Com. v. Herriott, M.

J-A19016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARTELL HERRIOTT,
Appellant No. 358 WDA 2013
Appeal from the Judgment of Sentence of October 11, 2012
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010556-2011
BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 23, 2014
Appellant, Martell Herriott, appeals from the judgment of sentence
entered on October 11, 2012 in the Criminal Division of the Court of
Common Pleas of Allegheny County, as made final by the denial of
-sentence motion. We affirm.
At the conclusion of trial on July 24, 2012, the jury found Appellant
guilty of first-degree murder1 and carrying a firearm without a license.2 On
July 25, 2012, the trial court granted a petition to nolle prose a charge of
persons not to possess a firearm.3 On October 11, 2012, the trial court
____________________________________________
1
18 Pa.C.S.A. § 2502(a).
2
18 Pa.C.S.A. § 6106(a)(1).
3
18 Pa.C.S.A. § 6105(a)(1).
* Former Justice specially assigned to the Superior Court.
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sentenced Appellant to serve life in prison without parole for his first-degree
murder conviction. The court imposed no further penalty on the charge of
carrying a firearm without a license.
in the following manner:
On June 30, 2011, at approximately 1:25 a.m. Officer [David]
McManus was in a marked police car and responded to a
dispatch of shots fired. Officer McManus was responding as
backup to the unit dispatched to a male down at 5200 Keystone
Street [in Pittsburgh, Pennsylvania]. Officer McManus was the
first to arrive on scene. Upon arrival, Officer McManus found the
victim face down with blood coming from underneath his body.
It appeared that he was shot. The victim was unresponsive and
appeared to have sustained injuries from at least one bullet. At
that time, Officer McManus was approached by a female that
stated her son witnessed the shooting. The victim was identified
as Sean [Lydell] Thompson. Officer McManus did not observe
any weapon or firearm on the victim. The victim was
transported to UPMC and pronounced dead at 1:56 a.m. on June
30, 2011. The [young man] who witnessed the shooting was
transported to [police] headquarters for questioning, along with
his mother. Officer McManus testified that upon his arrival the
street was very well lit. Officer McManus testified that there
were some porch lights on; however, some parts of the street
were darker, but not dark.
Prosecution witness, Rachel Zwipf, was engaged to Mr.
Thompson. She testified that they lived together with her older
son in Lawrenceville at the time of the murder. [Ms. Zwipf]
testified [that] on the evening of June 27, 2011, while asleep,
she received a phone call from Mr. Thompson. Mr. Thompson
asked Ms. Zwipf to come and meet him at the pizza shop next to
Thompson and Ms. Zwipf went back and forth because she did
wanted her to meet him. She subsequently got out of bed and
drove to the bar Remedy [], located a few minutes from her
home. Ms. Zwipf testified that there was a sense of urgency in
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the demeanor of Mr. Thompson when he was requesting her to
get inside the bar. Mr. Thompson introduced her to several
gentlemen. One of these men was [Appellant]. Ms. Zwipf
testified she was in close proximity to Mr. Thompson and
the bar, and it appeared to her that he was trying to make a
point. [Appellant] and Ms. Zwipf were in the bar for
approximately fifteen minutes before they both left the bar.
While in the bar, Ms. Zwipf testified [that Appellant] was wearing
a fisherman style hat. [Appellant] came outside of the bar when
the couple left and interrupted in their conversation and Ms.
Zwipf found this suspicious. After about five minutes,
[Appellant] went back inside the bar. At some point outside of
the bar Mr. Thompson told Ms. Zwipf about a beef, or dispute [,]
that a friend of his had with [Appellant], and another man,
Montez Freeman. Ms. Zwipf believed that this was part of the
reason she was asked to come to the bar by Mr. Thompson. Mr.
Thompson told her to walk home, because he did not want them
to know what kind of car she drove. Upon Mr. Thompson
returning home that night, he indicated he did not want to talk
about what was going on with the men she met at the bar.
On June 29, 2011, Mr. Thompson and Ms. Zwipf went to his
10:00
sic] go
to the Remedy. Mr. Thompson left Ms. Zwipf in the car and went
inside the bar to get cigarettes for his sister. Prior to entering
the bar, Ms. Zwipf testified that Mr. Thompson was in a good
mood and they planned on staying in the rest of the evening.
Mr. Thompson was in the bar approximately five minutes and
returned to the car. Upon his return, his demeanor had changed
significantly. He appeared upset and agitated. Mr. Thompson
told Ms. Zwipf that he needed to return to the bar after taking
two had a heated argument at the house. Ms. Zwipf testified
that he looked sad, and she was concerned about him returning
to the bar. She tried to tell him to stay at home. Mr. Thompson
left in the car and she went to bed. Ms. Zwipf woke up around
12:30 a.m., and spoke with Mr. Thompson on a cell phone and
he told her he would be home in about fifteen minutes.
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Ernestine Jordon, Mr
12:30 [a.m.] and 1:45 a.m. on June 30, 2011. Officer Evans
testified that their address on Natrona Way is literally around the
ess on Keystone. Ms. Jordan
testified her son left her house that morning and within minutes
she heard gun shots. Shortly afterward, someone knocked on
her door and she was informed that her son had been killed up
the street.
On June 30, 2011, Jacob Orcun (referred to earlier as the [young
man] who witnessed the shooting) was on the third floor of his
house at 5233 Keystone Street at approximately 1:00 a.m. and
heard gunshots. He immediately ran to the other room and
opened the window. The distance from the house of the witness
to the sidewalk was eight feet, 11 inches. The distance from the
front of the house to the width of Keystone Street was 29 feet,
ten inches. He saw a white SUV and a man holding a gun. He
described the man as [an] African American male, heavy set,
almost six feet tall, between 20-30 years old, with side burns.
Mr. Orcun further testified the gun was black in color and that he
he man moved over
the front door of the car and began to shoot over the hood.
When he looked out the window there were three lit light posts
on the street. After the shooting, Mr. Orcun ran downstairs and
told his mom that he had witnessed the shooting. When he told
his mom that he had witnessed the shooting she went over to a
police officer. A few hours later he was interviewed by the
police. Mr. Orcun testified that he had witnessed [Appellant] get
out of the car, shoot and walk closer, and shooting more.
Subsequently, he picked [Appellant] out of a photo array.
Detective [James] McGee testified that as soon as Mr. Orcun
looked at the array he saw the photograph; he pointed right to it
Ms. Jasmine Lewis was talking with Mr. Thompson just before he
was shot on Keystone Street. She started to walk away and
heard shots fired. Ms. Lewis was interviewed by the police the
following day and identified the shooter through a photo array.
The Defendant was the person Ms. Lewis identified in the photo
array as the shooter.
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Detective Klaczak, from the investigations branch, works the
night felony squad. He investigated the scene of the shooting.
He recovered fifteen 40 caliber casings on the scene. All the
casings had Smith and Wesson on them. Thirteen out of fifteen
were brand name Winchester; two of them were PMC.
Firearms expert, Dr. Robert T. Levine, testified that he
determined that all fifteen casings were discharged from the
same firearm. He further concluded that the firearm was
probably a 40-caliber Glock.
On July 23, 2011, at approximately 1:30 a.m. Officer Schmidt
received a call from a reliable, confidential informant that a male
with an outstanding warrant was located inside the Red Onion
Bar located at the intersection of Kirkpatrick Street and Webster
Avenue. Officer Schmidt was provided a detailed description of
the homicide actor, the male with the outstanding warrant. The
actor they were looking for was [Appellant]. Officer Schmidt had
a photo of the suspect. Officer Schmidt and Office McManus
observed [Appellant] exit the bar and enter a Chevy Tahoe in the
rear passenger seat. A pursuit followed. Officer Schmidt was in
the passenger seat. His primary responsibility was observing the
vehicle and advising police dispatch. There were times during
the pursuit he did not have full visibility of the vehicle. One of
those times was when the vehicle made a right hand turn onto
Jane Street from 24th Street. Officer Schmidt observed a black
firearm come out of the passenger window as they continued to
pursue the vehicle. Officer Schmidt had a clear view of
[Appellant] throwing the firearm out the window. The pursuit
ended at 28th and Jane Street where the vehicle stopped.
[Appellant] was apprehended and asked to provide his personal
information: name, date of birth, social security number, (as the
officer does with all his arrests). [Appellant] responded that his
name was David Williams.
Officer McManus went back to the scene where [Appellant] threw
the gun and recovered a loaded Glock 27, 40-caliber firearm.
The gun was loaded with a magazine clip with eight rounds in
the magazine and one round in the chamber of the gun.
Subsequently, Officer Stern was working on July 23, 2011, and
recovered a gun magazine from Jane Street found by a resident.
The magazine was made of polymer plastic as opposed to a steel
magazine. This magazine, if inserted into a 40 caliber Glock
firearm, would hold a total of 32 rounds of ammunition. The 32
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rounds of ammunition would consist of 31 rounds in the
magazine and 1 round in the guns chamber. Upon review of the
video of the chase with [Appellant], the magazine was found on
that route. The magazine when found had 17 rounds of
ammunition. The 17 rounds of ammunition were manufactured
by Winchester.
Officer Stern documented in a police report where the magazine
was found and a description of the magazine. When the
magazine was turned into the property room, Officer Stern was
unaware of the chase earlier in the morning. The magazine was
ultimately destroyed by the evidence room. However, Officer
Stern was shown a magazine, which was introduced into
evidence, that was consistent with the magazine he recovered
and documents. Ultimately, it was determined the recovered
gun was not the gun used to shoot the victim Mr. Thompson.
Simply stated the weapon utilized to kill Mr. Thompson was
never recovered.
Dr. Robert Levine was questioned about the polymer plastic
magazine recovered on July 23, 2011. He testified if the
polymer plastic magazine had a number 31 and the letters RDS
on it, this indicates it had capacity for 31 cartridges
(bullets/rounds). He further stated, polymeric is a type of plastic
material. Glock magazines have a plastic outer shell associated
with them, so it is consistent with a Glock pistol. Dr. Levine
testified the gun used in the shooting was probably a 40 caliber
Glock. He further stated, based on his knowledge of the firing
pin impression, the firing pin aperture marks, and the polygonal
rifling, he would be shocked if any other manufacturer of a
firearm was used in this incident (i.e. other than Glock). He
concluded the polymeric magazine recovered could have been
used to load the gun used in the shooting.
Trial Court Opinion, 7/23/13, 2-11.
Followi -degree murder
and related charges, counsel for Appellant presented an oral post-sentence
January 17, 2013. A timely notice of appeal ensued on February 15, 2013.
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On February 20, 2013, the trial court directed Appellant to file a concise
statement of error complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After requesting and receiving an extension of time, Appellant filed his
concise statement on April 4, 2013. The trial court issued its opinion on July
23, 2013.
Appellant raises two claims for our review:
I. DID THE TRIAL COURT ABUSE ITS DISCRETION BY
PERMITTING THE COMMONWEALTH TO PRESENT OTHER
CRIMES EVIDENCE THAT APPROXIMATELY A MONTH AFTER
THE HOMICIDE, [APPELLANT] POSSESSED A FIREARM
THAT WAS NOT USED IN THE HOMICIDE AND HE MAY
HAVE POSSESSED AN EXTENDED MAGAZINE THAT WAS
NOT DEFINITIVELY CONNECTED TO THE HOMICIDE?
II. DID THE TRIAL COURT ABUSE ITS DISCRETION BY
ADMITTING PREJUDICIAL HEARSAY TESTIMONY BY THE
THE VICTIM THAT IMPLICATED [APPELLANT]?
In his first issue, Appellant claims that the trial court abused its
discretion in admitting evidence pertaining to other crimes which showed
discarded a loaded gun and an extended magazine during a police chase.
Appellant argues that because the gun was not used in the shooting, and
because it was not proven that the magazine was used in the shooting, this
evidence was irrelevant and prejudicial and therefore should not have been
admitted at trial.
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-settled standard of review
and firmly established principles:
The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed
only upon a showing that the trial court abused its discretion.
Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002).
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evide
value is outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
Commonwealth v.
Kitchen, 730 A.2d 513 (Pa. Super. 1999).]
Because all relevant Commonwealth evidence is meant to
prejudice a defendant, exclusion is limited to evidence so
prejudicial that it would inflame the jury to make a decision
based upon something other than the legal propositions relevant
to the case. As this Court has noted, a trial court is not required
to sanitize the trial to eliminate all unpleasant facts from the
jury's consideration where those facts form part of the history
and natural development of the events and offenses with which
[a] defendant is charged. Commonwealth v. Serge, 837 A.2d
1255, 1260-[12]61 (Pa. Super. 2003).
In addressing the admissibility of a gun for demonstrative
purposes, the Pennsylvania Supreme Court has held that:
[a] weapon shown to have been in a defendant's possession
may properly be admitted into evidence, even though it
cannot positively be identified as the weapon used in the
commission of a particular crime, if it tends to prove that
the defendant had a weapon similar to the one used in the
perpetration of the crime.
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Commonwealth v. Williams, 640 A.2d 1251 (Pa. 1994).
Similarly, in Commonwealth v. Shoatz, 366 A.2d 1216 (Pa.
1976), the Pennsylvania Supreme Court stated that:
[A]t the time of his arrest approximately one and one-half
years after the incident, appellant along with his
companions were found to have possessed numerous
advanced military weapons and munitions. These items
included two of the United States Army's most advanced
automatic rifles or machine guns, the M-16, plastic
explosives manufactured solely for military use and other
various military-type of ammunition. It is now contended
that this evidence was irrelevant and served only to inflame
and prejudice the jury since appellant was not being tried
for the possession of this property.
***
Inasmuch as the instruments and devices found on
appellant consisted of guns, ammunition and explosives, all
of which corresponded generically and some of which
corresponded exactly to the type of ammunition used in the
homicide, it was relevant as a circumstance to help identify
appellant and to help to connect him with the crime of
which he was accused ...
Shoatz, 366 A.2d 1216, 1225-26.
Commonwealth v. Broaster, 863 A.2d 588, 591-593 (Pa. Super. 2004),
appeal denied, 876 A.2d 392 (Pa. 2005).
Applying these principles in the case at bar, it is evident that Appellant
is not entitled to relief on his opening claim. As the trial court observed, the
discarded gun and magazines were relevant to connect Appellant with the
victim was shot with a handgun of the same caliber; and, (2) the recovered
magazine housed the same number of rounds that would have been left
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after a 15-round volley (the number of shell casings recovered at the crime
scene one month earlier). Furthermore, no unfair prejudice emanated from
the admission of this evidence since the trial court instructed the jury that
the proof should be considered for identification purposes only and that the
gun was not used to kill the victim. Since the trial court did not abuse its
discretion in admitting this evidence, Appellant is not entitled to relief on his
initial claim.
In his second claim, Appellant complains that the trial court erred and
girlfriend. In developing this claim, Appellant points to testimony in which
he victim said that he had a dispute with
Appellant which he (the victim) needed to address. Appellant argues that
under the state of mind exception to the rule against hearsay. We conclude
that this claim is meritless and that Appellant is not entitled to relief. In the
alternative, even if Appellant established that admission of the challenged
testimony violated the rule against hearsay, we find that this error was
harmless.
while testifying at the trial or hearing, offered in evidence to
Hearsay
Pa.R.E. 802. One of the more well-established exceptions to the
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inadmissibility of hearsay evidence, commonly referred to as the
exceptions in Pa.R.E. 803. Specifically, Rule 803(3) provides an
exception to the hearsay rule for:
(3) Then Existing Mental, Emotional, or Physical Condition.
A statement of the declarant's then-existing state of mind
(such as motive, intent or plan) or emotional, sensory, or
physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates
to the validity or terms of the declarant's will. Pa.R.E.
803(3).
Commonwealth v. Green, 76 A.3d 575, 579 (Pa. Super. 2013), appeal
denied, 87 A.3d 318 (Pa. 2014).
In this case, the trial court found that the challenged testimony related
solely to the vict
See Trial Court
Opinion, 7/23/13, at 22-25. Our review of the record confirms this
assessment. Hence, we perceive no error or abuse of discretion in the trial
trial court erred in admitting the challenged evidence under Rule 803(3), we
conclude that any such error was harmless in view of the independent and
compelling See Green, 76 A.3d at 583
(finding that trial court abused its discretion in admitting hearsay statements
from two witnesses under the state of mind exception but that error was
harmless given other evidence of guilt); Commonwealth v. Levanduski,
907 A.2d 3, 22 (Pa. Super. 2006) (en banc
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wife/defendant and her paramour inadmissible in murder trial under state-
of-mind exception but that error was harmless in view of other
overwhelming evidence), appeal denied, 919 A.2d 955 (Pa. 2007), cert.
denied, 552 U.S. 823 (2007). Thus, no relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
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