Com. v. King, D.

J-S34003-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEVANTE RUMEAL KING :
:
Appellant : No. 731 WDA 2022
Appeal from the Judgment of Sentence Entered May 26, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013382-2017
BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED: December 28, 2023
Devante Rumeal King appeals from the judgment of sentence, entered
in the Court of Common Pleas of Allegheny County. Upon review, we affirm.
The trial court set forth the facts of the case as follows:
[O]n August 6, 2017[,] at approximately 10:41 p.m., [King] and
his two accomplices, one of whom was his brother, Donald Eugene
King,[1] went to a residence located at 208 Conestoga Road in
Penn Hills, Allegheny County, Pennsylvania, to rob Kevin Trowery.
The other accomplice was Dustin Taylor. [King] and his two
accomplices were seen fleeing the back door of the residence and
Penn Hills police officers gave chase. [King] was arrested after a
short pursuit. During the course of the investigation detectives
recovered surveillance videos of the entire incident. The videos
disclosed that the victim exited his residence and stood on the
front porch. [King] and his two accomplices, while wearing masks,
can be seen running toward the victim. The victim attempted to
fight off the three actors by raising a small broom which he had
been using to sweep the porch area. Co-defendant, Donald
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1
Donald Eugene King’s appeal is also before this Court. That appeal is
docketed at 409 WDA 2022.
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Eugene King, shot the victim. The victim fell to the ground and
the three actors, including [King], beat the victim while he was on
the ground. Donald Eugene King then fired two more shots into
the victim’s body. The victim died as a result of multiple gunshot
wounds. The three actors then entered the victim’s residence.
They are observed seconds later exiting the residence, still
wearing masks, and dragging the victim’s body into the residence.
Trial Court Opinion, 1/10/23, at 1-2.
Following a joint trial with co-defendant-brother,2 a jury convicted King
of one count each of murder in the second degree,3 robbery,4 conspiracy,5
criminal trespass,6 theft,7 receiving stolen property,8 and burglary–overnight
accommodations—person present.9 On May 26, 2022, the trial court
sentenced King to life imprisonment on the second-degree murder conviction,
and to a consecutive aggregate term of imprisonment of 17½ to 35 years on
the robbery, burglary, and conspiracy convictions. No further penalty was
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2 The third actor, Dustin Taylor, entered a guilty plea in the instant matter and
agreed to testify against the King brothers in exchange for a 12½-to-25-year
sentence followed by 20 years’ probation. See N.T. Jury Trial, 12/6/21, at
15.
3 18 Pa.C.S.A. § 2502(b).
4 Id. at § 3701(a)(1)(i).
5 Id. at § 903.
6 Id. at § 3503(a)(1)(ii).
7 Id. at § 3921(a).
8 Id. at § 3925(a).
9 Id. at §§ 3501(a)(1)(i), (ii).
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imposed on the remaining convictions. King filed a timely notice of appeal
and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal. He raises two issues for our review:
1. Did the court below adequately caution the jury as to the
evaluation of the accomplice testimony?
2. Does the felony[-]murder sentencing scheme, in allowing
intent to commit a dangerous felony to substitute for intent
to kill and imposing a life sentence with no possibility of
parole, violate the proportionality guarantees of the Eighth
Amendment and Article I, Section 13 of the Pennsylvania
Constitution?
Appellant’s Brief, at 5.
First, King argues that a portion of the trial court’s instruction on
accomplice testimony was an error of law or abuse of discretion. Specifically,
he claims the court erred in “watering down” the instruction, and that the
charge, therefore, was “not complete.” Appellant’s Brief, at 11, 13.10 Though
acknowledging the court’s considerable discretion in fashioning an instruction,
King claims the court “refused to charge the jury as to the known danger of
an accomplice falsely blaming another person, [and,] under the circumstances
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10 King preserved this issue at the charging conference by objecting to the
omitted language he suggested for accomplice testimony. Co-defendant
Donald Eugene King’s counsel objected to certain adjustments and deletions
the court planned with respect to the suggested standard instruction, and
King’s counsel informed the court that he had the same objections on his
client’s behalf. See N.T. Jury Trial, 12/10/21, at 988-89, 991-92. Counsel
objected again at the conclusion of the jury instructions. Id. at 1111-12. See
Pa.R.Crim.P. 647(C).
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of this case, the strongest possible caution with respect to Taylor’s testimony
was appropriate.” Id. at 12-13.11 This claim is meritless.
When reviewing a challenge to a jury instruction:
[W]e must review the jury charge as a whole to determine if it is
fair and complete. A trial court has wide discretion in phrasing its
jury instructions, and can choose its own words as long as the law
is clearly, adequately, and accurately presented to the jury for its
consideration. The trial court commits an abuse of discretion only
when there is an inaccurate statement of the law.
Commonwealth v. Baker, 963 A.2d 495, 507 (Pa. Super. 2008) (internal
citation omitted). See also Commonwealth v. Sandusky, 77 A.3d 663,
667 (Pa. Super. 2013) (jury charge will be deemed erroneous only if charge
as a whole is inadequate, not clear, or has tendency to mislead or confuse,
rather than clarify, material issue).
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11 The Suggested Standard Jury Instruction for accomplice testimony
provides:
First, you should view the testimony of an accomplice with
disfavor because it comes from a corrupt and polluted source.
Second, you should examine the testimony of an accomplice
closely and accept it only with care and caution.
Third, you should consider whether the testimony of an
accomplice is supported, in whole or in part, by other evidence.
Accomplice testimony is more dependable if supported by
independent evidence. [However, even if there is no independent
supporting evidence, you may still find the defendant guilty solely
on the basis of an accomplice’s testimony if, after using the special
rules I just told you about, you are satisfied beyond a reasonable
doubt that the accomplice testified truthfully and the defendant is
guilty.]
Pa. SSJI (Crim) 4.01 (italics and brackets in original).
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Further, “[a] charge is considered adequate unless the jury was palpably
misled by what the trial judge said or there is an omission which is tantamount
to fundamental error. Consequently, the trial court has wide discretion
in fashioning jury instructions.” Id. (emphasis added). Additionally, our
Supreme Court has stated that “[t]he Suggested Standard Jury Instructions
themselves are not binding and do not alter the discretion afforded trial courts
in crafting jury instructions; rather, as their title suggests, the instructions are
guides only.” Commonwealth v. Eichinger, 108 A.3d 821, 845 (Pa. 2014).
The standard charge for accomplice testimony, commonly referred to as
“the corrupt and polluted source charge,” see Commonwealth v. Lawrence,
165 A.3d 34, 44 (Pa. Super. 2017), is “designed specifically to address
situations where one accomplice testifies against the other to obtain favorable
treatment.” Commonwealth v. Smith, 17 A.3d 873, 906 (Pa. 2011). The
instruction “directs the jury to view the testimony of an accomplice with
disfavor and accept it only with care and caution.” Id.Here, the trial court gave the following jury instruction on accomplice
testimony:
I have defined accomplice liability to you. I have indicated that a
person is an accomplice of another person in the commission of a
crime if he or she has the intent of promoting or facilitating the
commission of that crime, solicits the other person to commit it,
or aids or agrees or attempts to aid or agree—excuse me, or
attempts to aid the other person in committing the planning. An
accomplice is a person who knowingly and voluntarily cooperates
with or aids another person in committing an offense. When a
Commonwealth witness is an accomplice, his or her
testimony has to be judged by special precautionary rules.
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He or she may testify falsely in the hope of obtaining
favorable treatment or for some other motive. On the other
hand, an accomplice may be a truthful witness.
The special rules that I will give you are meant to help you
distinguish between truthful and false accomplice testimony. In
view of Dustin Taylor's testimony, you must decide whether Dustin
Taylor was an accomplice of the crimes charged. If, after
considering all of the evidence, you find that he was an
accomplice, then you must apply the special rules to his
testimony. Otherwise, you would ignore those rules. Use this
test to determine whether Dustin Taylor was an accomplice.
Again, an accomplice is a person who knowingly and voluntarily
cooperates with and/or aids in the commission of a crime.
Special rules that apply to accomplice testimony are these:
First, you should view the testimony of an accomplice with
disfavor because it comes from a corrupt and tainted
source; second, you should examine the testimony of an
accomplice closely and accept it only with care and caution;
third, you should consider whether the testimony of an
accomplice is supported in full or in part by other evidence.
Accomplice testimony is more dependable if it is supported by
independent evidence. However, even if there is no independent
supporting evidence, you may still find the Defendant guilty solely
on the basis of an accomplice’s testimony if[,] after using these
special rules I’ve just told you about, you are satisfied beyond a
reasonable doubt that the accomplice testified truthfully and the
Defendant is guilty.
Again, the special rules are, first, you should view the
testimony of the accomplice with disfavor because it comes
from a corrupt and tainted source. And second, you should
examine the testimony of an accomplice closely and accept
it only with care and caution.
Separate and apart from the fact of whether that witness was an
accomplice, you should examine closely and carefully and
receive with caution the testimony of Dustin Taylor if you
find he has provided testimony with the intent to receive a
benefit after giving that testimony.
N.T. Jury Trial, 12/10/21, at 1102-06 (emphasis added).
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Based on the highlighted language above, we are not persuaded by
King’s argument that the trial judge’s accomplice testimony instruction was
“inadequate, not clear[,] or ha[d] a tendency to mislead or confuse, rather
than clarify, a material issue [for the jury].” Sandusky, supra at 667. The
court’s instruction was not “watered down,” and, on the contrary, clearly
advised the jury that if they found Taylor was King’s accomplice, they were
required to receive his testimony with disfavor because it came from a corrupt
and tainted source who may testify falsely to receive favor. See Smith,
supra at 906 (“In any case where an accomplice implicates the defendant,
the judge should tell the jury that the accomplice is a corrupt and polluted
source whose testimony should be viewed with great caution.”).
Moreover, the court gave a detailed instruction on judging the credibility
of witnesses, stating:
As judges of the facts, you are the sole judges of the credibility of
witnesses and their testimony. This means you must judge the
truthfulness and accuracy of each witness’s testimony and decide
whether to believe all[,] part[,] or none of that testimony.
The following are some of the factors that you should and may
consider when judging credibility, deciding who to believe, what
testimony to believe or not: Was the witness able to see, hear,
or know the things about which he testified; how well could the
witness remember and describe the things about which he or she
testified; did the witness testify in a convincing manner; how did
he or she look, act, and speak while testifying; was his or her
testimony uncertain, confused, self-contradictory[,] or evasive;
did the witness have any interest in the outcome of the case; did
the witness have any bias, prejudice, or other motive that might
affect his or her testimony; how well does the testimony of the
witness square with the other evidence in the case, including the
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testimony of other witnesses; was it contradicted or supported by
other testimony and evidence; did it make sense?
If you believe some part of the testimony of a witness to be
inaccurate, consider whether the inaccuracy cast[s] doubt upon
the rest of his or her testimony. This may depend on whether he
or she has been inaccurate in an important matter or only a minor
detail and on any possible explanation. For example, did the
witness make an honest mistake or simply forget, or did he or she
deliberately falsify [testimony].
While you are judging the credibility of each witness, you are likely
to be judging the credibility of other witnesses or evidence. If
there is a real irreconcilable conflict, it is up to you to decide which,
if any, conflicting testimony to believe.
N.T. Jury Trial, 12/10/21, at 1091-94. See Smith, supra at 906 (“If the
evidence is sufficient to present a jury question with respect to whether the
prosecution’s witness was an accomplice, the defendant is entitled to an
instruction as to the weight to be given to that witness’s testimony.”).
Accordingly, we find that the court’s charge was not erroneous. See also
Sandusky, supra.After our review, we conclude that the trial court’s instruction properly
directed the jury to view Taylor’s accomplice testimony with disfavor and
accept it only with care and caution. Accordingly, we find no abuse of
discretion. Baker, supra.Next, King argues that the felony murder sentencing scheme is
unconstitutional under the Eighth Amendment of the United States
Constitution and Article I, Section 13 of the Pennsylvania Constitution. This
claim, too, is meritless.
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In Commonwealth v. Rivera, 238 A.3d 482 (Pa. Super. 2020), this
Court addressed nearly identical arguments, where we noted that in
Commonwealth v. Cornish, 370 A.2d 291 (Pa. 1977), Commonwealth v.
Yuknavich, 295 A.2d 290 (Pa. 1972), and Commonwealth ex rel. Smith
v. Myers, 261 A.2d 550 (Pa. 1970), our Supreme Court “upheld the
constitutional validity of the felony-murder statute.” Rivera, 238 A.3d at
502. See Commonwealth v. Henkel, 938 A.2d 433, 446 (Pa. Super. 2007)
(imposition of life sentence not unconstitutional “cruel and unusual
punishment” under United States and Pennsylvania constitutions); see also
Commonwealth v. Middleton, 467 A.2d 841, 846-47 (Pa. 1983) (sentence
of life imprisonment for offense of felony-murder not unconstitutionally
disproportionate; comparison of such sentence with sentences imposed in
Commonwealth for other felonies demonstrated legislature contemplated
seriousness of felony-murder should be matched by equally severe penalty
and sentence for felony-murder comported with range of sentences found
proper in other jurisdictions). We are similarly bound by this precedent.
Judgment of sentence affirmed.
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12/28/2023
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