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HomeMy WebLinkAboutCP-21-CR-0003479-2012 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CHARGES: (1) CRIMINAL HOMICIDE – : MURDER OF THE SECOND DEGREE v. : (2) CRIMINAL CONSPIRACY TO : CRIMINAL HOMICIDE – MURDER OF : THE SECOND DEGRDD : (3) ROBBERY : (4) CRIMINAL CONSPIRACY TO : ROBBERY TYLER MITCHELL : BRADSHAW : CP-21-CR-3479-2012 : AFFIANT: PTL. JARED SCOTT HUFF IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Peck, J., March 26, 2015. On September 11, 2014, after a jury trial, Defendant was found guilty at Count 1, Criminal Homicide in the Second Degree, a felony of the first degree, at Count 2, Criminal Conspiracy to Criminal Homicide in the Second Degree, a felony of the first degree, at Count 3, Robbery, a felony of the first degree, and at Count 4, Criminal 1 Conspiracy to Robbery, a felony of the first degree. On December 16, 2014, Defendant was sentenced at Count 1 to undergo a period of incarceration in a State Correctional Facility for the rest of his life and to pay the costs of prosecution, a fine of $100.00, and restitution in the amount of $956.40, at Count 2 to undergo a period of incarceration in a State Correctional Facility of not less than 120 months nor more than 240 months, to run concurrently to the sentence imposed at Count 1, and to pay the costs of prosecution, at Count 3 to undergo a period of incarceration in a State Correctional Facility of not less than 60 months nor more than 120 months, to run concurrently to the sentences imposed at Counts 1 and 2, and to pay the costs of prosecution, and at Count 4 to undergo a period of incarceration in a State Correctional Facility of not less than 60 months nor more than 120 months, to run concurrently to the sentences imposed at Counts 1, 2, and 3 and to pay 1 Order of Court, In Re: Verdict; Directed to Appear for Sentencing (September 11, 2014). 23 the costs of prosecution. On January 14, 2015, Defendant filed a Notice of Appeal. On February 5, 2015, Defendant filed a Petition to Continue Deadline to File Statement of 4 Errors which we granted on February 6, 2015. In accordance with Pennsylvania Rule of Appellate Procedure 1925(b), Defendant has filed the following concise statement of matters complained of on appeal: 1.The jury was not told that murder 1 and murder 2 carries \[sic\] the same penalty when the death penalty is withdrawn. 2.The trial court erred in not allowing sufficient cross examination of the co-defendants that testified against appellant under a “deal” for a 5 lesser sentence. This Court’s opinion in support of our Order of Court, In Re: Sentencing, is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On November 18, 2012, between approximately 10:00 and 11:00 p.m., Sergeant Todd Lindsay of the Silver Spring Township Police Department was dispatched to the 6 Hess Station at 7034 Carlisle Pike, Silver Spring Township, Cumberland County. Upon arriving at the Hess Station, Sergeant Lindsay was directed behind the counter where he 7 found Linda Ness, the store clerk, with blood on her face. Paramedics arrived at the Hess Station shortly after Sergeant Lindsay, and Miss Ness was determined to be deceased. In an effort to determine the circumstances which led to Miss Ness’s death, 8 Sergeant Lindsay reviewed a soundless surveillance video. The video, according to 9 Sergeant Lindsay, shows an individual entering the Hess Station. The individual briefly 2 Order of Court, In Re: Sentence (December 16, 2014). 3 Notice of Appeal, filed January 14, 2015. 4 Defendant’s Petition to Continue Deadline to File Statement of Errors, filed February 5, 2015; Order of Court (February 6, 2015). 5 Defendant’s Concise Statement of Matters Complained of on Appeal, filed March 6, 2015. 6 Transcript of Proceedings, In Re: Jury Trial Vol. I, September 8, 2014 (Peck, J.) (hereinafter “N.T. Vol. I at __”) at 104. 7 N.T. Vol. I at 106. 8 N.T. Vol. I at 109. 9 N.T. Vol. I at 111-12. 2 engages in conversation with someone off to his right, presumably Miss Ness, and then 10 leaves the store. Shortly thereafter, two individuals dressed in black, wearing masks and 1112 gloves, enter the store. They approach the counter with one behind the other. The individual closest to the counter lifts up his shirt with his right hand, pulls a gun from his 13 waistband with his left hand. Although Miss Ness is not fully visible in the video at this 14 point, the tips of her fingers come into view. He then proceeds to point, either at the register or at Miss Ness, with his finger and then with the gun, alternating between the 15 two. Miss Ness then suddenly collapses to the ground and the two individuals leave the 16 store. On November 20, 2012, an autopsy was performed on Miss Ness by Dr. Johnson, 17 a forensic pathologist, at the Lehigh Valley Medical Center. During the autopsy, three bullet fragments were recovered from Miss Ness, and Dr. Johnson determined that the 18 cause of death was a single gunshot wound to the neck and chest. Officer Seth Weikert, Silver Spring Township Police Department, and Detective Les Freehling of the Cumberland County Criminal Investigation Division interviewed co- 19 defendant Shante Rice. Mr. Rice explained that he was the first individual seen on the video surveillance to enter the Hess Station and that, after leaving the store, he passed the 10 N.T. Vol. I at 112. 11 N.T. Vol. I at 112. 12 N.T. Vol. I at 112. 13 N.T. Vol. I at 114. 14 N.T. Vol. I at 112. 15 N.T. Vol. I at 114. 16 N.T. Vol. I at 118-19. 17 Transcript of Proceedings, In Re: Jury Trial Vol. III, September 10, 2014 (Peck, J.) (hereinafter “N.T. Vol. III at __”) at 130, 134, 135. 18 N.T. Vol. III at 161, 164. 19 N.T. Vol. III at 7 – 8. Shante Rice and Defendant were tried by jury jointly. The two other co- defendants, Christian Conway and Brandon Mathna, testified against Mr. Rice and Defendant. The Conway and Mathna cases are still pending as of the writing of this opinion. 3 20 two individuals that next entered the store. Mr. Rice admitted providing the gun to the 21 shooter approximately an hour before the shooting. Mr. Rice said that he and three other individuals planned the robbery at the Hess Station approximately five minutes before 22 stopping there. Defendant also was interviewed as a suspect. That interview was conducted by the lead investigator, Detective Jared Huff of the Silver Spring Township Police Department, and Detective Richard Keefer of the Cumberland County Criminal Investigation 23 Division. Defendant, like Mr. Rice, admitted that he and three other individuals 24 discussed robbing the Hess Station on the Carlisle Pike prior to arriving there. He also admitted that he and one of the other three individuals entered the Hess Station together, 25 with Defendant entering first. Once inside, Defendant approached the counter and 26 pointed a gun at Miss Ness, telling her to turn around and get the money. He then shot 2728 Miss Ness, fatally injuring her. According to Defendant, the gun just went off. After 29 Miss Ness collapsed, Defendant and the other individual left the store empty handed. 30 At trial, co-defendant Christian Conway testified for the Commonwealth. At the time of trial, charges against Mr. Conway for his involvement in the shooting death of 31 Miss Ness were still pending. Mr. Conway was asked on direct examination if there was 20 N.T. Vol. III at 11. 21 N.T. Vol. III at 12. 22 N.T. Vol. III at 12. 23 N.T. Vol. III at 20, 21. 24 N.T. Vol. III at 27. 25 N.T. Vol. III at 27. 26 N.T. Vol. III at 27, 28. 27 N.T. Vol. III at 28. 28 N.T. Vol. III at 28. 29 N.T. Vol. III at 29. 30 Transcript of Proceedings, In Re: Jury Trial Vol. II, September 9, 2014 (Peck, J.) (hereinafter “N.T. Vol. II at __”) at 38-99. 31 N.T. Vol. II at 39. 4 32 any agreement between him and the Commonwealth regarding his testimony. Mr. Conway responded that the agreement was for “some type of . . . leniency” if he 33 cooperated and testified truthfully for the Commonwealth. He was then asked if anyone 34 had guaranteed him any particular disposition or sentence, and he said, “No. No.” On cross-examination, Gregory B. Abeln, Esquire, attorney for Defendant, asked 35 Mr. Conway if he knew that he was facing serious charges. Mr. Conway responded, 36 “Yes, I do.” Attorney Abeln then stated, “Let me just read them to you,” at which point 37 the Commonwealth objected. The following discussion occurred at sidebar: MR. ABELN : I want to ask him if he understands what charges everybody – each of them were all charged with the same thing. Does he know that. MR. KEATING : Then how are you going to explain the burglary that – how do you want me to explain then the burglary for Rice that occurred prior to that? And I don’t know that he’s going to have knowledge of how that actually – that charge came about. THE COURT : Just stop for a second. You want to ask him that all four were charged with the same thing initially? MR. ABELN : Initially. Not – nothing to do with the burglaries. *** THE COURT : I am trying to ascertain what exactly it is that you want to do. I need you to give me an offer. I agree that you will be able to get in some part of this. I’m just trying to understand exactly what you want. Tell me what your question will be. MR. ABELN : I want to ask \[Mr. Conway and Mr. Mathna\] if they got a deal and what their – when the other guy comes up as well. 32 N.T. Vol. II at 39. 33 N.T. Vol. II at 39, 40. 34 N.T. Vol. II at 39. 35 N.T. Vol. II at 83. 36 N.T. Vol. II at 83. 37 N.T. Vol. II at 83. 5 THE COURT : Of course you’re going to be able to ask that. In what manner were you asking? MR. ABELN : And then if he’s going to say, I didn’t get any deal, I’m going \[to\] say, well, you’re not – you were originally charged with these other people. Now that’s – you know, that’s changed. And you know— THE COURT : What’s changed, that he hasn’t been charged with burglaries? MR. ABELN : Yeah, that he has been – he’s not here because of the burglary charges; but he was joined to be here. THE COURT : If you say the burglary charges, it’s necessarily going to get into some of the ones that I have kept out which you have asked me to keep out. MR. ABELN : Right. THE COURT : So I’m not going to let you get into that there’s a lack of burglary charges when . . . . At this point, I’m happy to let you bring up that all four initially were charged with the same thing. MR. ABELN : Serious charges. I’ll be happy to do that. MR. KEATING : And I have no objection, Your Honor, if he wants to say all four cases were joined together but these are the only two being tried right now. That’s fine. But if you start going into charges – MR. ABELN : That’s not what I’m going to do. I want to do exactly what Mr. Keating just said. I guess I didn’t express myself correctly. *** MR. ABELN : I’m happy to say that initially they were all joined – ask him if he knows they were all joined together, you know, and – and charged with very serious charges and these charges have to be dealt with by the jury. THE COURT : And you can say including criminal homicide and criminal conspiracy to homicide. I have no 38 issue with that. Following the above discussion, Attorney Abeln continued his cross-examination of Mr. Conway: 38 N.T. Vol. II at 85-88. 6 Q Let’s try this again. Are you aware that you were charged with very serious charges including criminal homicide and criminal conspiracy to commit homicide? A Yes. Q And that’s the same as all of your three codefendants. Do you understand that, too? A Yes. Q Okay. But you’re not – you’re not being tried today? You’re here called as a witness? A Yes. Q By the Commonwealth? A Yes. Q What deal of any kind did you make with the Commonwealth? A Just agreed to tell the truth, and then we go from there. Q So out of the goodness of your heart, you’re here today to tell the truth? A Yes. Q Okay. What were – what did you expect to get from this – your testimony? What was the – A As little as possible. Anything, you know, that, you, that’s, you know, respectable. Q When you mean as little as possible? A I’m sure I’m going to get charged with the same thing but, you know, as little as possible. Q You are charged with the same thing. 39 A Yeah. Just less time as possible. Defense counsel for Shante Rice, Allen Welch, Esquire, also questioned Mr. Conway regarding any agreements he may have had with the Commonwealth, asking, “And in exchange for that truthful testimony, your fervent hope is that you’re going to get the 4041 least sentence you can get, right?” Mr. Conway responded, “Anything other than life.” 39 N.T. Vol. II at 89-90. 40 N.T. Vol. II at 92. 41 N.T. Vol. II at 92. 7 At the conclusion of Mr. Conway’s testimony, and after having dismissed the jury, 42 we asked Attorney Abeln if he was “satisfied with what \[he was\] able to elicit.” He 43 responded that he was. 44 Co-defendant Brandon Mathna testified next for the Commonwealth. As with Mr. Conway, charges against Mr. Mathna for his involvement in the shooting death of 45 Miss Ness were still pending at the time of Defendant’s trial. Mr. Mathna testified that he did not have any agreements or understandings with the Commonwealth regarding any 46 particular sentence or disposition of the charges against him. Rather, Mr. Mathna was 47 hoping for leniency in exchange for truthful testimony. On cross-examination, Attorney Abeln asked Mr. Mathna “what promise or anything did you get from the Commonwealth to have you come here today and tell them 48 what you say is true?” Mr. Mathna responded that he was hoping for leniency which, to 49 Mr. Mathna, meant less than the possible maximum sentence he was facing. Attorney Abeln continued: Q What did Mr. Keating tell you if you testified today or whoever from the District Attorney’s Office? A Just that if I do this that they may – might show me mercy in the end when my time comes to be sentenced. Q Did you ask him what mercy meant? A Just as I said, not the maximum sentence, like, the overall, the main I can get. Q What do you think the maximum sentence 50 would be? 42 N.T. Vol. II at 100-01. 43 N.T. Vol. II at 101. 44 N.T. Vol. II at 101-40. 45 N.T. Vol. II at 103. 46 N.T. Vol. II at 103. 47 N.T. Vol. II at 103. 48 N.T. Vol. II at 134. 49 N.T. Vol. II at 134. 50 N.T. Vol. II at 135. 8 51 At this point, the Commonwealth objected. We sustained the Commonwealth’s objection and provided to Attorney Abeln the following guidance: You may ask if he was promised a specific length of . . . sentence or a general ballpark of what his sentence would be. Length. You may not get into anything that includes what the penalties, maximum penalties are for the offenses that are charged. And you are not to be leading down that direction to 52 elicit that. Attorney Abeln resumed his cross-examination of Mr. Mathna, asking, “Were you promised anything by the Commonwealth as to what the length of your sentence would 5354 be if you testified?” Mr. Mathna responded, “No.” Attorney Abeln had no further questions for Mr. Mathna. DISCUSSION A.Lack of Jury Instruction. Defendant contends that we erred in denying his request to instruct the jury that for a non-capital homicide murder of the second degree has the same penalty as murder of the first degree. We disagree. Pennsylvania Rule of Evidence 401 states: 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. As the possible sentences faced by Defendant have no tendency to make any 55 fact more or less probable, they are not relevant. Commonwealth v. Waters, 483 A.2d 51 N.T. Vol. II at 135-36. 52 N.T. Vol. II at 138-39. 53 N.T. Vol. II at 140. 54 N.T. Vol. II at 140. 55 In argument to this Court, Attorney Abeln essentially conceded that the rationale for informing the jury that first degree and second degree murder provide for the same penalty was to divert the jury’s attention 9 855 (Pa. Super. 1984) (“Punishment is a matter solely for the court and not for the jury to know or to consider during its deliberations. Accordingly, any reference to penalties made in closing would have been improper.”); see also Commonwealth v. Patton, 985 A.2d 1283 (Pa. 2009) (“\[T\]he jury's role is to render a verdict based on the evidence, not based on the effect of that verdict.”). We therefore denied Defendant’s request. Defendant directed our attention to Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011) in support of his request. In Spotz, however, all discussions of available sentences were in the context of the penalty phase of a capital murder trial, where the jury is deciding between a life sentence and a sentence of death. Such was not the case here as the Commonwealth did not pursue the death penalty in this matter and there was therefore no penalty phase. As such, Spotz is inapposite. Defendant should be denied relief. B. Cross-examination of Co-defendants Defendant’s second claim of error alleges that we did not allow sufficient cross- examination of co-defendants Conway and Mathna regarding any agreements they may have had with the Commonwealth. We disagree. The existence and terms of a plea agreement may be revealed to the jury. Commonwealth v. Miller, 819 A.2d 504, 515 (Pa. 2002). In the present matter, we permitted Attorney Abeln to question Mr. Conway concerning any plea agreement he may have reached with the Commonwealth. Additionally, at the conclusion of Mr. Conway’s testimony, we specifically asked Attorney Abeln if he was satisfied with what he was able to elicit from Mr. Conway regarding any agreement. Attorney Abeln responded that he was satisfied. Additionally, during the sidebar quoted extensively above, Attorney Abeln stated specifically what questions he wished to ask Mr. Conway and then was allowed to ask those questions. Thus Attorney Abeln’s questioning of Mr. away from their role as the trier-of-fact in hopes of a verdict rendered with a particular sentence in mind. Transcript of Proceedings, In Re: Argument, August 14, 2014 (Peck, J.) at 9-10. 10 Conway regarding any deal with the Commonwealth was in no way circumscribed by this Court. Regarding cross-examination of Mr. Mathna, we precluded Attorney Abeln from inquiring into the maximum penalty Mr. Mathna was facing for his participation in the death of Miss Ness. However, Mr. Mathna did testify that he did not have any agreements or understandings with the Commonwealth regarding any particular sentence or disposition of the charges against him. He was simply hoping for leniency. In the absence of an agreement between Mr. Mathna and the Commonwealth, the maximum penalty for the charges against Mr. Mathna was not pertinent to Attorney Abeln’s attempt to impeach Mr. Mathna’s credibility. The maximum penalty may have been relevant had Mr. Mathna already entered into an agreement with the Commonwealth for a particular sentence as it would have informed the jury as to the extent and generosity of that agreement. That was not the case here. Additionally, by circumscribing Attorney Abeln’s questioning of Mr. Mathna, we wished to insure that he did not attempt to circumvent our ruling excluding reference to the potential penalties faced by Defendant by introducing those penalties through the testimony of Mr. Mathna. As the jury had already been informed that Mr. Mathna was facing the same charges as Defendant, it would have been a small step for them to infer that Defendant faced the same maximum as Mr. Mathna. We note that the jury was instructed that Mr. Conway and Mr. Mathna could be considered as corrupt sources and we cautioned the jury to look upon their testimony with disfavor. See 56 Commonwealth v. Miller, 819 A.2d at 515. If, however, the Court were to find our precluding any inquiry into the maximum penalty Mr. Mathna faced in error, it was harmless error: An error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict. If there is a reasonable possibility that the error may have contributed to the verdict, it is not harmless. In reaching that conclusion, the reviewing court will find an error harmless where the uncontradicted 56 Transcript of Proceedings, In Re: Jury Trial Vol. IV, September 9, 2014 (Peck, J.) at 29-31. 11 evidence of guilt is overwhelming, so that by comparison the error is insignificant. Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (Pa. 2003). In the present matter, prior to Mr. Mathna’s testimony, Mr. Conway had already testified that he was hoping to avoid a life sentence. Mr. Conway also testified that he and his three co-defendants, Defendant, Mr. Rice, and Mr. Mathna, had all been charged with criminal homicide and conspiracy to criminal homicide. Thus the maximum penalty for the charges against Mr. Mathna had been elicited previously from Mr. Conway. Thus, by comparison to the uncontradicted evidence of guilt, including Defendant’s confession to law enforcement, any error in excluding Mr. Mathna from testifying about the maximum sentence he faced, which Mr. Conway had previously testified to, was insignificant and therefore harmless. Defendant should be denied relief. CONCLUSION This Court concludes that it properly denied Defendant’s request for a jury instruction regarding the maximum penalty for first and second degree murder and properly limited Defendant’s cross-examination of Mr. Conway and Mr. Mathna regarding maximum sentences in the context of any plea agreements they may have had with the Commonwealth. The issues raised by Defendant on appeal, therefore, are without merit. BY THE COURT, __________________________ Christylee L. Peck, J. Jaime M. Keating, Esq. First Assistant District Attorney Gregory B. Abeln, Esq. Court-appointed counsel For Appellant 12