Com. v. Maze, B.

J-S43013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRANDON JALON MAZE :
:
Appellant : No. 183 MDA 2019
Appeal from the Judgment of Sentence Entered October 24, 2018
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000342-2017
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED NOVEMBER 07, 2019
Appellant, Brandon Jalon Maze, appeals from the judgment of sentence
entered in the Franklin County Court of Common Pleas, following his jury trial
convictions for aggravated assault and conspiracy to commit first-degree
murder.1 We affirm.
In its opinion, the trial court accurately set forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises the following issues for our review:
DID THE COMMONWEALTH INTRODUCE SUFFICIENT
EVIDENCE TO CONVICT [APPELLANT] OF AGGRAVATED
ASSAULT AND CRIMINAL CONSPIRACY TO COMMIT FIRST
DEGREE MURDER?
WERE THE JURY VERDICTS OF GUILTY TO COUNT 1
AGGRAVATED ASSAULT AND COUNT 3 CRIMINAL
____________________________________________
1 18 Pa.C.S.A. §§ 2702(a)(1); 903 (2502(a) related), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S43013-19
CONSPIRACY TO COMMIT FIRST DEGREE MURDER AGAINST
THE WEIGHT OF THE EVIDENCE SUCH THAT IT SHOCKS
THE CONSCIENCE?
DID THE TRIAL COURT ABUSE ITS DISCRETION BY FAILING
TO SUFFICIENTLY COLLOQUY THE JUROR WHO IS
BELIEVED TO HAVE FALLEN ASLEEP DURING THE
PROCEEDINGS OUTSIDE THE PRESENCE OF OTHER JURORS
OR [QUESTION] THE OTHER JURORS REGARDING THE
“SLEEPING JUROR” TO DETERMINE WHETHER A MISTRIAL
SHOULD BE DECLARED?
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
ADMITTING HEARSAY OF THE ALLEGED VICTIM…UNDER
THE EXCITED UTTERANCE STANDARD WHEN HE HAD
SUFFICIENT TIME AND AFORETHOUGHT TO LIE TO THE
POLICE REGARDING HIS OWN IDENTITY?
WAS [APPELLANT’S] RIGHT TO CONFRONT HIS
ACCUSER…VIOLATED BY THE ADMISSION OF THE ALLEGED
VICTIM’S STATEMENTS TO POLICE WITHOUT [VICTIM’S]
TESTIMONY AT TRIAL?
(Appellant’s Brief at 10-11).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Jeremiah D.
Zook, we conclude Appellant’s issues merit no relief. The trial court opinion
accurately discusses and properly disposes of the questions presented. (See
Trial Court Opinion, filed March 15, 2019, at 12-20; 22-36) (finding: (1) (at
24-32) Joseph King testified that Appellant’s co-defendant, Anthony Cobb,
directed him and others to search for “Black,” who was responsible for
stabbing Mr. Cobb; after locating person he believed to be Black, Mr. King
notified Mr. Cobb and met up with Mr. Cobb, Ryan Troskoski, and Appellant;
Appellant and Mr. King began to look for Black and stopped a hooded male
-2-
J-S43013-19
(Victim); Appellant aggressively went after Victim, who Appellant thought was
Black, and Victim ran; Appellant raised his right arm and fired shots at Victim;
this evidence was sufficient to sustain Appellant’s aggravated assault
conviction; further, both Mr. King and Mr. Troskoski testified they met up with
Appellant and Mr. Cobb under mutual understanding that they were going to
search for and kill person responsible for stabbing Mr. Cobb; Commonwealth
presented sufficient evidence to sustain Appellant’s conspiracy conviction; (2)
(at 32-35) Appellant’s focus on height of bullet holes in surrounding buildings
as alleged evidence of Appellant’s lack of intent would require jury (and this
court on weight claim) to ignore significant evidence of contrary intent;
evidence showed goal shared by Appellant, Mr. King, Mr. Troskoski, and Mr.
Cobb, was to hunt down person responsible for stabbing Mr. Cobb; evidence
presented significantly outweighed any argument concerning height of bullet
holes or fact that Victim was not actually injured; verdicts did not shock court’s
conscience; (3) (at 22-24) on first day of trial, court observed Juror #4 having
trouble paying attention; court asked juror if he was having trouble staying
awake and juror responded “no”; court asked if juror wanted to take break to
get cup of coffee or stretch legs; court stressed importance of paying attention
and asked if juror was sure he was awake; juror said he did not need coffee
or break and was sure he was awake; to extent Appellant complains court did
not colloquy juror, record belies that contention; to extent Appellant claims
colloquy was insufficient, Appellant did not object at that time and did not ask
-3-
J-S43013-19
court to remove juror or move for mistrial, so issue is waived; moreover, juror
responded convincingly that he was okay to proceed; (4) (at 12-20) Victim
did not testify, so Commonwealth called Officer Sanders to testify concerning
statements Victim made to him; Officer Sanders had responded to scene of
shooting, where officer noted Victim was very emotional, upset, and was
breathing heavily; Officer Sanders had trouble getting information from Victim
due to Victim’s emotional state; Officer Sanders’ discussion with Victim
occurred within minutes of shooting; Appellant objected on hearsay grounds
to Officer Sanders’ testimony about his discussion with Victim; court permitted
Officer Sanders’ testimony under excited utterance hearsay exception;
circumstantial evidence established shooting had occurred; two of Appellant’s
cohorts also testified for Commonwealth and detailed Appellant’s involvement
in shooting; record contains no evidence that Victim spoke to others about
shooting before Victim discussed shooting with Officer Sanders; (5) (at 35-
36) Appellant objected to Officer Sanders’ testimony regarding Victim’s
statements solely on hearsay grounds, so alleged Confrontation Clause
violation claim is waived). Accordingly, we affirm on the basis of the trial
court’s opinion.
Judgment of sentence affirmed.
-4-
J-S43013-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2019
-5-
Circulated 10/15/2019 12:39 PM
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL
DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY
COMMONWEALTH OF PENNSYLVANIA CRIMINAL ACTION
CP-28-CR-0000342-2017
v.
JUDGE JEREMIAH D. ZOOK
BRANDON JALON MAZE,
DEFENDANT
OPINION SUR. PA.R.A.P. 1925(a)
I. FACTUALBACKGROUND
On April 20, 2016, a melee occurred near the Waynesboro
Police Department, in the Borough of Waynesboro, Franklin
County. A number of individuals were involved, and the incident
was chaotic. The Defendant's co-defendant, Anthony Cobb (AKA:
Ant), was present and involved in the melee.
During the melee, an individual known as "Black" approached
Cobb and stabbed/ slashed him with a knife. Cobb responded by
pulling out a firearm, chasing Black, and firing a shot at him.
Corporal Stewart Hannah of the Waynesboro Police
Department was at the time of this incident transporting a juvenile
in an unrelated matter. While he was walking with the juvenile,
Filed MAR 1_5 __ 2019
Cpl. Hannah heard an emergency dispatch regarding the fight near
the police department. Cpl. Hannah returned the juvenile to the
department, and then proceeded towards the location of the melee.
An African-American male approached Cpl. Hannah and
advised he had been shot. The man was identified as Jermain
Jenkins. Cpl. Hannah quickly checked Jenkins for injury, and
finding none, directed him to remain at the rear of the police
station. Cpl. Hannah proceeded on to the location of the melee a
few doors down from the station.
Cpl. Hannah began to question individuals at the scene, and
also located a spent shell casing in the area. The shell was from a
9mm gun. Police subsequently located a bullet hole in a nearby
residence. They also located a sheath for a knife in a nearby alley.
That same evening, Joseph King, an associate of Cobb and the
Defendant, heard that Cobb had been the victim of an attempted
robbery. King knew Cobb to have the street name "Ant." King
made contact with Cobb. Cobb relayed that somebody had tried to
rob him and stabbed him. Cobb advised King that Cobb pulled a
gun and fired a shot after being stabbed.
2
Cobb directed King to look for the people responsible for his
stabbing. Cobb was angry and upset about the situation, and if
King located the individual known as "Black," he was to notify
Cobb. King then began to search for the "Black."
That same evening, King spotted a couple of individuals in the
area of the Rotary parking lot, off of Potomac Street in the Borough.
He approached them and had some minimal contact with them. At
that point, King believed these were the individuals responsible for
stabbing/robbing Cobb. He notified Cobb by phone.
A few minutes later, Cobb arrived at the Rotary parking lot in
a vehicle driven by Ryan Troskoski. Cobb was in the front
passenger seat and the Defendant was in the rear seat. King
entered the vehicle and Cobb handed him a 9mm gun. King
understood at that time to use the gun to go after the people
responsible for Cobb's stabbing.
Troskoski drove them to another location nearby; King and the
Defendant exited the vehicle. They entered an alley near the
Rutter's gas station and observed an individual, later identified as
Corey Ballard, wearing a hood. The Defendant aggresively called for
Ballard to come over to him; Ballard immediately fled the area. The
3
Defendant gave chase. Ballard hopped over a fence and King saw
the Defendant raise his right arm and saw a fl.ash from the muzzle
of a firing gun. King turned to run away and heard several more
gun shots. King fled the area; the Defendant caught up with King
shortly. They did not exchange many words, parting ways shortly
thereafter.
King made contact with Cobb at a later time; at that point he
learned that the Defendant had shot at the wrong person, i.e.,
mistaken identity. King returned the firearm to Cobb. King also
had subsequent contact with the Defendant. The Defendant was
angry with King that he had not fired his gun at Ballard.
Troskoski, for his part, lived with Cobb on April 20, 2016. On
that date, he spoke with Cobb and observed Cobb's injury from the
stabbing. Cobb related to him that he had fired his gun at the man
who stabbed him. When Cobb learned from King that "Black" was
near Rutter's that evening, he directed Troskoski to go to the
storage unit and retrieve a duffel bag containing handguns.
Troskoski took the handguns to the Rotary parking lot. King,
Cobb, and the Defendant all met Troskoski at the parking lot. Cobb
gave a gun to King and a gun to the Defendant. Everyone
4
understood this to mean they were going to shoot the person
responsible for stabbing Cobb. They drove to an alley near Rutter's
and King and the Defendant exited the vehicle. Cobb directed
Troskoski to drive back past Rutters and pull off. As he was doing
this, Troskisi heard five gunshots.
Cobb directed Troskoski back to the area where King and the
Defendant had exited the vehicle. They made contact with the
Defendant in that area; the Defendant was upset that King had not
fired his gun. The Defendant confirmed to Troskoski that the
gunshots he heard were from the Defendant.
At some point later in the investigation, Cobb was interviewed
by the Waynesboro Police. Cobb admitted to being involved in the
melee near the police station, and to being stabbed. However, he
denied possessing or firing a gun. Cobb did admit that, if hehad a
gun when he was stabbed, he would have ran down the person
responsible and killed them.
Shortly after the Defendant shot at Ballard, the police made
contact with Ballard at the Rutter's store. Ballard was emotional
and upset to the point he could hardly explain to the police what
had just occurred. Officer Steven Sanders spoke with Ballard and
5
then began an investigation of the scene. During his investigation
the following morning,1 several bullet holes/impacts were observed
in the surrounding buildings/ infrastructure.
On April 25, 2016, Officer Sanders was flagged-down while on
patrol by Diane Hamilton, a resident in the area of the shooting
involving the Defendant and Ballard. She had heard the gunshots
on the night in question. She showed Officer Sanders some
clothing that she had discovered in her trashcan. This clothing was
taken into evidence. Subsequent DNA testing of the clothing
revealed a match to a known sample of DNA taken from the
Defendant.
After charges were filed against Cobb, King, Troskoski, and the
Defendant, Cobb wrote several letters to individuals associated with
his co-defendants. These letters revealed incriminating evidence
against Cobb
II. PROCEDURAL HISTORY
On August 1, 2016, the Waynesboro Police Department filed a
Police Criminal Complaint charging the Defendant with Attempted
1 At the time of the shooting, it was dark. The police returned to the area the following morning
to conduct a more extensive investigation of the scene.
6
Murder of the Third Degree.? Persons Not to Possess Firearms,3
Solicitation to Commit Murder of the Third Degree, 4 and Conspiracy
to Commit Murder of the Third Degree." An arrest warrant was
issued for the Defendant's apprehension.
On October 28, 2016, the Defendant was brought before the
Magisterial District Judge; the MDJ denied bail and committed the
Defendant to the Franklin County Jail to await further proceedings.
After a number of continuances, a preliminary hearing was held on
February 14, 2017; all charges were bound over to this court for
trial. Prior to the preliminary hearing, the Commonwealth filed a
Notice of Joinder, joining this matter with the charges against the
co-defendants Anthony Michael Cobb and Joseph Lee King for one
trial.
On March 22, 201 7, the Commonwealth filed a three-count
Information. charging the Defendant with: 1) Criminal Attempt -
Murder of the First Degree6; 2) Possession of Firearm Prohibited";
2 18 Pa.C.S. § 901(a); 18 Pa.C.S. § 2502(c)
3 18 Pa.C.S. § 6105(a)(l)
4 18 Pa.C.S. § 902(a); 18 Pa.C.S. § 2502(c)
s 18 Pa.C.S. 903; 18 Pa.C.S. § 2502(c)
6 18 Pa.C.S. § 901(a); 18 Pa.C.S. § 2502(a)
7 18 Pa.C.S. § 6105(a)(l)
7
and 3) Conspiracy - Murder of the First Degree.8 That same date,
the Defendant entered pleas of not guilty.
After a number of pre-trial hearings not relevant to this
appeal, this matter came before the court for a pretrial conference
on September 29, 2017. At that time, the Defendant was granted
leave to file a motion seeking severance of this case from the co-
defendants. See Order of Court, September 29, 2017. On October
1 7, 2017, the Defendant requested an extension of time to file the
severance motion; the Court granted an additional thirty days. See
Order of Court, October 19, 2017. The Defendant filed his Motion for
Severance on November 20, 201 7. A hearing was ultimately held on
the Defendant's severance motion on February 23, 2018. At the
conclusion of the hearing and argument, the Court denied the
Defendant's Motion for Severance. See Order of Court, February 23,
2018.9 At that time, the Defendant also elected to proceed without
counsel. See Waiver of Counsel, February 23, 2018; see also Order
of Court, February 23, 2018.
B18 Pa.C.S. § 903; 18 Pa.C.S. § 2502(a)
9The Court granted the Defendant's oral request to sever Count 2 - Possession of a Firearm
Prohibited for a separate trial. That count remains pending in this Court.
8
On April 16, 2018, the Defendant filed a second Motion for
Severance, re-raising his request to be tried separately from his co-
defendants. This court denied the motion on April 26, 2018. See
Order, April 26, 2018.
The joint jury trial commenced against Cobb and the
Defendant-? on June 19, 2018, and concluded on June 22, 2018.
The jury returned verdicts of guilt as to Count 1 - Aggravated
Assault-! (lesser included of Attempted Murder) and Count 3 -
Conspiracy- First Degree Murder. See Verdict Slip, June 22, 2018.
The court set sentencing for July 25, 2018. See Order of Court,
June 22, 2018.
On July 2, 2018, the Defendant filed a Motion to Request
Counsel. The court granted the Defendant's request and appointed
counsel. See Order, July 9, 2018.
After a number of continuances, sentencing ultimately
occurred on October 24, 2018. The court imposed an aggregate
sentence of not less than 210 months ( 17 % years) to not more than
480 months (40 years). The Defendant filed a timely post-sentence
10 Co-defendant Joseph King was not tried with Cobb and the Defendant; he had, by this. point,
elected to testify for the Commonwealth.
11 18 Pa.C.S. 2702(a)(l)
9
motion on November 5, 2018. On January 2, 2019, the court
denied the Defendant post-sentence relief. See Order, January 2,
2019.
The instant Notice of Appeal was filed January 31, 2019. The
same day, this court directed the Defendant to file a concise
statement of errors claimed on appeal within twenty-one days. See
Order, January 31, 2019. The Defendant timely complied. See
Concise Statement of Matters Complained of on Appeal (Concise
Statement), February 21, 2019.
III. ISSUES ON APPEAL
The Defendant's first claim on appeal is:
The Honorable Trial Court abused its
discretion by denying [Defendant's] request for
severance of his trial from co-defendant
Anthony Cobb's non-related case at [CP-28-
CR-0000950-2016].
Concise Statement, , 6 (a).
We note that the Defendant made two separate requests for
severance. The first was a counseled Motion for Severance, filed
November 20, 2017. The court held a hearing on the counseled
motion on February 23, 2018. At the conclusion of the hearing, the
court denied the counseled Motion for Severance. See Order of
10
Court, February 23, 2018. This court did not explain our decision
in that order. Id.
The Defendant filed a prose Motion for Severance on April 16,
2018. The court denied the prose Motion for Severance without a
hearing on April 26, 2018. See Order, April 26, 2018.
We are unable to offer a statement as to our reasons for denial
of severance for several reasons. First, and foremost, the Defendant
has not caused the transcript of the hearing on February 23, 2018,
to be prepared, lodged, and filed. The Defendant's Notice of Appeal
does not contain a request for transcript or statement that the
required transcript has been prepared, as required by Pa.R.A.P.
904(c). This court also directed the Defendant to make any
necessary transcript request utilizing the appropriate transcript
request form with court administration. See Order, January 31,
2019; see also Pa.R.A.P. 1911(a). It was the Defendant's
responsibility to ensure the necessary materials are in the record
for the appellate court to review this issue. See, e.g.,
Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa.Super. 2006)
("Our law is unequivocal that the responsibility rests upon the
appellant to ensure that the record certified on appeal is complete
11
in the sense that it contains all of the materials necessary for the
reviewing court to perform its duty."), citing Commonwealth v.
Kleinicke, 895 A.2d 562 575 (Pa.Super. 2006) (en bane).
Second, the court cannot discern from the Concise Statement
which denial of severance ( or both) is being challenged in this
appeal. Pa.R.A.P. 1925(b)(4) requires a concise statement "identify
each ruling or error that the appellant intends to challenge with
sufficient detail to identify all pertinent issues for the judge."
Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). This court cannot guess
whether the Defendant challenges the court's February 23, 2018,
denial of severance, the April 26, 2018, denial of severance, or both.
The Defendant's second issue in this appeal is:
The Honorable Trial Court abused its
discretion by allowing hearsay statements of
Corey Ballard to be introduced as an excited
utterance.
Concise Statement, 1 6(b). The testimony at issue12 was introduced
by the Commonwealth during the second day of trial. See
Transcript of Proceedings -Jury Trial, June 20, 2018 (Tr.2), p. 5 - 9.
12We note here that none of the Defendant's claims of trial error listed in his Concise Statement
include citation to the trial transcript, even though the trial transcripts were filed of record on
September 4, 2018. The court has attempted, with some difficulty, to comb the lengthy
transcripts of trial testimony to locate the places where the various alleged errors occurred. We
12
The Commonwealth called Officer Steven Sanders from the
Waynesboro Police Department to testify. See Tr.2, p. 3. Early in
Officer Sander's testimony, the Commonwealth attempted to
question Officer Sanders concerning statements made to him by
Corey Ballard, the alleged victim of the attempted murder. Mr.
Ballard did not testify during the trial.
Prior to the objection at issue, Officer Sanders testified that he
was employed as a police officer in the Borough of Waynesboro
since 2004. Tr.2, p. 4. On the evening of April 20, 2016, Officer
Sanders was on duty. Id. He was dispatched to the area of 135
South Potomac Street in the Borough for a report of shots fired. Id.
Dispatch advised Officer Sanders that the victim of the shooting
was at the Rutter's store at 141 South Potomac Street. Tr.2, p. 5.
Upon making contact with the victim, Officer Sanders identified him
as Corey Ballard. Tr.2, p. 5. Officer Sanders described Ballard's
mental state as:
He was very emotional. He was upset, heavy
breathing. It was hard to get information out
of him.
presume to have located the correct testimony, but cannot be sure because of the lack of
citation to the record by the Defendant.
13
Tr.2, p. 5. These statements were made within "a couple of
minutes" of the shooting. Tr.2, p. 6.
At this point, the Commonwealth asked Officer Sanders to
relate to the jury Ballard's statements about what occurred, i.e.,
about the shooting. See Tr.2, pp. 5 - 6. The Defendant objected on
hearsay grounds. See Tr.2, p. 5, 6. The Commonwealth responded
that the statements were an exception to the prohibition against
hearsay as they constituted excited utterances under Pa.R.E.
803(2). The Court overruled the Defendant's objection. See Tr.2, p.
5, 6.
Pa.R.E. 802 provides:
Hearsay is not admissible except as provided
by these rules, by other rules prescribed by the
Pennsylvania Supreme Court, or by statute.
Pa.R.E. 803 sets forth a number of exceptions to this general
prohibition; relevant here is Pa.R.E. 803(2), which permits
admission of:
A statement relating to a startling event or
condition, made while the declarant was under
the stress of excitement it caused.
The availability of the declarant to testify at trial is immaterial to
the admissibility of an excited utterance. See Pa.R.E. 803. Further:
14
As is well-settled, excited utterances fall under
the common law concept of res gestae. Res
gestae statements, such as excited utterances,
present sense impressions, and expressions of
present bodily conditions are normally
excepted out of the hearsay rule, because the
reliability of such statements are established
by the statement being made
contemporaneous with a provoking event.
While the excited utterance exception has been
codified as part of our rules of evidence since
1998, see Pa.R.E. 803(2), the common law
definition of an excited utterance remains
applicable, and has been often cited by this
Court:
[A] spontaneous declaration by a
person whose mind has been
suddenly made subject to an
overpowering emotion caused by
some unexpected and shocking
occurrence, which that person has
just participated in or closely
witnessed, and made in reference to
some phase of that occurrence both
in time and place as to exclude the
likelihood of its having emanated in
whole or in part from his relflective
faculties ... Thus it must be show
first, that [the declarant] had
witnessed an event sufficiently
startling and so close in point of
time as to render her reflective
thought processes inoperable and,
second, that her declarations were a
spontaneous reaction to that
startling event.
15
Commonwealth v. Sheruiood, 603 Pa. 92, 982
A.2d 483, 495-96 (2009) (quoting
Commonwealth v. Stokes, 532 Pa. 242, 615
A.2d 704, 712 (1992)). The circumstances
surrounding the statements may be sufficient
to establish the existence of a sufficiently
startling event.
Commonwealth v. Murray, 83 A.3d 137, 157 - 58 (Pa. 2013) (some
internal citations omitted).
In evaluating whether a statement falls within this well-
recognized exception to the hearsay rule, courts are to consider a
number of factors: 1) whether the declarant did, in fact, witness the
startling event; 2) the amount time that passed between the event
and the declaration; 3) whether the statement was in narrative form
(which is inadmissible); and 4) whether the declarant spoke to
others before making the statement, or had the opportunity to do
so. Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa.Super. 2003).
These factors are to be considered in the light of the totality of the
circumstances, with the critical question being whether, at the time
the statement is made, "the nervous excitement continues to
dominate while the reflective processes remain in abeyance." Id.
(quoting Commonwealth v. Carmody, 799 A.2d 143, 147 (Pa.Super.
2002)(additional citation omitted)).
16
Turning to the statement at issue, this court remains
convinced that it was an excited utterance admissible under Pa.R.E.
803(2). First, and most potently, the statement was made while the
declarant was visibly excited and within minutes of the shooting in
question. As Officer Sanders described, the victim had difficulty
relating what occurred to the officer due to his extreme emotional
and physical state.
The circumstantial evidence subsequently produced by the
Commonwealth establishes that the event in question, l. e., a
shooting, actually occurred. The day after this incident, Officer
Sanders observed what appeared to be "bullet holes" in the side of a
church at or near where the victim said he was shot at. See Tr.2,
pp. 10 - 14. A live round of handgun ammunition was found in the
area and collected as evidence. See Tr.2, pp. 25 - 26. Several
empty shell casings were found and collected in the area of the
incident. See Tr.2, p. 28, pp. 32 - 33. Police observed and
photographed what appeared to be a bullet hole and bullet fragment
in a fence in the area of the shooting. See Tr.2, pp. 30 - 31.
In addition, a cooperating co-defendant, Joseph King, testified
for the Commonwealth. See Tr.2, pp. 41 - 90. King testified that he
17
was with the Defendant at the time of the shooting. See Tr.2, p. 49.
The Defendant exchanged words with the victim, who began to run
from the scene. Tr.2, p. 50. King testified:
[The Defendant] chased after [the victim]. I
remember seeing the kid hop a fence to get
through to another alley that took him out on
to Potomac, and then the next thing I knew I
saw [the Defendant] raise his right arm and I
saw like one muzzle flash and at that point I
had turned around and started to try to run
away and heard a couple more shots after I
saw the initial muzzle flash from the end of his
extended arm.
Tr.2, p. 50.
Another cooperating co-defendant, Ryan Troskoski, testified
for the Commonwealth. See Tr.2, pp. 91 - 129. Mr. Troskoski
detailed his involvement with the Defendant and the other co-
defendants during the night of the shooting. Specifically, he
testified to being in the area of the shooting at the time it happened.
See Tr.2, p. 100. After the Defendant and King had left the vehicle,
Troskoski heard "five gunshots go off." Tr.2, p. 100. Troskoski then
picked up the Defendant in the area of Rutters. Tr.2, p. 101. The
Defendant told Troskoski that the gunshots were from him
shooting. Tr.2, p. 102.
18
Diane Hamilton, the individual residing in the area of the
shooting and discovered the Defendant's clothing in her trash,
testified that she heard the gunshots. See Tr.3, p. 4. It is clear
that, although the proof was out of order, 13 the Commonwealth
established that the exciting event did, in fact, occur.
The statements admitted into evidence were not in the form of
a narrative, such as given by a witness in a formal interrogation
setting. They were clearly given to Officer Sanders at or near the
scene of the shooting; indeed, Officer Sanders testified he had
trouble getting information out of Ballard due to his
mental/ emotional state.
Finally, we acknowledge that the record is devoid of any
evidence regarding Ballard speaking with others about the shooting
prior to making his utterances to Officer Sanders. Even assuming
he did speak with others (for example, employees at the Rutter's),
he remained in a high emotional state at the time he spoke with
Officer Sanders. Under the totality of these circumstances, · with
13 This Court was well aware from pretrial proceedings that the Commonwealth had significant
evidence that the shooting had, in fact, occurred. The order of proof to establish the elements
necessary to satisfy admission of evidence is within the discretion of the trial court. See, e.g.,
Commonwealth u. Jones, 651 A.2d 1101, 1106 (Pa. 1994) ("The order in which evidence is
presented is a matter committed to the trial court's discretion and its rulings will not be
interfered with absent an abuse of that discretion."), additional citations omitted. ·
19
particular emphasis on Officer Sanders' observations of Ballard's
emotional state, this court remains convinced that the statements
were properly admitted under Pa.R.E. 803(2) as excited utterances.
The Defendant's third issue in this appeal is:
The Honorable Trial Court abused its
discretion by limiting [Defendant's] questioning
of Officer Chappell about Commonwealth's
Exhibits 25 - 30 written by co-defendant
Anthony Cobb, as only select portions of those
letters were provided to the jury.
Concise Statement, ,r 6(c).
This claim of error relates to a discussion held between
counsel, the Defendant, and the court during the third day of trial,
first at sidebar, then in open court after the jury had been excused.
See Tr.3, pp. 31 - 65. It is unclear to this court, at this time, what
the error is that the Defendant is claiming the court committed.
From our review of the transcript, the Defendant was granted
permission to introduce unread language from a letter written by
Cobb to the jury. See Tr.3, p. 62. After additional discussion, the
following exchange occurred:
THE COURT: Isn't that what we're going to be getting from
the testimony that [Counsel for Cobb] is going
to elicit that Mr. Cobb was charged federally
and that it was a drug offense. Wouldn't that
20
enable you then to make that argument m
your closing to the jury?
DEFENDANT MAZE: It does, Your Honor. It doesn't show the jury
that Cobb had the intentions of setting me up
though and we're just sitting here-
THE COURT: No, but I've indicated that you're permitted to
read that-or have that language read from
Exhibit 29 that we've already discussed here.
My father always told me sometimes you
rather walk a thousand miles with a friend
than around the corner with family member.v
Fuck B.Is That's the language you want-or
you've indicated that you want to make your
argument to the jury that the Defendant Cobb
was trying to set you up.
DEFENDANT MAZE: I'm fine, Your Honor.
Tr.3, pp. 63 - 64 (emphasis added).
In considering this claim of error, this court cannot discern
precisely what limits were placed on the Defendant's cross-
examination of Officer Chappell that the Defendant disagreed with.
After significant discussion outside the presence of the jury, the
Defendant was permitted to introduce an unread portion of the
letter in question, and also agreed on the record that he was
satisfied with this court's resolution of the matter. Id. If the
Defendant is claiming error related to some other unread portion of
14 Quoting from Commonwealth's Exhibit 29.
is Quoting from Commonwealth's Exhibit 29.
21
Commonwealth's Exhibits 25 - 29, we cannot speak to that because
of the lack of specificity in his claim of error.
The Defendant's fourth claim of error is:
The Honorable Trial Court abused its
discretion by colloquy [sic] Juror Number 4 to
determine whether there was good cause for
removal based upon significant evidence that
Juror Number 4 may be [sic] slept during
portions of the trial.
Concise Statement, , 6(d). This claim relates the first day of trial,
and occurred during the direct examination of Corporal Stewart
Hannah from the Waynesboro Police Department. During Cpl.
Hannah's testimony related to photographs of bullet holes, the
court observed Juror Number 4 having trouble paying attention.
See Tr.l, p. 104. The following occurred on the record:
THE COURT: Juror No. 4, are you
having trouble staying
awake?
JUROR NO. 4: No, sir.
THE COURT: Your eyes are getting a
little droopy there. I see
your head start to go
down. Would you like a
cup of coffee?
JUROR NO. 4: No thank you.
22
THE COURT: Are you sure you're
awake?
JUROR NO. 4: Yes.
THE COURT: The reason I say that is if
a juror falls asleep the
trial is over and we start
all over with a new jury. I
don't want to have to do
that, so if you're having
trouble staying awake
please let me know. We'll
get you a cup of coffee.
We'll stand up, stretch
your legs or whatever but
don't hesitate to let me
know if you're having
trouble. I understand
what it is like after lunch.
I know exactly what it is
like after lunch, so please
don't hesitate to let us
know if you need to
stretch your legs.
Go ahead, Mr. Faust.
Tr.1, p. 104.
From the Defendant's claim of error, it is not clear whether he
complains that the court did, or did not, colloquy Juror Number 4.
To the extent the Defendant claims this court did not colloquy Juror
Number 4, the record belies that assertion. To the extent the
Defendant complains that the colloquy was insufficient m some
23
manner, we cannot give further statement because the Defendant
did not object or otherwise make a request for further colloquy. The
record is devoid of any such request at the time of the court's
interaction with Juror Number 4. The Defendant did not make a
motion to remove the juror or for a mistrial. Finally, the Defendant
did not include this claim in his post-sentence motion. See Post-
Sentence Motion, filed November 5, 2018. We believe this issue is
waived 16 for purposes of appeal; however, it is for the Honorable
Superior Court to make that determination.
To the extent this issue is properly preserved, we note that we
had no reason to doubt Juror Number 4 's assertion to the court
that he had been awake. While our initial observation caused us
some· concern, the juror responded convincingly; without objection
from the parties the trial continued and no party raised any
concern with this juror's continued service.
The Defendant's next claim of error is:
Did the Commonwealth present sufficient
evidence to sustain the verdict on the
16 See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal."). See also, e.g., Commonwealth v. Melendez-Rodriguez, 856 A.2d
1278, 1287 (Pa.Super. 2004) ("Nevertheless, it is well established that absent a
contemporaneous objection the issue is not properly preserved on appeal."), additional ·
citations omitted.
24
Aggravated Assault and Conspiracy to Commit
First Degree Murder charges?
Concise Statement, ,r 7. A challenge to the sufficiency of the
evidence in support of a conviction implicates well-settled and well-
trod principles:
As a general matter, our standard of review of
sufficiency claims requires that we evaluate
the record in the light most favorable to the
verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn
from the evidence. Evidence will be deemed
sufficient to support the verdict when it
establishes each material element of the crime
charged and the commission thereof by the
accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not
establish guilt to a mathematical certainty.
Any doubt about the defendant's guilt is to be
resolved by the fact finder unless the evidence
is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from
the combined circumstances.
The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Accordingly, the fact that the evidence
establishing a defendant's participation in a
crime is circumstantial does not preclude a
conviction where the evidence coupled with the
reasonable inferences drawn therefrom
overcomes the presumption of innocence.
Significantly, we may not substitute our
judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the
light most favorable to the Commonwealth,
25
demonstrates the respective elements of a
defendant's crimes beyond a reasonable doubt,
the appellant's convictions will be upheld.
Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074 - 75 (Pa.Super.
2013) (quoting Commonwealth v. Pedota, 64 A.3d 634, 635 - 36
(Pa.Super. 2013), additional citations omitted).
This court's recitation factual background of this case was
gleaned from the trial transcripts. See SECTION I, supra. It is clear,
without the need for extensive recitation of all the evidence
presented, that the Defendant's contention is without merit.
To sustain a conviction for Aggravated Assault, the
Commonwealth was required to prove beyond a reasonable doubt
that the Defendant attempted 11 to cause serious bodily injury to
another person. See 18 Pa.C.S. § 2702(a)(l). Joseph King's
testimony alone, viewed in the light most favorable to the
Commonwealth, was sufficient to support the verdict.
King testified that he was directed by Cobb to search for the
person ("Black") responsible for stabbing Cobb. See Tr.2, p. 45.
After locating the person he believed to be "Black," King notified
Cobb and met up with Cobb, Troskoski, and the Defendant in the
11 There is no dispute the Defendant did not cause serious bodily injury to Ballard.
26
parking lot of the Rotary Club. See Tr.2, p. 46. Cobb gave King a
gun, and they all drove to a nearby alley. See Tr.2, pp. 47 -49.
At that point, the Defendant and King exited the vehicle and
began looking for the "Black" on foot. See Tr.2, p. 49. They spotted
a hooded figure come out of the alley. Id. King testified:
[The Defendant] addressed the figure - well, he
aggressively went after this person, told him to
come here I believe at that point. He scared
the kid pretty bad because the kid started
running immediately.
Tr.2, p. 50. The Defendant gave immediate chase. See Tr.2, p. 50.
King observed:
[The Defendant] chased after him. I remember
seeing the kid hop a fence to get through to
another alley that took him out on to Potomac,
and then the next thing I knew I saw [the
Defendant] raise his right arm and I saw like
one muzzle flash and at that point I had
turned around and started to try to run away
and heard a couple more shots after I saw the
initial muzzle flash from the end of his
extended arm.
Tr.2, p. 50.
This evidence alone is sufficient to sustain a conviction for
attempting to cause serious bodily injury to the victim. Aggressively
confronting someone, chasing them, and firing a gun at them
27
multiple times, is more than sufficient to sustain a finding by the
jury that the Defendant intended to cause serious bodily injury to
the victim, and took a substantial step to cause such a result.
To be guilty of Conspiracy, the Commonwealth was required to
prove beyond a reasonable doubt that the Defendant, with the
intent of promoting or facilitating a crime, agreed with one or more
other persons that one or more of them "will engage in conduct
which constitutes such crime or an attempt or solicitation to
commit such crime." 18 Pa.C.S. § 903(a)(l). Further, the
Commonwealth was required to prove that an "overt act in
pursuance of such conspiracy'' was committed by the Defendant or
another member of the conspiracy. 18 Pa.C.S. § 903(e)
Taking these elements in reverse order, it is quite clear that
the Commonwealth established the overt act in furtherance of a
conspiracy to commit first degree murder. As we outlined above in
Joseph King's testimony, and in SECTION I, supra, . the
Commonwealth established the Defendant shot a firearm at Ballard
multiple times after confronting him in the alley near Rutter's. In
addition, both King and Troskoski testified that they met up with
the Defendant and Cobb with the mutual understanding that they
28
were going to search for and kill the person responsible for stabbing
Cobb. They were all provided with handguns and drove together in
the area of Rutters looking for the person responsible for stabbing
Cobb. This evidence, separately or taken together, is sufficient to
establish an overt act in furtherance of the conspiracy to commit
murder.
In regards to an agreement to commit first degree murder, the
Commonwealth also presented sufficient evidence. King testified
that Cobb was upset and angry about being robbed/stabbed. See
Tr.2, p. 45. Cobb told King that "if [he] could find these people that
did it to let him know." Id.
After finding individuals King believed to be responsible, he
informed Cobb by telephone. See Tr.2, p. 46. A short time later,
Cobb, Troskoski, and the Defendant met up with King. Id. When
King entered the vehicle, he described the mood of everyone as
"tense." Tr.2, pp. 46 - 47.
Cobb asked King if he had "for sure" seen "these guys." See
Tr.2, p. 47. After confirming what King had seen, Cobb handed
King a firearm. Id. King testified:
29
When he handed me that firearm I pretty
much understood what the implication was. I
figured at some point a weapon was going to
be fired. The implication was to go - you
know, go after these people by any means,
whatever it takes.
Tr.2, pp. 4 7 - 48. King understood the implication was "to shoot at
the person or shoot the person." Tr.2, p. 48.
All four involved then drove to another area nearby, and the
Defendant and King exited the vehicle. Tr.2, p. 49. The
Defendant's subsequent actions in shooting at Ballard were
previously set forth above. See SECTION I, supra.
Troskoski testified that Cobb directed him to retrieve a duffle
bag containing guns; at that time, Troskoski understood this
directive to be in furtherance of killing the person responsible for
stabbing Cobb. See Tr.2, p. 99. When Troskoski, Cobb, King and
the Defendant met in the parking lot at the Rotary Club, Troskoski
testified:
COMMONWEALTH: Now, at some point when
all four of you were in the
car, tell me what happens
next?
TROSKOSKI: After we entered the car?
30
COMMONWEALTH: Yes, when all four of you
were inside the car?
TROSKOSKI: I was directed to drive
behind the alley that's
behind Rutter's.
COMMONWEALTH: Directed by whom?
TROSKOSKI: Anthony.
COMMONWEALTH: Ant?
TROSKOSKI: Yes.
COMMONWEALTH: And tell me what
happened with those
guns?
TROSKOSKI: He handed Brandon one
and then handed Joey
one.
COMMONWEALTH: What did he say when he
handed over those guns?
TROSKOSKI: I can't recall exactly.
COMMONWEALTH: Do you recall him saying
something like take care
of business?
TROSKOSKI: Yes.
COMMONWEALTH: And, again, what was
your understanding of
when Ant said that as
he handed out the
31
guns? What was going
to go down?
TROSKOSKI: To shoot the guy that
stabbed him.
Tr.2, pp. 99 - 100 (emphasis added). Considering the totality of the
evidence presented, with particular consideration of the testimony
set forth above, this court has little trouble concluding the
Commonwealth presented sufficient evidence of a conspiracy, that
the goal of the conspiracy was to commit the crime of first degree
murder, and that an overt act was committed in pursuit thereof.
The Defendant's next claim of error is:
Was the verdict of guilty on the Aggravated
Assault and Conspiracy to Commit First
Degree Murder [against] the weight of the
evidence?
Concise Statement, 1 8. A challenge to 'the weight of the evidence
must be raised in the trial court in the form of a motion for a new
trial. See Pa.R.Crim.P. 720(B)(l)(a)(iv); see also, e.g.,
Commonwealth v. Washington, 825 A.2d 1264 (Pa.Super. 2003).
The Defendant properly raised this claim in his post-sentence
motion. See Post-Sentence Motion, 11 3(b), 18, 20.
32
Because the Defendant is required to raise this issue in the
trial court, and because this court denied the claim, the
Defendant's claim on appeal is in reality a challenge to this court's
ruling. See Order of Court, January 2, 2019.
A challenge to a verdict as against the weight of the evidence is
committed to the sound discretion of the trial court. See
Commonwealth v. Clay, 64 A.3d 1049, 1054 (Pa. 2013), additional
citations omitted. The standard for evaluating a challenge based on
the weight of the evidence is well-settled:
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. 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. It has often been stated that
a new trial should be awarded when the jury's
verdict is so contrary to the evidence as to
shock one's sense of justice and the award of a
new trial is imperative so that right may be
given another opportunity to prevail.
Clay, 64 A.3d at 1055, internal quotations and citations omitted.
Further, "one of the least assailable reasons for granting or denying
a new trial is the lower court's conviction that the verdict was or
33
was not against the weight of the evidence and that a new trial
should be granted in the interests of justice." Commonwealth v.
Widmer, 744 A.2d 745, 753 (Pa. 2000), additional citations omitted.
The Defendant argued to this court that the verdict was
against the weight of the evidence because there was no evidence
the Defendant actually fired his gun at the victim. See Post-
Sentence Motion, ,r 1 7. Because the bullet holes in surrounding
buildings were above the height of the victim, the Defendant argues
that it is clear the Defendant was not trying to shoot the victim. Id.
These facts are not clearly entitled to greater weight than
accorded by the jury. To focus on the height of the bullet holes in
the surrounding buildings, as clear evidence of a lack of intent to
kill (murder) or lack of intent to cause serious bodily injury
(aggravated assault) would require the jury, and now this court, to
ignore the significant evidence of a contrary intent. We've outline
the significant evidence previously in this opinion detailing the goal
of King, Troskoski, Cobb, and the Defendant that night. They.were
hunting the person responsible for stabbing Cobb. Cobb handed
everyone guns and told them to "take care of business." The
Defendant was immediately aggressive when he made contact with
34
the victim; he gave immediate chase when the victim ran. As the
victim was escaping over a fence into an adjacent alley, the
Defendant raised his gun and fired multiple shots towards the
victim.
We denied the Defendant's request for a new trial because all
the evidence presented significantly outweighed any argument
concerning the height of the bullet holes, or the fact that the victim
as not actually injured. The evidence convincingly established the
intent of the four individuals involved with the shooting that night
and this court's opinion is firm that the verdicts of guilt do not
"shock" our conscience. No manifest injustice has been visited
upon the Defendant by the jury's weighing of the evidence as they
did.
The Defendant's final claim on appeal is:
The Honorable Trial Court committed an error
of law by allowing hearsay statements that
were testimonial in nature of Corey Ballard to
be introduced as evidence thereby violating
Defendant's right to confront his accuser.
Concise Statement, , 9(a). Again, we cannot discern the precise
nature of the Defendant's claim of error. Based upon his claim of a
right to confront his accuser, we presume the Defendant is
35
asserting a violation of the United States Constitution, VI
Amendment; under this provrsion, the Defendant had a
constitutional right to be "confronted with the witnesses against
him." U.S. Const., VI Amendment (hereinafter "6th Amendment"). It
is difficult to examine this claim because, upon the court's review of
the record, this issue was never raised. The objections lodged by
the Defendant during trial were based upon hearsay; he made no
assertion of a violation of his constitutional right. See Tr.2, pp. 5 -
7. This claim was not raised in the Defendant's Post-Sentence
Motion.
Consequently, we cannot opine on a reason for our decision
when, in fact, this court was never presented with a claim under
the 6th Amendment. The objection we overruled was based upon
hearsay, as we discussed previously in this opinion. However, to
the extent this issue is properly preserved or subsumed within a
general hearsay objection, we conclude under the circumstances
outlined previously in this opinion, that the excited utterance at
issue does not fall within those prohibited by the 6th Amendment.
See, e.g., Commonwealth v. Gray, 867 A.2d 560, 572 - 77
(Pa.Super. 2005).
36
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL
DISTRICT OF PENNSYLVANIA- FRANKLIN COUNTY
COMMONWEALTH OF PENNSYLVANIA CRIMINAL ACTION
CP-28-CR-0000342-2017
v.
JUDGE JEREMIAH D. ZOOK
BRANDON JALON MAZE,
DEFENDANT
ORDER
NOW, this 14th day of March, 2019, IT IS HEREBY ORDERED that the
Franklin County Clerk of Courts transmit the forgoing Opinion Sur. Pa.R.A.P.
1925(a) and the record of these proceedings to the Prothonotary of the Superior
Court of Pennsylvania pursuant to Pa.R.A.P. 193l(c).
The Clerk shall give notice to;
District Attorney's Office (J. Faust, Esq.) - Counsel for the Commonwealth
K. Taccino, Esq. - Counsel for the Defendant
BRANDON JALON MAZE Case No. 342-2017
On March 15, 2019, I Barbara E. Black served a copy of the Opinion and Order signed on March
14, 2019 by the Honorable Jeremiah D. Zook and filed on March 15, 2019, on the following
persons by the following method:
Interoffice Mail:
Franklin County
District Attorney's Office
Kevin Taccino, Esquire
Bt1'lb 0,/la_ £'. �-&.-
Deputy Clerk of Courts