said, remember when I had the situation with New Jersey and, you know,
we had to avoid, you know, I guess it was detectives from Exeter that were
looking for him for the detectives in New Jersey, he said I got another bad
situation you are probably not going to see me for a long time so I'm going
away so. ·
Mr. Dautrich: Did you have any further conversation with him about what he
meant by that?
Mr. Rushton: Not at that point. I wasn't sure what was going on so.
Id. at 18.
After he was released from York County Jail, Rushton again came into contact with
Harding after the latter was released from Berks County Prison. Harding contacted him
via Instagrarn, They agreed to contact each other by phone, using "fake" phone
numbers. Rushton, who was "caught up in heroin really bad" wanted to "know what
19
Though the date of the visit may have been a surprise, Mr. Harding was on Mr. Rushton's visitor's list.
30
was going on with him and stuff like that". Eventually, they met in Mt. Carmel, PA in
late 2015 or early 2016. Rushton knew that Harding was arrested and charged with a
murder that occurred on or around July 4, 2013, and was familiar with the public details
of the case through newspaper articles and other sources. He discussed the case with
Harding:
Mr. Dautrich: Now while you were at Mt. Carmel with Eric did you discuss
the murder case, this case?
Mr. Rushton: Not immediately.
Mr. Dautrich: Okay.
Mr. Rushton: It was bit by bit. I was curious. I was curious to know why he
decided to, you know, turn evidence or anything like that because when I
was living there it went against everything that he stood for, you know what I
mean? It was like the street code and stuff like that. You don't tell, you know,
and stuff like that.
So I just - I was curious. I'm lying what was going on with this and basically
he broke it down bluntly and said I did what I had to do to get home to my
family.
Mr. Dautrich: Did he give you any details about what his any other reasons
why he may have testified in the case?
Mr. Rushton: To come home. That's basically what he told me. He said, you
know, he told me what his sentence was when he was out on bail and you
know.
Mr. Dautrich: Did he explain to you whether his whether he provided
truthful information in testimony in the trial and to the District Attorney and
to the police?
Mr. Rushton: He indicated that he didn't give complete information. Like I
don't even know how to explain it. Basically, he said that he said what he had
to say to not implicate himself and to put the blame on somebody else.
Mr. Dautrich: Did he make it aware to you who he put the blame on?
Mr. Rushton: No. Because· I knew. J-· knew what was - I saw it in the
newspaper. So I'm like a lot of things were like in that situation are inferred,
you know, he inferred. He did a lot of that over the years. He wouldn't come
right out and say things a lot of the time. There was a lot of inferences to be
drawn from what he said, you know.
Mr. Dautrich: Did he ever tell you from the time he saw you in the York Jail,
which was sometime in July or August of 2013, up to and including the time
of the Mt. Carmel visit, did Eric Harding ever tell you that Johnnie Nelson
had shot the guy?
31
Mr. Rushton: No.
Id. at 21-23.
According to Rushton, Harding was "often vague and ambiguous about him talking
about anything. So he never really flat out admits something like that, you know",
referring to whether he saw defendant pull the trigger. Id. at. 41. When speaking alone
with Rushton in Mt. Carmel," different times [Harding] said different things". Id. at 34.
Superior Court recently summarized the procedures and applicable test for asserting
and obtaining relief based upon newly- or after-discovered evidence:
Rule 720, relating to post-sentence procedures and appeal, provides in
pertinent part: . ·
(C) After-Discovered Evidence. A post-sentence motion for a new
trial on the ground of after-discovered evidence must be filed in
writing promptly after such discovery.
Pa.R.Crim.P. 720(C); Commonuiealihu. Castro, 625 Pa. 582, 93 A.3d 818, 828
(2014) (noting that Rule 720(c) requires a motion for after-discovered
evidence to be filed promptly upon the discovery of such evidence). The Note
to Rule 720 states that "after-discovered evidence discovered during the
direct appeal process must be raised promptly during the direct appeal
process, and should include a request for a remand to the trial judge. It is
well-settled that to obtain relief, the after-discovered evidence must meet a
four-prong test:
(1) the evidence could not have been obtained before the conclusion
of the trial by reasonable diligence; (2) the evidence is not merely
corroborative or cumulative; (3) the evidence will not be used solely
for purposes of impeachment, and (4) the evidence is of such a
nature and character that a different outcome is likely. At an
evidentiary hearing, an appellant must show by a preponderance of
the evidence that each of these factors has been met in order for a
new trial to be warranted.
Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citation
omitted), appeal denied, 598 Pa. 774, 958 A.2d 1047 (2008).
32
Commonwealth u. Williams, ---A.3d ---, 2016 Pa Super 301 (2016).
Based upon the record created at the evidentiary hearing, and in light of the applicable
standards set forth above, we conclude that defendant has failed to establish by a
preponderance of the evidence each of the four factors required to grant a new trial
based upon after-acquired evidence.
With respect to the first ptong of the test, it is difficult to determine whether the
asserted newly acquired evidence could have been discovered before trial through
reasonable diligence. Rushton's testimony is that he waited until a few months after he
met with Harding, "probably after the trial", in June or July 2016, to attempt to convey
to defendant or others that he might have potentially relevant information about the
case. Id. at 28. He waited to ensure his own guilty plea and sentence were not
jeopardized and also to avoid negative repercussions and get the II okay" from a family
member of the victim, Brandon Peterson. Id. at 38-39. In and of itself, this delay and the
reasons for the delay cast serious doubt on Rushton' s credibility. At some point,
Rushton was able to request that defendant's attorney contact him about potentially
relevant information to the case. This may have been in June or July 2016; the trial
concluded on May 27, 2016. On the record before us, we are unable to determine
whether, by the exercise of reasonable diligence by counsel, Rushton's information
could have been obtained prior to the conclusion of trial. However, assuming, arguendo,
33
that counsel could not have obtained the information prior to trial through reasonable
diligence, the remaining three prongs of the test must still be met.
Rushton' s testimony consisted largely of innuendo and conjecture, along with
contradictory or equivocal statements. After speaking with co-defendant Eric Harding
in Mt. Carmel, Rushton concluded, based upon multiple inferences drawn from what
Harding said or didn't say, and despite Harding's characteristically vague and
ambiguous stateme1:ts or cryptic references, that Harding offered false information or
incomplete information or testified falsely concerning Defendant's involvement in the
murder of Darryl Jones. Rushton offered that Harding "indicated that he didn't give
complete information", and "said what he had to say to not implicate himself and to
put the blame on somebody else." Id. at 22. Later, Rushton testified that Harding
"made up or lied to do what he had to do to get home to his family". Id. at 27. Exactly
what Harding lied about and when he lied about it is unclear from Rushton's
testimony. Id. at 33-35. Rushton did not hear Harding's testimony at trial, nor did he
know the contents of the statement Harding gave to police. Id. at 40, 42. Moreover, he
apparently reached his conclusion that Harding lied prior to the actual trial, when the
two met in Mount Carmel. Because Rushton's testimony would clearly be offered to
discredit Harding based upon Harding's motive to fabricate to avoid implicating
himself and to return to his family, it is first and foremost offered for impeachment
purposes (third prong).
34
Rushton's post-trial recollection of his August 2013 conversation with Harding at the
York County Prison sheds no new light on the facts surrounding the murder of Darryl
Jones and would not be likely to alter the jury's verdicts. Harding's statement to the
effect that he wouldn't be around for a while because of another bad situation does not
establish that Harding or someone other than defendant murdered Darryl Jones.
Harding's decision to go away for a long time is entirely understandable given
Rushton's observation that Harding's cooperation and testimony ("turn evidence")
would be II against everything that [Harding] stood for" ... "like the street code and
stuff like that. You don't tell, you know, and stuff like that." Id. at 22. It is not of such a
nature and character that a different outcome in the jury's verdicts would be likely
(fourth prong).
Harding testified on direct examination regarding his plea bargain for charges against
him relating to the murder of Darryl Jones. N.T. Trial at 461-463, 542-545. Defense
counsel thoroughly cross-examined Harding about the plea bargain which he received
in exchange for his testimony, his preparation for testimony for the Commonwealth,
and whether he was coached as to his testimony. Id. at 545-549, 575-581, 591-597.
Harding reaped considerable benefits in exchange for his testimony for the
Commonwealth. He was charged with murder of the first degree, conspiracy to commit
murder of the first degree, murder of the third degree, conspiracy to commit murder of
the third degree, aggravated assault and conspiracy to commit aggravated assault
arising out of the death of Darryl Jones. Id. at 577. He faced a maximum of 20 years'
35
incarceration for the conspiracy to commit aggravated assault charge alone. Harding
pleaded guilty to that charge only on October 19, 2015. Under the plea agreement, he
received time served (a little overZll months) and three years' probation. Id. at 543, 578.
There were still pending charges at the time of his testimony. Id. at 461- 462, 542.
Considering the favorable treatment Harding received for his testimony, the finder of
fact was free to believe or reject Harding's testimony as untruthful; the jury found him
credible. Whether it was to get home to his family, to avoid the possibility of a lengthy
prison sentence, or to testify truthfully in exchange for leniency, the jury understood
Harding might be motivated to testify untruthfully as a means to an end; it chose to
',.;.\ ·..
believe him. Harding, the Commonwealth's key witness, was extensively cross-
examined by defense counsel, including as to the favorable treatment he rec�ived in his
case· in exchange for his cooperation. The jury chose to believe Harding's testimony.
Rushton's proffered information would clearly be used primarily to impeach Harding's
testimony. Thus, the third prong of the test has not been satisfied.
Harding's testimony at trial established that he was closely involved in the events
surrounding Darryl Jones' murder. Nowhere in Rushton's proffered new information
are we to find new evidence that a third party or Harding himself was the shooter. N.T.
Post-sentence hearing, 10/18/2016 at 32, 33. Rushton "didn't say that [Harding]
implicated himself". Id. at 40. Rushton testified that Harding told him that he ordered
someone to pull the trigger, without mentioning a specific name. Id. at 34-35. Even if
true, this does not make it more likely that the jury would have concluded that
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defendant did not shoot Darryl Jones. It was clear from Harding's testimony at trial that
Harding was involved in the crime. The jury knew that he was charged with the first
and third degree murder of Darryl Jones, and conspiracy to commit those offenses.
Given that he acted as the defendant's driver at the scene of the crime, and spent time
with defendant after the shooting altering and disposing of the weapon, Harding's
alleged statement that he ordered the murder does not make it less likely that defendant
shot Darryl Jones. While he testified that Harding never told him that defendant shot
Darryl Jones, Rushton offered no credible evidence to substantiate his concern that" an
innocent man might spend the rest of his life in jail or a guilty man be on the streets",
That Rushton did not see Defendant with a gun on the one or possibly two occasions
when they met is meaningless and not likely to result in a different outcome. That
Harding possessed 9 mm handguns and took a gun to his brother in Newark, NJ
(which, incidentally, Harding did not identify as the murder weapon) does not tend to
establish that someone other than defendant shot Darryl Jones nor make it more likely
that such information would have resulted in a different outcome in the jury's verdict.
The trial record contains more than adequate direct and circumstantial evidence �-
which the jury chose to believe -- that defendant shot Darryl Jones.
Given the delay in disclosure, and the nature and tenuous character of the information
offered by Rushton, we find it lacking in credibility. We further find that the nature and
character of the evidence offered by Rushton would not likely have resulted in a
different outcome in the case. It is both cumulative and corroborative of the evidence
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presented at trial: Harding was closely involved in the events surrounding the murder
of Darryl Jones but did not shoot Jones, and no other individual besides Defendant was
identified as the shooter or could be placed in the alley with the victim at the time of the
shooting. Further, Defendant's wallet with his Pennsylvania identification and other
items containing his name, were found in the alley near the body.
I. Insufficiency of Evidence
In his final claim or error, Defendant asserts that the evidence was insufficient to
support the jury's verdicts as to all counts "because the evidence presented fails to
identify Defendant as a participant in any of the crimes". Reviewing the transcript of
the evidence presented at trial, we are unsure what, precisely, Defendant means by this
statement of error, and we do not wish to presume his intent or meaning. This is
consistent with the Defendant's general motion for acquittal for judgment of acquittal .
on all counts following the close of the Commonwealth's case in chief. N.T. Trial at 723,
which this Court denied. Defendant has not identified which elements of the offenses
charged were insufficiently established. Suffice it to say that the evidence, as
summarized earlier in this opinion, amply supports the jury's verdicts as to all counts,
and further, that Defendant was indeed a participant in the offenses.
III. Conclusion
For the foregoing reasons, this court respectfully requests that this appeal be DENIED
and the judgment of sentence AFFIRMED.
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