Com. v. Tirado, J.

J-A14017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAQUEL SHAMON TIRADO :
:
Appellant : No. 1225 WDA 2019
Appeal from the Judgment of Sentence Entered March 23, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003831-2016
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 22, 2020
Jaquel Shamon Tirado appeals from the judgment of sentence entered
after a jury convicted him of First-Degree Murder and numerous other crimes:
Aggravated Assault – Causing Bodily Injury, Aggravated Assault – Causing
Bodily Injury with a Deadly Weapon, Recklessly Endangering Another Person
(“REAP”), Tampering with Physical Evidence, Possessing Instruments of Crime
(“PIC”), Conspiracy to commit Murder, Conspiracy to commit Aggravated
Assault – Causing Bodily Injury, Conspiracy to commit Aggravated Assault –
Causing Bodily Injury with a Deadly Weapon, and Persons not to Possess
Firearms.1 Tirado challenges the sufficiency of the evidence. We affirm.
Tirado was charged in December 2016, with offenses related to the
killing of Stephen Bishop on Cottage Street in Erie. Tirado was a juvenile at
____________________________________________
118 Pa.C.S.A. §§ 2502(a), 2702(a)(1), 2702(a)(4), 2705, 4910(1), 907, 903,
and 6105(a)(1), respectively.
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the time of the crime, but the charges were in criminal court. At a jury trial,
the investigating officer, Detective Christopher Janus, testified and narrated
surveillance video depicting Victim and Tirado. Video from various cameras
showed Tirado and two other individuals approach Victim and continue to walk
with him. N.T., Day 2, 178. Tirado and one of those individuals were
supporting the right pockets of their pants, as if the pockets contained
firearms. Id. at 181, 183, 185-86, 190. One of the videos showed Victim,
Tirado, and the others entering Cottage Street, after which the sound of eight
gunshots could be heard. Id. at 193-95. The video shows Tirado and another
individual 18 seconds later running from the scene. Id. As they ran, their right
hands supported an item in each of their right pants pockets. Id. The videos
showed Tirado wearing a white t-shirt and tan pants, and did not capture
anyone else wearing tan pants and a white shirt at the time of the shooting.
Id. at 198.
Detective Janus testified on cross-examination that Tirado’s cousin, Eli
Tirado, was a suspect, as the police officers believed he was there at the time
of the shooting. N.T., Day 3, 96. Police found Eli’s cell phones, jacket, and
cigarette pack near the property where they recovered Victim’s body. Id. at
90. However, at the time of the trial, Detective Janus testified that “based on
[his] investigation now, [he] would call [Eli] a victim.” Id. The officers also
interviewed numerous other individuals as potential persons of interest. Id.
at 88-103. Detective Janus stated that the people mentioned were
“investigated and cleared.” Id. at 103. Detective Janus further testified that
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the video showed one of the individuals with Tirado, Keyon Lucas, was on foot,
and another, Xavier Wykoff, was on a bike. Id. at 105. Police did not charge
either one in relation to the shooting.
An eyewitness, Ralph Green, testified that he was sitting on his porch,
which was near the scene of the shooting, and he saw two teenagers lure
Victim down the street. Id. at 199. Green said one of the teenagers was
wearing a white shirt and tan or gray pants. Id. at 198. He heard gunshots,
but did not see the shooting. Green said he then looked down the street and
saw Victim stagger to a porch, and the person in tan or gray pants put a gun
in his pants pocket, follow the Victim to a porch, and then run from the scene.
Id. at 197, 200, 202, 205-06, 211. Green also testified that the individual
with a white shirt and tan or gray pants had braids. Id. at 200-01. Green
could not identify the face of the individual with the white shirt and tan or gray
pants. Id. at 203-05.
The officers investigating the shooting, sent photos captured from the
video to other officers for assistance with identification. N.T., Day 2, at 187-
88. Officer Justin Landfried testified that he viewed the still frame from the
video and recognized Tirado from prior encounters, which included 15 to 20
face-to-face interactions. N.T., Day 3, at 190-91. He was 100% confident in
his identification, and previously had seen Tirado wearing a white t-shirt and
tan pants. Id. at 192.
Officer Dave Madurski testified that a couple hours after the shooting,
he knocked on a door on the street where the video surveillance had last
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captured the fleeing suspects. N.T., Day 3, at 217-19. He found Tirado in an
upstairs bedroom, holding a baby. Id. at 219-220. Officer Madurski testified
that Tirado seemed nervous, was sweating, was wearing black shorts and no
shirt, his hair was styled as a “short afro,” and the interaction was “awkward.”
Id. at 221. He testified that “[i]t appeared as if the stage had been set.” Id.
After obtaining a warrant, police officers searched Tirado’s residence,
and discovered white t-shirts and a pair of tan pants. Id. at 228, 232, 237.
The pants were in a plastic garbage bag in Tirado’s bedroom. The bag also
contained a label discarded from a new article of clothing. N.T., Day 4, at 41;
N.T., Day 3, at 232-34.
Police officers recovered two types of bullets – .9 mm bullets from
Victim’s body and .32 caliber bullets at the scene. N.T., Day 2, at 149-54,
168. An expert in primer gunshot residue analysis and interpretation, Allison
Laneve, testified that the tan pants found at Tirado’s residence bore gunshot
residue. The residue was on the front of both legs of the pants, and the right
pants pocket. N.T., Day 4, at 69-71. A forensic DNA scientist, Joseph Kukosky,
testified that DNA testing on material recovered from the zipper of the tan
pants revealed a Y chromosome identical to Tirado’s Y chromosome. N.T., Day
4, at 30. Kukosky stated that the material could have been from Tirado or any
of Tirado’s paternal male relatives. Id. at 31.
A forensic pathologist, Dr. Eric Vey, testified that the Victim died “as a
result of a gunshot wound to the chest, with the entrance in the left proximal
arm.” N.T., Day 2, at 119. He stated that a bullet entered Victim’s left arm
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and wounded a number of major organs, including Victim’s left lung,
brachiocephalic artery, and trachea. Id. at 122-23. He said that a second
bullet entered his right foot. Id. at 120
The jury found Tirado guilty as above, and the trial court imposed an
aggregate sentence of 42 years to life in prison. Tirado filed a post-sentence
motion, which the trial court denied. After Tirado obtained reinstatement of
his appellate rights nunc pro tunc through a timely Post Conviction Relief Act
petition, he filed this appeal. His issue on appeal challenges the sufficiency of
the evidence:
Whether the Commonwealth failed to present sufficient
evidence to find [Tirado] guilty beyond a reasonable doubt
of murder of the first degree, conspiracy to commit murder
of the first degree, aggravated assault, conspiracy to
commit aggravated assault, recklessly endangering another
person, tamper with/fabricate physical evidence, possession
of an instrument of crime, and possession of a firearm
prohibited?
Tirado’s Br. at 3.
When reviewing a challenge to the sufficiency of the evidence, we “must
determine whether the evidence admitted at trial, and all reasonable
inferences drawn therefrom, when viewed in a light most favorable to the
Commonwealth as verdict winner, support the conviction beyond a reasonable
doubt.” Commonwealth v. Feliciano, 67 A.3d 19, 23 (Pa.Super. 2013) (en
banc) (quoting Commonwealth v. Stokes, 38 A.3d 846, 853-854 (Pa.Super.
2011)). “Where there is sufficient evidence to enable the trier of fact to find
every element of the crime has been established beyond a reasonable doubt,
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the sufficiency of the evidence claim must fail.” Id. (quoting Stokes, 38 A.3d
at 853). This standard applies equally where the Commonwealth’s evidence is
circumstantial. Commonwealth v. Patterson, 180 A.3d 1217, 1229
(Pa.Super. 2018).
Tirado first argues the Commonwealth presented insufficient evidence
to support the First-Degree Murder conviction. He maintains the
Commonwealth did not prove that he was the perpetrator of the killing or that
he had the specific intent to kill. He argues that the presence of gunshot
residue on the pants meant only that the person wearing the pants was nearby
when a firearm discharged, not that the person wearing the pants fired a gun.
He also claims that the DNA from the button and zipper from the tan pants
matched Tirado’s Y chromosomal sample. He claims this could have matched
his cousin, Eli Tirado, whom police also questioned. Tirado further points out
that Green testified that the person with a white shirt and tan pants had
braided hair, and notes that he did not have braided hair when an officer spoke
with him later that day. Tirado also highlights that Green testified that he did
not see the shooter’s face and did not make an in-court identification.
Tirado further claims that the Commonwealth failed to prove he had a
specific intent to kill. He argues that the bullet entered Victim’s left arm and
right foot, which are not vital organs. He asserts that the evidence therefore
does not support an inference of specific intent.
“To sustain a conviction for first-degree murder, the Commonwealth
must prove that: (1) a human being was unlawfully killed; (2) the accused
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was responsible for the killing; and (3) the accused acted with malice and a
specific intent to kill.” Commonwealth v. Williams, 176 A.3d 298, 306-07
(Pa.Super. 2017) (citing Commonwealth v. Ballard, 80 A.3d 380, 390 (Pa.
2013)). “A jury may infer the intent to kill ‘based on the accused’s use of a
deadly weapon on a vital part of the victim’s body.’” Id. at 307 (citation
omitted) (quoting Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011)).
The trial court concluded the Commonwealth presented sufficient
evidence to prove beyond a reasonable doubt that Tirado committed First-
Degree Murder. It noted that that the autopsy established that the Victim died
from a gunshot wound to the chest. The court further pointed out that the
surveillance video showed Tirado and others with the Victim immediately prior
to the shooting, and depicted Tirado and another individual supporting their
right pockets, as if the pockets contained guns, and an eyewitness testified
that Tirado put a gun back in his pocket and fled the scene.
After review of the briefs, the certified record, and the well-reasoned
opinion of the Honorable Stephanie Domitrovich, we agree that the evidence
was sufficient to prove First-Degree Murder beyond a reasonable doubt. We
thus affirm based on the trial court’s opinion. Trial Court’s Opinion, filed Oct.
15, 2019, at 5-7 (“1925(a) Op.”). We add only that Tirado’s arguments go to
the weight of the evidence, and do not render it insufficient as a matter of
law. The jury saw both the video and Tirado, and heard all of the testimony,
and was capable of resolving any discrepancies and determining whether
Tirado was, in fact, the shooter.
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Tirado’s challenge to the finding that Tirado had a specific intent to kill
likewise fails. Although the bullet entered Victim’s left arm, it penetrated his
chest, suggesting that killing Victim was the shooter’s intention all along. This,
coupled with the evidence that Tirado and another individual lured Victim to
the location, while appearing to carry weapons in their pockets, supports a
finding that Tirado had the specific intent to kill.
Tirado also claims the Commonwealth presented insufficient evidence to
support the aggravated assault convictions. He argues the Commonwealth did
not establish that he was the individual responsible for causing Victim’s
injuries, or that the injuries arose from Tirado’s use of a deadly weapon.
The two convictions for aggravated assault required the Commonwealth
to prove two slightly different things. One required proof that Tirado
“attempt[ed] to cause serious bodily injury to another, or cause[d] such injury
intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life,” while the other required
evidence that he “attempt[ed] to cause or intentionally or knowingly cause[d]
bodily injury to another with a deadly weapon,” 18 Pa.C.S.A. § 2702(a)(1),
(a)(4), respectively. A deadly weapon for this purpose includes “[a]ny firearm,
whether loaded or unloaded . . . .” 18 Pa.C.S.A. § 2301.
The trial court concluded the Commonwealth presented sufficient
evidence to support the conviction for Aggravated Assault under Section
2702(a)(1). It reasoned the evidence proved that Tirado and another
individual were carrying items in their front pants pockets, there was gunshot
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residue on the pants recovered from Tirado’s residence, Green saw Tirado put
a gun back in his pocket, and the video showed Tirado and another individual
leaving the scene. It further concluded the evidence established Tirado
knowingly caused bodily injury to another with a deadly weapon, and therefore
supported the conviction under Section 2502(a)(4), as Victim died from a
gunshot wound. After reviewing the briefs, the certified record, and the trial
court’s opinion, we agree with the trial court’s analysis and affirm on basis of
its opinion. 1925(a) Op. at 10-11, 12-13.
Tirado next claims the Commonwealth failed to establish the Conspiracy
to commit Murder conviction and the Conspiracy to commit Aggravated
Assault convictions. Tirado argues the Commonwealth did not prove an
agreement existed between Tirado and any other individual, noting the police
did not charge anyone else in connection with the crime. Tirado also claims
the Commonwealth failed to prove that there was an agreement between
Tirado and another individual whose intent or purpose it was to commit
Aggravated Assault, or that Tirado attempted to cause serious bodily injury.
“[T]o prove the existence of a criminal conspiracy, the Commonwealth
must demonstrate that the defendant: ‘(1) entered an agreement to commit
or aid in an unlawful act with another person or persons, (2) with a shared
criminal intent and, (3) an overt act was done in furtherance of the
conspiracy.’” Commonwealth v. Chambers, 188 A.3d 400, 409-10 (Pa.
2018) (quoting Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996)).
“Proving the existence of such an agreement is not always easy, and is rarely
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proven with direct evidence.” Id. at 410 (citing Commonwealth v. Spotz,
716 A.2d 580, 592 (Pa. 1998)). The Commonwealth may prove a conspiracy
“inferentially by showing the relation, conduct, or circumstances of the parties,
and the overt acts of alleged co-conspirators are competent as proof that a
criminal confederation has in fact been formed.” Id. (quoting
Commonwealth v. Kennedy, 453 A.2d 927, 930 (Pa. 1982)).
Here, the trial court concluded the Commonwealth presented sufficient
evidence to support the Conspiracy to commit Murder conviction. It reasoned
that Tirado and another individual were with Victim prior to the shooting, that
they lured Victim onto the street, and that Tirado and the other individual
were protecting items in their right front pockets, and presented evidence that
Victim was dead. After reviewing the briefs, the record, and the trial court’s
opinion, we affirm based on the trial court’s opinion. 1925(a) Op. at 9-10, 11-
12, 13-14.
The trial court also rejected the challenge to the convictions for
Conspiracy to commit Aggravated Assault. It reasoned the evidence
established that Tirado and another individual were following Victim and lured
Victim to the street, and Victim was shot and killed. After reviewing the briefs,
the record, and the trial court’s opinion, we affirm on the basis of the trial
court’s opinion. Id. at 11-12.
Tirado next argues the Commonwealth failed to present sufficient
evidence to support the REAP conviction. He claims the Commonwealth
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presented no evidence that he was the person responsible for causing Victim’s
injuries.
A person commits REAP if the person “recklessly engages in conduct
which places or may place another person in danger of death or serious bodily
injury.” 18 Pa.C.S.A. § 2705; see Commonwealth v. Reynolds, 835 A.2d
720, 727 (Pa.Super. 2003).
The trial court concluded the evidence was sufficient to support the REAP
conviction, reasoning Victim was lured onto the street, and shot by a man
wearing a white t-shirt and gray or tan pants, and the shooting caused Victim’s
death. The court concluded that the evidence also established Tirado’s identity
as the perpetrator. After reviewing the briefs, record, and trial court’s opinion,
we affirm based on the trial court’s opinion. 1925(a) Op. at 15.
Tirado also claims the Commonwealth failed to prove he tampered with
evidence. He argues the Commonwealth failed to prove he was aware he was
the subject of an official investigation, and that he attempted to, or succeeded
in, concealing the pants.
The crime of tampering with evidence occurs when a person “believing
that an official proceeding or investigation is pending or about to be instituted
. . . alters, destroys, conceals or removes any record, document or thing with
intent to impair its verity or availability in such proceeding or investigation.”
18 Pa.C.S.A. § 4910(1); see Commonwealth v. Toomer, 159 A.3d 956, 961
(Pa.Super. 2017).
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Here, the trial court found the Commonwealth presented sufficient
evidence to support the tampering with evidence conviction. It noted that
there was evidence that police recovered from Tirado’s residence a bag of
trash containing the pair of tan pants matching pants that Tirado was seen
wearing at the time of the crime, and that the Commonwealth presented
evidence that Tirado knew, or should have known, an investigation would
follow the shooting. We agree and, after reviewing the briefs, record, and trial
court’s opinion, we affirm on the basis of the trial court’s opinion. 1925(a) at
16-17.
In the last two sections, Tirado claims the Commonwealth failed to
present sufficient evidence to sustain the conviction for PIC and Possession of
a Firearm Prohibited. He argues both convictions fail because the
Commonwealth did not present evidence he was in possession of a weapon.
The crime of PIC occurs when a person “possesses any instrument of
crime with intent to employ it criminally.” 18 Pa.C.S.A. § 907(a). The trial
court found the evidence here sufficient to meet that definition because,
among other evidence, Green testified he saw Tirado place a gun back into
Tirado’s pocket. We agree, and, after review of the briefs, the record, and the
trial court’s opinion, we affirm based on the trial court’s opinion. 1925(a) Op.
at 17-18.
Tirado’s sufficiency challenge to the Persons not to Possess a Firearm
conviction does not appear in Tirado’s Rule 1925(b) statement. He therefore
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waived the claim. See Pa.R.A.P. 1925(b)(4)(vii). In any event, even if he had
preserved the claim, we would conclude it lacked merit.
The statute governing Persons not to Possess a Firearm, 18 Pa.C.S.A. §
6105, provides that a person prohibited from possessing a firearm pursuant
to subsection 6105(b), “within or without this Commonwealth, . . . shall not
possess, use, control, sell, transfer or manufacture or obtain a license to
possess, use, control, sell, transfer or manufacture a firearm in this
Commonwealth.” 18 Pa.C.S.A. § 6105.
The parties stipulated that Tirado was a minor at the time of the crime
and could not lawfully possess a firearm. See 18 Pa.C.S.A. § 6110.1. Further,
the Commonwealth presented evidence that Tirado possessed a firearm,
including that he was supporting his pocket as though it contained a firearm,
and Green saw Tirado put the firearm back in his pocket. This was sufficient
to support the conviction.
In sum, we conclude the Commonwealth presented sufficient evidence
to support all convictions. We therefore affirm the judgment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2020
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Circulated 08/27/2020 12:05 P
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
: OF ERIE COUNTY, PENNSYLVANIA
v.
: CRIMINAL DIVISION
JAQUEL SHAMON TIRADQ,
Appellant
: CR 3831 of 2016
: 1225 WDA 2019
Appearances: Emily M. Merski, Esq., for Appellant Jaquel Shamon Tirado
John H. Daneri, Erie County District Attorney, for Appellee Commonwealth
Of Pennsylvania
1925(a) OPINION
Domitrovich, J., October 15th, 2019
On July 30th, 2019, this Trial Court granted the request of Appellant Jaquel Shamon
Tirado [hereinafter Appellant] by and through his counsel's "Supplement to Motion for Post -
Conviction Collateral Relief" [hereinafter Supplemental PCRA], with no objection by the
Commonwealth, to reinstate Appellant's appellate rights nunc pro tunc. Appellant's counsel,
Emily M. Merski, Esq., on appeal raises nine (9) issues as to the sufficiency of the evidence
of
nine (9) of his ten (10) criminal convictions and also raises an issue as to an allegation
of
prosecutorial misconduct in Commonwealth's closing argument. This Trial Court provides the
following procedural history:
On December 22nd, 2016, the District Attorney's Office filed a Criminal Tnformation
charging Appellant and his co-conspirators with shooting and killing Stephen Bishop
[hereinafter
Victim] at or near the 2000 block of Cottage Street in Erie, Pennsylvania. The District
Attorney's
Office filed the following criminal counts against Appellant: Criminal Homicide/Murder,
in
violation of 18 Pa.C.S. § 2501(a); Aggravated Assault, in violation of 18 Pa.C.S. § 2702(a)(1);
Page 1 of 29
Aggravated Assault, in violation of 18 Pa.C.S. § 2702(a)(4); Recklessly Endangering Another
Person, in violation of 18 Pa.C.S. § 2705; Firearms not to be carried without a License, in
violation of 18 Pa.C.S. § 6106(a)(1); Possession of Firearm by a Minor, in violation of 18
Pa.C.S. §6110.1(a); Tampering with or Fabricating Physical Evidence, in violation of 18 Pa.C.S.
§ 4910(1); Possessing Instruments of Crime, in violation of 18 Pa.C.S. § 907(a); Criminal
Conspiracy-Criminal Homicide/Murder under 18 Pa.C.S. 2501(a), in violation of 18 Pa.C.S.
§ 903; Criminal Conspiracy -Aggravated Assault under 18 Pa.C.S. 2702(a)(1), in violation of 18
Pa.C.S. § 903; Criminal Conspiracy -Aggravated Assault under 18 Pa.C.S. 2702(a)(4), in
violation of 18 Pa.C.S. § 903; and Possession of Firearms Prohibited, in violation of 18 Pa.C.S.
§ 6105(a)(1).
On March 21st, 2017, Appellant, by and through his prior counsel, Nathaniel E. Strasser,
Esq., filed Appellant's Petition for Writ of Habeas Corpus. On April 19th, 2017, a hearing was
held on Appellant's Petition for Writ of Habeas Corpus at which time this Trial Court heard
expert testimony from toolmark examination expert Corporal Dale Weimer. This Trial Court also
considered the Preliminary Hearing testimony from Detective Michael Hertel of the City of Erie
Police from November 18th, 2016. By Opinion and Order dated May 1st, 2017, this Trial Court
concluded the Commonwealth failed to produce sufficient evidence as to the specific barrel
length of the firearm used by Appellant to support the charges of Firearms Not to be Carried
Without a License (18 Pa.C.S. § 6106(a)(1)) and Possession of Firearms by a Minor (18 Pa.C.S.
§ 6110.1(a)). Specifically, no testimony or evidence was presented regarding a specific barrel
description of the handgun, nor was any testimony or evidence presented demonstrating an
analysis of shell casings found at the scene was performed to determine the type of firearm used.
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Thus, this Trial Court granted Appellant's Petition for Writ of Habeas Corpus to the extent this
Trial Court dismissed Counts Five and Six from his Criminal Information.
After jury selection, a jury trial was held on August 1st, 2nd, and 3rd, 2017. On August 3rd,
2017, the jury returned verdicts of guilty against Appellant on all ten of the following charges:
Criminal Homicide/Murder, Criminal Conspiracy/Murder of the First Degree, two counts of
Aggravated Assault, two counts of Criminal Conspiracy/Aggravated Assault, Recklessly
Endangering Another Person, Possession of Instruments of a Crime, Tampering Evidence, and
Person Not to Possess Firearms.
On March 29th, 2018, Appellant's counsel filed a Motion for Judgment of Acquittal
arid/or Motion for New Trial. On April 11th, 2018, argument was held on said Motions, and by
Order dated the same day, April 11th, 2018, this Trial Court directed both counsel for Appellant
and Commonwealth to file Memoranda of Law on the relevant issues presented in Appellant's
Motion. On May 1st, 2018, Appellant's counsel filed a Motion for Extension to File
Memorandum of Law wherein counsel for Appellant indicated the court reporter needed
additional time to transcribe the relevant portions of the jury trial in this matter. By Order dated
May rd, 2018, this Trial Court granted Appellant's Motion for Extension to File Memorandum
of Law. On June 4th, 2018, Appellant's counsel filed Appellant's Memorandum of Law in
Support of Appellant's Post -Sentence Motion, and on June 12th, 2018, counsel for
Commonwealth filed a Memorandum of Law in Opposition to Appellant's Post -Sentence
Motion. Before this Trial Court issued its decision on Appellant's Motion, Appellant's counsel
provided to this Trial Court the following relevant transcripts: testimony of Detective
Christopher Janus [hereinafter Detective Janus] from August lst and 3rd, 2017, and
Commonwealth's closing argument from August 2nd, 2017. On July 6th, 2018, this Trial Court
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issued an Opinion and Order denying Appellant's Motion for Judgment of Acquittal and/or
Motion for New Trial.
On August 7th, 2018, Appellant filed a Notice of Appeal to the Pennsylvania Superior
Court of this Trial Court's Post-Sentence Order dated July 6th, 2018. This Trial Court filed its
1925(b) Order on August 9th, 2018. Appellant filed his Statement of Matters Complained of on
Appeal on August 29th, 2018. On December 14, 2018, the Pennsylvania Superior Court quashed
Appellant's appeal for failure of defense counsel file a timely Notice of Appeal as required by
Pa.R.A.P. 902.
On May 15, 2019 Appellant filed a pro se Post-Conviction Relief Act petition
[hereinafter PCRA], alleging ineffective assistance of counsel for failure of Appellant's previous
counsel to file a timely Notice of Appeal. On May 17, 2019 Attorney Willian J. Hathaway, Esq.
was appointed as "PCRA counsel." On June 17, 2019, Attorney Hathaway filed Appellant's
"Supplement to Motion For Post-Conviction Collateral Relief." As relevant to the instant
appellate case and as explained earlier, this Trial Court granted Appellant's Supplemental PCRA
on July 30, 2019 to the extent Appellant's appellate rights were restored nunc pro tune.
Appellant's new appellate counsel, Emily Merski, Esq. [hereinafter Appellant's Counsel],
subsequently filed a timely Notice of Appeal on August 9, 2019.
This Trial Court issued its 1925(b) Order on August 9, 2019 directing Appellant's
counsel to file a concise statement of matters complained on appeal within twenty-one (21) days
of said date. Upon the first request of Appellant's counsel for additional time to review
Appellant's record filed on August 27, 2019, this Trial Court granted her request to file her
concise statement providing an additional ten (10) days. Appellant's counsel then filed a second
request for additional time on September 6, 2019. This Trial Court granted this second request,
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and provided an additional five (5) days for Appellant's counsel to file her concise statement.
Appellant's counsel filed her "Concise Statement of the Matters Complained on Appeal" on
September 11, 2019.
Appellant challenges nine (9) of his ten (10) convictions arguing Commonwealth failed
to provide sufficient evidence to convict him of those charges. A claim in which the sufficiency
of the evidence is challenged is a question of law. Commonwealth v. Stahl, 175 A.3d 301, 303
(Pa. Super. 2017) (citing Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000)).
Evidence is sufficient to support a verdict if it "establishes each material element of the crime
charged and the commission thereof by the accused, beyond a reasonable doubt." Id. If evidence
offered in support of the verdict is contradictory to the physical facts "in contravention to human
experience and the laws of nature," then the evidence is insufficient as a matter of law. Id at 303-
04. The court is required to view the evidence in the light most favorable to the "verdict winner"
when reviewing a sufficiency of the evidence claim. Id. at 304.
Circumstantial evidence alone may be sufficient to convict. Commonwealth v. Littlejohn,
250 A.2d 811, 828 (1969). Circumstantial evidence is sufficient as long as the inferences arising
from this evidence prove the facts in question beyond a reasonable doubt. Id.To sustain a conviction for Murder of the First Degree, the jury must find beyond a
reasonable doubt a victim is dead; defendant killed said victim; and did so with specific intent to
kill and with malice. Commonwealth v. Bracey, 662 A.2d 1062, 1066 (1995). A court may infer
specific intent from "the use of a deadly weapon upon a vital part of the victim's body." Id.At Appellant's trial, in the instant case, Commonwealth presented evidence that when
Officer Carducci arrived at the scene, Victim was "pulseless, no carotid pulse was present,
bleeding profusely from the mouth." (See Notes of Testimony, Jury Trial, Day 2 ("N.T.2.") at pg.
Page 5 of 29
38:20-24). Furthermore, Officer Carducci stated the breaths Victim was taking at the scene were
not able to support his life. (N.T.2. at pg. 38:25-39:1).
Dr. Eric Vey, a forensic pathologist for twenty-five (25) years and licensed in forensic
pathology having done over four thousand (4000) autopsies with approximately five hundred
(500) to seven hundred fifty (750) autopsies involving fatal shootings, was qualified by this Trial
Court as an expert in forensic pathology. Dr. Vey provided his expert testimony as to the cause
of death of Victim, in which Dr. Vey opined and concluded Victim "died as a result of a gunshot
wound to the chest, with the entrance in the left proximal arm." (N.T.2. at pg. 119:11-12). Dr.
Vey further found and concluded Victim expelled blood from his mouth, and the bullet wounded
a number of major organs such as Victim's left lung, brachiocephalic artery, and trachea. (N.T.2.
at pg. 122:6-123:24). Dr. Vey ultimately concluded Victim's "cause of death, technically, is from
bleeding to death, both internally and externally with a component of having his lungs fill up
with blood." (N.T.2 at pg. 123:12-16) Dr. Vey indicated Victim drowned "in his own blood at
the same time." (Id.) Therefore, Commonwealth presented sufficient evidence to satisfy the first
element of Murder of the First Degree in that Victim is dead.
The second element is whether sufficient evidence existed to prove beyond a reasonable
doubt Appellant killed the victim. See Bracey at 1066. While showing the video to the jury,
Detective Janus narrated that the video from August 18, 2016 demonstrated Victim was walking
with Appellant and two other individuals prior to the 911 call when Victim was shot. (N.T.2. at
pg. 178:15-24). Detective Janus further indicated that prior to the shooting, Appellant and
another individual were supporting the right pocket of their pants as if their pockets contained
firearms. (N.T.2. at pg. 181:5-13, pg. 183:12-23, pg. 185:13-486:16). Eight gunshots were heard
via audio recordings from the videos. (N.T.2. at pg. 194:13-195:25). Appellant and another
Page 6 of 29
individual were recorded running away from the scene immediately after Victim was shot.
(N.T.2. at pg. 194:13-195:25). Appellant and another individual were running from the area with
their left hands free but with their right hands supporting an item in each of the right pockets of
their pants. (Id.).
Ralph Green, a bystander witness, stated on August 18, 2016, he heard gun shots while
he was sitting on his porch. (See Notes of Testimony, Jury Trial, Day 3 ("N.T.3.") at pg. 197:16-
19). Mr. Green further noted after the gunshots, he witnessed Appellant staring back at him,
placing his gun back into his pants, and proceeding to run away from the scene. (Id.).
Furthermore, Mr. Green stated Appellant was wearing a white t -shirt and tan or grey pants on
August 18, 2016, as Appellant stared back at Mr. Green. (N.T.3. at pg. 200:18-21).
Moreover, when several of the Erie City Police searched Appellant's residence following
the shooting, police officers discovered white t -shirts and a pair of tan pants. (N.T. 3. at pg.
232:13-19, 237:4-23). This evidence directly corroborated statements made by Ralph Green, a
bystander witness, describing Appellant's clothing earlier on August 18, 2016. (N.T.3. at 200:18-
21). Appellant's pants were found in a plastic bag in his bedroom. (See. Notes of Testimony, Jury
Trial, Day 4 ("N.T.4.") at pg. 41:8-20). Allison Laneve [hereinafter Expert Laneve], Manager
and Forensic Scientist for RJ Lee Group, who has testified approximately one hundred five (105)
times as an expert witness, was qualified by this Trial Court as an expert witness in primer
gunshot residue analysis and interpretation. Expert Laneve stated gunshot residue was found on
both of these tan pants and white t -shirt which were recovered from Appellant's residence.
(N.T.4. at pg. 71:1-22, 74:3-75:4). Moreover, Commonwealth's video evidence shown to the
jury indicated no other individual was wearing the same clothes as Appellant wore on any of the
surveillance videos from August 18, 2016. (N.T.2. at pg. 198:17-25). Therefore, Commonwealth
Page 7 of 29
presented sufficient evidence to satisfy the second element of Murder of the First Degree in that
Appellant killed this Victim.
For Murder of the First Degree, Commonwealth must satisfy the third element in that
Appellant acted with specific intent to kill and malice. See Bracey at 1066. Detective Janus
stated Appellant and another individual were with the Victim prior to the shooting, as evidenced
by video from August 18, 2016. (N.T.2. at pg. 178:15-24). These individuals were protecting
their right front pants pockets prior to the shooting of Victim as illustrated on the video displayed
to the jury. (N.T.2. at pg. 181:5-13, 183:12-23, 185:13-486:16). Prior to Appellant and another
man luring the Victim down Cottage Avenue, Mr. Green noted he initially saw the Victim on the
sidewalk prior to hearing gunshots. (N.T.3. at pg. 199:20-23). Furthermore as stated in Bracey,
specific intent may be inferred from use of a deadly weapon to a vital area of the victim's body.
Commonwealth v. Bracey, 662 A.2d 1062, 1066 (1995). Dr. Vey opined and concluded the bullet
wounded a number of major organs such as Victim's left lung, the brachiocephalic artery, and
the trachea. (N.T.2. at pg. 122:6-123:24). Furthermore, Dr. Vey ultimately concluded Victim
died from a bullet wound thereby bleeding to death, drowning in Victim's own blood. (See
N.T.2. at 123:12-16). Specific intent to kill was inferred from Appellant's conduct and his
actions and, therefore, Commonwealth presented specific evidence to satisfy the third element of
Murder of the First Degree.
Contrary to argument by Appellant's counsel, Commonwealth did meet its burden of
proof by sufficient evidence proving that Appellant caused the death of Victim as indicated
above. Therefore, Commonwealth presented sufficient evidence to convict Appellant of Murder
of the First Degree thereby satisfying all three elements of Murder of the First Degree.
Page 8 of 29
As to whether Commonwealth presented sufficient evidence to sustain a conviction for
Conspiracy to Commit Murder of the First Degree under 18 Pa.C.S. §903, a conviction for
conspiracy requires: an unlawful agreement or an agreement to do an act in an unlawful manner,
and an agreement that makes each member criminally responsible for the acts of the other
members. Commonwealth v. Tingle, 419 A.2d 6, 10 (Pa. Super 1980). "[A] conspiracy may be
inferentially established by showing the relation, conduct or circumstances of the parties, and
overt acts by the conspirators have been held competent to prove that a corrupt confederation has
in fact been formed." Id. (citing Commonwealth v. Roux, supra, 465 Pa. 482, 350 A.2d 867(1976); Commonwealth v. Kinsey, 249 Pa. Super. 1, 8, 375 A.2d 727, 730 (1977)).
The Commonwealth must present evidence that the goal of the conspiratorial agreement
was to commit first degree murder, and secondly the Appellant entered into a conspiratorial
agreement. Tingle at 10. The overt act necessary to prove conspiracy must be done openly to
accomplish the purpose of the conspiracy. Commonwealth v. Cohen, 199 A.2d 139, 154
(Pa.Super. 1964).
In the instant case, Commonwealth presented sufficient evidence Appellant and another
individual were present with Victim in the moments prior to this shooting. (N.T.2. at pg. 178:15-
24). Furthermore, Commonwealth presented sufficient evidence Appellant and another
individual were walking while protecting an item in their right front pants' pockets. (N.T.2. at
pg. 181:5-13, 183:12-23, 185:13-486:16). Mr. Green noted he initially saw Victim, prior to two
men luring Victim down Cottage Avenue. (N.T.3. at pg. 199:20-23). It is uncontested Victim is
dead achieving the goal sought by the criminal conspiracy; therefore an overt act was present to
sustain Appellant's conviction. In summary, Commonwealth presented evidence from August
18, 2016 in which Appellant and another individual were following Victim, carrying firearms,
Page 9 of 29
and lured Victim down Cottage Avenue moments before Victim was shot. The overt act proving
conspiracy, if not the following of Victim while carrying a firearm, would be luring Victim down
Cottage Avenue immediately before Appellant and another individual shot Victim. Therefore,
Commonwealth presented sufficient evidence to sustain Appellant's conviction of Conspiracy to
Commit Murder of the First Degree under 18 Pa.C.S. §903(a)12501(a).
As to whether Commonwealth presented sufficient evidence to sustain a conviction for
Aggravated Assault under 18 Pa.C.S. §2702(a)(1), a person is guilty of Aggravated assault if he
"attempts to cause serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme indifference to the value of
human life." Commonwealth v. Bullock, 170 A.3d 1109, 1119 (Pa.Super. 2017). In order to
convict Appellant of this charge, Commonwealth must have presented sufficient evidence that
Appellant caused serious bodily harm to Victim and Appellant acted intentionally, knowingly, or
recklessly under circumstances manifesting extreme indifference to the value of human life.
Appellant possessed a firearm capable of causing bodily harm, based on statements by
Detective Janus that demonstrate Appellant and another individual were protecting items in their
right front pants' pockets, and Expert Laneve's opinion that gunshot residue was found on both
Appellant's pants as well as inside the pocket of these same pants. (N.T.2. at pg. 181:5-13,
183:12-23, 185:13-486:16; N.T.4. at pg. 74:3-75:4). Mr. Green stated after watching Victim
being lured back down Cottage Avenue, Mr. Green heard gun shots. (N.T.3. at pg. 199:20-23;
N.T. 3, pg. 197:16-19). Mr. Green then witnessed Appellant placing his gun back into his pants.
N.T.3. at pg. 197:16-19). Video evidence depicted to the jury that Appellant and another
individual ran from the location of the shooting. (N.T.2. at pg. 194:13-195:25).
Page 10 of 29
In the instant case, elements of aggravated assault are satisfied since Appellant lured
Victim down Cottage Avenue intending to cause serious bodily harm to Victim by way of a
firearm. Commonwealth's evidence clearly showed Appellant acted intentionally by shooting
Victim, knowing the goal Appellant achieved would be death or serious bodily harm to Victim.
The death of Victim constituted obvious serious bodily injury. Therefore, Commonwealth
presented sufficient evidence to convict Appellant of Aggravated assault under 18 Pa.C.S.
§2702(a)(1).
As to whether Commonwealth presented sufficient evidence to sustain a conviction for
Conspiracy to Commit Aggravated Assault under 18 Pa.C.S. §903, a conviction for conspiracy
requires: an unlawful agreement or an agreement to do an act in an unlawful manner, and an
agreement that makes each member criminally responsible for the acts of the other members.
Commonwealth v. Tingle, 419 A.2d 6, 10 (Pa. Super 1980). "[A] conspiracy may be inferentially
established by showing the relation, conduct or circumstances of the parties, and overt acts by
the conspirators have been held competent to prove that a corrupt confederation has in fact been
formed." Id. (citing Commonwealth v. Roux, supra, 465 Pa. 482, 350 A.2d 867 (1976);
Commonwealth v. Kinsey, 249 Pa. Super. 1, 8, 375 A.2d 727, 730 (1977)).
In the instant case, Commonwealth was required to prove a combination of two or more
persons existed, with criminal motive or criminal intent, to do a criminal or unlawful act or a
legal act by criminal or unlawful means. Commonwealth v. Petrosky, 166 A.2d 682, 688
(Pa.Super. 1960). The overt act necessary to prove conspiracy must be done openly to
accomplish the purpose of the conspiracy. Commonwealth v. Cohen, 199 A.2d 139, 154
(Pa.Super. 1964).
Page 11 of 29
Commonwealth presented sufficient evidence Appellant and another individual were
following Victim on August 18, 2016 prior to the shooting. (N.T.2. at pg. 178:15-24).
Furthermore, Commonwealth presented sufficient evidence Appellant and another individual
were walking as portrayed on the surveillance video protecting firearm in their right front pants'
pockets as testified to by Detective Janus. (N.T.2. at pg. 181:5-13, 183:12-23, 185:13-486:16).
Expert Laneve noted gunshot residue (GSR) was found on Appellant's clothing items recovered
from the location Appellant resided. (N.T.4. at pg.71:1-22, 74:3-75:4).
Presence of Appellant and another individual prior to the death of Victim on August 18,
2016 demonstrated the agreement between the parties to engage in conspiratorial acts.
Furthermore, bystander witness testimony from Mr. Green that Appellant and another man lured
Victim down Cottage Street sufficiently demonstrated Appellant and another man were engaged
in the criminal act resulting in the death of Victim. (N.T.3. at pg. 199:20-23). Victim, as a result
of being lured by Appellant and the other man down Cottage Avenue, is now deceased achieving
Appellant's criminal goal. Therefore, Commonwealth presented sufficient evidence to convict
Appellant of Conspiracy to Commit Aggravated Assault under 18 Pa.C.S. §903(a)/2702(a)(1).
As to whether Commonwealth presented sufficient evidence to sustain a conviction for
Aggravated Assault under 18 Pa.C.S. §2702(a)(4), Commonwealth must have proven "attempt[]
to cause or intentionally or knowingly cause[] bodily injury to another with a deadly
weapon."
18 Pa.C.S. §2702(a)(4). A deadly weapon is defined as "[a]ny firearm, whether loaded or
unloaded, or any device designed as a weapon and capable of producing death or serious bodily
injury, or any other device or instrumentality which . . . is calculated or likely to produce death or
serious bodily injury." 18 Pa.C.S. §2301. To convict Appellant of this crime, Commonwealth
must have presented sufficient evidence for the jury to find Appellant caused bodily injury to
Page 12 of 29
another, acting intentionally or knowingly to achieve such a result, and caused such an injury or
harm with a deadly weapon.
Shooting a person with a gun will cause serious bodily injury or death and Victim is now
deceased as a result of gunshot wounds sustained on August 18, 2016. Commonwealth presented
sufficient evidence to prove Appellant possessed a gun, a deadly weapon, on August 18, 2016,
and knew and intended to cause serious bodily harm to Victim.
Contrary to Appellant's argument, Commonwealth presented sufficient GSR evidence
which was found from Appellant's clothing recovered at Appellant's residence. (N.T.4. at
pg.71:1-22, 74:3-75:4). Both Appellant's tan pants recovered, and Appellant's right front pants'
pocket tested positive for GSR as shown by expert evidence and testimony. (Id.) Furthermore,
gun shots were heard in the area where Victim was shot. (N.T.3. at pg. 197:16-19). Evidence also
demonstrated Appellant clutched his right front pocket as if Appellant were supporting a firearm
in that pocket. (N.T.2. at pg. 181:5-13, 183:12-23, 185:13-486:16). Therefore,
sufficient
evidence existed for this jury to convict Appellant of Aggravated Assault under 18 Pa.C.S.
§2702(a)(4).
As to whether Commonwealth presented sufficient evidence to prove Appellant was
guilty of Conspiracy to Commit Aggravated Assault under 18 Pa.C.S. §903, an unlawful
agreement or an agreement to do an act in an unlawful manner must exist, and the agreement
makes each member criminally responsible for the acts of the other members. Commonwealth v.
Tingle, 419 A.2d 6, 10 (Pa. Super 1980). "[A] conspiracy may be inferentially established by
showing the relation, conduct or circumstances of the parties, and overt acts by the conspirators
have been held competent to prove that a corrupt confederation has in fact been formed." Id.Page 13 of 29
(citing Commonwealth v. Roux, supra, 465 Pa. 482, 350 A.2d 867 (1976); Commonwealth v.
Kinsey, 249 Pa. Super. 1, 8, 375 A.2d 727, 730 (1977)).
In the instant case, Commonwealth was required to prove a combination of two or more
persons existed, with criminal motive or criminal intent, to do a criminal or unlawful act or a
legal act by criminal or unlawful means. Commonwealth v. Petrosky, 166 A.2d 682, 688
(Pa.Super. 1960). The overt act necessary to prove conspiracy must be done openly to
accomplish the purpose of the conspiracy. Commonwealth v. Cohen, 199 A.2d 139, 154
(Pa.Super. 1964).
Commonwealth presented sufficient evidence Appellant and another individual were
following Victim on August 18, 2016 prior to the shooting. (N.T.2. at pg. 178:15-24).
Furthermore, Commonwealth presented the surveillance videos shown to the jury that Appellant
and another individual when walking, protected items presumed to be firearms in their right front
pants pockets. (N.T.2. at pg. 181:5-13, 183:12-23, 185:13-486:16). Expert Laneve stated gunshot
residue (GSR) was found on Appellant's clothing items recovered from the location Appellant
resided. (N.T.4. at pg.71:1-22, 74:3-75:4).
Furthermore, video surveillance illustrated Appellant and another individual immediately
prior to the death of Victim on August 18, 2016 demonstrated the agreement between Appellant
and another individual to engage in conspiratorial acts. Bystander witness statements from Mr.
Green demonstrated Appellant and another man lured Victim down Cottage Street and were
sufficient to show Appellant and another man were engaged in the criminal act resulting in the
death of Victim. (N.T.3. at pg. 199:20-23). Victim, as a result of following Appellant and another
man down Cottage Avenue, is now deceased achieving Appellant and the other man's criminal
result. Therefore, Commonwealth satisfied proving elements of conspiracy and provided
Page 14 of 29
sufficient evidence to convict Appellant of Conspiracy to Commit Aggravated Assault under 18
Pa.C.S. §903/2702(a)(4).
As to whether Commonwealth presented sufficient evidence to convict
Appellant of
Recklessly Endangering Another Person (REAP) under 18 Pa.C.S. 2705, "[a] person commits a
misdemeanor of the second degree if he recklessly engages in conduct which places or may place
another person in danger of death or serious bodily injury." 18 Pa.C.S. §2705. To convict
Appellant of REAP, Commonwealth must present sufficient evidence to prove Appellant's
conduct was reckless, causation, and a particular result must be reached.
Commonwealth v.
Reynolds, 835 A.2d 720, 727 (Pa.Super. 2003).
Commonwealth presented sufficient evidence through Ralph Green who saw Victim
being called back down Cottage Avenue on August 18, 2016. (N.T.3. at pg.
199:20-23, pg.
201:11-25). Furthermore, Mr. Green stated he heard a series of gun shots and saw Victim
who
had been shot. (N.T.3. at pg. 197:16-24). Mr. Green also stated he saw a man
wearing a white t -
shirt and tan or grey pants place a gun into his pocket and run away. (N.T.3. at pg.
197:16-19,
198:14-18). Victim subsequently died from his wounds, achieving the goal sought by
Appellant.
"But for" Appellant's actions of luring Victim back down Cottage Street to be
subsequently shot
by Appellant, Victim would not have been seriously harmed and placed
in danger of death.
Appellant's actions on August 18, 2016 directly placed Victim in danger of death or serious
bodily injury. Therefore, Commonwealth presented sufficient evidence to prove
Appellant
placed Victim in a dangerous situation resulting in serious bodily injury or
death.
Commonwealth sufficiently presented evidence to support the jury's finding of Appellant's guilt
as to Recklessly Endangering Another Person under 18 Pa.C.S. §2705.
Page 15 of 29
As to whether Commonwealth presented sufficient evidence to convict Appellant of
Tampering With or Fabricating Physical Evidence under 18 Pa.C.S. §4910(1), "[al person
commits a misdemeanor of the second degree if, believing that an official proceeding or
investigation is pending or about to be instituted, he alters, destroys, conceals or removes any
record, document or thing with intent to impair its verity or availability in such proceeding or
investigation." 18 Pa.C.S. §4910(1). Commonwealth must have proven Appellant knew an
official inquiry into the crime was pending or going to be instituted; Appellant concealed or
altered the item in question; and Appellant intended the concealed item be impaired as to its
verity or availability for use in the proceeding or investigation. Commonwealth v. Toomer, 159
A.3d 956, 961 (Pa.Super. 2017).
In the instant case, sufficient evidence was presented to the jury that a pair of tan pants
were found in a garbage bag upon searching the bedroom of where Appellant was residing.
(N.T.3. at pg. 232:11-19). Furthermore, other items in Appellant's gray trash bag were
soiled
baby diapers, balled up tissues, four potato chip bags, and a label discarded from a new article of
clothing. (N.T.3. at pg. 233:22-234:4). These items were in Appellant's gray trash bag and,
therefore, no longer desired by Appellant. (Id.). Appellant's pants discovered in this bag were
subsequently tested by an expert qualified in primer gunshot residue analysis and interpretation,
Expert Laneve, as to whether gunshot residue was present. Expert Laneve opined and concluded
both the pants and the right front pocket of these pants tested positive for gunshot residue.
(N.T.4, at pg.71:1-22, 74:3-75:4). Mr. Green stated he saw a person wearing a white t -shirt and
tan or grey pants place a firearm into his right front pocket on August 18, 2016. (N.T.3. at pg.
197:16-19; 198:14-18). Commonwealth is entitled to inferences that the reason the pants were
Page 16 of 29
amongst other trash was because this item was intended to be disposed of after Appellant
committed this crime.
Commonwealth presented sufficient evidence Appellant knew or should have known an
investigation would follow the shooting death of Victim, Appellant, with knowledge of the
forthcoming investigation, intentionally placed these tan pants among other discarded items in
that trash bag in an attempt to hide evidence of the shooting of Victim on August 18, 2016.
Therefore, as Appellant intended to conceal this item in response to the pending investigation
involving the death of Victim, Commonwealth satisfied all elements for this crime and
sufficiently presented evidence to convict Appellant of Tampering With or Fabricating Physical
Evidence under 18 Pa.C.S. §4910(1).
As to whether Commonwealth presented sufficient evidence to convict Appellant of
Possession of an Instrument of Crime under 18 Pa.C.S. §907(a), "[a] person commits a
misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it
criminally." 18 Pa.C.S. §907(a). A conviction for this crime will be upheld if Commonwealth
proves "a defendant possessed an instrument that is commonly used for criminal purposes, under
circumstances not manifestly appropriate for lawful use, with the intent to employ it criminally."
Commonwealth v. Foster, 651 A.2d 163, 165 (Pa.Super. 1994). An instrument of a crime is
defined as "anything specially made . . . or adapted for criminal use," or "anything commonly
used for criminal purposes and possessed by the actor under circumstances not manifestly
appropriate for lawful uses it may have." Commonwealth v. Eddowes, 580 A.2d 769, 774
(Pa.Super. 1990).
In the instant case, Commonwealth presented sufficient evidence to the jury that Mr.
Green, a bystander, saw Appellant place a gun into his pants pocket after Mr. Green heard
Page 17 of 29
gunshots. (N.T.3. at pg. 197:16-19, 198:14-18). Mr. Green identified Appellant as the person
wearing clothing identical to the clothing found at Appellant's residence. (Id.; See also N.T.3. at
pg. 232:13-19, 237:4-23). Furthermore, the discarded pants recovered from Appellant's
residence contained gunshot residue on both the pants and inside the right front pocket. (N.T.4.
at pg. 71:1-22, 74:3-75:4). A gun, which is clearly an instrument of crime, was not used for a
lawful purpose in the killing of Victim. Therefore, Commonwealth presented sufficient evidence
to the jury to convict Appellant of Possession of an Instrument of Crime under 18 Pa.C.S.
§907(a).
With respect to Appellant's nine (9) challenges to nine (9) of his ten (10) convictions,
Commonwealth presented sufficient evidence for the jury to find Appellant guilty on the nine (9)
counts, and this Trial Court requests the Pennsylvania Superior Court affirm the jury verdicts and
this Trial Court for reasons as set forth above in this Opinion.
Appellant's counsel also alleges Commonwealth conducted prosecutorial misconduct in
its closing argument. The case law in Pennsylvania regarding prosecutorial misconduct "is well
settled [in] that a prosecutor has considerable latitude during closing arguments and his
arguments are fair if they are supported by the evidence or use inferences that can reasonably be
derived from the evidence." Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008).
Prosecutorial misconduct occurs only where the "unavoidable effect of the comments at issue
was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the
defendant, thus impeding their ability to weigh the evidence objectively and render a true
verdict." Id Therefore, "an allegation of prosecutorial misconduct requires [trial courts] to
evaluate whether a defendant received a fair trial, not a perfect trial." Commonwealth v. Judy,
978 A.2d 1015, 1019 (Pa. Super. 2009). In determining whether a prosecutor engaged in
Page 18 of 29
impermissible conduct during closing argument, Pennsylvania follows Section 5.8 of the
American Bar Association (ABA) Standards provides the following standards:
(a) The prosecutor may argue all reasonable inferences from evidence in the
record. It is unprofessional conduct for the prosecutor intentionally to misstate the
evidence or mislead the jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his personal belief or
opinion as to the truth or falsity of any testimony or evidence or the guilt of the
defendant.
(c) The prosecutor should not use arguments calculated to inflame the passions or
prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury
from its duty to decide the case on the evidence, by injecting issues broader than
the guilt or innocence of the accused under the controlling law, or by making
predictions of the consequences of the jury's verdict.
Judy, 978 A.2d at 1019-20.
Moreover, the prosecutor may use visual aids "to assist the jury in understanding the
evidence in appropriate cases, and permission to do so is within the sound discretion of the trial
judge." Commonwealth v. Rickabaugh, 706 A.2d 826, 837 (Pa. Super. 1997) (quoting
Commonwealth v. Pelzer, 612 A.2d 407, 412 (Pa. 1992)). Significantly, this rule "applies equally
to demonstrative aids used during the actual trial phase and during the parties' opening and
closing arguments." Id.; see also Pa.R.E. 1006 (a proponent of evidence may use a summary to
prove the content of voluminous recordings that cannot be conveniently played in court if the
originals are available to opposing parties and the court); see also United States v. Crockett, 49
F.3d 1357, 1360-61 (8th Cir. 1995) ("Visual aids that summarize other evidence are generally
permissible pedagogic devices, especially when used to organize complex testimony or
transactions for the jury,"); see also Commonwealth v. Cash, 137 A.3d 1262, 1277 (Pa. 2016)
("[Ajs with the admissibility of other types of evidence, the admissibility of a slow-motion
Page 19 of 29
videotape rests within the sound discretion of the trial court, and [the Pennsylvania
Supreme
Court] will not reverse absent an abuse of discretion.").
The Pennsylvania Supreme Court in Jordan concluded the trial court did
not commit an
abuse of discretion in permitting Commonwealth's counsel to play a slow-motion
surveillance
videotape during closing argument where two videotapes were played to the jury
several times
during trial; the jury knew two versions of the video tape existed; the time that
transpired was
displayed on the slowed -down version which Commonwealth repeatedly reminded
to the jury;
and Commonwealth during closing argument emphasized the slowed
-down portion actually
encompassed only two seconds. Commonwealth v. Jordan, 65 A.3d 318, 330 (Pa. 2013).
Courts in other jurisdictions have concluded prosecutors are permitted to
play video
exhibits, including excerpts of the video exhibits, during closing arguments to the jury.
See e.g.
State v. Muhammad, 359 N.J. Super. 361, 383, 820 A.2d 70, 83 (N.J. Super. 2003) (finding
no
abuse of discretion in permitting the playback of video excerpts during
prosecutor's closing
argument since the videos "were not taken out of context and did not ,misstate or
distort the
testimony of the witnesses presented" and "were used as an aid to the prosecutor in
presenting
her arguments"); see also Hodges v. State, 194 Ga.App. 837, 392 S.E.2d 262, 263
(1990) (replay
of portion of video statement during closing is not a recall of a witness but a verbatim
repetition
of testimony already in evidence, and trial court did not erroneously exercise discretion in
permitting the video); see also State v. Bonanno, 373 So.2d 1284, 1292 (La.1979) ("Because
the
tape recorded statements were properly admitted into evidence at trial, the [trial] court
did not err
in allowing the state to replay the tapes during its closing argument.").
Where a defendant claimed the prosecutor presented to the jury edited tape-recorded
comments during closing argument to make it appear as though defendant was confessing
to
Page 20 of 29
murder, the Connecticut Supreme Court held the prosecutor did not engage in prosecutorial
misconduct. State v. Skakel, 276 Conn. 633, 888 A.2d 985 (2006). Specifically, in Skakel,
defense counsel argued the prosecutor manipulated a tape-recorded interview of defendant with
a
writer for a book about defendant's life, and that by omitting certain portions of the tape, the
prosecutor conveyed to the jury an unfair impression of the evidence to the jury. Id. at 1070. The
Connecticut Supreme Court, however, concluded the presentation was not deceptive as "it was
not improper for the [prosecutor] to play for the jury approximately two minutes
of the
defendant's tape-recorded interview . . . and to display trial exhibit photographs of the victim
while the tape was being played." Id. at 1069. Specifically, the Connecticut
Supreme Court
explained in Skakel:
After viewing the audiovisual presentation, we are not persuaded that there is any
reasonable likelihood that the state's presentation confused the jury or prejudiced
the defendant in any way. Contrary to the defendant's claim, the presentation
itself was not deceptive. That presentation consisted of the written transcript of
the interview . . , which the jury already had seen in its entirety....
Id. (emphasis added). Thus, the Connecticut Supreme Court in Skakel
"reject[ed] the defendant's
claim that the [prosecutor's] use of audiovisual aids during closing argument violated
his right to
a fair trial." Id.
In the instant case, Commonwealth moved for the admission of a series of unedited video
recordings, which this Trial Court admitted as Commonwealth's Exhibits 36(a) -(j) without
objection from counsel for Appellant. Both counsel also stipulated to the authenticity of said
unedited videos. (See N.T.2. at pg. 10:21-11:6; 11:20-12:2). Said unedited video recordings are
surveillance videos taken from various businesses near the scene of the murder. These unedited
video recordings depict the actions of Appellant and his co-conspirators, as well as Victim
prior
to the shooting and killing of Victim and the events occurring shortly thereafter.
Page 21 of 29
During Commonwealth's case -in-chief, the jury in the instant case had the
opportunity to
watch and hear the individual unedited video surveillance recordings of Exhibits
36(a) -(j) from
different angles and different surveillance cameras while Detective Janus
simultaneously
narrated as to their contents. (N.T.2. at 12:14-29:11). The individual video recordings
of Exhibits
36(a) -(j) were unedited so no footage was excised from any of these videos. Particularly
relevant
to this analysis, this jury watched and heard the contents of Video
Exhibit 36(h) ("Unedited
Video Exhibit 36(h)"), one of the unedited video surveillance recordings from
Exhibits 36(a) -(j).
Specifically, Unedited Video Exhibit 36(h) is a surveillance recording with audio
obtained from
the CBK Variety Store displaying, at a southwestern direction, the entrance
to a parking lot of
the Polish National Alliance Club ("PNA Club") and part of East 21St
Street. (See id at 29:12-
19). According to the timestamp, Unedited Video Exhibit 36(h)
shows Appellant and his co-
conspirators leaving the camera's periphery at approximately 13:41:45. A period of
seventy-
three seconds (from 13:41:45 to 13:42:58) is a lull in activity. A series of
eight gunshots are then
heard starting at 13:42:58. The eighth and final gunshot is heard at 13:43:04.
At issue in this case is Commonwealth's combined video recordings in
Exhibits 36(a) -(j),
which consist of independent, unedited surveillance video recordings from
various properties,
into an edited compilation video ("Compilation Video Exhibit 38").
Commonwealth explained
this Compilation Video Exhibit 38 provided an overview to the jury of the
events prior to and
after the shooting of Victim. As explained by Detective Janus during
Commonwealth's case -in-
chief, Compilation Video Exhibit 38 is composed of the following:
BY ADA LIGHTNER:
Q: So before we view this, explain what this is.
A: Basically, we have taken all of the videos that we have collected, and we have
put it in order, and you'll see it through as we have seen it. Some of the areas have
Page 22 of 29
been edited to make it quicker, more of a time lapse, but it would b[e] an
overview from where we first started off with this original video where you'll see
the victim, defendant, second individual and the individual on the bicycle
when
they come walking this way and running this way, to the last individual coming
back. You'll see all of the angles simultaneously, like at the same time, to give an
overview of the incident.
(Id at 38:22-39:9).
Regarding the "time lapse" as described by Detective Janus above, Detective
Janus
indicated to the jury:
Q: Going to see time jump in the bottom indicating we're moving ahead?
A: Yes.
Q: Another jump now?
A: Another jump....
(Id at 39:10-14).
Detective Janus confirmed in the following that the Compilation Video Exhibit 38
was
played in the presence of the jury during, Commonwealth's case -in -chief:
Q: Okay. That's an entire compilation of the video of those individuals?
A: Yes, it is.
(Id at 40:24-41:1).
Commonwealth then moved to admit Compilation Video Exhibit 38, which this Trial
Court admitted with no objection from Appellant's counsel, who indicated he
had previously
seen the video:
ADA LIGHTNER: Couple more things, Your Honor. Now, I want to authenticate
this next video with the witness. And Attorney Strasser knows this is coming, and
he's viewed it. So I would ask to play that now and enter it into evidence as
Commonwealth's 38.
THE COURT: No objection?
ATTORNEY STRASSER: No objection. I have seen that.
THE COURT: Okay.
Page 23 of 29
(Id. at 38:11-20; see also id at 41:2-8).
Later, Detective Janus further indicated to the jury that in the Unedited Video
Exhibit
36(h), the seventy-three seconds of footage of lull time before the gunshots were
fired were
included. Detective Janus expressly noted to the jury, however, that in
Compilation Video
Exhibit 38, the Commonwealth had excised the seventy-three second lull;
Q: How long do we have from them disappearing on screen until the
shots that killed the
victim are fired?
A: Can I come over here? It
seconds.
would be approximately 73 seconds - or I'm sorry - 47
Q: Well, it's 41[145 to 42[:]58?
A: I'm sorry. Yeah. I'm going in the wrong -a minute and 13 seconds.
Q: Which would be the 73 seconds that you said a moment ago?
A: Yes
Q: And in that time, how many shots were fired?
A: Eight
Q: And where did you discover ballistics evidence at?
A: On cottage in the 2000 block.
Q: How many individuals - or how many firearms were you able to uncover evidence of?
A: Two.
Q: And were you able to locate any firearms on scene?
A: No, I was not.
Q: And were you able to locate any groups of individuals fleeing the scene?
A: Yes.
Q: and how many individuals were in that group?
A: Two.
Q: And were those individuals - well, what are they doing with their hands as they're
leaving?
Q: They were bent. The right arms are bent, placed in what
appears to be in the front are
of their pants' pockets on certain cameras, and their left hands are moving freely
or
-swinging as they're running.
Q: Okay. You said 73 seconds. Is it fair to say the video is
not going to show 73
seconds?
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A: Correct.
Q: Because it's an edited version?
A. It's edited. That portion, maybe 65 or 70 seconds are cut out.
(See Notes of Testimony, Day 3, ("N.T.3") Aug. 2, 2017, at pg. 157:13-159:1) (emphasis added).
The jury again viewed and heard Unedited Video Exhibit 36(h) in Commonwealth's
case -in-chief when Counsel for Appellant cross-examined Detective Janus regarding events
which occurred shortly before gunshots were heard:
BY ATTORNEY S'IRASSER:
Q: This is approximately 1341 hours, again facing in a westerly direction on
the
corner of 21st and Ash Streets, and there is sound on this? Can you see that,
Detective Janus?
A: I can see, I guess.
Q: We're going to watch this video for a few minutes to get a time frame, because
I asked Officer Stevens yesterday about the time frame from when the
shots
occurred to EPD responding, and it would determined (sic) that the affiant would
be the best person to talk about that.
A: Okay.
Q: So we'll play that. For the record, it's 13[:]41:45. So this would be the last
time that we see any of those four individuals on camera until the shooting; is that
correct?
A: Yes.
Q: So that time is 13[:]41:45. I'm going to play the video. I want to stop for the
gunshots, okay?
A: Okay.
Q: Can you hear what those individuals are saying?
A: I cannot, word for word, the entire sentence that individual yelled; I cannot tell
you that.
Q: Thank you. Was that a gunshot in the background?
A: No.
Q: Not yet?
A: There. There was a bunch of shots.
Page 25 of 29
-
Q: And that at 13 first one at 13[:]42:58? Sony. Something around there. So
it's
one minute past since we last saw those four individuals to when the gunshots
are?
A: Approximately, yes.
Q: And I'm going to play the video again.
(N.T.3 at 41:18-42:3; 42:22-43:19).
After Appellant's trial counsel cross-examined Detective Janus,
Commonwealth's
counsel during redirect examination of Detective Janus again played Compilation
Video Exhibit
38 without objection from Appellant's trial counsel:
ADA LIGHTNER: Your Honor, we're going to play the video again, but I think to
save
time, we're going to play the compilation portion, if that's okay.
MR. STRASSER: No objection to that.
(N.T.3 at 125:21-25). Thus, Compilation Video Exhibit 38 was again played to
the jury during
the Commonwealth's redirect examination of Detective Janus.
During closing argument, Commonwealth's counsel, ADA Burns, played
Compilation
Video Exhibit 38 to the jury while ADA Bums simultaneously made his closing
argument. (See
Notes of Testimony, Jury Trial, Day 4 ("N.T.4"), pg. 12:20-14:16). After the jury
watched and
heard Compilation Video Exhibit 38, ADA Bums repeated to the jury
Commonwealth's theory
as to the timeline of the murder and reminded the jury that
seventy-three seconds had been
excised from Compilation Video Exhibit 38:
ADA BURNS: From 13[:J41:45 until 13[:]42:58 or 73 seconds from the time the
last individual goes off camera and until the time of the first shot, that's the
time-that's the time ---the time elapses before the first shot. And Detective Janus
testified the distance from the PNA parking lot to Cottage Street is about 200 feet.
So 73 seconds from the time we last see individuals in the video going
westbound
on East 21st, 73 seconds from then until the first shot. I would submit to
you,
that's plenty of time for them to go westbound on East 21st, commit the crime and
come back, and then 73 seconds, we see the defendant, and lo and behold, there's
the defendant and another individual running eastbound through the PNA
parking
lot.
Page 26 of 29
(Id. at 16:14-17:3).
In Appellant's Post-Sentence Motion, Appellant's trial counsel
cited to the non-
precedential case in Commonwealth v. Jackson as supporting authority for his claim
Commonwealth intentionally presented an altered, edited version of the video to mislead
the jury
in Commonwealth's closing argument. See Commonwealth v. Jackson, 2016
WL 1382909, at *5
(Pa. Super. Apr. 7, 2016). In Jackson, the Pennsylvania Superior Court
reviewed the prosecutor's
closing argument in a murder trial wherein the prosecutor utilized a
PowerPoint Presentation
which had "dramatic allusions," including images of a manacle. Id. at
*5. The Pennsylvania
Superior Court in Jackson held Commonwealth did not engage in
prosecutorial misconduct by
using this PowerPoint Presentation during closing argument. Id. at
*5. Specifically, the
Pennsylvania Superior Court in Jackson concluded "the PowerPoint
slides did not convey the
prosecutor's personal belief or opinion on Jackson's credibility or guilt, did
not appeal to the
prejudices of the jury, and did not divert the jury from deciding the
case on the evidence
presented at trial." Id. at *6 (citing Judy, 978 A.2d at 1020). The
Pennsylvania Superior Court in
Jackson also indicated Commonwealth during closing argument
was permitted to include
"dramatic allusions" which are within the reasonable bounds of the
evidence supplied at trial. Id.In the instant case, similar to Jackson, Commonwealth's
utilization of Compilation Video
Exhibit 38 in closing argument did not convey ADA Burns' personal
belief or opinion on
Appellant's credibility or guilt to the jury but merely assisted ADA Bums
with conveying to the
jury the chronology of events. ADA Burns did not appeal to the
prejudices of the jury since the
purpose of playing Compilation Video Exhibit 38 with the
seventy-three seconds excised, rather
than Unedited Video Exhibit 36(h), was merely "to give an overview
of the incident." (N.T.2 at
39:8-9). Commonwealth counsel's playing Compilation Video Exhibit 38 did
not divert the jury
Page 27 of 29
from deciding the case on the evidence presented at trial since, as noted above, Compilation
Video Exhibit 38 was admitted into evidence during trial with no objection from counsel for
Appellant. Unlike Jackson, where the PowerPoint was created for purposes of Commonwealth's
closing argument, in the instant case Unedited Video Exhibit 38 was admitted into evidence in
Commonwealth's case -in -chief before Commonwealth's closing argument and played several
times. Thus, unlike Jackson, this Compilation Video Exhibit 38 was not shown to the jury for
the
first time during Commonwealth's closing argument. Finally, unlike Jackson, Compilation
Video Exhibit 38 in the instant case does not contain any "dramatic allusions." In the instant
case, Commonwealth merely excised seventy-three seconds of uneventful footage
which is a
mere lull in the video. Thus, to the extent Jackson applies to the instant case, Jackson supports
the conclusion Commonwealth did not commit prosecutorial misconduct during
closing
argument.
Therefore, after review of all transcripts as well as an independent review of both the
Unedited Video Exhibit 36(h) and the Compilation Video Exhibit 38, this Trial judge who
presided over the entire trial and who reinstated Appellant's appeal rights continues to find
and
conclude Commonwealth's presentation of Compilation Video Exhibit 38 during
closing
argument did not constitute prosecutorial misconduct. The seventy-three second
timeframe that
transpired was repeatedly explained by Commonwealth's counsel to the jury and displayed to
the
jury in Unedited Video Exhibit 36(h) before Commonwealth made its closing argument. The jury
was aware two versions of the videotapes existed during the entire trial, including
closing
argument: one version being the Unedited Video Exhibit 36(h) and one version being
Compilation Video Exhibit 38. Commonwealth was transparent in both the Commonwealth's
case -in-chief and closing argument by informing fully the jury that the seventy-three seconds
Page 28 of 29
was excised; therefore, this jury was properly explained that these seventy-three
seconds were
not present in Compilation Video Exhibit 38. Consequently, ADA Burns during
closing
argument did not mislead nor did he impede this jury's ability to weigh the evidence
objectively
in order to render its true verdicts as to Appellant's guilt on all ten charges.
For the above reasons, this Trial Court respectfully requests the Pennsylvania
Superior
Court affirm this Trial Court's rulings and this jury's verdicts of Appellant's convictions.
BY THE COURT:
Domitrovich, Judge
cc: Emily M. Merski, Esq 509 Sassafras Street, Erie, PA 16507
John H. Daneri, District Attorney, 140 West Sixth Street, Room 506, Erie, PA 16501
Nathan E. Strasser, Esq., 821 State Street, Erie, PA 16501
Michael E. Bums, Assistant District Attorney, 140 West Sixth Street, Room 506,
Erie,
PA 16501
Jeremy C. Lightner, Assistant District Attorney, 140 West Sixth Street, Room
506, Erie,
PA 16501
Elizabeth A. Hirz, First Assistant District Attorney, 140 West Sixth Street, Room 506,
Erie, PA 16501
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