Com. v. Holston, M.

J-S60040-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL TYRELL HOLSTON
Appellant No. 223 MDA 2014
Appeal from the PCRA Order January 15, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005167-2009
BEFORE: OTT, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 28, 2014
Michael Holston appeals from an order denying his amended petition
for relief under the Post Conviction Relief Act (“PCRA”)1. We affirm.
On January 28, 2011, a jury found Holston guilty of first degree
murder2 and two counts of firearms not to be carried without a license 3. The
trial court sentenced Holston to life imprisonment for first degree murder
and to concurrent terms of 3-7 years’ imprisonment on each firearm count.
Holston filed post-sentence motions, which the trial court denied, and
then a direct appeal. On August 17, 2012, the Superior Court affirmed
Holston’s judgment of sentence. On February 1, 2013, Holston timely filed a
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1
42 Pa.C.S. § 9541 et seq.
2
18 Pa.C.S. § 2502.
3
18 Pa.C.S. § 6106.
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pro se PCRA petition in the trial court. The court appointed counsel to
represent Holston, and counsel filed an amended PCRA petition.
On November 1, 2013, the court issued a notice of intent to dismiss
Holston’s amended PCRA petition without a hearing. On January 14, 2014,
the court issued an order dismissing Holston’s petition. Holston filed a
timely notice of appeal and timely Pa.R.A.P. 1925(b) statement.
The trial court summarized the evidence adduced during trial as
follows:
Moshe Cohen, a longtime friend of the victim,
seventeen year old David Carr, testified that on July
30, 2009, he and Carr went to the 1900 Block of
State Street in Harrisburg to try to buy marijuana
from a person known as Source. (Transcript of
Proceedings, Jury trial, January 24, 2011-January
28, 2011, pp. 141-142) (hereinafter, ‘N.T.’) Source
was not around. The Defendant Michael Holston
spoke with them, and told them that he could get
them a half pound of marijuana. (N.T. p. 144).
Cohen made arrangements with a few other friends
to pool their money to buy the half pound, and gave
it to Carr. (N.T. p. 149). Two days later, on August
2, Cohen met Carr at the Burger King on Cameron
Street to obtain the marijuana. The Defendant and a
friend of Carr's, Ashton Dickerson, were in Carr's
vehicle. (N.T. p. 151) When Carr and Cohen
returned home and weighed the marijuana, it
weighed 5 ounces, not the 8 ounces for which they
paid Holston. Carr took the shorted portion for
himself. (N.T. p. 154). Later, on August 7, Carr
spoke to Moshe about his intention to visit Defendant
the next day and get money back for the shortage.
Moshe discouraged him from doing so. (N.T. pp.
158-159).
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Video footage taken August 8, 2009, from a nearby
restaurant store, shows David Carr's vehicle pull up
to 1900 North Street. (N.T. p. 413) A person
approached the vehicle; Carr waited in his vehicle for
about 17 minutes, then got out of his car and walked
to 1905 North Street, near Defendant's address.
(N.T. pp. 415-417)
Tanaya Scott lived at 1907 North Street. (N.T. p.
232) She knew Defendant and spoke with him
frequently. On the morning of August 8, 2009, Scott
spoke to the Defendant and saw him smoking ‘water’
or ‘wet’ (embalming fluid) at 8:30 or 9:00 a.m., and
also about an hour before the shooting. (N.T. p. 241)
Scott testified that it was common for Defendant to
smoke water daily. Id. That afternoon, before the
shooting, although Scott testified that Defendant was
‘bouncing around’ and talking a lot, he walked the
dog with her son. (N.T. p. 243) When he returned,
Defendant took off his necklace, gave it to Scott's
son, and told him he was a ‘good boy’. (N.T. p. 244)
Shortly before the shooting, Scott overheard
Defendant talking on the phone and heard him say,
‘I'm sorry. I know I got you waiting.’ (N.T. p. 246)
Scott observed that Defendant had a handgun in his
right top pocket, and something heavy in his cargo
pants pocket, which he touched frequently. (N.T. pp.
246-247)
Scott observed Defendant walk to the front of the
building, and return with David Carr. (N.T. p. 250).
Defendant introduced Carr to Scott; Defendant joked
that Carr was short, like him, but had big feet. (N.T.
p. 250) Scott went into her house.
From her bathroom window, Scott could see down
into the alley between 105 and 1907 North Street.
(N.T. p. 251) She heard loud talking, and heard Carr
say, ‘Stop playing,’ to which the Defendant replied,
"No M-----F-----." She then heard running. (N.T. p.
252) In a written statement to police, Scott stated
that she saw Defendant chasing Carr down the alley
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with his arm outstretched. (N.T. p. 255). She next
heard gunshots.
Rabia Kouzouni testified, through an interpreter, that
at the time of the shooting, she was taking her trash
out from the kitchen door of her house at the 1900
block of State Street. (N.T. p. 220) From her
window, Mrs. Kuzouni saw people arguing, one in a
very loud voice. (N.T. pp. 222-223) She could see
that the two people were standing "too close... very
close". (N.T. p. 223) She heard someone say
something, which she did not understand4. As Mrs.
Kouzouni began to take out the trash, she heard
gunshots, and retreated inside. (N.T. p. 225) She
hid inside, and heard the sound of someone running.
(N.T. p. 226) She remained in the kitchen, and
looked outside to see someone lying down. (N.T. p.
226)
Ed Polston testified that he knew Defendant through
Defendant's visits to Polston's sister's house at 1900
North Street. Polston went to his sister's house on
the day of the shooting. When he arrived, someone
told him that a person had been shot, and to get in
the house. (N.T. p. 228) As Polston sat on the
couch, the Defendant tried to put a gun in Polston's
pocket, saying something to the effect of ‘just take
this’ to which Polston responded ‘No.’ (N.T. p. 290)
Polston and the Defendant then spoke briefly about a
mutual friend who owed Polston five dollars. (N.T. p.
291) The Defendant then left, and went to the store.
(N.T. pp. 292-293)
Monique Winston was also at 1900 North Street
when she heard that something bad had happened.
(N.T. p. 303) After police arrived at the alley, she
went onto the balcony and watched what was
occurring on the street. (N.T. p. 305) Within
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4
Her son, who is fluent in English, later translated the word Mrs. Kuzouni
heard to be "please, as to beg someone" (N.T. p. 223).
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minutes, the Defendant arrived at her house, came
into the living room and spoke with Ed Polston. (N.T.
pp. 305-306) Ms. Winston asked Defendant if she
could go look out of Defendant's bedroom window, to
be able to see where the body was lying. (N.T. p.
312) Defendant stopped talking, and gave her a
blank stare. (N.T. p. 312) Defendant then left the
house, crossed the street, and entered the
restaurant store. (N.T. p. 307) As Ms. Winston
watched police lead Defendant out of the store,
Defendant yelled to her, ‘Mo, call my mom. Don't
worry about me. I'll be back. I'm extra wavy.’ 5 (N.T.
p. 308)
Monique Winston testified that during the time she
dated Defendant, she smoked wet with him three or
four times a day, and that the effects lasted about
forty five minutes, then they would have to smoke it
again to get high. (N.T. p. 310) When Defendant
was on wet, he could function, and was not out of
control or violent. (N.T. p. 311; N.T. pp. 313-314)
Ed Polston's sister, Monique Polston, was also at
1900 North Street at around 4:30 p.m. on the day of
the shooting. (N.T. p. 319) Soon after she heard
that someone had been shot, Defendant arrived.
When Ms. Polston asked him what happened, he said
he didn't know, that gunshots awoke him, and asked
for a cigarette. (N.T. p. 322) Ms. Polston asked him
about the twenty dollars he owed her, to which he
responded he would pay her later. (N.T. p. 323)
Defendant spoke and walked normally, although he
seemed nervous. (N.T. pp. 323-324)
At approximately 4:35 p.m., while working the 3
p.m. to 11 p.m. shift in the Allison Hill area,
Sergeant Steven Novacek of the Harrisburg Police
received a call of shots fired with a person down at
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5
A slang term from a rap song, which witnesses testified Defendant
frequently used, purportedly meaning ‘cool’ (N.T. p. 309).
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19th Street and Miller Alley. (N.T. pp. 70-71) Officer
Novacek exited his vehicle and walked up the
alleyway toward the person down. (N.T. p. 74-75)
There, Officer Novacek saw a young white male, in
a kneeling position, bent backwards, obviously
deceased. (N.T. pp. 75-76) Other officers began
responding, preserving the scene, and collecting
evidence. (N.T. p. 78)
Officer Kenneth Young of the Harrisburg Police,
assigned to a robbery task force, also received a call
regarding a shooting at the 1900 Block of Miller
Street, with one person deceased. (N.T. pp. 83-84)
After arriving at the scene, Officer Young assisted
with canvassing neighbors to ask what they may
have heard or observed. (N.T. pp. 87-88) Two
people indicated that the shooter went into 1900
North Street. (N.T. pp. 88-89) Officer Young
observed a person who fit the description of the
shooter, later identified as the Defendant, exit the
residence, cross the street and enter a store. (N.T.
pp. 91-92; N.T. p. 130) Officer Young entered the
store. When police spoke to him, the Defendant
asked the officer to ‘hold on’ while he paid for his
food. (N.T. p. 94) When asked for identification,
Defendant stated that he had a gun in the pocket of
his cargo pants, and that the gun was registered.
(N.T. p. 95) Defendant then twisted his body to
evade search of his right pocket, in which police
found another gun which had live bullets in the
magazine and one in the chamber. (N.T. pp. 94-95;
p. 120; p. 131) [Officer Young] stated that
Defendant followed the officers’ simple commands,
walked and talked normally, and did not exude the
pungent odor of PCP. (N.T. pp. 102-103; N.T. p.
124) Inside the store, Defendant cooperated with
police. (N.T. p. 100) As Police loaded Defendant in
the police van, Defendant yelled to people watching
to call his mother, and shouted a phone number.
(N.T. p. 325)
Detective Donald Heffner of the Criminal
Investigation Division of the Harrisburg Police
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Department responded to the crime scene at about
4:50 p.m. (N.T. p. 464) After securing the crime
scene and assisting officers who apprehended
Defendant, Detective Heffner next saw Defendant in
the booking room. (N.T. p. 469) Defendant had a
tissue or paper towel and was attempting to wipe his
hands. Concerned that Defendant was removing gun
residue and or blood from his hands, Detective
Heffner took the tissue from Defendant. (N.T. p.
471) Defendant was ‘passive aggressive’, in that he
reluctantly followed commands. (N.T. p. 472)
Detective Heffner did not seek permission to obtain a
blood sample, in that he did not believe Defendant
was intoxicated. (N.T. p. 473) When Detective
Heffner told Defendant that he would be charged
with possession of handguns, Defendant blurted out,
falsely, that one of the guns belonged to his mother,
and that he had a permit for it. (N.T. pp. 473-474)
Investigator William Kimmick of the Harrisburg Police
had contact with Defendant in the booking area at
approximately 8 p.m. on the night of the shooting,
for the purpose of obtaining swabs from his hands to
test for gunshot residue. (N.T. p. 403) Defendant
did not appear to be under the influence, and was
not argumentative, although he ignored commands.
(N.T. p. 404)
Wayne Ross, M.D., a forensic pathologist, testified
that he conducted an autopsy of David Carr and
determined the cause of death as multiple gunshot
wounds to the top of the head. Eight bullets entered
the head, six penetrated the skull. (N.T. p. 197) Dr.
Ross reviewed a photograph of the position of the
victim at the crime scene. Dr. Ross opined that the
victim was shot from approximately [2 to 3 feet], as
evidence by ‘stippling’, abrasions to the skin caused
by gunshot residue. (N.T. pp. 200-202) The wounds
were consistent with an ‘execution style’ killing, that
is, within a few feet, over the top of the head, and
directly to the brain or skull. (N.T. p. 204)
The defense called Lawrence Guzzardi, M.D., as an
expert toxicologist. Dr. Guzzardi testified that based
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upon his understanding of the amount of
formaldehyde the Defendant smoked, as related to
him by Defendant, he did not believe that Defendant
was capable of forming the specific intent to commit
murder, (N.T. p. 662).
Trial Court Opinion, pp. 2-7.
In his first issue on appeal, Holston argues that his constitutional
rights were violated because the police failed to give him Miranda6 warnings
before obtaining his custodial statement. Holston has waived this issue by
failing to raise it in his original and amended PCRA petitions.
Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super.2013) (Defendant
waived claims of ineffective assistance of trial counsel on appeal of dismissal
of PCRA petition, where defendant failed to raise the claims in his PCRA
petition).
In his second issue on appeal, Holston argues that trial counsel was
ineffective for failing to object to the admission of a photograph depicting
the victim as it was discovered by the first responding police officer,
Sergeant Novacek. We disagree.
In order to prevail on a claim of ineffective counsel, the appellant must
demonstrate that: (1) the underlying claim is of arguable merit; (2) that
defense counsel's action or inaction was not grounded on any reasonable
basis designed to effectuate the appellant's interest; and, (3) that the
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6
Miranda v. Arizona, 384 U.S. 436 (1966).
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appellant suffered prejudice because of the ineffective assistance of counsel.
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987). lf it is clear that an
appellant has not met the prejudice prong of the ineffectiveness standard,
the claim may be dismissed on that basis alone. Commonwealth v.
Travaglia, 661 A.2d 352, 357 (1995); see also Strickland v.
Washington, 466 U.S. 668, 697 (1984).
Under Pierce, the first inquiry is whether the claim that the
photograph admitted into evidence was inflammatory must be of arguable
merit. The viewing of photographic evidence in a murder case is, by its
nature, a gruesome task. However, photographs of a corpse are not
inadmissible per se. Commonwealth v. Hetzel, 822 A.2d 747, 765
(Pa.Super.2003). Rather, the admission of such photographs is a matter
within the discretion of the trial judge. Commonwealth v. Tharp, 830
A.2d 519, 531 (Pa. 2003). The court must conduct a two-part test to
determine admissibility. First, it must decide if the photograph is
inflammatory. If not, the photograph is admissible if it is relevant and can
assist the jury's understanding of the facts. lf it is inflammatory, the trial
court must decide whether or not the photograph is of such essential
evidentiary value that its need clearly outweighs the likelihood of inflaming
the minds and passions of the jurors. Id. In order for a photograph to be
deemed inflammatory, "the depiction must be of such a gruesome nature or
be cast in such an unfair light that it would tend to cloud an objective
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assessment of the guilt or innocence of the [appellant]." Commonwealth
v. Dotter, 589 A.2d 726, 729 (Pa. Super. 1991). The visibility of blood in a
photograph, however, does not necessarily require a finding that the
photograph is inflammatory. Commonwealth v. Crawely, 526 A.2d 334,
341 (Pa. 1987). Furthermore, the condition of the victim's body provides
evidence of the assailant's intent, and even where a medical examiner’s
testimony can describe the body's condition, such testimony does not
obviate the admissibility of photographs. Commonwealth v. Rush, 646
A.2d 557, 560 (Pa. 1994).
Here, the photograph at issue depicted the position of the victim's
body when Sergeant Novacek discovered it. The sergeant testified that the
photograph at issue showed "what [he] observed as [he] walked up to the
wooden fence where the victim was located. It shows the victim in his final
resting place that day...his knees bent toward the north, toward the street,
and his legs underneath him." (N.T. 75-76). The sergeant confirmed that the
photograph was a fair and accurate depiction and displayed exactly how he
found the victim's body. (N.T. 76). Despite its gruesome nature, this
photograph provided evidence of Holston's intent to murder the victim and
assisted the jury in understanding the circumstances of the execution style
murder. Therefore, the photograph was relevant in corroborating Sergeant
Novacek's testimony as the first responding officer, and it assisted the jury
in understanding the circumstances of the murder and Holston's specific
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intent to kill. Holston's claim that it was inflammatory is without arguable
merit.
In his third and final issue on appeal, Holston contends that appellate
counsel was ineffective for failing to challenge the sufficiency of the evidence
on direct appeal. Holston argues that the evidence of his intoxication
negated the Commonwealth’s evidence that he had specific intent to kill the
victim, thus nullifying his conviction for first degree murder. We disagree on
the ground that this claim lacks arguable merit.
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 [finder] 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. Devine, 26 A.3d 1139, 1145 (Pa.Super.2011).
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To sustain a conviction of first-degree murder, the Commonwealth
must prove beyond a reasonable doubt that: (1) a human being was killed;
(2) the accused caused the death; and (3) the accused acted with malice
and a specific intent to kill. Commonwealth v. Chine, 40 A.3d 1239, 1242
(Pa. Super. 2012). The Commonwealth may prove the specific intent to kill
with circumstantial evidence. For instance, the use of a deadly weapon on a
vital part of a victim's body is sufficient to establish the specific intent to kill.
Commonwealth v. Fletcher, 861 A.2d 898, 907 (Pa. 2004). "The
existence of legal malice may be inferred and found from the attending
circumstances of the act resulting in the death." Commonwealth v.
Gardner, 416 A.2d 1007, 1008 (Pa. 1980). "It is well settled that specific
intent to kill, as well as malice, may be inferred from the use of a deadly
weapon upon a vital part of the victim's body.” Id.
The defense of intoxication is set forth in 18 Pa.C.S. § 308:
Neither voluntary intoxication nor voluntary drugged
condition is a defense to a criminal charge, nor may
evidence of such conditions be introduced to
negative the element of intent of the offense, except
that evidence of such intoxication or drugged
condition of the defendant may be offered by the
defendant whenever it is relevant to reduce murder
from a higher degree to a lower degree of murder.
Id. Evidence of intoxication may be offered by a defendant to reduce
murder from a higher degree to a lower degree. Id. Intoxication, however,
may only reduce murder to a lower degree if the evidence shows that the
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defendant was “overwhelmed to the point of losing his faculties and
sensibilities.” Commonwealth v. Breakiron, 571 A.2d 1035, 1041
(Pa.1990). The value of such evidence is generally for the finder of fact,
who is free to believe or disbelieve any, all, or none of the testimony
addressing intoxication. Commonwealth v. Fletcher, 861 A.2d 898, 908
(Pa.2004).
The Commonwealth presented sufficient evidence at trial to prevail
over an intoxication defense. The victim's died from multiple gunshot
wounds to the head at close proximity in an execution style murder. (N.T.
197, 204). Multiple witnesses saw Holston with the victim moments before
the killing. (N.T. 222-24, 249-50). Although Holston's trial counsel
presented evidence to support his intoxication defense through a
toxicologist, Dr. Lawrence Guzzardi (N.T. 614-735), the Commonwealth
presented multiple witnesses who described that Holston did not exhibit
overt displays of intoxication. (N.T. 102-03, 124-25, 323-24, 365, 403-04
472-73, 503-05, 511-12). Finally, Edward Polston testified that Holston
tried to give him the murder weapon shortly after the killing, thus displaying
Holston's awareness of the criminality of his actions in murdering the victim.
(N.T. 290-91).
For these reasons, Holston’s claim that his appellate counsel provided
ineffective assistance is devoid of substance.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2014
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