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HomeMy WebLinkAbout99-2033 CriminalCOMMONWEALTH MICHAEL LEWIS OTN: L044148-6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGE: (1) ROBBERY (2) CRIM CONSPIRACY TO ROBBERY (3) FIREARMS NOT TO BE CARRIED W/O LICENSE (4) AGGRAVATED ASSAULT (5) RECK ENDANG ANOTHER PERSON NO. 99-2033 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., October 19, 2000 In this criminal case, Defendant has appealed to the Pennsylvania Superio-.f' Court from a judgment of sentence following a trial in which he was found guiltt¥~ by a jury of robbery,~ criminal conspiracy to commit robbery,2 carrying a firearm without a license,3 aggravated assault,4 and reckless endangerment of another s .The bases for the appeal are that the evidence was insufficient to sustain person. the guilty verdict on the charge of robbery and that the court erred in its ruling upon an evidentiary issue regarding the cross-examination a witness.6 Specifically, Defendant expresses the matters complained of on appeal as follows: t 18 Pa. C.S.A. {}3701(a)(1) and 306. 2 18 Pa. C.S.A. {}903 and {}3701. 3 18 Pa. C.S.A. {}6106 and 306. 4 18 Pa. C.S.A. {}2702(a)(4) and 306. Pa. C.S.A. {}2705. 6 Statement of Matters Complained of on Appeal, filed August 8, 2000. There was insufficient evidence to find the Defendant, Michael Lewis, guilty of the robbery charge. Trial Court erred in not permitting the Defendant the opportunity to cross examine the Commonwealth Witnesses regarding the fact that the robbery charge and conspiracy charges against the Co-Defendants were dropped in exchange for a plea to a Firearms Violation. Defendant should have the opportunity to examine Commonwealth Witnesses on the dismissal of the robbery and conspiracy charges that had been filed against the co-defendants. The theory of the Commonwealth's case was that the Defendant and three other individuals conspired to commit a robbery. The jury should have heard the Common~vealth Witnesses, (i.e. Police Officers) testify to the dismissal of the robbery and conspiracy charges that had been filed against the original three co~defendants.? This opinion in support of the judgment of sentence is xvritten pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS The test for sufficiency of the evidence in a criminal case has been stated by the Pennsylvania Superior Court as follows: The test to be applied in sufficiency of evidence to sustain whether, accepting as true all the determining the a conviction is evidence and all reasonable inferences arising therefrom upon which, if believed, the trier of fact could properly have based its verdict, it is sufficient to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes with which he has been charged. As with all challenges to the sufficiency of the evidence, the Statement of Matters Complained of on Appeal, filed August 8, 2000. 2 evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth.8 The Commonwealth is entitled to the benefit of all reasonable inferences deducible from the evidence,9 and the jury, as trier-of-fact, is free to believe all, part or none of the evidence presented.~° Trial in Defendant's case commenced on May 8, 2000. The evidence presented at trial, viewed in the light most favorable to the Commonwealth, may be summarized as folloxvs: On September 5, 1999, at approximately 1:30 a.m., Defendant and three male friends were involved in an incident at Route 11 and the Pennsylvania Turnpike in Middlesex Township, Cumberland County, Pennsylvania. ~ At the time of the incident, Eddie Everett, the victim, was walking to the Cumberland County Prison from a Wendy's restaurant in the vicinity of a truck stop on Route 11, where he was employed pursuant to the prison's work release program.~2 He was wearing his work uniform, consisting of a purple and maroon striped shirt, blue work pants, kitchen shoes and hat.~3 The shirt was ~4 tucked into his pants. Everett was walking south on the northbound berm of Route 11 approaching a motel when he observed a dark-colored vehicle traveling 8 Commonwealth v. Barnes, 310 Pa. Super. 480,482-83,456 A.2d 1037, 1038 (1983). 9 Commonwealth v. Gease, 548 Pa. 165, 168, 696 A.2d 130,132, cert. denied 522 U.S. 935, 139 L. Ed. 2d. 266, 118 S. Ct. 343 (1997). ~o Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353,354 (1979). ~ N.T. at 12, 19-20. ~2 N.T. at 13, 15-16. 13 N.T. at 14, 16. 14 N.T. at 40. 3 northbound pass by him; the vehicle was occupied by four males.15 The vehicle continued to the truck stop approximately 150 yards away and made a U-turn at a red light.16 The vehicle, now going the other direction, again passed Everett and proceeded into the motel parking lot.17 As Everett continued walking toward the motel, he observed two males looking around the corner of a bridge he was approaching,is The two males, one of whom was Defendant, proceeded onto the berm walking toward Everett.l° Everett entered the middle of the road in an · 20 attempt to pass the men without confrontation. The two men approached Everett.21 Defendant went around Everett, as if to come up from behind him, and the Defendant's companion, who was wearing a knit cap rolled down to his forehead, approached Everett face to face.22 Everett heard the man who was facing him say "Run him" to Defendant.23 In the vernacular of the street, "run him" meant "rob him" according to Everett. His testimony on this point was as follows: Q Now given your experience out on the street, what does, run him mean? 15 N.T. at 18-19. 16 N.T. at 20. 17Id' 18 N.T. at21. 19 N.T. at 21, 28-29. 20 N.T. at 21. 21 N.T. at 22. 22 N.T. at 22, 28. 23 N.T. at 25. 4 A Pretty much saying as, get him, only it's more, take everything he got, you know. Runnin something means, you're taking him. So run him, pretty much, 24 they're going to take me. Everett took off running.2s The men lunged at Everett as he began running 26 As Everett continued running, he was shot in the hip.27 and pursued him briefly. He continued running and did so in a zig-zag pattern, because "[a]fter getting hit the first time ... I didn't want to get shot in the back or in the back of the head or nothing, so I tried to throw them off a little bit.''2s Everett hid in bushes for about two and a half minutes29 and then proceeded, in a circuitous manner, to the Turnpike tollbooths, where he knew he would find help.3° He took an indirect route to the booths, according to his testimony, because of the possibility that he was still being pursued.3~ "I wanted to be seen but not by them guys," he stated.32 Shortly after Everett arrived at the tollbooths, police arrived.33 24 N.T. at 25. 2s N.T. at 24-25. 26 N.T. at 28-29. 27 N.T. at 29-31. 28 N.T. at 30. 29 N.T. at 31-23. 30 N.T. at 33-34. 3~ Id' 32 N.T. at 33. 33 N.T. at 34-35, 54. 5 The police began a search of the immediate area? They proceeded south on Route 1 1 ~vhere they observed a dark-colored vehicle parked on the east berm of Route 11 north, occupied by four males? As the police car approached, the vehicle took off? The police proceeded to pull the vehicle over? After a search of the vehicle, police discovered two lohded nine-millimeter pistols under the right front driver's seat, one of which was jammed, and a black ski mask lying on the front seat between the driver's side and the passenger's side? Defendant 39 However, according to the subsequently confessed to committing the shooting. testimony of the officers present, Defendant denied the allegations of robbery, stating, "As for robbing the guy? Why would I rob a guy in a Wendy's uniform? Now if it was a guy dressed in a suit and tie carrying a briefcase, that's different.''4° During the course of the Commonwealth's case-in-chief, defense counsel raised an evidentiary issue regarding his right to cross-examine a certain police officer on the disposition of the charges against Defendant's co-conspirators; no contest pleas to firearms violations were entered by the co-conspirators in 4~ The prosecution objected to the exchange for a ~vithdra~val of other charges. 34 N.T. at 69. 235 ]6/. 36 N.T. at 71. 3'//d. 38 N.T. at 73-74. 39 N.T. at 93-98. 4o N.T. at 94. 41 N.T. at 64. 6 admission of such evidence on grounds of relevancy.42 The court sustained the prosecution's objection, but reserved the opportunity to revisit the matter should Defendant's co-conspirators take the stand.43 The evidence presented by the defense may be summarized as follows: On September 5, 1999, Defendant and three friends were invited to a party at a certain motel (different from the motel previously referred to) by an acquaintance of Defendant.4~' The four men planned to attend the party but could not remember its lOcation other than that it was a motel along Route 11.45 Defendant testified that, in their search for the party, they pulled into the previously referred to motel, and 46 Defendant and one of his friends exited the vehicle to inquire about the party. According to Defendant, he walked away from the motel toward a bridge where he went to relieve himself while his friend proceeded into the motel to inquire about 47 When his friend did not find anyone who could assist him, he went to the party. where Defendant was urinating.4s At that time, Defendant and his friend decided to approach Everett, whom they had seen walking along the road, to inquire whether he knew anything of the party.4° According to Defendant, he did not 42 Id. 43 N.T. at 64-65. 44 N.T. at 189. 45 Id. 46 N.T. at 190-91. 47 Id. 4s N.T. at 190. 40 N.T. at 191. notice that Everett was ~vearing a Wendy's uniform? They approached Everett.st Defendant's friend stood face to face with Everett, and Defendant remained a few feet behind.52 His friend stated, "Hey, um..." to Everett? At that point, Defendant testified, Everett "jumped back''s4 and "lifted up his shirt and was tugging at his xvaist as if he was trying to pull a weapon out.''ss Defendant, thinking that Everett was reaching for a weapon, became "scared for [himself] and [his friend].''s6 As a result, he pulled out a concealed gun that he had been carrying and shot at Everett. According to Defendant, he did not know that Everett had been hit. Immediately after Defendant fired the weapon the gun jammed, he stated? According to Defendant's testimony, at that point Everett ran away,ss and Defendant and his friend returned to the parking lot of the motel ~vhere the vehicle they had arrived 59 Defendant and his friend in had been parked; however, it was no longer there. proceeded to hide in a ditch for a few minutes before returning to the road in search of their friends' vehicle, according to Defendant.6° Defendant testified that, 5o N.T. at 207-08. s~ N.T. at 191. 52 N.T. at 210-11. 53 N.T. at 191,201. 54 N.T. at 2 1 1. ss N.T. at 191. 56 N.T. at 191-92. 57 N.T. at 215. 58 N.T. at 219. 59 Id. 60 N.T. at 220, 222. 8 upon returning to the road, they spotted the vehicle, jumped in and yelled, "Go!''61 Almost immediately after they took off, the police stopped the vehicle, he stated.62 63 In Defendant also testified with respect to his confession of the shooting. his statement to the police, Defendant conceded, he did not mention the fact that Everett had been tugging at his waistline as if he had had a weapon, nor did he 64 state that he was acting in self-defense when he fired his weapon. Defendant also denied the allegations of robbery. With regard to his comment to the police about robbing a man in a suit, Defendant explained that, after the police had mentioned to him that Everett was coming from Wendy's, he stated that "if [the police] were trying to convict me of [robbing a guy dressed in a suit and a tie carrying a briefcase], I would then understand. But I could not understand, [the police trying to convict me of robbing] a guy in a Wendy's uniform.''65 Additionally, two of Defendant's co-conspirators were called by the defense as witnesses. Both, on direct examination, revealed that the conspiracy and robbery charges against them relating to the incident had been dropped in exchange for no contest pleas to firearms charges.66 61 N.T. at 222-23. 62 N.T. at 224. 63 N.T. at 225-27. 64 N.T. at 226. 65 N.T. at 228-29. 66 N.T. at 131-32, 179-80. 9 In rebuttal, the two officers who were present with Defendant prior to his confession testified that they had not told Defendant that the victim was employed by Wendy's or that he had had a Wendy's uniform on at the time of the robbery.67 As noted previously, a jury found Defendant guilty of robbery, criminal conspiracy to commit robbery, carrying a firearm ~vithout a license, aggravated assault, and recklessly endangering another person.68 On June 22, 2000, he was sentenced. Defendant filed an appeal from the judgment of sentence on July 19, 2000.69 As also noted previously, the issues on appeal are the sufficiency of the evidence to sustain the jury's verdict of guilty on the robbery charge and the court's ruling on the evidentiary issue regarding the cross-examination of the police officer.7° DISCUSSION Sufficiency of the evidence. For present purposes, under Section 3701(a) of the Crimes Code, it is provided that (1) "[a] person is guilty of robbery if, in the course of committing a theft, he (i) inflicts serious bodily injury upon another [or] (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury ... [or] (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; (2) [a]n act shall be deemed "in the course of committing a theft" if it occurs in an attempt to commit theft or in flight after the attempt or commission." Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §3701(2). 67 N.T. at 241,243. 68 N.T. at 279-82. 69 Notice of Appeal, filed July 19, 2000. 70 Statement of Matters Complained of on Appeal, filed August 8, 2000. 10 In the present case, the Commonwealth's evidence tended to show the following: Defendant and three companions drove past Everett, turned around, and positioned themselves in the parking lot of the motel that Everett was approaching. Defendant exited the vehicle with a concealed weapon. A short time later, he and a companion ~vere seen peeking around the bridge; they then entered the berm of the road and approached Everett. Everett, in an attempt to avoid conflict, stepped onto the cartway, but Defendant and the companion pursued a confrontation. With Defendant behind him and the other man in front of him, the latter individual said, "Run him." In the vernacular of the street, this meant, "Rob him." Everett began to run, was pursued briefly, and was shot as he fled. The gun that had been used in the shooting jammed after one shot. Defendant fled the scene. When Defendant made a statement while in police custody, he admitted to the shooting, and he did not suggest that he had acted in self-defense. From this evidence, taken in the light most favorable to the Commonwealth, the jury could have inferred that, in approaching Everett with a concealed weapon, proceeding as a companion announced a robbery, and shooting the victim as he ran away, Defendant had a motive other than simply inquiring about a party - specifically, an intent to rob. The jury could have further inferred from the evidence presented that, in the course of the attempted theft, Defendant not only inflicted bodily injury upon Everett by shooting him in the hip, but also intentionally put Everett in fear of serious bodily injury as he fled. Admissibility of evidence. In general, the admissibility of evidence is a matter addressed to the sound discretion of the trial court. Commonwealth v. Claypool, 508 Pa. 198, 203-04, 495 A.2d 176, 177-78 (1985) (citing Commonwealth v. Bartlett, 446 Pa. 392, 400, 288 A.2d 796, 799-800 (1972)). With respect to the admissibility of evidence regarding the outcome of the case of a co-conspirator, the general rule is that "a person accused of a crime may not introduce evidence of the acquittal of another person charged in connection with the same episode to create an impression before the jury that the defendant is 11 equally innocent." Commonwealth v. Meredith, 493 Pa. 1, 7, 425 A.2d 334, 337 (1981). The court in Meredith, recognizing an exception to this rule, held that a defendant may introduce evidence of a defense witness's acquittal for the limited purpose of rehabilitating the witness's testimony where the Commonwealth impeached that testimony by making reference to the fact that the witness was arrested with the defendant. Id. at 338. Furthermore, a defendant has a right to cross-examine a co-conspirator appearing as a Commonwealth witness on the disposition of charges against him for purposes of showing that the witness may be biased in favor of the prosecution because of favorable treatment received in his own case. Com~nonwealth v. Evan, 511 Pa. 214, 222-23, 512 A.2d 626, 630-31 (1986) (citing Commonwealth v. Coades, 454 Pa. 448,452-53, 311 A.2d 896, 898 (1973)). In cases where the co-conspirator does not testify, the courts have held that the trial court is not required to permit the defendant to testify that his alleged co- conspirators had been acquitted of the charges in an effort to bolster his own credibility or create an impression of equal innocence. See Commonwealth v. Holloway, 559 Pa. 258, 268-69, 739 A.2d 1039, 1044-45 (1999); Com~nonwealth v. Rink, 393 Pa. Super. 554, 561-62, 574 A.2d 1078, 1082 (1990), appeal denied 526 Pa. 654, 586 A.2d 922 (1991). In the present case, Defendant is challenging the court's ruling denying him the opportunity to cross-examine a certain police officer who appeared as a Commonwealth witness, as to the disposition of charges against the co- conspirators. This line of questioning under the circumstances did not fall within the parameter of either exception to the general rule stated above: neither a rehabilitative basis nor an impeachment basis existed for the admission of the evidence. Furthermore, with respect to the two co-conspirators who did testify (as witnesses for the defense) the disposition of the charges against them was successfully brought out on direct examination. 12 For these reasons, it is believed that the court's ruling precluding Defendant from eliciting testimony from a certain police officer as to the results of co- conspirators' cases during the Commonwealth's case-in-chief did not constitute reversible error. ~?-esley Ol~jlr., J. Jaime M. Keating, Esquire Chief Deputy District Attorney Darrell C. Dethlefs, Esquire 3805 Market Street Camp Hill, PA 17011 Court-Appointed Counsel for Defendant 13