Com. v. Booker, D.

J-A01020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
DOMINICK BOOKER,
Appellant No. 2700 EDA 2016
Appeal from the Judgment of Sentence July 15, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0002555-2014
BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 23, 2018
Appellant, Dominick Booker, appeals from the judgment of sentence
imposed following his jury conviction of possessing an instrument of crime
(PIC), aggravated assault, conspiracy, and violations of the Uniform Firearms
Act (VUFA). The trial court sentenced him to a term of not less than sixteen
years nor more than fifty years of imprisonment in a state correctional
institution. Appellant challenges several evidentiary rulings, inter alia, but
chiefly complains that he should get a new trial because his co-conspirator,
Dwayne Warren, who pleaded guilty and testified against him, received a
substantially shorter sentence. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
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We derive the facts of the case from the trial court’s opinion and our
independent review of the record. (See Trial Court Opinion, 1/23/17, at 1-
7). Appellant’s conviction arises out of two related gunfights during a botched
robbery of a drug dealer outside of the Sidekicks Sports Bar in the Kensington
neighborhood of Northeast Philadelphia, on October 12, 2013.
That night, Appellant and his co-conspirator, Dwayne Warren, by plan,
were waiting at the bar for their intended victim, identified only as a Hispanic
drug dealer. When he arrived, the three went outside together. Appellant
and Warren tried to rob the victim, but the robbery did not go as planned.
The drug dealer apparently pulled out his own handgun and began firing.
Both Appellant and Warren were shot; Appellant in the stomach, Warren in
the hand.
Juan Rodriquez was working that night as a security guard at the bar.
When he heard gunshots, he went over to investigate. The drug dealer
approached him for help. Appellant shot at the drug dealer and Rodriquez.
Rodriquez returned fire. The drug dealer fled.
Appellant and Warren also fled the area in Warren’s red Pontiac Grand
Prix, almost running over Rodriquez, who had to jump out of the way.
Rodriquez fired back, shattering a car window. He then called the Philadelphia
police and gave a description of the car. Police were dispatched to neighboring
hospitals.
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Police officers took Mr. Rodriquez to nearby St. Joseph’s Hospital.
There, the police found Appellant and Warren, and Warren’s red Grand Prix
with the driver’s side window shot out as described in the radio dispatch, and
confirmed by Rodriquez.
St. Joseph’s Hospital staff decided that Appellant’s wound required
treatment at another hospital. Two of the officers accompanied Appellant in
the ambulance, while he was being transported from St. Joseph’s to
Hahnemann Hospital. Officer Charles McLemore asked Appellant what
happened. Appellant told the officer that he was the victim of a robbery at a
Chinese store, but did not give a specific location for the store, or any
additional details.
In June of 2015, Warren entered a guilty plea to attempted murder and
related crimes arising out of this incident. He testified against Appellant at
trial. Contemporaneous documentation strongly supports the finding that the
Commonwealth made no promise as to sentencing in exchange for Warren’s
testimony. Warren did concede on cross-examination that he hoped that the
sentencing court would look favorably on his cooperation.
Prior to trial, Appellant filed a motion in limine to allow cross-
examination of Warren regarding a prior conviction for an armed robbery
committed not quite ten years before this attempted robbery, on June 25,
2004. In that case Warren was convicted of robbery, and PIC. At sentencing,
the Commonwealth withdrew numerous other charges, including VUFA.
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In this case, the five-day jury trial began on March 2, 2016. In response
to the motion in limine, the court permitted inquiry about Warren’s “prior
gunpoint robbery” but not about his PIC conviction. (Trial Ct. Op., at 9).
As previously noted, the jury convicted Appellant of PIC, aggravated
assault, conspiracy, and VUFA. The trial court sentenced him to a term of not
less than sixteen nor more than fifty years of imprisonment in a state
correctional institution.
Separately, Warren received a sentence of not less than eleven and one-
half, nor more than twenty-three months of incarceration followed by ten
years of reporting probation. Appellant timely appealed.1
Appellant raises four issues in this appeal:
1. Did not the [trial] court abuse its discretion in denying
[A]ppellant’s motion to introduce evidence of Dwayne Warren’s
firearms conviction at trial, where such evidence was relevant to
the defense theory that Mr. Warren was the shooter and it would
not be unfairly prejudicial, confusing, or misleading?
2. Did not the [trial] court err in denying [A]ppellant’s
motion to suppress statements where the police subjected him to
custodial interrogation by surrounding him and asking repeated
questions to confirm their suspicions that he committed a crime
while he was immobilized by medical necessity?
3. Did not the [trial] court err in denying [A]ppellant’s
motion for judgment of acquittal where the evidence against him
is so unreliable and inconsistent to render the jury’s verdict the
product of mere speculation and conjecture?
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1Appellant filed a statement of errors on September 23, 2016. The trial
court filed its opinion on January 23, 2017. See Pa.R.A.P. 1925.
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4. Did not the [trial] court abuse its discretion in denying
[A]ppellant’s motion for a new trial where [A]ppellant learned
that, after his testimony in the instant matter, the
Commonwealth’s star witness received a county sentence when
he would otherwise have been subjected to a second-strike
mandatory minimum sentence because the Commonwealth
waived the mandatory minimum at sentencing?
(Appellant’s Brief, at 4-5).
Appellant’s first issue challenges the trial court’s exclusion of some
evidence of a prior crime by his co-conspirator.
When reviewing a claim concerning the admissibility of
evidence, and specifically evidence of other crimes or bad acts by
a defendant, we note:
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. In determining
whether evidence should be admitted, the trial court
must weigh the relevant and probative value of the
evidence against the prejudicial impact of that
evidence. Evidence is relevant if it logically tends to
establish a material fact in the case or tends to
support a reasonable inference regarding a material
fact. Although a court may find that evidence is
relevant, the court may nevertheless conclude that
such evidence is inadmissible on account of its
prejudicial impact.
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.
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Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009),
appeal denied sub nom. Commonwealth v. Selenski, 986 A.2d 150 (Pa.
2009) (citations omitted).
It is axiomatic that evidence of prior crimes is not admissible for
the sole purpose of demonstrating a criminal defendant’s
propensity to commit crimes. This rule is not without exception,
however. Evidence may be admissible in certain circumstances
where it is relevant for some other legitimate purpose and not
utilized solely to blacken the defendant’s character. It is well-
established that reference to prior criminal activity of the accused
may be introduced where relevant to some purpose other than
demonstrating defendant’s general criminal propensity. Thus,
evidence of other crimes may be introduced to show
(1) motive; (2) intent; (3) absence of mistake or
accident; (4) a common scheme or plan; and (5)
identity.
Commonwealth v. Melendez–Rodriguez, 856 A.2d 1278,
1283 (Pa. Super. 2004) (internal citations omitted). This evidence
may be admitted, however, “only upon a showing that the
probative value of the evidence outweighs its potential for
prejudice.” Pa. R. E. 404(b)(3).
Commonwealth v. Grzegorzewski, 945 A.2d 237, 239–40 (Pa. Super.
2008), appeal denied, 954 A.2d 575 (Pa. 2008).
The evidence may also be admissible to impeach the credibility of
a testifying defendant; to show that the defendant has used the
prior bad acts to threaten the victim; and in situations where the
bad acts were part of a chain or sequence of events that formed
the history of the case and were part of its natural development.
In order for evidence of prior bad acts to be admissible as evidence
of motive, the prior bad acts must give sufficient ground to believe
that the crime currently being considered grew out of or was in
any way caused by the prior set of facts and circumstances.
Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002), cert. denied, 540
U.S. 850 (2003) (citation omitted).
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Here, Appellant does not allege, let alone prove, Warren’s prior
conviction for PIC almost ten years earlier would establish evidence of motive,
intent, absence of mistake or accident, a common scheme or plan, or identity
in the armed robbery at issue here. Appellant does not assert that the crimes
at issue grew out of or in any other way were caused by the prior set of facts
and circumstances. Nor does he establish any of the other exceptions.
Instead, Appellant presents a pure example of propensity evidence of
the simplest sort: one crime almost ten years before the fact, in unrelated
circumstances, is supposed to show propensity to commit the crimes at issue
in the instant case, specifically, which of the two co-conspirators (rather
gratuitously assuming it could only be one), used a firearm.
The trial court properly exercised its discretion when it denied the
motion in limine, to the extent it excluded cross-examination of Warren about
the previous PIC conviction.2 Appellant’s first issue does not merit relief.
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2Appellant argues his motion in limine should have been granted because the
evidence of a prior conviction for VUFA was “probative” of whether co-
conspirator Warren (not Appellant Booker) was the assailant in this case.
(Appellant’s Brief, at 20). Appellant does not develop an argument that the
prior convictions were admissible as crimen falsi, or that the convictions for
VUFA and PIC involved offenses involving dishonesty or false statement. (See
Appellant’s Brief, at 20-23); see also Pa.R.E. 404(b). The trial court did cite
and discuss Rule 404(b). (See Trial Ct. Op., at 8). As correctly noted by the
Commonwealth, Appellant’s argument on appeal challenging the exclusion of
Warren’s VUFA conviction differs from the issue raised in his Statement of
Errors, which challenged the exclusion of his PIC conviction. (See
Commonwealth’s Brief, at 10; Appellant’s Statement of Errors, at unnumbered
page 2, ¶ 6(a)). The trial court permitted reference to Warren’s “prior
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In his second issue, Appellant challenges the denial of his motion to
suppress the statements he made to Officer McLemore. He claims he should
have received Miranda warnings.3 The trial court found this claim to be
without merit. We agree.
Appellant argues that the trial court should have granted his motion to
suppress because “numerous police officers surrounded” him and questioned
him in the back of an ambulance without providing him Miranda warnings.
(Appellant’s Brief, at 24 (unnecessary capitalization omitted); see also id. at
24-28). Appellant’s claim does not merit relief.
In pertinent part, Miranda provides that:
[T]he prosecution may not use statements, whether exculpatory
or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-
incrimination. By custodial interrogation, we mean
questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.
Miranda, supra at 444 (emphasis added) (footnote omitted).
____________________________________________
gunpoint robbery.” (Trial Ct. Op., at 9). Robbery is a crimen falsi offense.
(See Commonwealth v. May, 898 A.2d 559, 569 (Pa. 2006), cert. denied,
549 U.S. 1022 (2006)). Convictions for PIC and VUFA, not involving
dishonesty or false statement, generally are not. See Pa.R.E. 609; see also
Allen v. Kaplan, 653 A.2d 1249, 1252-53 (Pa. Super. 1995). However, it
bears noting that here all three of the prior convictions at issue (robbery, PIC,
VUFA) involved the same single incident, even though it appears that the
conviction for VUFA was withdrawn at sentencing. We further note that the
jury in this appeal convicted Appellant despite the evidence it heard of
Warren’s prior conviction for gunpoint robbery.
3 See Miranda v. Arizona, 384 U.S. 436 (1966).
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Here, there was no custodial interrogation. Appellant had been shot in
the stomach, was receiving emergency medical treatment, and, by his own
account, “barely clung to life.” (Appellant’s Brief, at 28).
As the trial court aptly observes, “[T]he only restraints upon Appellant’s
freedom were those caused by his medical condition, as opposed to any action
on the part of the police.” (Trial Ct. Op., at 11).
Pertinent authority supports the trial court’s conclusion. See
Commonwealth v. Johnson, 727 A.2d 1089, 1099 (Pa. 1999), cert. denied,
528 U.S. 1163 (2000) (in totality of circumstances, no basis to suppress
voluntary statement from appellant given while in ambulance en route to
hospital for gunshot wound to stomach); see also Commonwealth v. Fento,
526 A.2d 784, 787 (Pa. Super. 1987), appeal denied, 538 A.2d 875 (Pa. 1988)
(finding no custodial interrogation where trooper interviewed driver in hospital
as part of routine accident investigation).
Appellant’s claim that the police suspected him does not establish
custodial interrogation, or require Miranda warnings. “The fact that a police
investigation has focused on a particular individual does not automatically
trigger ‘custody,’ thus requiring Miranda warnings.” Commonwealth v.
Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (emphasis in original) (citing
Fento, supra at 787). The trial court properly denied suppression.
Appellant’s second issue does not merit relief.
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Appellant’s third claim assigns error to the trial court’s denial of his
motion for acquittal, asserting that the evidence against him was “so
unreliable and inconsistent to render the jury’s verdict the product of mere
speculation and conjecture[.]” (Appellant’s Brief, at 4). Appellant concedes
that questions of witness credibility are left to the factfinder, but maintains
nevertheless that Warren’s testimony was unreliable. (See id. at 28-31).
Appellant’s argument merits no relief.
Preliminarily, Appellant’s argument confuses and misapplies our
standard of review for the sufficiency of the evidence with the standard of
review for a challenge to the weight of the evidence. As aptly noted by the
Commonwealth, Appellant’s argument is really a weight claim framed as a
sufficiency claim. (See Commonwealth’s Brief, at 32-34).
A true “weight of the evidence” claim contends the verdict
is a product of speculation or conjecture. Such a claim requires
a new trial only when the verdict is so contrary to the evidence as
to shock one’s sense of justice. A decision regarding the weight
of the evidence is within the sound discretion of the trial judge
whose decision will not be reversed on appeal absent an abuse of
that discretion.
Commonwealth v. Beckwith, 674 A.2d 276, 281 (Pa. Super. 1996)
(emphasis added) (citations omitted).
A challenge to the weight of the evidence must generally be preserved
by a motion for a new trial. See Pa.R.Crim.P. 607. The Rule provides:
Rule 607. Challenges to the Weight of the Evidence
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(A) A claim that the verdict was against the
weight of the evidence shall be raised with the trial
judge in a motion for a new trial:
(1) orally, on the record, at any time before
sentencing;
(2) by written motion at any time before
sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A)(1)-(3).
“As noted in the comment to Rule 607, the purpose of this rule is to
make it clear that a challenge to the weight of the evidence must be raised
with the trial judge or it will be waived.” Commonwealth v. Gillard, 850
A.2d 1273, 1277 (Pa. Super. 2004), appeal denied, 581 Pa. 672, 863 A.2d
1143 (2004).
A claim challenging the weight of the evidence generally cannot be
raised for the first time in a Rule 1925(b) statement. See
Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa. Super. 2003). An
appellant’s failure to avail himself of any of the prescribed methods for
presenting a weight of the evidence issue to the trial court constitutes waiver
of that claim, even if the trial court responds to the claim in its Rule 1925(a)
opinion. See id.
Here, on the record before us, Appellant failed to challenge the weight
of the evidence before the trial court in a motion for a new trial. See
Pa.R.Crim.P. 607. Rather, he raised his weight claim for the first time in his
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Rule 1925(b) statement. See Burkett, supra at 1037. As such, his weight
issue on appeal is waived. See Gillard, supra at 1277.4
Furthermore, we note that the trial court did review the weight of the
evidence and concluded that the verdict of the jury did not shock one’s sense
of justice. (See Trial Ct. Op., at 20-23). On independent review, we discern
no basis on which to disturb the conclusion of the trial court. Appellant’s
weight claim is waived and would not merit relief.
Appellant’s implicit challenge to sufficiency of the evidence, requesting
a judgment of acquittal, would fare no better. When examining a challenge
to the sufficiency of evidence, our standard of review is well-settled:
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted
at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
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4 Moreover, Appellant’s Rule 1925(b) statement of errors contains only a
boilerplate challenge to the weight of the evidence. (See Statement of Errors,
9/23/16, at ¶ 6(e)(2)). It would be waived for that reason as well. See
Commonwealth v. Seibert, 799 A.2d 54, 62 (Pa. Super. 2002).
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[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011), appeal
denied, 32 A.3d 1275 (Pa. 2011) (citation omitted).
In this appeal, Appellant fails to develop an independent argument for
insufficiency, relying instead on his challenge to Warren’s credibility. He does
not particularize his claim for any specific conviction, and he disregards the
proper standard of review. Accordingly, Appellant’s sufficiency claim is
waived.
Moreover, the trial court reviewed Appellant’s challenge to the
sufficiency of the evidence and found no basis to disturb the verdict of the
jury. (See Trial Ct. Op., at 11-15).
On independent review, viewing the evidence in the light most favorable
to the Commonwealth as verdict winner, together with all reasonable
inferences, we would conclude that the evidence was sufficient for all
convictions. Appellant’s third challenge is waived and would merit no relief.
On his fourth and final claim, Appellant claims he is entitled to a new
trial on the basis of after-discovered evidence. We disagree.
After-discovered evidence is the basis for a new trial when it: 1)
has been discovered after the trial and could not have been
obtained at or prior to the conclusion of trial by the exercise of
reasonable diligence; 2) is not merely corroborative or
cumulative; 3) will not be used solely for impeaching the
credibility of a witness; and 4) is of such nature and character that
a new verdict will likely result if a new trial is granted. Further,
the proposed new evidence must be “producible and admissible.”
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Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011), cert. denied,
566 U.S. 986 (2012) (citations omitted).
Here, Appellant’s “new evidence” is the more lenient sentence imposed
on Warren. (See Appellant’s Brief, at 32-35). In his argument, Appellant
denies that the “after-discovered evidence,” of Warren’s lighter sentence
would be used solely to impeach his credibility. He maintains the evidence
would also show “bias” and “motive to lie.” (Id. at 34). Appellant’s argument
fails.
Impeachment evidence is evidence which is presented as a
means of attacking the witness’ credibility. Leonard Packel & Anne
Poulin, Pennsylvania Evidence § 608 (1987). There are several
principal ways to attack a witness’ credibility: evidence offered to
attack the character of a witness for truthfulness, evidence offered
to attack the witness’ credibility by proving bias, interest, or
corruption, evidence offered to prove defects in the witness’
perception or recollection, and evidence offered to contradict the
witness’ testimony.
Commonwealth v. Palo, 24 A.3d 1050, 1055–56 (Pa. Super. 2011), appeal
denied, 34 A.3d 828 (Pa. 2011) (case citation and internal quotation marks
omitted).
Showing bias and motive to lie are simply different methods of attacking
the credibility of a witness, that is, other ways to impeach. Here, Appellant
fails to establish that the purported after-discovered evidence would be used
for any purpose other than to impeach. Furthermore, it would merely be
corroborative of trial testimony which extensively examined Warren’s motive
to present testimony favorable to the Commonwealth. Finally, contrary to
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Appellant’s claim, there is no objective basis to conclude that further cross-
examination of Warren’s motive to testify, already heard and considered by
the jury, would “likely result” in a new verdict. (Appellant’s Brief, at 34).
Appellant’s fourth issue does not merit relief.
Although our reasoning differs somewhat from that of the trial court, we
may affirm if the order below is correct for any reason. See Commonwealth
v. Allsup, 392 A.2d 1309, 1311 (Pa. 1978).
Judgment of sentence affirmed.
Judge Ott joins the Memorandum.
Judge Lazarus files a Concurring Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/18
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