J. S26007/13
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA
v.
ANTONIO WRIGHT,
Appellant
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:
:
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:
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IN THE SUPERIOR COURT OF
PENNSYLVANIA
No. 1420 EDA 2012
Appeal from the Judgment of Sentence, December 1, 2011,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0012196-2009,
CP-51-CR-0012202-2009
BEFORE: FORD ELLIOTT, P.J.E., BENDER AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 08, 2013
Antonio Wright appeals from the judgment of sentence of December 1,
2011, following his conviction of two counts of murder in the second degree,
two counts of robbery, two counts of criminal conspiracy, and a related
weapons offense. After careful review, we vacate one of his convictions for
criminal conspiracy, but affirm in all other respects.
The trial court has accurately summarized the facts of this matter as
follows:
During daylight hours on June 27, 2009, at the
Piazza Navona apartments, located in Northern
Liberties section of Philadelphia, the defendant and
co-defendants
entered
the
building
with
semi-automatic weapons with the intention to carry
out a robbery. Each floor of the apartment building
contained surveillance cameras, which captured
practically every move of the defendant and his
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co-defendants as well as the murders of Rian Thal
and Timothy Gilmore.
Rian Thal was a party
promoter [and] also was involved in the selling of
powder cocaine.
She was specifically targeted
because word had gotten out that she was to receive
a shipment of approximately one half million dollars’
worth of powder cocaine, which amounted to eleven
or twelve kilos of powder cocaine, which was being
transported from Texas to Philadelphia. [Footnote 2
- Rian Thal’s business partner, Leon Woodard, was
responsible for setting up the deal with a Texas
dealer, Kevin Harks, a/k/a Big Bank Hank, who was
interested in breaking into the Philadelphia market to
sell Mexican cocaine.]
The two drug couriers,
Timothy Gilmore and Edward Emerson, [Footnote 3]
transported the drugs by way of a tractor-trailer to
Philadelphia. [Footnote 3 - Mr. Emerson received
thirty-six months in federal prison for the charge of
drug trafficking.]
On
the
Friday
before
the
murders,
Leon Woodard was moving the cocaine into
Ms. Thal’s apartment on the seventh floor of the
Piazza Navona.
[Footnote not numbered Mr. Woodard is currently serving 262 months in
federal prison for drug trafficking.] Accompanying
Mr. Woodard was a man named Vernon Williams who
Ms. Thal did not permit into her apartment because
she did not trust him. [Footnote 4 - Mr. Williams
died in a car accident a month after the murders
occurred.]
At trial, Mr. Woodard testified that
Mr. Williams left his cell phone in Mr. Woodard’s
vehicle. After the murders occurred, Mr. Woodard
saw text messages between Mr. Williams and
defendant that indicated Mr. Woodard was being set
up. [Footnote 5 - Cell phone records confirmed that
defendant sent a text message to Mr. Williams
saying, “Yo, dawg, we need this. This is a big one.
We can’t let this one get by us.”] Unbeknownst to
Ms. Thal or Mr. Woodard, Mr. Williams contacted
co-defendant, Mr. Epps, about the shipment of
cocaine and the drug money tied to its purchase and
a plan was hatched to steal it.
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Mr. Epps then contacted a friend named
Katoya Jones, who lived in the building, and asked
her to help him enter the apartment in exchange for
a cut of the profits should the robbery scheme
succeed. [Footnote 6 - The building required both a
key and security code to enter.]
Approximately
3:30 a.m., that Saturday, the 27th, the day of the
murders, Mr. Epps called Ms. Jones to let him and his
friend, Robert Keith, into the building. After they
entered the building, their attempt to steal the drugs
and money failed because they broke into the wrong
apartment.
Instead of taking that as a sign that the
scheme would go awry, the next afternoon, at about
2:00 p.m., Mr. Epps called Ms. Jones again to tell her
to allow a friend of his into the building within the
next hour. Mr. Epps had planned the robbery with
three men, Donnell Murchison, Langdon Scott,
[Footnote 7] and Edward Daniels. [Footnote 7 Mr. Scott was permitted to enter an open guilty
[plea] to the charges of robbery, conspiracy, and
burglary in exchange for his testimony.] Around
3:00 p.m., Ms. Jones opened the locked door for
Mr. Murchison; Mr. Murchison then opened the door
for Mr. Epps and Mr. Scott. Mr. Scott was under the
impression that he was buying $4,500 worth of
powder cocaine.
According to the testimony of Mr. Scott, once
all three men were in the elevator, [Footnote 8]
Mr. Murchison informed Mr. Scott that when he went
to buy the drugs from Mr. Gilmore and Ms. Thal,
Mr. Murchison and Mr. Daniels were going to rob
them. [Footnote 8 - The three men entered the
building once before, but after Mr. Murchison asked
Mr. Scott if he had the money on him to buy the
cocaine, Mr. Scott said he did not have the money on
him. All three men left the building so that Mr. Scott
could retrieve the money.] At that point, Mr. Scott
decided not to go through with the buy and all three
of them left the apartment building to report back to
Mr. Epps, who was sitting in a white van outside of
the apartment building. While Mr. Murchison waited
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outside of the van, Mr. Scott and Mr. Daniels entered
the van to talk with Mr. Epps.
A friend of Mr. Epps, Caesar Holloway, told him
that he would take Mr. Scott home and get a
replacement, who turned out to be the defendant.
Around 5:00 p.m., Mr. Daniels, Mr. Murchison, and
defendant entered the Piazza Navona and proceeded
to the seventh floor to wait for Ms. Thal and
Mr. Gilmore to return. Defendant and Mr. Daniels
went to one end of the hallway while Mr. Murchison
went to the other in order to box in the victims.
Mr. Epps called Mr. Murchison as the two entered the
apartment building. As Ms. Thal and Mr. Gilmore
exited the elevator, the defendant and his
co-defendants pulled out guns and announced a
robbery. When Mr. Gilmore resisted, defendant shot
him. Mr. Murchison then shot Ms. Thal behind the
head killing her instantly. As the three men exited
the building, Mr. Murchison noticed that Mr. Gilmore
was still alive and shot him twice in the head killing
him. All of the men then entered Mr. Epps’ van, and
fled the scene without the money or the drugs.
Police later discovered four kilos of cocaine and over
$100,000 in Ms. Thal’s apartment.
Later that evening police identified Ms. Jones
as a person of interest because she was observed on
a surveillance video opening the doors for
Mr. Murchison twice.
Initially, Ms. Jones lied to
police about being involved in the incident and was
freed. However, police picked her up again once
police reviewed another surveillance video, which
showed her letting Mr. Keith into the building. Upon
being taken into custody, Ms. Jones gave a
statement to the detectives and later pleaded guilty
to two counts of third-degree murder, one count of
conspiracy, two counts of robbery in the first-degree,
and one count of burglary.
Police used Ms. Jones’ cell phone records and
learned that she and Mr. Epps had been in contact
with one another. After police obtained Mr. Epps’
cell phone records, the detectives found numerous
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phone calls to the individuals involved: defendant,
Mr. Scott, Mr. Murchison, Mr. Holloway, and
Ms. Jones. According to Detective Ron Dove of the
Homicide Unit, on the day of the murders, June 27th
of 2009, Mr. Holloway and Mr. Epps communicated
with each other 53 times, Mr. Williams and Mr. Epps
34 times, Mr. Keith and Mr. Epps spoke 52 times,
Ms. Jones and Mr. Epps spoke to each other
29 times, Mr. Scott and Mr. Epps communicated with
each other 11 times, defendant and Mr. Epps spoke
with each other 4 times, and 36 communications
were made between Mr. Murchison and Mr. Epps.
[Footnote 9 - The phone calls mentioned above were
obtained from Mr. Epps’ phone number, (215)2074472. Special Agent William Shute of the FBI was
able to determine using cell tower sites and video
surveillance tapes, that Mr. Epps made and received
57 phone calls while in the Piazza Navona on the day
of the murders.]
Ballistic tests revealed that the bullets in
Mr. Gilmore and Ms. Thal’s head belonged to the
weapon used by Mr. Murchison. Detectives also
arrested defendant, and he confessed to being
involved in the conspiracy to commit the robbery.
He also admitted shooting Mr. Gilmore multiple
times. He did not mention anyone else involved in
the murders.
During trial, surveillance tapes shown to
Mr. Scott allowed him to identify Mr. Murchison and
defendant as the men with whom he entered the
building.1 After giving testimony at a preliminary
hearing, Mr. Scott was stabbed numerous times in
prison. [Footnote 10 - Mr. Scott’s stabbing occurred
the day he was moved to the cell block holding
Mr. Daniels.]
1
We can find no place in Scott’s testimony where he identifies appellant in a
surveillance video. Moreover, appellant did not enter the building with Scott
as he was Scott’s replacement. The court’s opinion may be intending to
refer to a co-defendant as appellant is not the only defendant to file an
appeal.
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In addition thereto, at trial Mr. Woodard and
Ms. Jones identified defendant in a surveillance
video.[2]
Testimony from Mr. Murchison was
stricken from the record after he refused to undergo
cross-examination. [Footnote 11 - Mr. Murchison
pled guilty to two counts of first-degree murder, two
counts of robbery, and one count of conspiracy. In
return for his plea, the Commonwealth agreed to
place him in federal custody for his safety. During
his direct testimony, the Commonwealth read in
statements he gave to detectives, which implicated
the defendant and co-defendants as those men that
took part in the robbery-turned-murder.
(N.T.
11/18/2011, 32 37-45, 47, 53, 56-57.)]
Trial court opinion, filed 6/26/12 at 2-5.
On
December
1,
2011,
a
jury
found
appellant
guilty
of
the
aforementioned offenses. Immediately thereafter, appellant was sentenced
to two consecutive terms of life imprisonment for the murder convictions.
The convictions for robbery merged with the murder convictions. Concurrent
sentences were imposed for each of the conspiracy convictions, as well as
the weapons offense. This timely appeal ensued.
Appellant raises the following issues on appeal:
I.
Is the defendant entitled to an arrest of
judgment since the evidence is insufficient to
sustain the verdicts of guilt?
II.
Is the defendant entitled to a new trial since
the verdicts of guilt are against the weight of
the evidence?
2
We can find no place in Woodard’s or Jones’ testimony where either
identifies appellant in a surveillance video. Again, the court’s opinion may
be referring to a co-defendant.
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III.
Is the defendant entitled to a new trial as a
result of the trial court’s denial of his pretrial
motion to suppress statement?
IV.
Is the defendant entitled to a new trial as a
result of the trial court’s ruling that denied his
request for a mistrial after Commonwealth
witness Langdon Scott testified that he had
been stabbed in prison?
V.
Is the defendant entitled to a new trial as a
result of the trial court’s ruling that denied his
request for a mistrial after Commonwealth
witness Donnell Murchison refused to testify at
trial requiring the trial court to strike his
testimony?
VI.
Is the defendant entitled to a new trial as a
result of the trial court’s ruling that denied his
motion for a mistrial after Commonwealth
witness Donnell Murchison testified that he
and/or his family had been the subject of
threats?
VII.
Is the defendant entitled to the grant of a new
trial as a result of the trial court’s ruling that
denied his motion for a mistrial after the
prosecutor incorporated in one of his
hypothetical questions testimony of Donnell
Murchison that had been stricken?
VIII. Is the defendant entitled to a new trial as a
result of the trial court’s ruling that denied his
motion for a mistrial made after the prosecutor
committed misconduct during his summation?
Appellant’s brief at 6-7.
We will address these matters in the order
presented.
In his first issue, appellant asserts that the evidence at trial was
insufficient to prove his guilt as to the crimes of which he was convicted.
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Specifically, appellant argues that the images of the persons depicted on the
surveillance video that was shown to the jury were too blurry to adequately
identify appellant.
Appellant also complains that the Commonwealth
presented no physical evidence, such as fingerprints or DNA, linking
appellant to the crimes. We note our standard of review:
As a general matter, our standard of review of
sufficiency claims requires that we evaluate the
record “in the light most favorable to the verdict
winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the
evidence.” Commonwealth v. Widmer, 560 Pa.
308, 744 A.2d 745, 751 (2000). “Evidence will be
deemed sufficient to support the verdict when it
establishes each material element of the crime
charged and the commission thereof by the accused,
beyond a reasonable doubt.” Commonwealth v.
Brewer, 876 A.2d 1029, 1032 (Pa.Super.2005).
Nevertheless,
“the
Commonwealth
need
not
establish guilt to a mathematical certainty.” Id.;
see also Commonwealth v. Aguado, 760 A.2d
1181, 1185 (Pa.Super.2000) (“[T]he facts and
circumstances established by the Commonwealth
need not be absolutely incompatible with the
defendant’s innocence.”). “[W]here no single bit of
evidence will by itself conclusively establish guilt, the
verdict will be sustained where the totality of the
evidence
supports
the
finding
of
guilt.”
Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d
699, 704 (1989).
Thus, our Courts have recognized that proof of
guilt may be inferred entirely from evidence of
circumstances that attended the commission of the
crime. See Brewer, 876 A.2d at 1032. “The fact
that the evidence establishing a defendant’s
participation in a crime is circumstantial does not
preclude a conviction where the evidence coupled
with the reasonable inferences drawn therefrom
overcomes the presumption of innocence.”
Id.
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(quoting Commonwealth v. Murphy, 795 A.2d
1025, 1038–39 (Pa.Super.2002)).
Nevertheless,
“[t]he requirement of the law [remains] that in order
to
warrant
a
conviction[,]
the
facts
and
circumstances proved must be of such character as
to produce a moral certainty of the guilt of the
accused
beyond
any
reasonable
doubt.”
Commonwealth v. Bybel, 531 Pa. 68, 611 A.2d
188, 189 (1992) (quoting Commonwealth v. New,
354 Pa. 188, 47 A.2d 450, 455 (1946)).
Commonwealth v. Barker, 70 A.3d 849, 854 (Pa.Super. 2013) (en banc).
We begin by noting that both the trial court and the Commonwealth
argue that appellant has waived this issue. The trial court contends that this
issue, as presented in appellant’s concise statement of errors complained of
on appeal, is simply too vague. We further note that the issue described in
the concise statement does not even mention the surveillance video. As for
the Commonwealth, it argues that the issue is waived because appellant has
failed to include the surveillance video in the record on appeal, rendering it
impossible for this court to review the issue.
The Commonwealth also
asserts that appellant’s face is plainly visible in the video and not blurred at
all.
While we agree with the court and the Commonwealth that appellant
has effectively waived this issue, we also find that the evidence of
appellant’s identity and presence at the crime was overwhelming and clearly
sufficient to support his conviction.
In addition to the surveillance video, appellant confessed to the crime.
Appellant’s
confession,
and
the
circumstances
surrounding
it,
were
presented to the jury. (Notes of testimony, 11/16/11 at 275-292.) When
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the police brought appellant in for questioning they informed him that they
had a surveillance video of the crime. (Id. at 280.) Appellant immediately
became inquisitive about the video and wanted to view it. (Id.) The police
then showed appellant the video. (Id.) Immediately thereafter, appellant
agreed to give his confession. (Id.) In the confession, appellant stated that
he shot at Gilmore three or four times, but did not realize until he saw the
video that he had fired another shot into Gilmore as he ran past Gilmore on
the floor. (Id. at 288-289.) Appellant also described the clothing that he
was wearing during the crime as being a red shirt, blue jeans, beige
sneakers, and a beige baseball cap.
(Id. at 290.) We find that with this
information, the jury could successfully identify appellant in the surveillance
video even if his face was blurred.
Of course, there is yet additional
evidence of appellant’s involvement.
During and leading up to the crime, the co-defendants, including
appellant, kept in touch by cellular telephone with co-defendant Keith Epps,
the alleged “mastermind” of this tragic farce of a crime.
Police and FBI
witnesses were able to place appellant at the time and location of the crime
by analyzing telephone and cellular tower records.
(Notes of testimony,
11/21/11 at 39-40, 60; notes of testimony, 11/22/11 at 113-116.) In sum,
we find that appellant’s identity, presence, and participation in the crime was
supported by overwhelming evidence. There is no merit here.
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Appellant next raises a weight of the evidence challenge to his
conviction. Our standard of review is well-settled:
The finder of fact is the exclusive judge of the weight
of the evidence as the fact finder is free to believe
all, part, or none of the evidence presented and
determines the credibility of the witnesses.
As an appellate court, we cannot substitute our
judgment for that of the finder of fact. Therefore,
we will reverse a jury’s verdict and grant a new trial
only where the verdict is so contrary to the evidence
as to shock one’s sense of justice. A verdict is said
to be contrary to the evidence such that it shocks
one’s sense of justice when “the figure of Justice
totters on her pedestal, or when “the jury’s verdict,”
at the time of its rendition, causes the trial judge to
lose his breath, temporarily, and causes him to
almost fall from the bench, then it is truly shocking
to the judicial conscience.”
Furthermore, where the trial court has ruled on the
weight claim below, an appellate court’s role is not to
consider the underlying question of whether the
verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the
trial court palpably abused its discretion in ruling on
the weight claim.
Commonwealth v. Toritto, 67 A.3d 29, 35 (Pa.Super. 2013), quoting
Commonwealth v. Cruz, 919 A.2d 279, 281–82 (Pa.Super.2007) (citations
omitted), appeal denied, 593 Pa. 725, 928 A.2d 1289 (2007).
As
the
Commonwealth
indicates,
appellant’s
argument
here
is
essentially the same as his sufficiency analysis involving an allegedly blurry
surveillance video and the lack of fingerprint or DNA evidence, except now in
the guise of a weight of the evidence claim.
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We note that the trial court
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specifically found that appellant’s conviction did not shock its conscience.
(Trial court opinion, filed 6/26/12 at 11.) Given our standard of review and
our characterization of the evidence against appellant as overwhelming, we
cannot find that the trial court abused its discretion in so finding. There is
no merit here.
Appellant next contends that the trial court erred in failing to grant his
pre-trial motion to suppress his confession.
Our standard of review in suppression matters is
well-settled:
Our review is limited to determining
whether the record supports the findings
of fact of the suppression court and
whether the legal conclusions drawn
from those findings are correct. . . . We
are bound by the factual findings of the
suppression court, which are supported
by the record, but we are not bound by
the suppression court’s legal rulings,
which we review de novo.
Commonwealth v. James,
Pa.
,
, 69 A.3d 180, 186 (2013),
quoting Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 320-321
(2011) (citations omitted), cert denied, Briggs v. Pennsylvania, 132
S.Ct. 267 (2011).
Appellant argues that his confession was involuntary because he was
confined at police headquarters for an unduly long time while being denied
food and bathroom breaks. Appellant also asserts that the confession was
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rendered involuntary because following Miranda warnings,3 a detective
made an offer of leniency for appellant’s statement.
We find no merit in
either claim.
We may immediately dismiss appellant’s first claim.
There was no
testimony at the suppression hearing, either by police or appellant, that he
was denied food or bathroom breaks. To the contrary, when questioned on
the issue, a detective testified that he was personally unaware whether
appellant had been provided food or bathroom breaks, but stated that it was
normal to provide such.
Moreover, appellant testified at the suppression
hearing, but did not make any assertion in this regard.
We find no merit
here.
As for his other contention, that police made an offer of leniency for
appellant’s statement, our analysis is more involved. Appellant’s argument
relies upon Commonwealth v. Gibbs, 520 Pa. 151, 553 A.2d 409 (1989),
cert. denied, Gibbs v. Pennsylvania, 493 U.S. 963 (1989), and its
progeny.
These
cases
essentially
imply
that
an
offer
of
leniency
automatically invalidates a confession.
Detective Henry Glenn testified at the suppression hearing that after
he read appellant his Miranda rights, appellant wanted to watch the
surveillance video before he decided whether to make a statement. (Notes
of testimony, 11/8/11 at 33-34.) After viewing the video, appellant wanted
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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to make a statement and appellant was given written Miranda warnings
which he signed. (Id. at 34.) However, appellant was also told that if he
gave a statement it would be brought to the attention of the district attorney
that he had cooperated and that it would help him. (Id. at 37.)
The supreme court has clarified that it does not impose a Gibbs
“bright line rule” but rather employs a totality of the circumstances
approach:
Appellant argues that, while the totality of the
circumstances
test
generally
governs
the
determination of the voluntariness of a confession,
Gibbs and its progeny require a “bright line rule” of
exclusion automatically invalidating confessions
which follow upon an offer of leniency.
In the
alternative, appellant argues that his confession was
involuntary under the totality of the circumstances.
The Commonwealth responds that the constitutional
test for exclusion of a confession upon grounds of
involuntariness requires consideration of the totality
of the circumstances and that, under that analysis,
the Superior Court properly determined that
appellant’s confession was voluntary.
The Superior Court clearly was correct in
holding that the voluntariness of a confession is
determined by the totality of the circumstances. The
contrary, absolute rule that appellant promotes
apparently derives from an early opinion of the U.S.
Supreme Court, Bram v. United States, 168 U.S.
532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), where the
U.S. Supreme Court stated that a confession cannot
be obtained by “any direct or implied promises,
however slight, nor by the exertion of any improper
influence.” Id. at 542-43, 18 S.Ct. 183 (citation
omitted). But the Supreme Court has since made
clear that, under current precedent, the abovequoted passage from Bram “does not state the
standard for determining the voluntariness of a
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confession.” Arizona v. Fulminante, 499 U.S. 279,
285, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
Instead, voluntariness is determined by considering
the totality of the circumstances. Id.; see also
Withrow v. Williams, 507 U.S. 680, 689, 113 S.Ct.
1745, 123 L.Ed.2d 407 (1993) (“we continue to
employ the totality-of-circumstances approach when
addressing a claim that the introduction of an
involuntary confession has violated due process”);
Schneckloth v. Bustamonte, 412 U.S. 218, 22627, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Accord
Miller v. Fenton, 796 F.2d 598, 604 (3d Cir.1986),
cert. denied, 479 U.S. 989, 107 S.Ct. 585, 93
L.Ed.2d 587 (1986). See generally W.R. LaFave
et al., Criminal Procedure, § 6.2(c) (2d ed.1999).
This Court explicitly recognized the inapplicability of
Bram’s absolute statement in [Commonwealth v.]
Nester. See 551 Pa. [157] at 164, 709 A.2d [879]
at 883 [(1998)] (Bram wrongly implies that
voluntariness should be resolved with narrow
“but-for” test, i.e., whether defendant would have
confessed but for threat or promise; but Supreme
Court has explicitly declared that totality, rather than
Bram standard, governs).
Long before Fulminante, this Court had
repeatedly recognized that the voluntariness of a
confession is determined by considering the totality
of the circumstances.
E.g., Commonwealth v.
Kampo, 480 Pa. 516, 522, 391 A.2d 1005, 1007-08
(1978); Commonwealth v. Jones, 457 Pa. 423,
430, 322 A.2d 119, 124 (1974) (“there is no simple
litmus test for determining whether a confession is
involuntary.
Instead, courts must consider the
totality of the circumstances surrounding the
confession”); Commonwealth v. Eiland, 450 Pa.
566, 572-75, 301 A.2d 651, 653–54 (1973)
(discussing, inter alia, Culombe v. Connecticut,
367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037
(1961)); Commonwealth ex rel. Butler v.
Rundle, 429 Pa. 141, 149, 239 A.2d 426, 430
(1968).
This Court has applied the totality of
circumstances test with no less force or vigor in
cases where there was a claim that a promise or
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inducement rendered the confession involuntary.
E.g., Eiland.
Commonwealth v. Templin, 568 Pa. 306, 313-315, 795 A.2d 959,
963-964 (2002).
Instantly, it seems clear that appellant’s motivation for confessing was
witnessing himself shooting Gilmore on the surveillance video and realizing
that he was caught red-handed. In the totality of the circumstances, this far
outweighs any inducement by potential leniency.
Moreover, there was no indication that appellant was considering
invoking his Miranda right against self-incrimination when the detective
made the suggestion of leniency. This is important because in Templin, the
court recognized that Gibbs represented a more egregious situation because
there the police offer caused the defendant to give up his Miranda right to
counsel after he was clearly considering invoking it:
The State Police trooper who interrogated
Gibbs stated that, after he administered Miranda
warnings, Gibbs made what this Court termed an
“equivocal inquiry” respecting the right to counsel,
as he suggested, “Maybe I should talk to a lawyer,”
and “What good would it do me to tell you?” The
trooper responded, “I really don’t know what good it
would do. The only thing is I would tell the District
Attorney you cooperated for whatever good that
would be, but I would have no idea whether it would
help your case or not.”
Gibbs then waived his
Miranda rights and confessed to the trooper. 520
Pa. at 153, 553 A.2d at 409. This Court determined
that the trooper’s statement in response to the
defendant’s
equivocation
respecting
counsel
impermissibly induced his Miranda waiver, thereby
rendering his subsequent confession inadmissible:
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By conveying the distinct impression that
the district attorney would be told of his
cooperation in giving a confession on the
spot, there occurred an inescapable
inducement which cannot be condoned
under our law.
....
Obviously, an inducement to waive following
upon an assertion of rights after being given
Miranda warnings implicates more than a due
process concern with the voluntariness of a
confession; it may burden the defendant’s
constitutional privilege against compulsory selfincrimination or the right to counsel.
Thus,
confessions obtained in violation of Miranda are
excluded irrespective of their voluntariness. Unlike
Gibbs, this case involves the voluntariness of a
confession in a circumstance where Miranda rights
were properly explained, acknowledged, explicitly
waived, and no assertion of the right to counsel,
equivocal or otherwise, or the right to remain silent
was made.
Templin, 568 Pa. at 315-317, 795 A.2d at 965.
In sum, we find that appellant was induced to confess by the
surveillance video and not by any suggestion of leniency. Thus, we find that
the trial court properly did not suppress the statement. There is no merit
here.
Appellant next asserts that the trial court erred in failing to declare a
mistrial after witness Langdon Scott testified that he was stabbed in jail by
three unidentified assailants after cooperating with police in this case.
(Notes of testimony, 11/16/11 at 88-89.)
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The standard of review for determining
whether the trial court erred in denying a motion for
a mistrial is as follows:
The trial court is in the best position to
assess the effect of an allegedly
prejudicial statement on the jury, and as
such, the grant or denial of a mistrial will
not be overturned absent an abuse of
discretion. A mistrial may be granted
only where the incident upon which the
motion is based is of such a nature that
its unavoidable effect is to deprive the
defendant of a fair trial by preventing the
jury from weighing and rendering a true
verdict.
Likewise, a mistrial is not
necessary where cautionary instructions
are adequate to overcome any possible
prejudice.
Commonwealth v. Rega, 593 Pa. 659, 692, 933
A.2d 997, 1016 (2007) (quotation omitted), cert.
denied, 552 U.S. 1316, 128 S.Ct. 1879, 170 L.Ed.2d
755, 76 USLW 3555 (2008).
“A mistrial is warranted when a juror could
reasonably infer from the facts presented that the
accused had engaged in prior criminal activity.”
Commonwealth v. Zabala, 303 Pa.Super. 72, 449
A.2d 583, 586 (1982). When the statement at issue
relates to a reference to past criminal behavior,
“[t]he nature of the reference and whether the
remark
was
intentionally
elicited
by
the
Commonwealth are considerations relevant to the
determination of whether a mistrial is required.”
Commonwealth v. Kerrigan, 920 A.2d 190, 199
(Pa.Super.2007), appeal denied, 594 Pa. 676, 932
A.2d 1286 (2007). A singular, passing reference to
prior criminal activity is usually not sufficient to show
that the trial court abused its discretion in denying
the defendant’s motion for a mistrial.
Id.;
Commonwealth v. Allen, 448 Pa. 177, 181, 292
A.2d 373, 375 (1972). When the trial court provides
cautionary instructions to the jury in the event the
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defense raises a motion for mistrial, “[t]he law
presumes that the jury will follow the instructions of
the court.” Commonwealth v. Brown, 567 Pa.
272, 289, 786 A.2d 961, 971 (2001) (citation
omitted), cert. denied, 537 U.S. 1187, 123 S.Ct.
1351, 154 L.Ed.2d 1018 (2003).
Commonwealth v. Parker, 957 A.2d 311, 319 (Pa.Super. 2008), appeal
denied, 600 Pa. 755, 966 A.2d 571 (2009).
Scott’s testimony about his stabbing did not identify or directly
implicate appellant as either one of the assailants or as having any
connection to the assailants.
However, the jury did hear testimony that
Scott was involved in an earlier fistfight with appellant’s co-defendant,
Edward Daniels, concerning this case.
(Notes of testimony, 11/16/11 at
105-108.) This showed that at least one co-defendant had access to Scott
while in jail and was willing to attack him over the case. We see a possibility
that the jury might infer that the three stabbing assailants were the
appellant and his two co-defendants.
Nonetheless, the trial court gave the jury a very strong cautionary
instruction in relation to the stabbing testimony:
THE COURT: Ladies and gentlemen, just one point I
want to make. There was some testimony about the
one witness, Langdon Scott, being stabbed at the
time he was in custody. There was no evidence
presented that any of these three Defendants had
any involvement at all in that stabbing and you must
not draw an inference from the argument that they
did.
Notes of testimony, 11/29/11 at 181.
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We find that the trial court’s instruction adequately dispelled the
possibility that the jury might associate appellant with the stabbing incident.
Consequently, we find no merit in the argument that the court erred in
failing to grant a mistrial.
Appellant next contends that the trial court erred in not declaring a
mistrial when Commonwealth witness Donnell Murchison testified on direct,
but ultimately refused to stand for full cross-examination.
The trial court
instead chose to give the jury a cautionary instruction and strike the entirety
of Murchison’s testimony.
Murchison was not a co-defendant.
Therefore, Bruton v. United
States, 391 U.S. 123 (1968), upon which appellant relies, is inapposite.
Bruton involved the admission of a co-defendant’s confession that also
implicated the non-testifying defendant. Instantly, Murchison negotiated a
plea with the Commonwealth in exchange for his testimony at trial. (Notes
of testimony, 11/18/11 at 3-4.) However, Murchison was clearly a reluctant
witness. While he agreed that his prior statement to police was the truth, he
repeatedly expressed his reluctance to testify.
down
and
basically
cross-examination.
refused
to
answer
(Id. at 121-122.)
Eventually, Murchison shut
any
more
questions
on
The trial court denied appellant’s
motion for mistrial but gave the jury a curative instruction and struck
Murchison’s testimony in its entirety:
A couple things, first of all, the delay was we had a
witness on the witness stand Friday and we had
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difficulty getting him in today which is logistics and
we finally did get him in and you observed on Friday
the fact that he did not answer questions, the
majority of the questions. He had some difficulty
with the Commonwealth’s questions and he did not
answer a majority of Mr. Warren’s questions and as
such, he did not sit for cross-examination, so I am
striking his testimony. Now, what that means is you
have to strike him from your memory bank as if this
witness didn’t testify. The fact that he testified to
giving a statement, you strike that out. The fact that
he testified to certain portions of that statement or
the majority of the statement or the whole
statement, you strike it out. You are not to consider
that when you go back to deliberate. You are not to
consider his demeanor. You are not to consider
anything about him. The witness’ testimony has
been stricken and I can’t emphasize that enough. It
is something that under the law, someone has to sit
for cross-examination and I have made the
determination this witness will not sit for
cross-examination and as such, the testimony, it is
as if it never happened. Just put it right out of your
minds and we will move on from there.
Notes of testimony, 11/21/11 at 24-26.
“In conducting a criminal trial, the court must protect the rights of the
accused under the Sixth Amendment, including the right ‘to be confronted
with the witnesses against him.’”
1074, 1076 (10th Cir. 1985).
United States v. Morgan, 757 F.2d
“[T]he defendant must be provided with an
adequate opportunity to fully and fairly cross-examine the witnesses against
him.” Id., citing California v. Green, 399 U.S. 149 (1970). “[T]he right of
confrontation includes the right of the accused to use cross-examination to
present a defense to the charges against him.” Id. (citation omitted).
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In this case, Murchison refused to be cross-examined so the trial court
struck his testimony, in its entirety, and cautioned the jury. This was well
within the trial court’s discretion. See id. at 1077, citing United States v.
Nunez, 668 F.2d 1116, 1121 (10th Cir. 1981) (“The usual remedy when a
government witness invokes the Fifth Amendment on cross-examination on
matters to which the witness testifies on direct examination is to strike the
witness’ direct testimony.”). See also United States v. McGlory, 968 F.2d
309, 344 (3rd Cir. 1992), cert. denied, 507 U.S. 962 (1993) (“Courts often
prevent an emasculation of the confrontation right by striking the testimony
of a non-respondent witness.
Use of this remedy lies within the district
court’s discretion.”) (citations omitted).
Furthermore, we agree with the trial court that there was ample
evidence introduced by the Commonwealth, apart from Murchison’s stricken
testimony, that established appellant’s participation in the crimes, including
the surveillance video, appellant’s confession in which he identified himself in
the video and noted that he fired his weapon, and the telephone records that
located appellant at the time and place of the crime.
Therefore, the trial
court did not abuse its discretion in denying appellant’s motion for mistrial
and instead striking Murchison’s testimony and giving a curative instruction
to the jury.
McGlory, 968 F.2d at 344 (“Prejudicial testimony will not
mandate a mistrial when there is other significant evidence of guilt which
reduces the likelihood that the otherwise improper testimony had a
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substantial impact upon the verdict of the jury.”), quoting United States v.
Rodriquez-Arevalo, 734 F.2d 612, 615 (11th Cir. 1984). There is no merit
here.
Appellant next asserts that the trial court erred in failing to grant a
mistrial after Murchison testified that his family had been the subject of
threats.
(Notes of testimony, 11/18/11 at 8-9.)
As we just discussed,
Murchison’s testimony was stricken in its entirety and the jury is presumed
to follow the instructions of the court. Moreover, as we also just noted, the
remaining evidence against appellant was overwhelming.
We see no
prejudice to appellant on this issue and we find no error by the trial court.
Appellant’s final issue is whether the trial court erred in failing to
declare a mistrial when the prosecutor referenced the stricken testimony of
Murchison during a hypothetical question addressed to an expert medical
witness. The aggrieving reference was in relation to the killing of victim Thal
and went as follows:
Q.
Now, I’m going to ask you a couple of
hypotheticals.
A.
Sure.
Q.
Since this was not on video and you saw the
video of the actual shooting of the male victim;
is that correct?
A.
Yes, that’s correct.
Q.
When she received this gunshot wound, if you
would explain to me, there was testimony that
maybe she was held in a headlock when the
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gunshot was fired or maybe someone was
behind her holding her by the hair because you
see she has long hair or by the neck, that she
is near the door, someone forced her to open
the door.
In those scenarios of either a headlock,
grabbing her by the hair, manipulating her or
by the neck, in looking at that wound and the
path, could you tell or could you not tell how
her body was or how the person who did the
shooting was positioned when she gets this
wound?
A.
It is difficult to say. Those are possibilities but
one thing is clear is that the gun had to be to
the right and back –
Notes of testimony, 11/23/11 at 72-73.
During Murchison’s testimony, the district attorney read him his prior
statement to the police and periodically asked Murchison if the just read
portion was true.
At one point in his statement, Murchison stated that
co-defendant Daniels was holding the victim Thal by her neck.
(Notes of
testimony, 11/18/11 at 43.)
We find this issue to be wholly without merit.
The portion of
Murchison’s testimony that was referred to is not the incriminating section
where he identified appellant and related what his individual actions were at
the time. There is nothing in this portion of Murchison’s testimony that was
particularly damning as to appellant. Certainly, the minor factor that Thal
was being held by the neck is not “of such a nature that its unavoidable
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effect is to deprive the defendant of a fair trial by preventing the jury from
weighing and rendering a true verdict.”
Moreover, as we have noted during our analysis of appellant’s other
mistrial issues, the minor factor that the victim was being held by the neck
pales in comparison to the remaining overwhelmingly incriminating evidence
that was produced at trial against appellant.
The trial court properly
declined to declare a mistrial on this exceedingly minor error.
Finally, we address a matter not raised by appellant.
We find that
appellant could not be convicted and sentenced on two separate counts of
criminal conspiracy where the Commonwealth only proved a single,
overarching conspiratorial agreement.
The Commonwealth concedes the
point and agrees that one of the convictions for criminal conspiracy must be
vacated. (Commonwealth’s brief at 2.)
Initially, we note that this issue was not raised via post-sentence
motions, in appellant’s Rule 1925(b) statement, or now on appeal.
However, a claim that two or more convictions should have merged for
sentencing purposes goes to the legality of the sentence, and is therefore
not subject to waiver. Commonwealth v. Wesley, 860 A.2d 585, 591 n.6
(Pa.Super. 2004), appeal dismissed as improvidently granted, 586 Pa.
621, 896 A.2d 564 (2006), citing Commonwealth v. Duffy, 832 A.2d
1132, 1136 (Pa.Super. 2003), appeal denied, 577 Pa. 694, 845 A.2d 816
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(2004). Moreover, a reviewing court can raise the matter sua sponte on
appeal. Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013).
“A claim that the trial court imposed an illegal sentence by failing to
merge sentences is a question of law. Accordingly, our standard of review is
plenary.”
Commonwealth v. Snyder, 870 A.2d 336, 349 (Pa.Super.
2005), quoting Duffy, supra at 1137.
Our Courts have long held that where a defendant
commits multiple distinct criminal acts, concepts of
merger do not apply.
Commonwealth v.
Anderson, 538 Pa. 574, 650 A.2d 20 (1994);
[Commonwealth v. Johnson, 874 A.2d 66, 70
(Pa.Super. 2005), appeal denied, 587 Pa. 720, 899
A.2d 1122 (2006)]; see also 42 Pa.C.S.A. § 9765
(“no crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act
and all of the statutory elements of one offense are
included in the statutory elements of the other
offense.”)
Commonwealth
v.
Robinson,
(en banc) (emphasis in original).
931
A.2d
15,
24
(Pa.Super.
2007)
See also Commonwealth v. Healey,
836 A.2d 156, 157-158 (Pa.Super. 2003), quoting Commonwealth v.
Gatling, 570 Pa. 34, 48, 807 A.2d 890, 899 (2002) (plurality) (“The
preliminary consideration is whether the facts on which both offenses are
charged constitute one solitary criminal act. If the offenses stem from two
different criminal acts, merger analysis is not required.
If, however, the
event constitutes a single criminal act, a court must then determine whether
or not the two convictions should merge.”).
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In determining whether a single conspiracy or
multiple conspiracies have been established, we
must consider several relevant factors: The factors
most commonly considered in a totality of the
circumstances analysis of the single vs. multiple
conspiracies issue . . . are: the number of overt acts
in common; the overlap of personnel; the time
period during which the alleged acts took place; the
similarity in methods of operation; the locations in
which the alleged acts took place; the extent to
which the purported conspiracies share a common
objective; and, the degree to which interdependence
is needed for the overall operation to succeed.
Commonwealth v. Barnes, 871 A.2d 812, 820 (Pa.Super. 2005),
affirmed, 592 Pa. 301, 924 A.2d 1202 (2007).
Although there were two victims here, we agree that the evidence
demonstrated only a single, continuing conspiracy.
Appellant and his
co-conspirators hatched a plan to rob Thal and Gilmore of drugs and money,
during which they were shot and killed. Therefore, appellant could not be
convicted on two separate counts of criminal conspiracy. It is necessary to
vacate one of his conspiracy convictions; however, since he received
concurrent sentences, the trial court’s overall sentencing scheme remains
intact and we will not remand for re-sentencing.
Appellant is serving two
consecutive life sentences for murder.
Judgment of sentence reversed and vacated as to one of the sentences
for conspiracy and affirmed in all other respects. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2013
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