Loading...
HomeMy WebLinkAboutCP-21-CR-0002567-2018 Craig Hines Jr COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : CRAIG RYAN HINES, JR. : CP-21-CR-2567-2018 IN RE: DEFENDANT’S OMNIBUS PRE-TRIAL MOTION OPINION AND ORDER OF COURT Masland, J., November 2, 2020:-- I. INTRODUCTION On June 21, 2018, Michael Burch was walking down East Penn Street in the Borough of Carlisle with a friend, Andrew Oberst, when a red SUV approached, slowly passed the two pedestrians, reversed, and stopped; the driver, a black male, then 1 opened fire on the pair, striking Burch and compelling Oberst to dive for cover. At this same time, around 3:45 PM, Riley Bowman, who was standing nearby on the corner of East Penn and North Bedford Street, heard gunshots and, seconds later, witnessed a 2 red SUV with registration plate KRH-4547 speeding away from the scene. It was later determined that said vehicle was owned by Enterprise Rentals, rented to Charles Cuff, 3 and in turn subleased to Craig Hines, the Defendant. Further investigation revealed that various security cameras had captured extensive video footage of this vehicle and its driver travelling about the Borough in the minutes immediately following the shooting. The vehicle is first seen at 3:47 PM, at the intersection of Hanover and North Street, which is approximately two blocks from the 1 Transcript of Preliminary Hearing, September 19, 2018 (hereafter N.T. ), at 38:24-40:11. 2 N.T. 21:23-23:21. 3 N.T. 37:20-38:23. CP-21-CR-2567-2018 4 scene of the shooting. It then proceeds toward the Palmer Tot Lot on Lincoln Avenue, 5 where it is parked. The images captured during this phase of the journey indicate that 6 the registration plate of the vehicle matched that reported by Riley Bowman and that 7 the vehicle was driven by a black male wearing a distinctive blue, white, and red shirt. A police search of that same vehicle yielded numerous 9mm shell casings, consistent 8 with the bullet fragments discovered at the scene of the shooting. Shortly after the vehicle was parked in the Tot Lot, a man fitting the above description was recorded walking nearby, en route to a location at 154B West Penn Street, and then to the Minit Stop convenience store at the corner of North Pitt and West 9 Louther Streets. There, an interior security camera captured a clear image of a man 10 fitting that same description, that man being identified as Defendant. Consequently, Defendant was charged with several offenses, including Murder of the First Degree, with the Commonwealth filing a Notice of Aggravating Circumstances. 11 Instantly, we review Defendant’s Omnibus Pre-Trial Motion, which seeks dismissal of the aforesaid charge and Notice on grounds of insufficient evidence and the dismissal of all charges on grounds of prosecutorial misconduct. For the reasons set forth herein, we will deny Defendant’s Motion in its entirety. 4 N.T. 31:14-32:9. We take judicial notice of the basic geographical facts of Carlisle, the seat of this court. 5 N.T. 36:19-37:18. 6 N.T. 32:16-24. 7 N.T. 35:9-16. 8 N.T. 40:21-43:16. 9 N.T. 43:17-46:8. 10 N.T. 48:4-7, 49:11-18. 11 Several of Defendant’s requests for relief appear not in said Motion but in the supporting Brief. -2- CP-21-CR-2567-2018 II. DISCUSSION A. Prima Facie Evidence of Murder of the First Degree Categorically, the factual allegations cited supra, presented at Defendant’s preliminary hearing on September 19, 2018, constitute prima facie evidence that Michael Burch was shot and killed and that Defendant is more likely than not the person 12 who shot and killed him. Since the specific intent to kill can form “in a fraction of a 13 second” and “may be inferred from the intentional use of a deadly weapon on a vital 14 part of the body of another human being,” as is alleged to have occurred in this case, it is equally plain that said killing could be found to be Murder of the First Degree. Additionally, we find that the evidence on which we have relied satisfies the requirements of McClelland, wherein our Supreme Court, in a recent decision post- dating Defendant’s preliminary hearing, expressly abrogated Ricker and prohibited the Commonwealth from relying exclusively on hearsay in establishing its prima facie 15 case. The statements of Detective Dolan and Riley Bowman concerning their respective observations on the day of the shooting and during the subsequent investigation were not hearsay and the statements of Oberst and Cuff via Detective Dolan, while hearsay, were nonetheless properly admitted, the availability of Cuff to 12 Commonwealth v. Wojdak, 466 A.2d 991, 995-996 (Pa. 1983). 13 Commonwealth v. Fisher, 769 A.2d 1116, 1124 (Pa. 2001). 14 Commonwealth v. Hornberger, 270 A.2d 195, 198 (Pa. 1970). 15 Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020). Defendant nowhere expressly raises the issue of the admissibility of the hearsay evidence, but, by completely and otherwise inexplicably ignoring that part of the evidence, we suppose that he implicitly challenges its admissibility and, in light of the significance of the high court’s recent decision, thought it prudent to address the matter. -3- CP-21-CR-2567-2018 16 testify at trial having been affirmed by the Commonwealth and there having been “no 17 indication” that Oberst would be unavailable. B. Evidence Supporting Aggravating Circumstances A case is properly designated as capital where the Commonwealth presents any 18 evidence in support of any aggravating circumstance. Instantly, the Commonwealth gave notice of two such circumstances: (1) that, in the commission of the offense, Defendant knowingly created a grave risk of death to a person other than the victim, and (2) that Defendant has a significant history of felony convictions involving violence 19 or the threat of violence. Concerning the former, the record discloses that Oberst was standing next to the victim at the time of the shooting, such that he felt the need to dive for cover to avoid 20 becoming a victim himself; that Riley Bowman was standing on the street 21 approximately one-half block from the victim; and that bullet fragments consistent with 16 N.T. 38:2-7. 17 Commonwealth v. Rick, 366 A.2d 302, footnote 1 (Pa. Super. 1976). See also Commonwealth v. Branch, 437 A.2d 748 (Pa. Super. 1981); Commonwealth v. Davis, 454 A.2d 92 (Pa. Super. 1982); Commonwealth v. Troop, 571 A.2d 1084 (Pa. Super. 1990); Commonwealth v. Kohlie, 811 A.2d 1010 (Pa. Super. 2002) (rev’d on other grounds); Commonwealth v. Lindsey, 23 Pa. D. & C.4th 534 (1993). Rick and Branch are commonly cited for the proposition that hearsay is admissible where the Commonwealth affirms the declarant’s availability for trial. However, the Rick court suggests that the dispositive issue is not whether the Commonwealth makes such an affirmation, as occurred in all of the cases cited supra excepting Davis, but whether the court finds that he will in fact be available on the basis of all available evidence. Such was the Davis court’s interpretation of Rick, which it took as holding that hearsay was admissible “so long as it appeared” that the declarant would be available for trial. Davis at 97. So too did our esteemed colleague, Judge J. Wesley Oler, interpret the rule, noting that hearsay is admissible “especially \[i.e. not exclusively\] where there is testimony” that the declarant will be available for trial. Lindsey at 537-538. 18 Commonwealth v. Buck, 709 A.2d 892, 896 (Pa. 1998). 19 42 Pa.C.S. §9711(d)(7), (9); Commonwealth’s Brief in Opposition to Defendant’s Omnibus Pre-Trial Motion, October 2, 2020, Exhibit A. 20 N.T. 38:24-40:11. 21 N.T. 21:25-22:5. -4- CP-21-CR-2567-2018 the shell casings recovered from the red SUV were found in the street adjacent to 66 22 and 68 East Penn Street and inside the residence at 64 East Penn Street. While 23 discharging a firearm does not in itself create a grave risk of harm to others, doing the 24 same in an urban environment does engender such a risk, and that risk undoubtedly 25 arises when one fires into a group of people, though only one person suffers injury. Turning to the second aggravating circumstance, Defendant is mistaken that his juvenile delinquency adjudication for aggravated assault, whose existence is not in 2627 dispute, is not a conviction for the purpose of 42 Pa.C.S. §9711(d)(9). However, given the binding precedents of our Supreme Court in Goins and its progeny, we must agree with Defendant that his single prior conviction cannot, as a matter of law, constitute a significant history of violent felonies, the relevant statutory language having been interpreted to require at least two prior convictions: i.e. excluding any which may 28 result from the pending prosecution. Nonetheless, our task at this stage of the proceedings is to evaluate the Commonwealth’s Notice as a whole, to determine 22 N.T. 41:19-25. 23 Commonwealth v. Kamenar, 516 A.2d 770 (Pa. Super. 1986); Commonwealth v. Smith, 447 A.2d 282 (Pa. Super. 1982). 24 Commonwealth v. Brockington, 230 A.3d 1209 (Pa. Super. 2020). 25 Commonwealth v. Shaw, 203 A.3d 281 (Pa. Super. 2019); Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009). Commonwealth v. Busanet, 817 A.2d 1060 (Pa. 2002); Commonwealth v. Hutchinson, 811 A.2d 556 (Pa. 2002); Commonwealth v. Fisher, 769 A.2d 1116 (Pa. 2001); Commonwealth v. Rios, 684 A.2d 1025 (Pa. 1996); Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996). 26 Defendant’s Brief in Support of Omnibus Pre-Trial Motion, September 24, 2020, at 6. 27 Commonwealth v. Moore, 937 A.2d 1062, 1068 (Pa. 2007); Commonwealth v. Baker, 614 A.2d 663, 675 (Pa. 1992). 28 Commonwealth v. Basemore, 582 A.2d 861 (Pa. 1990); Commonwealth v. Wheeler, 541 A.2d 730 (Pa. 1988); Commonwealth v. Smith, 540 A.2d 246 (Pa. 1988); Commonwealth v. Frederick, 498 A.2d 1322 (Pa. 1985); Commonwealth v. Goins, 495 A.2d 527 (Pa. 1985). -5- CP-21-CR-2567-2018 29 whether there is any evidence supporting any aggravator. Therefore, despite the legal insufficiency of the second proposed aggravator, Defendant’s Motion to Quash Death Penalty Notice will be denied. C. Prosecutorial Misconduct Defendant alleges that the Commonwealth failed to produce numerous reports and other pieces of potentially exculpatory evidence, specifically: (1) documents relating to the enhancement of certain videos and those videos themselves, (2) cell phone tracks for several individuals, (3) reports relating to follow-up interviews with two alleged witnesses, (4) records of the victim’s criminal history, (5) reports relating to an interview 30 with Mason Strowbridge, (6) GSR testing results for a shirt belonging to Marcia Harris, 31 and (7) reports relating to an interview with Joseph Shatto. These issues have now 32333435 been largely, if not entirely, resolved. Items 1, 4, 5, and 7 have been produced. 36 Item 3 never existed. Item 6 was not yet available to the Commonwealth at the time of 37 the hearing on Defendant’s Motion and may or may not have since been produced. 29 Commonwealth v. Buck, 709 A.2d 892, 896 (Pa. 1998). 30 For reasons unknown to the court, this individual is identified in the record variously as Mason, Manson, or Mnason, with the first and last name being inverted from time to time to boot. Nonetheless, we have no doubt that all such references are to the same individual. 31 Defendant’s Omnibus Pre-Trial Motion, August 17, 2020, at ¶31-35. 32 Transcript of Hearing on Omnibus Pre-Trial Motion, September 11, 2020 (hereafter N.T. II ), at 8:4- 25. 33 N.T. II 7:8-19. 34 Commonwealth’s Brief in Opposition to Defendant’s Omnibus Pre-Trial Motion, October 2, 2020, Exhibit B. Laconic reports for the Shatto and Strowbridge interviews were discovered some time after Corporal Kurtz mistakenly testified that none had been written. Id. at p. 12, N.T. II 27:11-14, 38:9-16. 35 Id. 36 N.T. II 6:24-7:7. 37 N.T. II 14:19-15:8. -6- CP-21-CR-2567-2018 As to item 2, the only cellphone tracks that have ever existed are those for Marcia Harris, and these were provided to Defendant, albeit in incomplete form; specifically, Defendant alleges that no information was provided for the period 3:27-4:58 38 PM on the day of the shooting, which, significantly, includes the time of the shooting. As evidenced by the reaction of the Senior Deputy District Attorney when Defendant levelled this allegation at the hearing, the Commonwealth was surprised by the 39 omission. As of the writing of this opinion, we do not know whether the matter has been resolved. In addition to the above allegations of concealment, Defendant further argues that the police failed to preserve evidence during the interview of Joseph Shatto insofar as a body camera was turned off and during the interview of Mason Strowbridge insofar as the only officer wearing a body camera exited the room at one point, leaving a part of 40 the interview unrecorded. We disagree with Defendant’s interpretation of these events. Corporal Kurtz testified credibly that the body camera was turned off during the Shatto interview when it became apparent to the Corporal that Shatto had no reliable 41 information to offer. Indeed, the corresponding police report indicates that, after Corporal Kurtz “confronted \[Shatto\] about his lying to us,” Shatto “conceded he was both trying to impress Dawn MUESSNER, BURCH’S mother, and gain favor for future 42 sentencing.” 38 N.T. II 14:8-17, 16:8-25. 39 N.T. II 16:8-25. 40 Defendant’s Omnibus Pre-Trial Motion, August 17, 2020, at pp. 8-9. 41 N.T. II 24:16-23. 42 Commonwealth’s Brief in Opposition to Defendant’s Omnibus Pre-Trial Motion, October 2, 2020, Exhibit B. -7- CP-21-CR-2567-2018 In relation to the Strowbridge interview, Corporal Kurtz again testified credibly that nothing of substance was discussed during the very brief period that the officer 43 wearing the body camera exited the room to fetch a cup of water. This is consistent with the corresponding police report, which contains very little information, suggesting 44 that the interview was unproductive. Nor, contra Defendant’s assertion, is there any evidence that Corporal Kurtz’s offer of assistance to Strowbridge was in exchange for false testimony implicating Defendant. In summary, we find no indication that any of the evidence that the Commonwealth has yet to disclose, if indeed any evidence remains undisclosed at this 45 point, is exculpatory. Nor, do we find any indication that the police acted in bad faith in 46 failing to record several minutes of their interactions with Shatto and Strowbridge. Defendant is correct that the failure to record was intentional with respect to the Shatto interview, but it does not follow that it was the purpose of the police to deny Defendant potentially exculpatory evidence. Finally, to emphasize the obvious, we note that Defendant was only able to raise the arguments addressed herein, as to the potentially exculpatory statements of Shatto and Strowbridge, because he was provided the associated video recordings. Although we are satisfied, at this stage, that the 43 N.T. II 38:19-39:18. 44 Commonwealth’s Brief in Opposition to Defendant’s Omnibus Pre-Trial Motion, October 2, 2020, Exhibit B. 45 Brady v. Maryland, 373 U.S. 83, 87 (1963) (“suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment”). 46 Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (“unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law”). -8- CP-21-CR-2567-2018 Commonwealth has not played fast and loose with the evidence, the Defendant will be free to make these same arguments to a jury. ORDER OF COURT AND NOW, this day of November, 2020, for the foregoing reasons, Defendant’s Omnibus Pre-Trial Motion is hereby DENIED. Further, in the interest of facilitating the progress of this matter, a status conference is scheduled for Friday, November 13, 2020 at 11:00 a.m. in chambers. By the Court, Albert H. Masland, J. Daniel J. Sodus, Esquire Office of the District Attorney Shane B. Kope, Esquire For the Defendant Michael Palermo, Esquire Co-Counsel for the Defendant -9- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : CRAIG RYAN HINES, JR. : CP-21-CR-2567-2018 IN RE: DEFENDANT’S OMNIBUS PRE-TRIAL MOTION ORDER OF COURT AND NOW, this day of November, 2020, for the foregoing reasons, Defendant’s Omnibus Pre-Trial Motion is hereby DENIED. Further, in the interest of facilitating the progress of this matter, a status conference is scheduled for Friday, November 13, 2020 at 11:00 a.m. in chambers. By the Court, Albert H. Masland, J. Daniel J. Sodus, Esquire Office of the District Attorney Shane B. Kope, Esquire For the Defendant Michael Palermo, Esquire Co-Counsel for the Defendant