Com. v. Wiggins, D.

J-A02037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DAVID WIGGINS
Appellant No. 1668 EDA 2015
Appeal from the Judgment of Sentence May 1, 2015
in the Court of Common Pleas of Delaware County Criminal Division
at No(s): CP-23-CR-0007117-2013
BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 08, 2017
Appellant, David Wiggins, appeals1 from the judgment of sentence
entered in the Delaware County Court of Common Pleas after a jury found him
guilty of murder of the second degree,2 robbery, 3 conspiracy, 4 and persons
not to possess firearms.5 Appellant claims that the trial court erred in denying
a motion to strike a prospective juror for cause and that the court erred in
issuing a jury instruction regarding consciousness of guilt. We affirm.
* Former Justice specially assigned to the Superior Court.
1The appeals of Appellant’s codefendants, Tariq Mahmud and Rita Elizabeth
Pultro, are listed at J-A02035-17 and J-A02036-17, respectively.
2 18 Pa.C.S. § 2502(b).
3 18 Pa.C.S. § 903.
4 18 Pa.C.S. § 903.
5 18 Pa.C.S. § 6105.
J-A02037-17
Appellant’s conviction arises from the killing of Jason McClay at a Rite
Aid store in the City of Chester, where McClay was a manager. The
Commonwealth alleged the following. In August and September 2013, Tariq
Mahmud was employed as loss prevention agent at the Rite Aid store.
Mahmud, Ashaniere White, and Christopher Parks planned to rob the Rite Aid
store. Mahmud told White and Parks about how much money was kept in the
store’s safe, who was working, and about blind spots in the store’s video
surveillance system. Mahmud warned them not to try to rob the store when
McClay was working, because he was a former marine who would fight back.
On August 19, 2013, White and Parks robbed the Rite Aid store when
McClay was not on duty. On August 26 and September 4, 2013, White and
Parks again attempted to rob the store, but abandoned the plans when
employees recognized White.
Mahmud, White, and Parks thereafter sought the assistance of new
people to rob the store, and they brought Appellant into their planning.
Appellant wanted another individual, Rita Pultro, to participate as well. The
group planned a robbery for September 18, 2013, but postponed it until
September 19, 2013.
On September 19, 2013, McClay worked the day shift at the Rite Aid
store and stayed for the evening shift due to the unavailability of another
manager, Serita Cottman. Mahmud called out from work that day. At
approximately 9:45 p.m., an employee saw a white female, later identified as
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Pultro, and a black male, later identified as Appellant, enter the store. Pultro
retrieved a light bulb and took it to the counter. When the employee told her
the amount due, Pultro complained that it was too expensive, placed the item
back on the shelf, and asked to see the manager. McClay went back to the
aisle, and he and Pultro began discussing lightbulbs. Appellant then grabbed
McClay and told McClay to take him to the safe. Appellant and McClay began
wrestling until Pultro shot McClay at close range at the base of his neck and
killed him. Appellant and Pultro fled from the store and left the scene in a
vehicle driven by Parks.
The investigation into the shooting revealed that Appellant left a palm
print in the Rite Aid store. Investigators obtained a photograph of Appellant
and showed it to two employees, and they both identified Appellant as one of
the robbers.
On September 21, 2013, officers obtained a warrant to arrest Appellant
and proceeded to his residence in Philadelphia. Philadelphia Police Officer
Daniel Farrelly was dressed in full uniform and stationed at the rear door of
the residence with his partner. Officer Farrelly heard other officers execute a
“knock and announce” at Appellant’s front door. N.T., 2/6/17, at 134.
Approximately ten seconds later, he observed Appellant starting to exit from
the rear door. Officer Farrelly drew his weapon and ordered him to stop and
put his hands up. When Appellant saw the officers, he attempted to slam the
door shut, but Officer Farrelly managed to keep the door open, enter into the
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basement storage area of the residence, and take Appellant into custody.
After begin given Miranda6 warnings, Appellant gave an inculpatory
statement regarding his participation in the robbery and indicating that while
he was wrestling with McClay, he heard a shot. Pultro, Mahmud, Parks, and
White, Parks were subsequently arrested. Parks and White pleaded guilty to
third-degree murder in exchange for their cooperation, and the
Commonwealth dropped the charges of second-degree murder against them.
Appellant, Mahmud, and Pultro proceeded to a joint jury trial for the
September 19, 2013 robbery and killing of McClay. Parks and White testified
against them. The Commonwealth also introduced numerous text messages
between the various parties. The jury found Appellant guilty of second-degree
murder, robbery, and conspiracy. The trial court sentenced Appellant to life
imprisonment on May 1, 2015.
Appellant timely appealed and complied with the trial court’s order to
submit a Pa.R.A.P. 1925(b) statement. Appellant filed a supplemental Rule
1925(b) statement, which the trial court also addressed. This appeal followed.
Appellant presents the following questions for review:
1) Whether the trial court erred in denying the motion to
strike prospective juror number 56 for cause since his wife
was a crime victim and he could not state with any certainty
that he could be fair and impartial?
2) Whether the court erred when it instructed the jury that
flight demonstrates consciousness of guilt since that charge
was not supported by the facts of this case?
6 Miranda v. Arizona, 384 U.S. 436 (1966).
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Appellant’s Brief at 5.
Appellant first contends that the trial court erred in denying his motion
to strike a prospective juror, juror #56, for cause. Appellant argues the
prospective juror indicated that his wife had been a victim of a robbery, he
had read about the case in the newspaper, and his ability to decide the case
fairly was in question. He contends that the prospective juror continued to
equivocate but was “essentially pressured to say that he would follow the
instructions of the court.” Appellant’s Brief at 18. Appellant further notes that
the defense ultimately struck juror #56,7 but argues that he suffered prejudice
because the defense exhausted their peremptory challenges. No relief is due.
Our standard of review is as follows:
A trial court’s decision regarding whether to disqualify a
juror for cause is within its sound discretion and will not be
reversed in the absence of a palpable abuse of discretion.
In determining if a motion to strike a prospective juror for
cause was properly denied our Court is guided by the
following precepts:
The test for determining whether a prospective juror
should be disqualified is whether he is willing and able
to eliminate the influence of any scruples and render
a verdict according to the evidence, and this is to be
determined on the basis of answers to questions and
demeanor. . . . It must be determined whether any
biases or prejudices can be put aside on proper
instruction of the court. . . . A challenge for cause
should be granted when the prospective juror has
such a close relationship, familial, financial, or
situational, with the parties, counsel, victims, or
7 The Commonwealth was given nine peremptory strikes, and each of the
three codefendants were given three peremptory strikes.
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witnesses that the court will presume a likelihood of
prejudice or demonstrates a likelihood of prejudice by
his or her conduct or answers to questions.
Commonwealth v. Briggs, 12 A.3d 291, 332-33 (Pa. 2011) (citations
omitted).
In Commonwealth v. DeHart, 516 A.2d 656 (Pa. 1986), a prospective
juror in a murder trial disclosed that her friend had been murdered. During
questioning, the trial court asked whether she would be affected in her
deliberations by the experience, and the juror responded that she did not
“know exactly how [she] would feel,” that she “would want to be fair,” but
that she felt strongly about the person who killed her friend. DeHart, 516
A.2d at 662-63. When asked whether she would be able to decide the case
based solely on the facts, evidence, and the law issued by the court, she
replied, “Yes, I think I would.” Id. at 663. The trial court denied the
defendant’s motion to strike the juror for cause, forcing the defendant to use
a peremptory strike. Id. at 662.
Following the defendant’s conviction and appeal, the DeHart Court
found no reversible error, reasoning that the juror’s answer “while somewhat
equivocal, reveal[ed] neither a clear predisposition to convict nor an inability
to follow the law and her testimony that she believed she was willing and able
to be fair and impartial was believed by the trial court.” Id. at 663.
In Commonwealth v. Johnson, 445 A.2d 509 (Pa. Super. 1982), a
prospective juror in a robbery case stated that his daughter was the victim of
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a robbery and rape with facts similar to the case in that matter. The juror
became distressed noting that he practically broke down. Johnson, 445 A.2d
at 512. The juror repeatedly acknowledged that he was surprised at how he
was reacting and how strongly he felt. Id. However, when asked whether he
could be fair, the juror answered, “Yes.” Id. at 513. The trial court denied
the defendant’s motion to strike the juror for cause, forcing the defendant to
use a peremptory challenge. Id. at 514. The defendant exhausted his
peremptory challenges. Id.
Following the defendant’s conviction, he appealed. The Johnson Court
granted a new trial based on the failure to strike the juror. Id. The Court
observed that the juror “vividly demonstrated he would not likely be an
impartial juror,” “expressed substantial doubts about his ability to be impartial
at least five times,” and conceded that even if he could logically separate the
incident with his daughter from the defendant’s case,” he did not have full
emotional control. Id.
With respect to prejudice, this Court has stated that a new trial will be
granted when “a defendant is forced to use one of his peremptory challenges
to excuse a prospective juror who should have been excused for cause, and
then exhausts his peremptories before the jury is seated, a new trial will be
granted.” Johnson, 445 A.2d at 514; see also Commonwealth v. Penn,
132 A.3d 498, 505 (Pa. Super. 2016). However, “[w]hen the defense does
not exhaust its peremptory challenges, it is harmless error to overrule a
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challenge for cause which should have been sustained, if the juror is actually
excluded by a peremptory challenge.” Commonwealth v. Hardcastle, 546
A.2d 1101, 1110 (Pa. 1988) (citation omitted).
Instantly, the record contains the following examination of juror #56:
THE COURT: Sir, you gave a “yes” response to three of my
questions, one was having known something or heard about
the case, a victim of a similar crime, and either living or
working in the vicinity?
JURY PANELIST #56: Yes.
THE COURT: So could you elaborate on all those, why you
gave a “yes” response to those?
JURY PANELIST #56: The first one was?
THE COURT: The first one was hearing about the case or
reading about the case.
JURY PANELIST #56: Oh, I read the newspaper constantly.
I am a subscriber to the Wilmington Journal and I read the
Sunday Daily Times every day -- every Sunday.
THE COURT: So when’s the last time you heard about this
case or read about it?
JURY PANELIST #56: Last time, when it was active, a couple
-- what’s it, two years?
THE COURT: Pardon?
JURY PANELIST #56: When it was active, when they were-
-
THE COURT: Which would have been, what --
JURY PANELIST #56: Two years --
THE COURT: Okay.
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JURY PANELIST #56: -- I’ve heard this.
THE COURT: So the last time you read anything about the
case or heard anything about the case?
JURY PANELIST #56: Yes. Um-hum.
THE COURT: Okay, Someone you knew --
JURY PANELIST #56: My wife --
THE COURT: -- victim of a similar crime?
JURY PANELIST #56: Yes, my wife was robbed while she
was working in a supermarket, and we work midnights. I
work at another store but that -- but a fellow came up with
his couple groceries. As soon as the register opened, he
picked up his shirt, showed her a pistol, said empty the
register, and so that was -- I thought that was pretty
similar.
THE COURT: Okay. All right. And you live or work in the
vicinity of --
JURY PANELIST #56: I’m about three miles directly down
Market Street.
* * *
THE COURT: And have you ever been in that particular Rite
Aid?
JURY PANELIST #56: In it? No, sir.
THE COURT: Okay. Anyone else have any questions for
juror #56?
MS. RAINEY [Appellant’s counsel]: Sir, does the fact that
your wife was robbed similar as you say in a grocery store,
does that impact your ability to be fair in this particular
case? Are you going to be thinking about that?
JURY PANELIST #56: Probably not. It happened 25 years
ago.
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MS. RAINEY: Okay.
JURY PANELIST #56: Probably not.
MS. RAINEY: But you’re not sure; that’s why you’re saying
“probably”?
JURY PANELIST #56: Can I tell you what’s in the back of my
mind? I was going to say (inaudible) --
MS. RAINEY: Okay.
JURY PANELIST #56: -- leaning towards like 51 percent not
but --
MS. RAINEY: Thank you for being honest.
THE COURT: All right. Any other -- anyone else?
* * *
MR. WISMER [Pultro’s counsel]: . . . What do you remember
reading about the case?
JURY PANELIST #56: Just the fellow got killed, he was the
store manager. I forget what -- he was helping somebody
or something and he -- oh, he was -- he covered for a day
off for somebody so he shouldn’t even have been there that
day and it struck me as no good deeds go unpunished. I
say that all the time.
MR. WISMER: Is that all you remember reading?
JURY PANELIST #56: Pretty -- for the most part. That’s the
highlights, yeah. I mean I don’t remember exactly how
many people were involved, you know, or how -- too much
of the details.
MR. WISMER: And it was tragic, certainly, but does that --
is that going to affect your ability to be a fair and impartial
juror knowing what you know about what happened to this
man?
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JURY PANELIST #56: Probably not. Again, I’m going to say
probably 51 percent on it.
THE COURT: Let me phrase the question a little differently.
JURY PANELIST #56: Please.
THE COURT: Is there a doubt in your mind about your ability
to be fair and impartial?
JURY PANELIST #56: No. I can do it. I can do it.
THE COURT: All right. Anyone else?
MR. TINARI [Mahmud’s counsel]: May I just follow that up
briefly?
THE COURT: Yes.
MR. TINARI: It seems as though you’re hesitating. There’s
no right or wrong answer even to the Judge’s question.
We’re just trying to find out --
JURY PANELIST #56: I
MR. TINARI: -- what’s in your heart and your mind, and
when -- as lawyers especially for Defendants who are
accused of crimes, we hear probably or 51 percent, that
makes us nervous. So we’re just asking you --
JURY PANELIST #56: Absolutely.
MR. TINARI: -- just as the Court did, it seems as though
there’s a little bit of hesitation, and if there is, just tell us.
It’s okay. No one’s going to --
JURY PANELIST #56: And I realize –
MR. TINARI: -- thinking negatively of you --
JURY PANELIST #56: -- you’ve got 120 -- 18 other people -
-
MR. TINARI: -- you know what I mean? We’re --
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JURY PANELIST #56: -- that you can use.
MR. TINARI: -- just trying to proceed in accordance with
what we’re required to ask.
JURY PANELIST #56: Yes.
MR. TINARI: And if your answer is you have some doubt,
just tell us.
JURY PANELIST #56: I’d have to be saying I was kidding
you if there was absolutely nothing because I experienced
it.
MR. TINARI: Understood.
JURY PANELIST #56: But I still think I could probably be
fair. I mean I understand --
MR. TINARI: You still think you can be? See, that’s what’s
making us --
JURY PANELIST #56: I’m --
MR. TINARI: You know what I’m saying? If you were in our
shoes --
JURY PANELIST #56: I can --
MR. TINARI: -- you wouldn’t want to hear someone say --
JURY PANELIST #56: I see.
MR. TINARI: -- well, I think I could be fair, I’m hoping I
could be fair.
JURY PANELIST #56: I can appreciate your -- you on that.
I think I can -- okay. So --
MR. TINARI: All right. I won’t ask any more times.
JURY PANELIST #56: I
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MR. TINARI: That’s -- I think --
JURY PANELIST #56: I believe I can.
MR. TINARI: Okay. Thank you, sir.
JURY PANELIST #56: I believe I can and I --
***
MR. DIROSATO [for the Commonwealth]: Sir, the role of a
juror is to hear the evidence –
JURY PANELIST #56: Exactly.
MR. DIROSATO: -- to weigh the evidence per the
instructions given by the Court.
JURY PANELIST #56: Exactly.
MR. DIROSATO: And --
JURY PANELIST #56: I’m not trying to be rude.
MR. DIROSATO: -- the Court will give you the instructions
on the law, take whatever facts as you find true along with
your fellow jurors and apply that to the law to determine
whether the Commonwealth has met its burden beyond a
reasonable doubt to prove these Defendants guilty of the
crimes they’re facing -- have been charged with.
JURY PANELIST #56: Exactly.
MR. DIROSATO: And knowing that, can you put aside your
past experience and follow the Court’s instruction and
render a verdict based upon a fair and impartial weighing of
the evidence?
JURY PANELIST #56: I think I can. I’m saying -- I said --
okay. I can. Putting it in context, you show me evidence,
it is or it isn’t.
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MR. DIROSATO: If the Commonwealth fails to meet your --
meet its burden, would you hesitate and acquit these
Defendants?
JURY PANELIST #56: If you didn’t prove they did it, I will.
THE COURT: You understand that it has to be proven beyond
a reasonable doubt. It’s not a 51 percent. It’s beyond a
reasonable doubt. Do you understand that?
JURY PANELIST #56: Yes, sir.
THE COURT: And you could follow that standard, correct?
JURY PANELIST #56: Yes, sir. I’m sure I could.
N.T., 1/28/15, at 280-88.
Counsel for Mahmud moved to strike the juror for cause based on the
juror’s equivocation and hesitation in his responses. Id. at 288. Appellant’s
counsel joined the motion noting that the juror appeared to give two answers
to each questions. Id. at 289. The trial court denied the defense’s motion.
Id. In its supplemental Rule 1925(a) opinion, the trial court emphasized that
juror stated responded that he could “do it” when asked by the court whether
he could be fair and impartial. Trial Ct. Supp. Op., 5/20/16, at 2.
Following our review, we are constrained to conclude that the trial court
abused its discretion when denying Appellant’s motion to strike juror #56.
The juror equivocated several times regarding his ability to separate the
incident involving his wife. He repeatedly used terms such as “I think,” and
“probably.” When asked whether he could fair and impartial twice stated he
was only “51 percent” certain. He hesitated at serving on the jury, noting
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that numerous other prospective jurors remained. Although the juror
ultimately stated that he was able to decide the case fairly and impartially
based on the evidence, that fact alone does not allay concerns regarding the
juror’s ability to be impartial. See Penn, 132 A.3d at 505; Johnson, 445
A.2d at 514.
Although all three defendant exhausted their peremptory strikes, the
record does not reveal which defendant struck juror #56.8 Therefore,
although Appellant exhausted his peremptory strikes, he has not
demonstrated that he was forced to use his peremptory strike to exclude juror
#56. Moreover, Appellant has not alleged that any of the empaneled jurors
were impartial. Accordingly, Appellant has not demonstrated adequate
prejudice to warrant relief.
Appellant next claims that the trial court erred in instructing the jury on
consciousness of guilt. He first contends that there was insufficient evidence
of flight to justify issuing the instruction. According to Appellant, he merely
opened the back door of it and shut it after seeing armed police, but did not
run or physically resist. He further asserts that there was no evidence he
knew why the police were there or that he was about to be arrested. Second,
Appellant contends that the trial court failed to instruct the jury that the
credibility, weight, and effect of his flight was for them to decide as suggested
8 The trial court afforded the Commonwealth and the defense nine peremptory
strike. The defendants each had three peremptory strikes.
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by Pa.SSJI (Crim.) § 3.15. We conclude that this issue is waived in part and
otherwise meritless.
Preliminarily,
[i]n order to preserve a claim that a jury instruction was
erroneously given, the [a]ppellant must have objected to
the charge at trial. As our Supreme Court has explained:
The pertinent rules, therefore, require a specific
objection to the charge or an exception to the trial
court’s ruling on a proposed point to preserve an issue
involving a jury instruction. Although obligating
counsel to take this additional step where a specific
point for charge has been rejected may appear
counterintuitive, as the requested instruction can be
viewed as alerting the trial court to a defendant’s
substantive legal position, it serves the salutary
purpose of affording the court an opportunity to avoid
or remediate potential error, thereby eliminating the
need for appellate review of an otherwise correctable
issue.
Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. 2014) (citations omitted).
Instantly, Appellant did not object to the form or content of the
consciousness of guilt instruction given by the trial court, and there is no
indication that Appellant requested that the trial court add language to its
proposed instruction. Therefore, we are constrained to conclude that
Appellant’s second contention—i.e., that the instruction as given was
defective—is waived due to Appellant’s failure to alert the court to the alleged
issue. See id.As to Appellant’s first contention, Appellant has not directed this Court
to a specific objection to the trial court’s decision to instruct the jury on
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consciousness of guilt. Nevertheless, the record establishes that Appellant did
object at some point as his counsel noted that she had taken an exception to
“the flight nonsense[.]” N.T., 2/10/15, at 18. Moreover, the trial court did
not find waiver of Appellant’s contention that a consciousness of guilt charge
was appropriate based on Appellant’s attempt to evade the officers attempting
to arrest him. Under these circumstances, we will address Appellant’s
contention that the evidence did not support a consciousness of guilt charge.
It is well settled that
[a] jury instruction is proper if supported by the evidence of
record. Th[e Pennsylvania Supreme Court] has held that
“[w]hen a person commits a crime, knows that he is wanted
therefor, and flees or conceals himself, such conduct is
evidence of consciousness of guilt, and may form the basis
[of a conviction] in connection with other proof from which
guilt may be inferred.”
Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008) (citations omitted).
“The theory for admitting evidence of flight is ‘based upon a premise that the
person who flees does so in recognition of his wrongdoing and is seeking to
avoid punishment for that conduct.’” Commonwealth v. Barnes, 593 A.2d
868, 870 (Pa. Super. 1991) (citation omitted).
The record in this case belies Appellant’s contention that the evidence
did not support the consciousness of guilt instruction. The Commonwealth
introduced evidence that Appellant was aware of his wrongdoing with respect
to the killing of McClay, and that he knew of the possibility that he left
fingerprints in the Rite Aid. Additionally, the Commonwealth presented
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evidence that Appellant was aware that he was wanted by the police when
officers conducted a knock and announce at the front door of his residence,
and an officer in full uniform ordered him to stop as he emerged from the back
of residence. Lastly, the Commonwealth’s evidence suggested that Appellant
sought to avoid punishment when he retreated back inside his home and
attempted to close the door on the officers. Based on the foregoing, we agree
with the trial court that the trial evidence could be construed as showing
Appellant recognized his wrongdoing and was attempting to avoid punishment
when he retreated into his home. Accordingly, we discern no error in the
issuance of a consciousness of guilt instruction and that no relief is due on
Appellant’s final preserved issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2017
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