Com. v. Wilson, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM WILSON :
:
Appellant : No. 975 EDA 2019
Appeal from the Judgment of Sentence Entered October 25, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0006125-2017
BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 27, 2020
Appellant William Wilson appeals from the judgment of sentence
imposed after a jury convicted him of third-degree murder, conspiracy,
aggravated assault with a deadly weapon, aggravated assault, possession of
an instrument of crime, and unsworn falsification to authorities.1 Appellant
argues that the trial court abused its discretion by denying his motion to sever
and by allowing the Commonwealth to introduce redacted versions of his
statements at trial. We affirm.
The trial court summarized the underlying facts of this matter as follows:
On July 6, 2017, at approximately 6pm, video surveillance
captured 30-year old [Appellant] driving his dark grey 2013 Dodge
Charger (PA registration KKG-5913) in Norristown, Montgomery
County, accompanied in the front seat by his 18-year old co-
____________________________________________
1 18 Pa.C.S. §§ 2502(c), 903(a)(1), 2702(a)(4), 2702(a)(1), 907(a), and
4904(a)(1), respectively.
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Defendant, Isaiah Freeman ([co-defendant Freeman]). A juvenile
male related to [Appellant], and identified herein as B.B., occupied
the rear of the vehicle. Minutes earlier, [Appellant] and co-
defendant Freeman had decided that co-defendant Freeman
would shoot 16-year old Jordan Scott (Scott) and his juvenile
friend Taye Wynder (Wynder), who they had caught sight of
walking on the sidewalk near the intersection of Oak and Astor
Streets. [Appellant] immediately sped up, making his way to
Blackberry Alley where he pulled his car to a stop, left the engine
running, and drew two handguns from under his driver’s seat
which he offered to co-defendant Freeman. Surveillance depicts
Freeman exiting Appellant’s vehicle, running up Blackberry Alley
from the corner of Chain Street with a dark hoody drawn over his
head to conceal his identity, jumping out from around the building
corner at Chain Street, and repeatedly firing the black handgun
[Appellant] handed him in the car, fatally wounding Scott, and
seriously injuring Wynder.
* * *
[W]hen Norristown Police officers responded to 623 Chain Street,
they located Scott lying on the sidewalk bleeding to death, with
Wynder nearby having fled to safety to a rear yard west of Chain
Street. Scott, who was immediately transported to the hospital,
was pronounced dead at 7:28pm. Hours after the murder,
[Appellant] initiated contact with law enforcement, and made
arrangements to come into the Montgomery County Detectives
Bureau to speak with them. Ultimately, some days later and
contrary to previous written statements given by [Appellant] to
police, he admitted that “he himself was actually driving his car,
and he drove [co-defendant Freeman] to the scene of the
murder,” all of which was corroborated by video surveillance
capturing the entirety of the episode. The investigation conducted
by police culminated in the issuance of arrest warrants for both
[Appellant] and co-defendant Freeman.
Trial Ct. Op., 12/23/19, at 1-2.
Co-defendant Freeman also provided a statement to police at the time
of his arrest. Initially, co-defendant Freeman stated that Appellant drove him
to the murder scene, provided him with a gun, and instructed him to shoot
the victims. Homicide Supp. Rep., 8/30/17, at 3. Co-defendant Freeman
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stated that after he refused to comply with Appellant’s directive, Appellant
exited the vehicle and shot the victims while co-defendant Freeman remained
in the front passenger seat of Appellant’s car. Id.
After co-defendant Freeman confirmed that he was wearing a dark-
colored hoodie at the time of the murder, homicide detectives informed co-
defendant Freeman that there was surveillance footage showing that “the
person who shot the decedent was wearing a dark colored hoodie and got out
of the passenger side of Appellant’s car.” Id. at 4. When presented with that
information, “[Co-defendant] Freeman then began to cry. He said, ‘my life is
over, I’m going to jail for the rest of my life.’ [Co-defendant] Freeman then
refused to answer any more questions” and requested an attorney. Id. at 4.
On December 15, 2017, the Commonwealth filed a pretrial motion to
consolidate the charges against Appellant and co-defendant Freeman.
Commonwealth’s Pretrial Mot., 12/15/17, at 9. Appellant filed a motion in
which he argued that a joint trial would “prevent [him] from meaningful cross-
examination in violation of his right to confrontation under the Sixth
Amendment of the United States Constitution and Article 1, Section 9 of the
Pennsylvania Constitution.” Omnibus Pretrial Mot., 12/18/17, at 7. Appellant
further claimed that co-defendant Freeman’s statement implicated Appellant
and could not “be cured in a fashion that does not violate [Appellant’s] right
to confront witnesses against him” under Bruton v. United States, 391 U.S.
123 (1968). Mot. to Sever, 12/18/17, at 1 (unpaginated).
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The Commonwealth filed a response arguing that severance was
unnecessary, as “appropriate redactions can cure any potential violations” that
would result from using either Appellant or co-defendant Freeman’s
statements at a joint trial. Commonwealth’s Resp., 1/17/18, at 3. Further,
the Commonwealth asserted that the proposed redactions to the statements
were consistent with Pennsylvania law interpreting Bruton and its progeny.
Id. at 6.
The trial court conducted pretrial motions hearings with both Appellant
and co-defendant Freeman on March 30, 2018 and April 4, 2018. In support
of severance, Appellant’s counsel stated:
Quite frankly, judge, I don’t know if it’s my motion to sever. More
likely [co-defendant Freeman’s], for this reason. Because my guy
gave so many different statements to so many different people.
And with [thirty-eight] years of practice in law, I know I can’t put
him on the stand. So the motion might go to him. And when I
say I can’t put him on the stand, I mean at trial I can’t put him on
the stand, because he gave so many different statements to
everybody. And it’s the Commonwealth’s burden to prove it, and
I’m just going to attack their proof. So although I’m asking for a
severance, I have no evidence to offer.
See N.T. Mot. Hr’g, 3/30/18, at 120.
At the second motions hearing, Appellant’s counsel reiterated that he
was “still looking for a severance. But if the [c]ourt is inclined to deny that
motion for severance, then I have reviewed what the Commonwealth has
reviewed as far as redaction. And although I’m not happy with it, I don’t know
what else we can do with it.” N.T. Mot. Hr’g, 4/4/18, at 8. Ultimately, the
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trial court granted the Commonwealth’s motion to consolidate and both
matters were listed for a joint trial. Trial Ct. Order, 4/12/18.
At the start of trial, the trial court asked defense counsel to decide, for
Bruton purposes, whether the redacted or unredacted versions of each co-
defendant’s statement should be read to the jury. See N.T. Trial, 4/18/18, at
6. Co-defendant Freeman’s counsel requested that the Commonwealth
present the redacted versions of Appellant’s statements. Id. Appellant’s
counsel indicated that the Commonwealth could present the unredacted
version of co-defendant Freeman’s statement, which referred to Appellant by
name. Id. at 7.
At trial, the Commonwealth introduced Appellant’s redacted statements
into evidence without objection. Id. at 28; Trial Ex. 49. Detective Crescitelli
also testified regarding the substance of Appellant’s statements to homicide
detectives. N.T. Trial, 4/22/18, at 37. Consistent with the parties’ agreement,
all references to co-defendant Freeman and B.B. were changed to “the guy”
and “the other guy.” Id. at 44-58.
Shortly thereafter, during a scheduled recess, trial counsel stated that
he had “a real problem” with the redacted version of Appellant’s July 9, 2017
statement that was read to the jury. Id. at 65. Trial counsel argued that the
references to “the guy” and “the other guy” made it appear as though
Appellant was being evasive in his answers to police. Id. Trial counsel
requested that he be permitted to cross-examine Detective Crescitelli in a
manner that would demonstrate to the jury that Appellant had provided the
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detectives with actual names. Id. Co-defendant Freeman objected, arguing
that such questions would likely violate Bruton. The trial court denied
Appellant’s request.
On the last day of trial, co-defendant Freeman ultimately chose to
testify. Co-defendant Freeman testified that he shot both victims, but that he
did so in self-defense. N.T. Trial, 4/20/18, at 204-316. On cross-examination
by Appellant, co-defendant Freeman minimized Appellant’s role in the
shooting, stating that Appellant did not provide him with a gun, did not
encourage him to shoot the victims, and did not otherwise assist him in the
shooting. Id. at 265-66. Co-defendant Freeman also stated that he lied to
police and that he “tried to blame everything on [Appellant]” and “make
[Appellant] the bad guy.” Id. at 279.
Before closing arguments, Appellant requested that his statement be
unredacted for closing arguments. See N.T. Trial, 4/23/18, at 6. In the
alternative, Appellant asked the Commonwealth to dismiss his charges for
making false statements, asserting that he could not “argue that he was telling
the truth when he sounds like he’s evasive in the statement.” Id. The
Commonwealth objected, arguing that the unredacted statements would
“make the police look like they were lying.” Id. After the trial court denied
Appellant’s request, he asked that he be permitted to reference the fact that
his statement was redacted during closing arguments. Id. at 11. However,
the trial court denied his request. Id.
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On April 23, 2018, the jury convicted co-defendant Freeman of first-
degree murder. Id. at 219. The jury acquitted Appellant of first-degree
murder and conspiracy to commit first-degree murder, but found him guilty
of third-degree murder and the remaining charges against him. Id. at 219-
221.
On October 25, 2018, the trial court sentenced Appellant to an
aggregate term of thirty-five to seventy years’ imprisonment. Appellant filed
a timely post-sentence motion, which the trial court denied.
On April 28, 2019, Appellant filed a timely pro se notice of appeal.2
Appellant subsequently filed a court-ordered Pa.R.A.P. 1925(b) statement.
The trial court issued a Rule 1925(a) opinion concluding that Appellant waived
his claims, but that in any event, both issues were meritless.
Appellant raises the following issues on appeal:
1. Did the [trial] court err in its denial of Appellant’s request and
motion to sever the case from that of [co-defendant Freeman]
and in conducting joint trials?
2. Did the [trial] court err in allowing the Commonwealth to
submit into evidence Appellant’s highly redacted statements
inasmuch as the heavily redacted statements were prejudicial
to Appellant in the following manner:
A. Appellant’s credibility was immediately rendered
unreliable due to the great number of redactions;
____________________________________________
2 The trial court docketed Appellant’s timely pro se notice of appeal on April
28, 2019. This Court subsequently remanded the matter for a determination
as to whether trial counsel abandoned Appellant for purposes of appeal. See
Order, 6/28/19. On remand, the trial court appointed new counsel to
represent Appellant for purposes of his direct appeal.
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B. There was no reason to redact the statements given that
the co-defendant testified and admitted he was the
shooter;
C. Appellant may have been able to testify had the
statements not been redacted;
D. A proper closing argument was rendered impossible due
to the great number of redactions in Appellant’s
statements; and,
E. The large number of redactions clearly expressed to the
jury that Appellant was being evasive in his answers to
the police when it was clear from all the evidence that
co-defendant Freeman had shot the victims.
Appellant’s Brief at v (full capitalization omitted).
In his first issue, Appellant argues that the trial court abused its
discretion by denying his motion to sever. Id. at 9. Addressing the factors
that establish prejudice, Appellant argues that (1) “the exhaustive redaction
of Appellant’s statements,” which was done in order to satisfy Bruton, made
the evidence “clearly confusing” for the jury; (2) co-defendant Freeman’s
statement implicating Appellant would not have been admissible against
Appellant in a separate trial; and (3) the parties’ defenses were antagonistic,
as Appellant “gave several statements to the police in which he blamed the
shooting and murder on [co-defendant] Freeman. [Co-defendant] Freeman
blamed Appellant and told police clearly and unequivocally that Appellant
committed the crimes and that he had attempted days earlier to convince
Freeman to shoot it out with [the decedent].” Id. at 12. Appellant
acknowledges that co-defendant Freeman ultimately testified that he, and not
Appellant, was responsible for the shooting. Id. However, Appellant asserts
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that co-defendant Freeman’s testimony is “of no relevance” in reviewing the
merits of his severance claim. Id.
The Commonwealth responds that Appellant and co-defendant
Freeman’s cases “were properly joined for trial since their charges stemmed
from the identical criminal episode, and [Appellant] made no attempt to show
the real potential for prejudice required to justify severance.”
Commonwealth’s Brief at 12. The Commonwealth contends that “[t]he same
evidence was necessary and applicable to both defendants.” Id. at 15.
Further, the Commonwealth claims that Appellant failed to meet “his burden
to offer more than speculation by showing ‘real potential for prejudice’ beyond
the mere fact that he might have had a better chance of acquittal if tried
separately.” Id. In any event, the Commonwealth argues that Appellant did
not suffer prejudice, because co-defendant Freeman “took full responsibility
with his self-defense theory, denied that [Appellant] supplied the firearm at
the time of the shooting, and claimed that [Appellant] did not know what co-
defendant Freeman would do.” Id. at 16. Further, the Commonwealth asserts
that the fact that Appellant was “ultimately not prejudiced speaks to the
reasonableness of the trial court’s decision not to sever these cases.” Id.
“Joinder and severance of separate indictments for trial is a
discretionary function of the trial court; consequently, the trial court’s decision
is subject to review for abuse of that discretion.” Commonwealth v.
Brookins, 10 A.3d 1251, 1255 (Pa. Super. 2010). “The critical consideration
is whether the appellant was prejudiced by the trial court’s decision not to
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sever. The appellant bears the burden of establishing such prejudice.”
Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010) (citation
omitted and some formatting altered).
Pursuant to Rule 582 of the Pennsylvania Rules of Criminal Procedure,
“[d]efendants charged in separate indictments or informations may be tried
together if they are alleged to have participated in the same act or transaction
or in the same series of acts or transactions constituting an offense or
offenses.” Pa.R.Crim.P. 582(A)(2).
Additionally, Rule 583 provides that “[t]he court may order separate
trials of offenses or defendants, or provide other appropriate relief, if it
appears that any party may be prejudiced by offenses or defendants being
tried together.” Pa.R.Crim.P. 583. However, “[u]nder Rule 583, the prejudice
the defendant suffers due to the joinder must be greater than the general
prejudice any defendant suffers when the Commonwealth’s evidence links him
to a crime.” Dozzo, 991 A.2d at 902 (citation omitted).
It is well settled that “the law favors a joint trial when criminal
conspiracy is charged . . . .” Commonwealth v. Housman, 986 A.2d 822,
835 (Pa. 2009) (citation omitted). Our Supreme Court has explained:
Where . . . the crimes charged against each defendant arise out
of the same facts and virtually all of the same evidence is
applicable to both defendants, this Court, as well as the United
States Supreme Court, have indicated a preference to encourage
joint trials to conserve resources, promote judicial economy, and
enhance fairness to the defendants:
It would impair both the efficiency and the fairness of the
criminal justice system to require . . . that prosecutors bring
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separate proceedings, presenting the same evidence again
and again, requiring victims and witnesses to repeat the
inconvenience (and sometimes trauma) of testifying, and
randomly favoring the last tried defendants who have the
advantage of knowing the prosecution’s case beforehand.
Joint trials generally serve the interests of justice by
avoiding inconsistent verdicts and enabling more accurate
assessment of relative culpability.
Given this preference, the burden is on defendants to show a real
potential for prejudice rather than mere speculation.
Commonwealth v. Rainey, 928 A.2d 215, 231-32 (Pa. 2007) (citations and
quotations marks omitted).
In determining whether prejudice suffered by a defendant is sufficient
to warrant severance, this Court has identified three factors:
(1) Whether the number of defendants or the complexity of the
evidence as to the several defendants is such that the trier of fact
probably will be unable to distinguish the evidence and apply the
law intelligently as to the charges against each defendant; (2)
Whether evidence not admissible against all the defendants
probably will be considered against a defendant notwithstanding
admonitory instructions; and (3) Whether there are antagonistic
defenses.
Brookins, 10 A.3d at 1256 (citation omitted); see also Rainey, 928 A.2d at
232 (recognizing that although antagonistic defenses are a factor in
determining prejudice, “the fact that defendants have conflicting versions of
what took place, or the extent to which they participated in it, is a reason for
rather than against a joint trial because the truth may be more easily
determined if all are tried together.” (citations, footnote, and quotation marks
omitted)).
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Here, the trial court concluded that Appellant waived his claim because
trial counsel declined to make an argument or present any evidence in support
of his motion to sever. See Trial Ct. Op. at 4. In any event, the trial court
addressed Appellant’s severance issue as follows:
Contrary to [Appellant’s] assertion, the circumstances of the
underlying case and the parties’ proffered defense strategies as
presented to the [trial c]ourt at the pretrial disposition of the
severance motion established that [Appellant and co-defendant
Freeman] should be tried jointly.
* * *
[W]hile [Appellant’s] statements point to another “guy” as the
shooter and co-defendant Freeman’s statement initially asserts
“the guy” was the shooter, by the end of [co-defendant]
Freeman’s statement, he effectively admits that he was the
shooter. Thus, [Appellant] and co-defendant [Freeman]’s
statements were not in irreconcilable conflict at the time the [trial
c]ourt determined the motion to sever [prior to] trial. Moreover,
once co-defendant Freeman took the stand and admitted to being
the shooter allegedly [acting] in self-defense, it became clear . . .
that the jury did not have to disregard [Appellant’s] defense in
order to accept the defense of co-defendant Freeman.
Additionally, given the inextricably intertwined nature of each
defendant’s role in the criminal episode and the interrelated
nature of their respective charges, including conspiracy, as well as
the overlapping documentary, audiovisual, and testimonial
evidence supporting [the d]efendants’ criminal culpability, and
particularly given [the d]efendants’ redacted statements, the [trial
c]ourt’s initial consolidation and later denial of severance was
appropriate. [Appellant’s] claim to the contrary is meritless.
Id. at 11-13.
The trial court further concluded that any alleged error was harmless
because
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the realistic probability that co-defendant Freeman would have
testified at a severed trial of [Appellant] is virtually nil, while as
the joint trial unfolded, the probability of co-defendant Freeman
testifying increased. There can be little question that the
testimony of co-defendant Freeman coupled with his skillful cross-
examination . . . resulted in an acquittal of [Appellant] of first
degree murder, a result which most likely would not have occurred
in a severed trial without co-defendant Freeman’s testimony and
cross-examination.
Id.
Based on our review of the record, we discern no abuse of discretion by
the trial court in denying Appellant’s motion to sever. See Brookins, 10 A.3d
at 1255; Dozzo, 991 A.2d at 901. As discussed previously, both Appellant
and co-defendant Freeman were charged with conspiracy for their
participation in Scott’s murder. See Pa.R.Crim.P. 582(A)(2); see also
Housman, 986 A.2d at 835. Further, the verdict demonstrates that the jury
was able to distinguish between the evidence against each defendant and
applied the law to each of the individual charges. See Brookins, 10 A.3d at
1256. Finally, Appellant failed to establish the potential for undue prejudice
if the cases were tried together. See Pa.R.Crim.P. 583; see also Brookins,
10 A.3d at 1255-56; see also Rainey, 928 A.2d at 231-32. Indeed, as noted
by the trial court, the joint trial ultimately proved favorable for Appellant, as
co-defendant Freeman took responsibility for shooting the victims, resulting
in Appellant’s conviction of the lesser charge of third-degree murder. See
Dozzo, 991 A.2d at 904. Accordingly, Appellant is not entitled to relief on
this claim.
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In his remaining issue, Appellant argues that the trial court erred by
“substantially redacting the statements of Appellant in order to preserve co-
defendant Freeman’s Sixth Amendment rights.” Appellant’s Brief at 15.
Appellant asserts that the “large number of redactions” undermined
Appellant’s credibility by making him appear “evasive and untrustworthy.” Id.
at 18. Appellant further claims that the redactions were unnecessary because
co-defendant Freeman testified at trial and admitted that he was the shooter.
Id. at 15. Lastly, Appellant contends that the redacted statements prevented
him from testifying, rendered trial counsel’s closing argument “impossible,”
and gave the Commonwealth “an unfair advantage that clearly prejudiced
Appellant.” Id. at 18. Therefore, he concludes that he is entitled to a new
trial. Id.
The Commonwealth responds that Appellant’s statements were redacted
based on the agreement between the parties. Commonwealth’s Brief at 18.
Further, the Commonwealth asserts that although Appellant claims that the
redacted statements damaged his credibility and prevented him from
testifying, his argument is “undermined by the fact that [Appellant] was never
going to testify” and therefore, “[h]is credibility . . . was never at issue.” Id.
at 19. The Commonwealth emphasizes that “the trial court’s decision to allow
redaction by agreement. . . . was, and had to be, made before trial, at a time
when it was not known whether co-defendant Freeman would testify, or how
he would testify.” Id. at 21. Finally, the Commonwealth concludes that even
if the trial court erred in admitting Appellant’s redacted statements, any error
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was harmless, as co-defendant Freeman’s testimony was ultimately favorable
to Appellant and the evidence supporting Appellant’s conviction was
overwhelming. Id. at 22-23.
In order to preserve a claim of error for appellate review, a defendant
must make a specific objection before the trial court in a timely fashion and
at the appropriate stage of the proceedings. Commonwealth v. May, 887
A.2d 750, 758 (Pa. 2005). A defendant’s failure to raise such an objection
results in waiver. Id.; see also Pa.R.E. 103(a) (stating that a party may only
claim error regarding the admission or exclusion of evidence if he or she
makes a timely objection).
Here, the trial court concluded that Appellant waived this issue by failing
to challenge the redactions before his statement was read to the jury at trial.
See Trial Ct. Op. at 5, 10. Nonetheless, the trial court addressed Appellant’s
claim as follows:
[Appellant’s] instant claim ignores completely that the record in
this case is rife with abundant evidence upon which the jury could
have reasonably found [Appellant] untrustworthy, e.g., his
admission that he lied to investigators for which he was
accordingly charged with two counts of unsworn falsification. . . .
[Appellant] also ignores the fact that the same jury he claims
would be suspect of his credibility given his redacted statements
acquitted him of first degree murder; despite legally sufficient
evidence to the contrary. The verdict reflects that the jury
afforded [Appellant] some benefit of the doubt and/or measure of
leniency, and did not render a verdict reflecting the full import of
their power. In light of the ample evidence on which the jury could
reasonably find [Appellant] not credible, any claim as to the
admission of his redacted statements is meritless. As such,
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[Appellant’s] redaction issue, though not preserved, in any event
fails.
* * *
Moreover, the vacillating nature of [Appellant’s] statements,
admitting his involvement to varied extents, coupled with the
overwhelming evidence presented by the Commonwealth, as
enumerated above, renders any alleged error in the [trial c]ourt’s
admission of [Appellant’s] redacted statements, harmless. . . .
[Appellant’s] contentions on appeal, if deemed preserved, amount
to no more than harmless error in light of the credible evidence
presented, and thus, merit no relief.
Id. at 14, 16.
Based on our review of the record, we agree with the trial court that
Appellant waived this issue by failing to object to the admission of his redacted
statements before they were admitted at trial. See May, 887 A.2d at 758;
see also Pa.R.E. 103(a). Indeed, although the trial court addressed the
redacted statements at both the pretrial hearing and at the start of trial,
Appellant did not object. See N.T. Mot. Hr’g, 4/4/18, at 8; see also N.T.
Trial, 4/18/18, at 6. Therefore, we decline to address this issue on appeal.
In any event, the trial court thoroughly addressed Appellant’s claim and
concluded that any error resulting from the redactions made to Appellant’s
statement was harmless. See Trial Ct. Op. at 13-15. Therefore, even if
properly preserved, Appellant is not entitled to relief. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2020
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