Com. v. Howard, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RODNEY HOWARD, JR. :
:
Appellant : No. 1714 WDA 2018
Appeal from the Judgment of Sentence Entered July 31, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013050-2014
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED SEPTEMBER 11, 2020
Appellant, Rodney Howard, Jr., appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his jury
trial conviction for first-degree murder.1 We vacate the judgment of sentence
and remand for an evidentiary hearing based upon Appellant’s after-
discovered evidence claim.
The relevant facts and procedural history of this appeal are as follows.
On January 20, 2014, police received information that a man was shot to
death on Rapidan Way in Pittsburgh. Detectives went to the scene and found
Hosea Davis (“Victim”) with numerous gunshot wounds to the torso. Medics
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2502(a).
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arrived shortly thereafter and pronounced Victim dead.
During their investigation, detectives discovered that Daniel Ray was an
eyewitness to the shooting. Mr. Ray had gone to Rapidan Way to purchase
drugs. (See N.T. Trial, 7/23-26/18, at 190). After consuming some alcohol,
Mr. Ray purchased a bag of heroin from Victim. (Id. at 198-99). Upon
receiving the heroin, Mr. Ray turned his back to Victim. (Id. at 200).
Approximately twenty seconds later, Mr. Ray heard gunshots. (Id.)
Mr. Ray immediately dove into nearby bushes. (Id. at 237). From this
position, Mr. Ray saw Appellant, wearing a gray, Champion sweatsuit with the
hood pulled tightly over his head, Nike “Foams” sneakers, and glasses. (Id.
at 203-04). Appellant also wore a mask that covered part of his face, from
his nose to his chin. (Id. at 203). Mr. Ray recognized Appellant from the
neighborhood, and Appellant had worn the same sweatsuit earlier that week.
(Id. at 183-84, 202). Appellant was carrying an assault rifle, which he pointed
at Victim. (Id. at 202). Mr. Ray watched as Appellant fired additional shots
at Victim, who was lying on the ground. (Id. at 204-05). After the shooting,
Appellant turned and walked through the gate to his residence. (Id. at 205).
The day after the shooting, detectives interviewed Mr. Ray and obtained
his statement. (Id. at 278-79). During the interview, detectives showed Mr.
Ray a photo array of eight men. (Id. at 280). Without hesitating, Mr. Ray
selected Appellant’s photo and identified him as the shooter. (Id. at 302).
Appellant subsequently absconded, and U.S. Marshals did not apprehend him
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until September 2014. (Id. at 311).
The Commonwealth filed a criminal information charging Appellant with
criminal homicide.2 On April 17, 2015, the Commonwealth filed a motion in
limine, seeking permission for Mr. Ray to testify about a hearsay statement
made by Appellant’s father immediately prior to the shooting. Specifically,
Mr. Ray heard Appellant’s father “call [Appellant] by name and tell him not to
do it.” (Motion, filed 4/17/15, at ¶1). On May 12, 2015, Appellant filed his
own motion in limine, seeking to exclude testimony from Mr. Ray regarding a
possible motive:
Ray had heard that [Appellant’s] girlfriend’s home had been
burglarized and a number of stamp bags were stolen. The
bags were marked “Income Tax.” [Appellant] was offering
a reward to anyone who furnished him with information as
to the identity of the burglar.
(Motion, filed 5/12/15, at ¶4(c)). On May 15, 2015, the original jurist in this
matter, Judge Randal Todd, ruled the statements at issue in the motions in
limine were inadmissible.
On September 30, 2015, Appellant filed a motion to suppress additional
statements he made to a jailhouse informant. The court granted Appellant’s
suppression motion, and the Commonwealth immediately filed a notice of
appeal. This Court affirmed the suppression ruling on June 21, 2017.
Thereafter, the Commonwealth submitted a motion for disqualification,
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2 A separate charge of persons not to possess firearms was severed prior to
trial.
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requesting that Judge Todd recuse himself. Judge Todd granted the motion
on June 13, 2018, and Appellant’s case was reassigned to Judge Donna Jo
McDaniel.
On July 16, 2018, Judge McDaniel conducted a hearing on pretrial
motions. At that time, the parties revisited Judge Todd’s ruling on the
admissibility of the hearsay statement of Appellant’s father. Judge McDaniel
determined the statement “falls squarely under present sense impression
and/or excited utterance. It will be admissible.” (N.T. Hearing, 7/16/18, at
7). Appellant proceeded to a jury trial on July 23, 2018. During trial, the
parties also revisited Judge Todd’s ruling regarding evidence of Appellant’s
reward for information about the theft of his drugs. (See N.T. Trial at 174).
Again, Judge McDaniel determined she was not bound by Judge Todd’s prior
ruling, and she permitted Mr. Ray to testify about Appellant’s offer of a reward.
(Id. at 177).
At the conclusion of trial, the jury convicted Appellant of first-degree
murder. On July 31, 2018, the court sentenced Appellant to life imprisonment
without parole. Appellant timely filed post-sentence motions on August 7,
2018. Before the court issued its ruling, Appellant requested to withdraw the
pending motions. The court granted Appellant’s request on November 29,
2018, and Appellant timely filed a notice of appeal on December 4, 2018. In
January and February 2019, the court granted Appellant multiple extensions
of time to file a Pa.R.A.P. 1925(b) concise statement of errors complained of
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on appeal.3
Before submitting a Rule 1925(b) statement, Appellant learned that Mr.
Ray had received a favorable plea deal for his own pending charges in light of
his cooperation in Appellant’s case. On March 18, 2019, Appellant filed a
motion for new trial due to after-discovered evidence, claiming: 1) Mr. Ray
testified that he was not promised leniency in exchange for his testimony
against Appellant; 2) Mr. Ray entered his own guilty plea and was sentenced
on July 31, 2018, after he testified against Appellant; 3) Appellant was
unaware of Mr. Ray’s guilty plea until February 2019; and 4) Appellant’s
counsel spoke with Mr. Ray’s attorney, who confirmed his client received a
favorable sentence due to his cooperation in Appellant’s case. (See Motion,
filed 3/18/19, at ¶¶5-16).4 Consequently, Appellant requested a new trial or,
in the alternative, an evidentiary hearing to create a record for his after-
discovered evidence claim. On March 21, 2019, Appellant also filed a petition
for remand with this Court, raising substantially similar arguments.
This Court denied the remand petition on April 2, 2019, and the trial
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3 While Appellant’s Rule 1925(b) statement was pending, Judge McDaniel
retired and the case was transferred to a third jurist, Judge Jeffrey Manning.
4 Appellant’s brief includes a copy of the Court of Common Pleas docket entries
for Mr. Ray’s case. The docket entries indicate Mr. Ray entered a guilty plea
to possession of a controlled substance with intent to deliver and simple
possession, and the Commonwealth withdrew related charges. (See
Appellant’s Brief at Appendix H). Following the entry of the plea, the court
sentenced Appellant to probation. (Id.)
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court denied Appellant’s after-discovered evidence motion on April 15, 2019.
Appellant subsequently filed a timely Rule 1925(b) statement.
Appellant raises three issues for our review:
Did the second trial court err and violate the “coordinate
jurisdiction rule” and the “law of the case doctrine” when it
overruled the first trial court’s rulings and permitted witness
Daniel Ray to testify to statements that the first trial court
already ruled were inadmissible?
Should the Superior Court remand this matter to the Court
of Common Pleas for an evidentiary hearing based on after-
discovered evidence showing that Daniel Ray received
leniency on his criminal charges that were pending at the
time of Appellant’s trial in exchange for his cooperation with
the Commonwealth and his trial testimony?
Were Appellant’s federal and state due process rights
violated when the Commonwealth failed to correct false
testimony from Daniel Ray that it knew, or should have
known, was false when Daniel Ray testified at trial that he
was not getting anything in return, nor did he expect
anything in return, for his testimony and cooperation with
the Commonwealth?
(Appellant’s Brief at 4).
In his first issue, Appellant argues Judge McDaniel violated the
coordinate jurisdiction rule by permitting Mr. Ray to testify about matters that
Judge Todd had already deemed inadmissible. Appellant contends the
evidence Judge McDaniel relied on to support her rulings “was substantially
the same as the evidence that [Judge Todd] relied on and there was no
substantive change in the law to justify departing from [Judge Todd’s] ruling.”
(Id. at 12). Appellant maintains Judge McDaniel’s rulings attacked the
“settled expectation that Appellant could proceed to trial with a strategy based
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in part on the ruling that the two statements at issue were inadmissible.” (Id.
at 16). Appellant concludes this Court must vacate his judgment of sentence
and remand the matter for a new trial without the evidence that Judge Todd
had originally deemed inadmissible.
In response, the Commonwealth agrees that Judge McDaniel erred in
admitting evidence that Judge Todd already excluded. The Commonwealth
insists, however, “a new trial is not warranted because the court’s error was
harmless.” (Commonwealth’s Brief at 11). The Commonwealth emphasizes
the strength of Mr. Ray’s identification, noting Mr. Ray’s testimony “was
corroborated by strong circumstantial evidence.” (Id. at 18). The
Commonwealth acknowledges Mr. Ray was a drug addict in search of heroin
on the day of the shooting, but it asserts “he had been clean for four years at
the time of trial,” and Mr. Ray “testified that he was clear-headed on the day
of the crime.” (Id. at 19-20). The Commonwealth concludes “the untainted
evidence shows that Appellant was guilty beyond a reasonable doubt,” and a
new trial is not warranted pursuant to the harmless error doctrine. (Id. at
22). We agree with the Commonwealth.
Pennsylvania courts have “long recognized that judges of coordinate
jurisdiction sitting in the same case should not overrule each others’
decisions.” Commonwealth v. Starr, 541 Pa. 564, 573, 664 A.2d 1326,
1331 (1995). “This rule, known as the coordinate jurisdiction rule, is a rule
of sound jurisprudence based on a policy of fostering the finality of pre-trial
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applications in an effort to maintain judicial economy and efficiency.”
Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa.Super. 2013), appeal
denied, 625 Pa. 649, 91 A.3d 162 (2014).
The coordinate jurisdiction rule falls within the ambit of the law of the
case doctrine:
This doctrine refers to a family of rules which embody the
concept that a court involved in the later phases of a
litigated matter should not reopen questions decided by
another judge of that same court or by a higher court in the
earlier phases of the matter. Among the related but distinct
rules which make up the law of the case doctrine are that:
(1) upon remand for further proceedings, a trial court may
not alter the resolution of a legal question previously
decided by the appellate court in the matter; (2) upon a
second appeal, an appellate court may not alter the
resolution of a legal question previously decided by the
same appellate court; and (3) upon transfer of a matter
between trial judges of coordinate jurisdiction, the
transferee trial court may not alter the resolution of a legal
question previously decided by the transferor trial court.
* * *
Further, the limitations on the law of the case doctrine and
on the coordinate jurisdiction rule are virtually identical,
thereby again suggesting that the Pennsylvania coordinate
jurisdiction rule may be properly considered as part of the
family of rules making up the law of the case doctrine.
Departure from either of these principles is allowed only in
exceptional circumstances such as where there has been an
intervening change in the controlling law, a substantial
change in the facts or evidence giving rise to the dispute in
the matter, or where the prior holding was clearly erroneous
and would create a manifest injustice if followed.
Starr, supra at 574-76, 664 A.2d at 1331-32 (internal citations omitted).
Additionally, “[t]he doctrine of harmless error is a technique of appellate
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review designed to advance judicial economy by obviating the necessity for a
retrial where the appellate court is convinced that a trial error was harmless
beyond a reasonable doubt.” Commonwealth v. Thornton, 494 Pa. 260,
266, 431 A.2d 248, 251 (1981). See also Commonwealth v. Yockey, 158
A.3d 1246, 1254 (Pa.Super. 2017), appeal denied, 643 Pa. 686, 174 A.3d 567(2017) (reiterating “an erroneous ruling by a trial court on an evidentiary issue
does not require us to grant relief where the error was harmless”). The
harmless error doctrine “is premised on the well-settled proposition that [a]
defendant is entitled to a fair trial but not a perfect one.” Thornton, supra
at 266, 431 A.2d at 251 (quoting Lutwak v. United States, 344 U.S. 604,
619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953)).
“The Commonwealth has the burden of proving harmless error beyond
a reasonable doubt.” Commonwealth v. Wright, 599 Pa. 270, 312, 961
A.2d 119, 143 (2008).
Harmless error is established where either: 1) the error did
not prejudice the defendant; 2) the erroneously admitted
evidence was merely cumulative of other untainted
evidence; or 3) where the properly admitted and
uncontradicted evidence of guilt was so overwhelming and
the prejudicial effect of the error was so insignificant by
comparison that the error could not have contributed to the
verdict.
Commonwealth v. Bishop, 936 A.2d 1136, 1144 (Pa.Super. 2007), appeal
denied, 597 Pa. 710, 951 A.2d 1159 (2008).
Instantly, Judge Todd determined the Commonwealth’s evidence
regarding Appellant’s father’s statement constituted inadmissible hearsay.
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Judge Todd also ruled that testimony about Appellant offering a reward in
exchange for the identity of the person who stole his drugs was inadmissible.
Judge McDaniel subsequently overruled Judge Todd’s rulings and permitted
Mr. Ray to testify concerning the previously excluded evidence. In deciding
to admit the evidence at issue, Judge McDaniel relied on the same facts as
Judge Todd, there was no intervening change in the controlling law, and Judge
Todd’s original rulings were not clearly erroneous. Therefore, Judge McDaniel
violated the coordinate jurisdiction rule. See Starr, supra.Nevertheless, we agree with the Commonwealth’s conclusion that this
error was harmless. The record demonstrates that Mr. Ray saw the shooter
wearing a gray sweatsuit, distinctive sneakers, and glasses. (See N.T. Trial
at 203-04). Mr. Ray personally knew Appellant from their neighborhood, and
he saw Appellant wearing the same gray sweatsuit during the week prior to
the shooting. (Id. at 183-84, 202). Mr. Ray also noted that Appellant walked
through the gate to his residence immediately after the shooting. (Id. at
205).
Circumstantial evidence corroborated Mr. Ray’s testimony, including
Appellant’s flight from apprehension. See Commonwealth v. Lukowich,
875 A.2d 1169, 1173 (Pa.Super. 2005), appeal denied, 584 Pa. 706, 885 A.2d
41 (2005) (reiterating that where evidence exists that defendant committed
crime, knew he was wanted, and fled or concealed himself, such evidence is
admissible to establish consciousness of guilt). The Commonwealth also
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submitted evidence regarding Appellant’s cell phone records, which placed him
near the crime scene around the time of the shooting. (Id. at 358-73).
Additionally, Mr. Ray’s testimony that he saw Appellant shoot Victim as he laid
on the ground was corroborated by the medical examiner, who confirmed that
Victim “had to be face down on the ground” based on the nature of the “exit
wounds.” (Id. at 114-15).
In sum, Mr. Ray’s testimony identifying Appellant as the shooter was
consistent with his initial statements to police, as well as the testimony of
other witnesses. Mr. Ray’s testimony regarding the crime scene,
neighborhood, firearm, and other background matters was detailed and
comprehensive. Here, the properly admitted and uncontradicted evidence of
Appellant’s guilt was so overwhelming that any error related to Judge
McDaniel’s admission of evidence could not have contributed to the verdict.
See Bishop, supra. Accordingly, a new trial is not warranted based on the
violation of the coordinate jurisdiction rule because the court’s error was
harmless. See Thornton, supra.In his second and third issues, Appellant contends Mr. Ray received a
favorable plea agreement in exchange for his testimony against Appellant.
Appellant asserts his attorney did not learn about Mr. Ray’s plea deal until
March 2019, when the instant appeal was pending. Appellant insists he is
entitled to relief based upon this after-discovered evidence. Appellant also
emphasizes the Commonwealth agrees that remand for an evidentiary hearing
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is appropriate under these circumstances.5
Further, Appellant argues Mr. Ray “testified on direct and cross
examination that he was not seeking nor expecting favorable treatment
regarding his pending criminal case in exchange for his” cooperation with
Appellant’s prosecution. (Appellant’s Brief at 26) (citing N.T. Trial at 186-87,
251-53). Appellant claims the Commonwealth’s failure to correct Mr. Ray’s
testimony or disclose the pending plea deal amounts to a due process
violation, and Mr. Ray’s testimony “could have affected the judgment of the
jury.” (Appellant’s Brief at 27). Appellant concludes this Court must vacate
the judgment of sentence and grant a new trial or, in the alternative, remand
for an evidentiary hearing to develop the record regarding his after-discovered
evidence claim. We agree that the best resolution is to remand this matter
for the limited purpose of conducting an evidentiary hearing on Appellant’s
after-discovered evidence claim.
Pennsylvania Rule of Criminal Procedure 720 provides, “[a] post-
sentence motion for a new trial on the ground of after-discovered evidence
must be filed in writing promptly after such discovery.” Pa.R.Crim.P. 720(C).
Moreover, the Comment to Rule 720 explains “after-discovered evidence
discovered during the direct appeal process must be raised promptly during
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5 The Commonwealth continues to agree that the case “should be remanded
for an evidentiary hearing limited solely to the after-discovered evidence
claim.” (Commonwealth’s Brief at 24).
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the direct appeal process, and should include a request for a remand to the
trial judge.” Pa.R.Crim.P. 720, Comment.
The following principles apply to this Court’s review of an after-
discovered evidence claim:
To warrant relief, after-discovered evidence must meet a
four-prong test: (1) the evidence could not have been
obtained before the conclusion of the trial by reasonable
diligence; (2) the evidence is not merely corroborative or
cumulative; (3) the evidence will not be used solely for
purposes of impeachment; and (4) the evidence is of such
a nature and character that a different outcome is likely. At
an evidentiary hearing, an appellant must show by a
preponderance of the evidence that each of these factors
has been met in order for a new trial to be warranted. [Even
if it appears] likely that a new trial is warranted …,
procedure demands that the [trial] court develop the record
and make that call in the first instance.
Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa.Super. 2007), appeal
denied, 598 Pa. 774, 958 A.2d 1047 (2008) (internal citations omitted).
Instantly, Appellant’s filings concerning the after-discovered evidence
claim demonstrate that Mr. Ray entered a guilty plea after he testified at
Appellant’s trial. At Appellant’s trial, Mr. Ray denied that he would receive
favorable treatment on his own charges due to his cooperation in Appellant’s
case. (See N.T. Trial at 186-87, 251-53). The purported statements from
Mr. Ray’s attorney, however, cast doubt on Mr. Ray’s testimony in this regard.
On this record, Appellant presents a colorable claim of after-discovered
evidence warranting further review by the trial court. See Rivera, supra.Accordingly, we vacate the judgment of sentence and remand for an
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evidentiary hearing consistent with this memorandum. If a new trial is not
required, the court shall re-impose the judgment of sentence as originally
entered. See Rivera, supra at 359 (vacating judgment of sentence,
remanding for evidentiary hearing regarding, inter alia, after-discovered
evidence, and instructing trial court to re-impose judgment of sentence if new
trial was not required).
Judgment of sentence vacated. Case remanded for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2020
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