Com. v. Gardner, V.

J-A19021-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT G. GARDNER :
:
Appellant : No. 3034 EDA 2022
Appeal from the Judgment of Sentence Entered April 16, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0014343-2013
BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 7, 2023
Appellant, Vincent G. Gardner, appeals a judgment of sentence entered
by the Court of Common Pleas of Philadelphia County (trial court). Following
a jury trial, Appellant was found guilty of robbery, burglary, conspiracy to
commit burglary, and possession of a firearm by a prohibited person. The
trial court imposed mandatory minimum prison terms of 25 to 50 years as to
the robbery and burglary counts, each to be served concurrently. Consecutive
terms were imposed as to the conspiracy count (25 to 50 years) and the
weapon possession count (five to 10 years).
In this appeal, Appellant contends that the evidence was insufficient to
convict him of robbery and conspiracy to commit burglary, and that the trial
court erroneously admitted evidence of an unrelated homicide. Although we
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* Retired Senior Judge assigned to the Superior Court.
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find no merit in Garnder’s claims, the judgment of sentence must nevertheless
be vacated because, as the Commonwealth notes, the trial court misapplied
the Three Strikes Law (42 Pa.C.S.A. § 9714(a)(2)), resulting in an illegal
sentence enhancement.
The incident giving rise to this case occurred on July 14th, 2013, at
about 2:30 a.m., when Appellant and his brothers, Haleem and Quantel,
knocked on the front door of a home located at 2829 Wharton Street in
Philadelphia, Pennsylvania. The homeowner’s thirteen-year-old nephew,
C.H., answered by cracking open the front door. As he did so, Haleem asked
him if his uncle (Stephon Hill) was home, and C.H. replied that Hill was out.
C.H. then tried to close the door, but Haleem pushed his way inside and held
a silver revolver to the juvenile’s head. See N.T. Trial, 9/17/2014, at 35-37.
Haleem, Quantel, and Appellant entered the home and demanded that
C.H. tell them where Hill kept his drugs, money, and guns. C.H. answered
that he did not know where those items were kept, and in response, Haleem
forced the barrel of a handgun down C.H.'s throat while threatening to open
fire. Quantel also punched C.H. in the face, leaving a bruised and bloody lip.
See id., at 37.
While C.H. was being held at gunpoint, Appellant and Quantel searched
the home. Finding no valuables after looking for about 15 minutes, the three
brothers departed. The incident was not immediately reported to the police,
but C.H. did inform his mother and Stephon Hill about what had happened.
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The next day, Hill confronted Haleem and struck him several times. Hill
also took a silver revolver from Haleem and gave it to his friend, Jacques
Charles, for safekeeping. Later that same evening, as C.H. was walking with
Charles down a street in their neighborhood, Charles was fatally shot. A
revolver was found near Charles’ body, and it matched the description of the
weapon Hill took from Haleem and gave to Charles after the home invasion
the previous night. Ammunition for the revolver was found in Charles’ pocket.
Police spoke with C.H. in the course of their murder investigation. C.H.
told them that he had seen Haleem and two unidentified men just prior to the
shooting. He also reported the home invasion from the previous evening. On
two subsequent occasions, C.H. repeated his account of the home invasion to
a grand jury convened for the purpose of indicting Appellant and his brothers
on charges related to that incident.
Hill, in turn, was interviewed by police, and he admitted to giving
Charles the silver revolver he had taken from Haleem after assaulting him.
Hill’s statements were transcribed and signed by Hill. The revolver and bullets
recovered from the scene of the homicide were deemed admissible at a
pretrial hearing, and Appellant’s counsel did not object to that ruling. See
N.T. Preliminary Hearing, 9/15/2014, at 4, 22.
The subject trial began on September 16, 2014.1 Appellant and his
brother, Quantel, were tried together as co-defendants, but the third brother,
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1 The first trial concluded with a hung jury, and a mistrial was granted on June
3, 2014.
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Haleem, was never located. The central witnesses for the prosecution were
C.H. and Stephon Hill, both of whom were compelled to testify by the trial
court. C.H. claimed to have no memory of the events in question, and he
denied Appellant’s culpability. Stephon Hill went so far as to suggest that the
police had fabricated his written statements identifying Appellant and his
brothers as the perpetrators of the home invasion. The witnesses were
deemed hostile, and the prosecution introduced their pretrial statements as
substantive evidence of Appellant’s guilt. See N.T. Trial, 9/17/2014, at 33-
55, 169-91.2
At the conclusion of the trial, Appellant was found guilty and sentenced
as outlined above. Notably, the trial court enhanced Appellant’s sentence on
the burglary and robbery counts pursuant to the Three Strikes Law. See N.T.
Sentencing Hearing, 4/16/2015, at 33-34.
Appellant appealed, but his brief was not timely filed and the appeal was
dismissed. A successful petition for postconviction relief resulted in the
reinstatement of Appellant’s appellate rights. Appellant filed a brief in the
second appeal with the aid of counsel, challenging the sufficiency of the
evidence and the admission of the gun and bullets found at the scene of the
Charles shooting. On review, this Court determined that the issues were
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2 C.H.’s mother (Helen Hill) was also compelled to testify at Appellant’s trial.
See N.T. Trial, 9/16/2014, at 137. Although Helen Hill denied having any
knowledge of Appellant’s crimes against C.H., she signed her son’s written
statements identifying Appellant as one of his assailants during the home
invasion. See id. at 117-18.
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waived because they had not been sufficiently developed. See
Commonwealth v. Gardner, No. 624 EDA 2019, unpublished memorandum
(Pa. Super. filed April 16, 2021).
Once more, Appellant petitioned for postconviction relief, asserting in
part that his appellate counsel had performed ineffectively by waiving both of
his claims. The Commonwealth agreed with that contention, recommending
that Appellant’s appellate rights be reinstated a second time, nunc pro tunc,
so that this Court could consider whether his two claims have merit. An order
to that effect was entered on November 17, 2022.
Appellant then filed a notice of appeal and a 1925(b) statement
reiterating his prior grounds, and the trial court entered a 1925(a) opinion
giving the reasons why the judgment of sentence should be upheld. See Trial
Court 1925(a) Opinion, 1/4/2023, at 4-23. In his brief, Appellant now raises
the following two claims for our consideration:
I. Whether the verdict was insufficient as a matter of law as to
robbery and conspiracy to commit burglary[.]
II. Whether the trial court erred when it allowed [into evidence] a
firearm and bullets from an unrelated homicide[.]
Appellant’s Brief, at 7 (suggested answers omitted).
The Commonwealth responds that the evidence was legally sufficient,
and that the evidentiary issue is without merit. However, the Commonwealth
also requests relief on Appellant’s behalf, arguing that the trial court erred by
imposing multiple enhancements pursuant to the Three Strikes Law because
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the subject offenses were committed during a single criminal transaction. See
Brief of Appellee, at 12.
Appellant’s first claim is that the evidence of robbery3 and conspiracy to
commit burglary4 was insufficient to sustain his convictions. No specific
element of either offense has been disputed. The gist of Appellant’s
contention, rather, is that the Commonwealth did not prove any of the
elements of either count as a matter of law because the witnesses who
identified him had recanted at trial.
“Because a determination of evidentiary sufficiency presents a question
of law, our standard of review is de novo, and our scope of review is plenary.”
Commonwealth v. Williams, 176 A.3d 298, 305 (Pa. Super. 2017). “[W]e
must determine whether the evidence admitted at trial and all reasonable
inferences drawn therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner, were sufficient to prove every element of
the offense beyond a reasonable doubt.” Id. “[T]he finder of fact[,] while
passing upon the credibility of witnesses and the weight of the evidence
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3 Robbery is be committed where a person, “in the course of committing a
theft . . . commits or threatens immediately to commit any felony of the first
or second degree[.]” 18 Pa.C.S.A. § 3701(a)(1)(iii).
4 Burglary is committed where a person enters an occupied residence and
commits a bodily injury crime therein. See 18 Pa.C.S.A. § 3502(a)(1). A
conspiracy to commit an offense occurs where a person agrees with another
person to engage in conduct which constitutes a crime. See 18 Pa.C.S.A. §
903(a).
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produced, is free to believe all, part, or none of the evidence.”
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014).
The recanted statements of a testifying witness may constitute
substantive evidence of a defendant’s guilt. See Commonwealth v. Brown,
52 A.3d 1139, 1184 (Pa. 2012). Pennsylvania courts have “fully embraced
the view that it is the finder-of-fact’s ability to make in-person observations
of the witness at the time of trial, as he or she explains the reasons for the
prior statement, which is most crucial to its assessment of the witness’s
credibility.” Id. at 1169.
In the present case, the evidence was sufficient to prove Appellant’s
guilt beyond a reasonable doubt despite the recantations of the
Commonwealth’s witnesses who had identified him. The pretrial statements
of C.H. and Stephon Hill, if accepted as true, proved that Appellant conspired
with his brothers to rob the home occupied by C.H. The jury in this case had
the opportunity to assess the credibility of C.H. and Hill as they gave their
reasons for denying the truth of those prior statements. The jury’s apparent
decision to disregard the recantations is a determination on evidentiary weight
and credibility which we have no basis to disturb on appeal. See id. at 1171.
Appellant’s second claim is that the trial court erred in admitting a
firearm and bullets recovered from the scene of Jacques Charles’ fatal
shooting. A trial court’s ruling on the admissibility of evidence is subject to
an abuse of discretion standard:
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Questions concerning the admissibility of evidence are within the
sound discretion of the trial court and we will not reverse a trial
court's decision concerning admissibility of evidence absent an
abuse of the trial court's discretion. An abuse of discretion is not
merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record. If in reaching a
conclusion the trial court overrides or misapplies the law,
discretion is then abused and it is the duty of the appellate court
to correct the error.
Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014) (citations
omitted).
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc)
(citation omitted). Evidence is relevant if “(a) it has any tendency to make a
fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Pa.R.E. 401. “The court
may exclude relevant evidence if its probative value is outweighed by a danger
of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Pa.R.E. 403.
Here, the trial court did not abuse its discretion in admitting into
evidence the firearm and bullets because they corroborated the pretrial
statements of C.H. and Hill. Each of these witnesses initially had identified
Appellant as one of three intruders who entered the house at 2829 Wharton
Street and assaulted C.H. with a revolver. According to their pretrial
statements, Hill retaliated the next day by attacking Appellant’s brother and
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taking from him the same revolver used in the home invasion. Hill told police
that he gave the gun to Charles.
An identical revolver was found near Charles’ body after he was shot.
The bullets found in Charles’ pocket were compatible with it, confirming that
the decedent had indeed possessed the gun at the time of the shooting.
At trial, the recantations of C.H. and Hill made it imperative for the jury
to assess the veracity of their pretrial statements. The physical evidence taken
from the scene of the shooting was relevant to that determination because it
refuted the witnesses’ denial of Appellant’s guilt. That is, Charles’ possession
of the gun tended to show that Hill had retaliated against Appellant’s brother
and taken the weapon because Appellant and his brothers had, in fact,
attacked C.H. the prior evening.
The probative value of the disputed evidence was not outweighed by the
danger of any of the improper uses enumerated in Pa.R.E. 403. There was
never any suggestion at trial that Appellant was responsible for Charles’ death.
The revolver and bullets were not cumulative of any other evidence. Thus,
we discern no abuse of discretion in the trial court’s ruling that this relevant
evidence was admissible.
The final issue raised in this appeal is asserted by the Commonwealth –
that Appellant received an illegal sentence because the burglary and robbery
offenses occurred during a single criminal transaction, precluding the trial
court from applying the Three Strikes Law to both counts.
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“[A]n appellate court can address an appellant’s challenge to the legality
of his sentence even if that issue was not preserved in the trial court; in fact,
an appellate court may raise and address such an issue sua sponte.”
Commonwealth v. Hill, 238 A.3d 399, 407 (Pa. 2022). Whether Appellant
erroneously received multiple enhancements is a pure issue of law that
implicates the legality of his sentence. See Commonwealth v. McClintic,
909 A.2d 1241, 1245 (Pa. 2006).
We find merit in the issue raised by the Commonwealth. Under the
Three Strikes Law, a trial court may impose a mandatory minimum term if, at
the time of the commission of the current offense, the defendant has
“previously been convicted of two or more such crimes of violence arising from
separate criminal transactions[.]” 42 Pa.C.S.A. § 9714(a)(2).
Our Supreme Court has construed the Three Strikes Law as permitting
only a single enhancement of one count in each “criminal transaction,” even
if multiple qualifying offenses were committed therein. See McClintic, 909
A.2d at 1251 (reversing Three Strikes enhancements as to related burglary
and robbery counts because the legislature intended for them to apply “for all
crimes arising from a criminal transaction, rather than for each individual
crime within such transaction.”).5 For the purposes of the Three Strikes Law,
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5 This limitation does not apply to the “second-strike” provision of the
Sentencing Code, 42 Pa.C.S.A. § 9714(a)(1). See Commonwealth v.
Fields, 107 A.3d 738, 742-44 (Pa. 2014) (holding that second strike recidivist
offenders may receive enhanced sentences for each offense committed in a
single criminal transaction).
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offenses occur in the same criminal transaction if they share a logical and
temporal relationship. See generally Commonwealth v. Bradley, 834 A.2d
1127, 1134 (Pa. 2003).
In this case, pursuant to the Third Strike Law, the trial court enhanced
Appellant’s sentence on two counts, robbery and burglary. These offenses
were logically and temporally connected by the fact that they both took place
during a home invasion that lasted no longer than 15 minutes. The trial court
therefore erred by enhancing the sentence as to both offenses because they
were committed during a single criminal transaction. See McClintic, 909
A.2d at 1251. To remedy this illegality, the judgment of sentence must be
vacated and Appellant must be resentenced.
Judgment of sentence vacated. Case remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
Date: 12/07/2023
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