HomeMy WebLinkAboutCP-21-CR-0003481-2012
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. :
:
SHANTE BRUCE RICE : CP-21-CR-3481-2012
IN RE: OPINION PURSUANT TO PA.R.A.P. 1925(a)
Peck, J., May 5, 2016-
Following a jury trial from September 8, 2014 through September 11, 2014,
wherein Defendant Shante Bruce Rice (hereinafter the “Defendant”) and co-Defendant
Tyler Mitchell Bradshaw (hereinafter “Bradshaw”) were tried jointly, Defendant was
convicted of Criminal Homicide in the Second Degree, Criminal Conspiracy to Criminal
Homicide, Robbery, Criminal Conspiracy to Robbery, Burglary, and Criminal
Conspiracy to Burglary. Bradshaw was convicted of Criminal Homicide in the Second
Degree, Criminal Conspiracy to the same, Robbery, and Criminal Conspiracy to
Robbery. Defendant and Bradshaw were each sentenced to life in prison. Defendant’s
trial counsel did not immediately file a direct appeal. The failure to do so was later
raised, and by order of Court dated December 10, 2015, Defendant’s direct appellate
rights were reinstated. On January 8, 2016, the Defendant filed a Notice of Appeal in the
above-captioned matter, and has alleged the following errors:
1.Whether the Court erred when it denied Appellant’s motion to sever burglary
and criminal conspiracy to burglary charges?
2.Whether the evidence presented at trial was sufficient to convict Appellant of
criminal homicide – second degree murder?
3.Whether the evidence presented at trial was sufficient to convict Appellant of
criminal conspiracy to criminal homicide?
4.Whether the Court erred when it failed to define the “in furtherance” element
during the jury instruction on second degree murder?
This Court offers the following Opinion, pursuant to Pa. R.A.P. 1925(a), in
support of its decisions in the above-captioned matter.
1
FACTUAL HISTORY
On October 31, 2012, Defendant and Co-Defendant Brandon Mathna (hereinafter
1
“Mathna”) broke a window and entered 1 Shiloh Court in Mechanicsburg, Pennsylvania,
wherein they took a number of items from the residence, including jewelry, pocket
2
knives, jars full of coins, alcohol, and three pistols. Two of the pistols from the Shiloh
34
Court property were sold, but Defendant maintained possession of the third firearm, a
5
Smith & Wesson revolver. At some point after taking this firearm from the Shiloh Court
property, but prior to the instant homicide, Mathna, in the presence of Defendant,
6
positively test-fired the pistol in a field. Afterwards, Defendant again took possession of
7
the firearm.
At roughly 10:00 p.m. on the evening of November 18, 2012, slightly less than
three weeks after the Defendant and Mathna had broken into the Shiloh Court property
and taken the Smith & Wesson firearm, co-Defendant Christian Conway (hereinafter
“Conway”) received a phone call from co-defendant Bradshaw asking if he could pick
8
Bradshaw up from work. After Conway picked up Bradshaw, Bradshaw informed
Conway that they would be able to make some money if they could also pick up the
9
Defendant in Carlisle. Conway picked up Defendant, and, at Defendant’s request, they
10
proceeded to pick up Mathna, who also lived in Carlisle.
After Conway picked up Bradshaw, Mathna, and Defendant, the group began
discussing plans to rob a Uni-Mart in Mechanicsburg, and Conway drove to that
11
location. During the drive to the Uni-Mart in Mechanicsburg, Defendant pulled out an
“Angry Birds” backpack which contained the Smith & Wesson firearm that had been
1
Notes of Testimony (hereinafter “N.T.), September 9, 2014, at 104.
2
N.T., September 8, 2014, at 36-38.
3
N.T., September 9, 2014, at 111.
4
Id. at 106.
5
Id. at 105, N.T., September 8, 2014, at 38.
6
N.T., September 9, 2014, at 105.
7
Id. at 106.
8
Id. at 42-43.
9
N.T., September 9, 2014, at 45.
10
Id. at 47-48.
11
Id. at 49-50.
2
12
taken from the Shiloh Court property. When they arrived at the Uni-Mart in
Mechanicsburg, Conway parked in a development across the street, and Bradshaw,
13
Mathna, and Defendant exited the vehicle and walked on foot to the Uni-Mart. Their
attempt to rob the Uni-Mart was futile because the store was closed, so Bradshaw,
14
Mathna, and Defendant returned to Conway’s vehicle.
After their unsuccessful attempt to rob the Uni-Mart, Conway began driving back
to Carlisle when Defendant suggested that they could rob another convenience store,
15
specifically, the Hess Express on the Carlisle Pike. On the way to the Hess Express, the
16
group began discussing their roles in the prospective robbery. Defendant was to go into
the store first to “look around,” and then Bradshaw and Mathna would follow when they
17
received word to proceed from Defendant. Bradshaw would carry the gun, and Mathna
18
would carry the backpack. The three of them would call Conway when they needed to
19
be picked up after the robbery was complete.
Conway dropped Bradshaw, Mathna, and the Defendant off behind the Hess
20
Express and drove away. Bradshaw, Mathna, and Defendant gathered behind a pine
tree next to the Hess Express to prepare themselves for the robbery, and the three men
21
again discussed their respective roles in the robbery. At this time, Bradshaw took the
22
firearm from Defendant’s backpack. As they had discussed previously, the Defendant
entered the convenience store first, looked around, and called Bradshaw to proceed with
23
the robbery. Bradshaw and Mathna then entered the store, both wearing gloves and
12
While Conway testified that he was unsure whether the Defendant or Mathna had brought the Angry
Birds backpack into the vehicle, Mathna testified that it was the Defendant who brought the backpack that
night, before eventually giving it to Mathna. Id. at 50-52, 109-110.
13
Id. at 54, 109.
14
Id. at 58, 109.
15
N.T., September 9, 2014 at 58-59
16
Id. at 59.
17
Id. at 113.
18
Id.
19
Id. at 61.
20
N.T., September 9, 2014 at 113.
21
Id. at 113-114.
22
Id. at 131.
23
Id. at 113.
3
24
masks, and proceeded to try to rob the clerk, Linda Ness (hereinafter, “Ness”). Ness
was not looking towards the doorway and center of the store when Bradshaw first
25
approached the counter, so Bradshaw asked her to turn around. Bradshaw pointed the
26
firearm directly at Ness and twice ordered her to give him money from the register.
2728
Bradshaw fired one shot, and Ness was fatally wounded. Ness did not have a weapon
29
on her and did not put up any fight. Bradshaw and Mathna ran from the store without
30
taking anything. Eventually, all three men were picked back up by Conway, as
31
planned.
By the time Sergeant Todd Lindsay of the Silver Spring Police Department arrived
32
at the Hess Express, Ness was “without life.” The cause of Linda Ness’s death was
33
determined to be a single gunshot wound to the chest and neck. Officer Seth Weikert,
Silver Spring Township Police Department, and Detective Les Freehling of the
34
Cumberland County Criminal Investigation Division interviewed the Defendant. The
Defendant explained that he was the first individual seen on the Hess Station video
surveillance (that the Commonwealth produced at trial) to enter the Hess Station and that,
35
after leaving the store, he passed the two individuals that next entered the store. The
Defendant admitted providing the gun to the shooter approximately an hour before the
36
shooting. The Defendant said that he and three other individuals planned the robbery at
24
Id.
25
N.T., September 9, 2014 at 116.
26
Id. at 116-117.
27
Id. at 116.
28
Id. at 118.
29
Id.
30
N.T., September 9, 2014 at 117.
31
Id. at 122.
32
N.T., September 8, 2014, at 106.
33
N.T., September 10, 2014, at 164.
34
N.T. Vol. III at 7 – 8. Defendant and Bradshaw were tried by jury jointly. The two other co-
defendants, Christian Conway and Brandon Mathna, testified against Defendant and Bradshaw.
35
Id. at 11.
36
Id. at 12.
4
37
the Hess Station approximately five minutes before stopping there. Neither Defendant
38
nor Bradshaw testified at trial.
DISCUSSION
Severance of Burglary Charges
Defendant first alleges that this Court erred in refusing to sever the burglary and
conspiracy to burglary charges, which stem from the Shiloh Court burglary, from the
robbery, homicide, and conspiracy to commit such charges stemming from the actions at
the Hess Express. This Court held a hearing on Defendant’s Motion to Sever these
charges on July 8, 2014, and ruled in part against the severance as set forth below.
Further factual and procedural context is necessary. The Commonwealth alleged
that the Shiloh Court burglary and Hess Express robbery were not isolated incidents, but
were instead part of a string of burglaries and robberies perpetrated by the Defendant and
39
Mathna. The Commonwealth alleged that on October 30, 2012, Defendant and Mathna
committed a burglary at a home on Bella Vista Drive in the Hillside Farms development
40,41
in Mechanicsburg. On October 31, 2012, they perpetrated the Shiloh Court
42
burglary, another home in the Hillside Farms neighborhood, and the burglary allowed
into evidence at the homicide trial. On November 18, 2012, the group attempted the Uni-
Mart robbery, perpetrated the Hess Express attempted robbery and homicide, and
committed on that same night, after the homicide, another burglary in a home on
43, 44
Appomattox Court in the Hillside Farms neighborhood. In light of these facts, the
Commonwealth charged all four men with homicide, robbery, and related conspiracy
charges, and charged Defendant and Mathna with burglary and conspiracy to burglary
37
Id. at 12.
38
N.T. September 11, 2014, 3-9.
39
N.T., In re: Continued Scheduling Conference, July 8, 2014, at 18.
40
Id. at 19.
41
Defendant later entered a guilty plea to a burglary charge stemming from this incident. N.T., February
24, 2015, at 2.
42
N.T., In re: Continued Scheduling Conference, July 8, 2014, at 19.
43
Id. at 20
44
Defendant later entered a guilty plea to a burglary charge stemming from this incident. N.T., February
24, 2015, at 2.
5
charges for their separate culpability of committing the two burglaries prior to the
45
homicide. The Commonwealth intended to try Conway and Mathna separately after
Defendant and Bradshaw’s joint trial, in light of the fact that they agreed to testify against
46
Defendant and Bradshaw. The Commonwealth sought to try and bring in evidence of
all three Hillside Farms neighborhood burglaries during the homicide trial, and Defendant
47
filed a Motion in Limine and for Severance of the charges to preclude introduction of
48
the same.
After much analysis, this Court granted Defendant’s motion in part, and denied it
49
in part. All charges related to the Bella Vista burglary on October 30, 2012 (the
burglary done the day before the Shiloh Court burglary), and the Appomattox Court
burglary on November 18, 2012 were severed, and evidence of the same was excluded
50
from trial. This Court did not, however, sever the charges and evidence related to the
51
Shiloh Court burglary, as that burglary produced the Smith & Wesson firearm which
was ultimately used to kill Linda Ness during the Hess Express incident.
Under Pennsylvania’s jurisprudence, an appellate court must review a trial court’s
decision to consolidate or sever offenses for trial under an abuse of discretion standard, as
“\[j\]oinder and severance of separate indictments for trial is a discretionary function of the
trial court.” Commonwealth v. Brookins, 10 A.3d 1251, 1255 (Pa. Super. 2010); see also
Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005). “An abuse of
discretion consists not merely of errors in judgment by the trial court, but instead
contemplates action unsupported by the evidence, at odds with governing law, or arising
from improper motives personal to the judge.” Brookins, 10 A.3d at 1255, citing
,
Commonwealth v. Levanduski 907 A.2d 3, 14 (Pa. Super. 2006). Furthermore, the
appellant bears the burden of establishing that he was prejudiced by the trial court’s
45
N.T., In re: Continued Scheduling Conference, July 8, 2014, at 30-31.
46
Id. at 28-29.
47
Motion in Limine and/or for Severance, June 25, 2014.
48
Id.
49
Order of the Court, August 26, 2014.
50
Id.
51
Id.
6
decision. Brookins, 10 A.3d at 1255, citing Commonwealth v. Dozzo, 991 A.2d 898, 901
(Pa. Super. 2010).
Pennsylvania Rules of Criminal Procedure 582 and 583 govern the joinder of trials
and the severance of offenses, respectively. Pennsylvania courts have repeatedly
followed the precedent set by the Pennsylvania Supreme Court in Commonwealth v.
Lark, 543 A.2d 491 (Pa. 1988), which combined the mandates of Rules 582 and 583 into
a single three part test. See Brookins, 10 A.3d. at 1255-56; Thomas, 879 A.2d at 260. As
summarized by the Superior Court in Thomas,
Our Supreme Court has established a three part test, incorporating
these two rules, for deciding the issue of joinder versus severance of
offenses from different informations. The Court must determine
\[1\] whether the evidence of each of the offenses would be
admissible in a separate trial for the other; \[2\] whether such
evidence is capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these inquiries are
in the affirmative, \[3\] whether the defendant will be unduly
prejudiced by the consolidation of offenses.
Thomas, 879 A.2d at 260 (quoting Lark, 543 A.2d at 497).
As to whether the evidence of each of the offenses would be admissible in a
separate trial for the other, Pennsylvania Rule of Evidence 404 generally prevents
evidence of a person’s previous crimes, wrongs, or other acts from being entered into
evidence. Pa.R.E. 404(b)(1). Rule 404 provides an exception to that general rule, which
states that “\[t\]his evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. Pa.R.E. 404(b)(2). In a criminal case this evidence is admissible only if
the probative value of the evidence outweighs its potential for unfair prejudice.” Id.
As the Supreme Court in Lark noted regarding these exceptions, such evidence
will be admitted “where there is such a logical connection between the crimes that proof
of one will naturally tend to show that the accused is the person who committed the
other.” Lark, 543 A.2d at 497 (quoting Commonwealth v. Morris, 425 A.2d 715 (Pa.
1981)). Moreover, the Supreme Court in Lark noted that,
7
Another ‘special circumstance’ where evidence of other crimes may be
relevant and admissible is where such evidence was part of the chain or
sequence of events which became part of the history of the case and formed
part of the natural development of the facts. This special circumstance,
sometimes referred to as the ‘res gestae’ exception to the general
proscription against evidence of other crimes, is also known as the
‘complete story’ rationale…
Lark, 543 A.2d at 497 (internal citations omitted); see also, Thomas, 879 A.2d at 260-261
(Invoking the res gestae exception where: “Evidence of each of the assaults would be
admissible in a prosecution for the other, as the evidence constitutes a ‘chain or sequence
of events that formed the history of the case, \[and\] is part of the natural development of
the case.”).
This Court found that the res gestae exception applied to the Shiloh Court
burglary and the Hess Express crimes. These incidents took place within three weeks of
one another, only a few miles apart from one another, and Defendant was a key actor in
both incidents. The firearm which was used to kill Linda Ness in the Hess Express
robbery was the fruit of the Shiloh Court burglary. As such, this Court found that such
evidence “was part of the chain or sequence of events which became part of the history of
the case and formed part of the natural development of the facts,” as contemplated by
Lark, supra. These two crimes, as well as the Defendant’s actions in the time between
the crimes, formed one complete story which shows the Defendant’s knowledge,
opportunity, plan, and preparation for the Hess Express crimes.
This Court further found that the Shiloh Court burglary was admissible for the
allowable purpose of proving Defendant’s knowledge, opportunity, plans, preparations,
and specifically, the Defendant’s identity. That Defendant took three firearms from the
Shiloh Court property, sold two of them, and kept the third was admissible to show that
Defendant was planning and preparing for another robbery (which by opportunity later
was Hess Express). Mathna’s testimony that Defendant kept possession of the Smith &
Wesson pistol following the Shiloh Court burglary showed that Defendant had the
opportunity to bring the firearm in the Angry Birds backpack on that night and proves the
8
identity of the Defendant as a co-conspirator to the homicide. That Defendant and
Mathna test-fired the pistol into a field showed the Defendant’s knowledge that the
firearm worked and was capable of being used in the prospective robbery, thereby
negating any claim of accident or mistake. Indeed, a defense set forth at trial was that the
gun may have gone off accidently, and that it had a light trigger to it.
The Court further found that the probative value of the evidence outweighed its
potential for prejudice. Pa.R.E. 404(b)(2). In Commonwealth v. Cousar, the Supreme
Court upheld the trial court’s decision to conduct a single trial on the defendant’s two
murder charges and two robbery charges, despite the fact that these four charges arose
from three separate incidents. Commonwealth v. Cousar, 928 A.2d 1025 (Pa. 2007). The
Supreme Court found the fact that the defendant possessed the firearm in question at the
scene of the second murder to be probative of whether the defendant had committed the
other crimes for which he was being tried in a joint trial. Cousar, 928 A.2d at 1038. The
Court ultimately concluded that, “the evidence was very probative, and thus, it would not
be unreasonable to conclude that its probative value outweighed the potential for such
prejudice.” Id.
Similarly, in the present case, this Court found the fact that Defendant had
possession of the used firearm on the night of the homicide and brought it to the Hess
Express in the Angry Birds backpack, is highly probative of the fact that it was Defendant
who burglarized the Shiloh Court property and stole the firearm. Conversely, the fact
that the Defendant took the firearm from the Shiloh Court property just a few weeks
before the homicide makes it more probable that Defendant was the perpetrator who had
possession of the firearm on the night of the Hess Express robbery and homicide. While
the admission of such evidence is prejudicial to the Defendant, the probative value of
such evidence outweighed any prejudice resulting therefrom. Thus, this Court found that
evidence from the Shiloh Court incident would be admissible in a separate trial for the
Hess Express incident, and vice versa. Therefore, the first prong from Lark has been met.
The second prong of the Lark test asks whether the jury is capable of avoiding
confusion and separating evidence of one crime from the evidence of the other crime. In
9
Cousar, the Supreme Court found that the jury was capable of separating the evidence of
the two homicides in part because each was committed against a different victim and
none of the eyewitnesses to the two incidents overlapped. Cousar, 928 A.2d at 1038.
Likewise, in Lark, the Supreme Court held that there was no danger of confusion to the
jury because the “trial involved separate and distinct criminal offenses clearly
distinguishable in time, space, and characters…” Lark, 543 A.2d at 499. In Thomas, the
Court found no threat that the jury would be confused because the court gave clear
instructions to the jury on how to separate the evidence of each crime. Thomas, 879 A.2d
at 261.
Here, the Shiloh Court burglary and the Hess express robbery and homicide
involved distinct types of crimes, each crime involved different victims, and the crimes
were distinguishable in time and space. Furthermore, although Defendant and Mathna
were involved in both the Shiloh Court burglary and the Hess Express crimes, the Hess
Express crimes involved different co-defendants who were not involved in the Shiloh
Court burglary. Although Mathna testified about all of the crimes, numerous other
witnesses testified about the Shiloh Court and Hess Express crimes individually, without
overlap. As such, the Court found that the jury was capable of separating the evidence of
each offense, and found very little chance that the jury would be confused. Therefore,
this Court found that the second prong of the Lark test was met. To further eliminate any
confusion by the jury, this Court twice gave the jury an instruction on the separation of
52
such evidence, as contemplated by Thomas, supra.
The third and final prong of the Lark test asks whether the defendant will be
unduly prejudiced by the consolidation of offenses. As the Superior Court noted in
Brookins, “the prejudice alleged must be such as would occur ‘if the evidence tended to
convict \[the\] appellant only by showing his propensity to commit crimes, or because the
jury was incapable of separating the evidence or could not avoid cumulating the
52
N.T., September 8, 2014, at 22-23, 51-52; see also, Order of Court, August 26, 2014 (stating in its
ruling on the severance issue that the Court would give a curative instruction to the jury regarding
appropriate use of the Shiloh Court burglary evidence).
10
evidence.’” Brookins, 10 A.3d at 1255, n.2 (quoting Commonwealth v. Lauro, 819 A.2d
100, 107 (Pa. Super. 2003)). Furthermore, “such prejudice must, however, exceed ‘the
general prejudice any defendant suffers when the Commonwealth’s evidence links him to
a crime.’” Id. As the Supreme Court stated in Lark, “The ‘prejudice’ of which Rule
\[583, governing severance\] speaks is not simply prejudice in the sense that appellant will
be linked to the crimes for which he is being prosecuted, for that sort of prejudice is
ostensibly the purpose of all Commonwealth evidence.” Lark, 543 A.2d at 499 (emphasis
in original). Importantly, as noted in Brookins, the appellant bears the burden of
establishing such prejudice. Brookins, 10 A.3d at 1255.
Here, the Defendant was not unduly prejudiced by the joint trial and evidence of
the Shiloh Court and Hess Express crimes. As discussed previously, the Court saw little
danger that the jury would be incapable of separating the evidence of each crime. There
was not a significant threat that the jury would inappropriately cumulate the evidence to
find Defendant guilty of both crimes. The Court found that the Shiloh Court burglary and
the Hess Express robbery and homicide were sufficiently intertwined as to justify a joint
trial. As such, the only prejudice Defendant suffered was the type of general prejudice
any defendant suffers when the Commonwealth’s evidence links him to the crime for
which he is being prosecuted, as contemplated in Brookins and Lark, supra. Therefore,
the Court found that the third prong of the Lark test was met.
The Court notes that it did not so find the same in weighing the prejudice to the
Defendant in admitting the other two burglaries the Commonwealth sought to introduce
at trial. Although notably such crimes would have been admissible to prove common
scheme, plan, motive, intent or lack of accident, and such evidence would have been
capable of separation by the jury, the Court found that the Defendant would be unduly
prejudiced by the admission of the burglaries it excluded. No criminal fruits of the other
two burglaries were used during the commission of the Hess Express crimes. As such
those crimes, albeit highly relevant, were more attenuated than was the Shiloh Court
burglary evidence that was allowed in at trial. Accordingly, this Court excluded two
11
53
other burglary charges and evidence attendant thereto during the instant trial. Based on
the support of the record, this Court finds no abuse of discretion on this issue.
Sufficiency of the Evidence
Defendant next challenges the sufficiency of the evidence presented at trial to
prove his guilt as to the crimes of criminal homicide in the second degree, and criminal
conspiracy to criminal homicide. In reviewing sufficiency of the evidence claims, a
court:
must determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light most
favorable to the verdict winner, are sufficient to support all the elements of
the offense…Additionally, to sustain a conviction, the facts and
circumstances which the Commonwealth must prove, must be such that
every essential element of the crime is established beyond a reasonable
doubt… The fact finder is free to believe all, part, or none of the evidence
presented at trial.
Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011) (internal citations
omitted). Additionally, the Court has noted that “the facts and circumstances established
by the Commonwealth need not preclude every possibility of innocence. Any doubts
regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of fact may be drawn from
the combined circumstances.” Commonwealth v. Knox, 50 A.3d 749, 754 (Pa. Super.
2012)(quoting Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011) (en
banc)). The jury is not obligated to accept a defendant’s evidence. See, i.e.,
Commonwealth v. Tharp, 830 A.2d 519, 527 (Pa. 2003) (quoting Commonwealth v.
Hornberger, 270 A.2d 195 (Pa. 1970).
Defendant was charged generally with criminal homicide and criminal conspiracy
to criminal homicide. Criminal homicide is defined as “intentionally, knowingly,
recklessly or negligently causing the death of another human being.” 18 Pa.C.S. §
2501(a). Pennsylvania’s Crimes Code further states that “criminal homicide constitutes
53
Order of Court, August 26, 2014 (granting the motion to sever charges and evidence regarding Bella
Vista and Appomattox burglaries).
12
murder of the second degree when it is committed while the defendant was engaged as a
principal or an accomplice in the perpetration of a felony." 18 Pa.C.S. § 2502(b).
“Perpetration of a felony" is given the following definition in the Crimes Code: "the act
of the defendant in engaging in or being an accomplice in the commission of, or an
attempt to commit, or flight after committing, or attempting to commit robbery, rape, or
deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping." 18
Pa.C.S. § 2502(d). In the present case, the predicate felony offense upon which
Defendant’s second degree murder conviction rests is robbery, which is defined in by the
Crimes Code, in pertinent part, as follows:
(1)A person is guilty of robbery if, in the course of committing a theft,
he:
(i)inflicts serious bodily injury upon another; …
(2) An 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.
18 Pa.C.S. § 3701. Notably, Defendant was charged with accomplice liability to
54
homicide and to the robbery. Accomplice liability is defined as a person who in the
commission of an offense and with the intent of promoting or facilitating the commission
of the offense he (i) solicits such other person to commit it; or (ii) aids or agrees or
attempts to aid such other person in planning or committing it. 18 Pa.C.S. § 306 (c) (1).
Bradshaw’s actions in threatening Ness with the firearm, as well as his infliction of
serious bodily injury (and death) on Ness while attempting to steal money from the Hess
Express, fulfill the statutory requirements for all of the crimes charged .
Evidence produced by the Commonwealth at trial established that co-Defendant
Bradshaw’s actions at the Hess Express on the night in question constituted second
degree murder, attempted robbery, and conspiracy to commit murder and robbery.
Mathna testified that he and Bradshaw entered the Hess Express wearing gloves and
54
Amended Information , June 11, 2014.
13
55
masks, and that Bradshaw pointed a firearm at Ness and demanded, twice, that she give
56
him money. As Bradshaw was pointing the firearm at Ness and demanding money, he
5758
fired the gun, shooting and ultimately killing, Ness. Video surveillance footage taken
59
from the Hess Express, as well as still pictures taken from portions of the video
6061
surveillance footage, which were entered into evidence at trial, corroborated Mathna’s
62
recollection of the events which took place in the Hess Express. All of the co-
63
Defendants discussed the plan for the commission of the robbery, and Conway picked
64
everyone up after the crimes were committed.
The Commonwealth proceeded on Defendant’s guilt on the criminal homicide and
robbery charges on the theory of accomplice liability. To do so, the Commonwealth
produced evidence that the Defendant solicited Bradshaw and Mathna to commit the
robbery, that he planned the robbery and helped to carry it out. Mathna testified that, on
the night in question, Defendant brought a black Angry Birds backpack which contained
65
the firearm that was used in the Hess Express robbery. After the failed attempt to rob
66
the Uni-Mart, Conway testified that it was Defendant’s idea to rob the Hess Express.
Furthermore, Conway testified that Defendant and the others discussed what role they
would play in the robbery while in the car on the way to the Hess Express, and they
67
eventually decided that Bradshaw would wield the firearm. As Bradshaw, Mathna, and
Defendant gathered behind a pine tree outside of the Hess Express robbery on the night in
question, Mathna testified that they once again discussed their respective roles in the
55
N.T., September 9, 2014, at 113.
56
Id. at 116.
57
N.T., September 10, 2014, at 164.
58
N.T., September 9, 2014, at 116-118.
59
Commonwealth’s Exhibit 11.
60
Commonwealth’s Exhibits 26-33.
61
N.T. September 8, 2014, at 129, 134.
62
Id. at 123—134.
63
N.T. September 9, 2014, at 113-114
64
Id. at 122.
65
Id. at 110, 132.
66
N.T., September 9, 2014, at 58.
67
Id. at 59-60
14
6869
robbery and Bradshaw took the firearm from Defendant’s backpack. Mathna further
testified that Defendant entered the Hess Express first to “look around” and, after a
minute or two, Defendant called Bradshaw and Mathna and “told him it was okay” to
70
follow through with the robbery. Still photos from the Hess Express surveillance
footage corroborated Mathna’s version of events. Commonwealth’s Exhibits 26 and 27
showed an individual entering and exiting the Hess Express immediately before
71
Bradshaw and Mathna enter the store and perpetrate the robbery. Mathna said the
person in the footage was the Defendant, as he was able to recognize the clothes that
72
Defendant was wearing on the night in question. No evidence was offered in
opposition thereto. Based on the above, the jury was free to find that the Defendant
promoted and facilitated the Hess Express robbery by soliciting Bradshaw and Mathna to
commit the crime, by planning the robbery, and by aiding them by entering the
convenience store first as a “look out” for Mathna and Bradshaw. There was ample
evidence to support the jury’s finding that Defendant was an accomplice to the robbery
which ultimately resulted in the death of Linda Ness. Thus, the evidence was sufficient
to convict Defendant of second degree murder.
Defendant next challenges the sufficiency of the evidence as it relates to his
conviction for conspiracy to criminal homicide. The heart of every conspiracy is a
common understanding or agreement to commit a crime. Commonwealth v. Roux, 350
A.2d 867, 869 (Pa. 1976). A person is guilty of conspiracy to commit a crime if:
with the intent of promoting or facilitating its commission he: (1) agrees
with such other person or persons that they or one or more of them will
engage in conduct which constitutes such crime or an attempt or solicitation
to commit such crime; or (2) agrees to aid such other person or persons in
the planning or commission of such crime or of an attempt or solicitation to
commit such crime.
68
Id. at 113.
69
Id. at 130-132.
70
Id. at 113, 115.
71
N.T., September 8, 2014, at 124.
72
N.T., September 9, 2014, at 115.
15
18 Pa.C.S. § 903. The Commonwealth is not required to prove the conspiracy with direct
proof of an explicit or formal agreement. Roux, 350 A.2d at 870. Regarding proof of a
conspiracy through circumstantial evidence, the Pennsylvania Supreme Court has noted
the following,
Indeed, direct proof of an explicit or formal agreement to commit a crime
can seldom, if ever, be supplied and it need not be for ‘it is established law
in this Commonwealth that a conspiracy may be proved by circumstantial
evidence as well as by direct evidence.’…\[W\]hile more than mere
association must be shown, ‘\[a\] conspiracy may be inferentially established
by showing the relation, conduct or circumstances of the parties, and the
overt acts on the part of co-conspirators have uniformly been held
competent to prove that a corrupt confederation has in fact been formed.’
Roux, 350 A.2d at 870 (internal citations omitted).
In regards, specifically, to conspiracy to criminal homicide charges, the
Pennsylvania Supreme Court has noted that a person is not convicted of conspiracy to
commit any specific type of murder (i.e. conspiracy to second degree murder), but is
instead convicted generally of conspiracy to commit homicide. Commonwealth v.
Weimer, 977 A.2d 1103, 1105 (Pa. 2009). In the Supreme Court’s own words,
Appellant was neither charged with nor convicted of conspiracy to commit
any specific degree of murder…
…
Put another way, the ultimate gradation of the crime accomplished does not
in and of itself delimit the degree of crime originally planned – the crime
ultimately accomplished does not retroactively limit the scope of the
original conspiracy. A jury’s determination of the degree of homicide
accomplished does not limit the conspiracy’s scope. If appellant conspired
to intentionally, knowingly, recklessly, or negligently cause the death of
\[the victim\], she may be found guilty regardless of which of those adverbs
are found or not found by the jury.
Weimer, 977 A.2d at 1105.
In Roux, the defendant was found guilty of murder in the second degree and
conspiracy after his friends got into a disagreement with an individual at a bar. Roux,
350 A.2d at 869. The defendant initially broke up the altercation by telling his friends to
keep their cool and identifying the other individual as a potential robbery victim. Id. The
16
defendant and his friends remained at the bar for forty-five minutes after the initial
altercation, during which time defendant was seen passing a black-handled knife back
and forth between himself and one particular friend, McLendon. Id. Defendant and his
friends followed the victim outside when he left the bar, and began beating him. Id. At
the conclusion of the beating, McLendon stabbed and killed the victim with the knife he
had received from the defendant. Id. On appeal to the Supreme Court, the defendant
challenged his conviction for conspiracy based on the sufficiency of the evidence. Id. at
869. The Supreme Court upheld the defendant’s conspiracy conviction based on the
comments made by the defendant, which identified the victim as a possible target for a
robbery, the passing of the murder weapon from defendant to McLendon, and the
proximity of time between when the victim left the bar and the defendant and his friends
left the bar. Id. at 870.
In the present case, the Commonwealth presented ample direct and circumstantial
evidence that Defendant, Bradshaw and their co-defendants conspired to cause the death
of Linda Ness. Defendant was the one who provided the ultimate murder weapon, mere
73
minutes before the murder occurred. Defendant also was the one to identify the Hess
74
Express as the target of the robbery. As discussed above, the nature and extent of the
conspiracy was developed at trial. Both Mathna and Conway testified that Defendant and
the others discussed their roles in the Hess Express robbery as they drove to the scene of
75
the crime and as they prepared for the robbery behind a pine tree next to the store.
Conway testified that, while driving to the location of the Hess Express, the group
discussed “who was going to… actually pull the gun out and stuff” in the impending
76
robbery. Defendant was aware that the gun was going to be used in the robbery.
77
Furthermore, Defendant was aware that the firearm was functional, and Conway’s
testimony that the Defendant “said he didn’t want anything to do with the gun because
73
N.T., September 9, 2014, at 130-132.
74
Id. at 58-59.
75
Id. at 59-60, 113.
76
Id. at 59.
77
Mathna testified that he test fired the firearm in a field, in Defendant’s presence, after the Shiloh Court
burglary but before the Hess Express robbery and homicide. Id. at 105-106.
17
he didn’t want to shoot nobody or he would if he did” demonstrates that Defendant knew
78
that using the firearm in a robbery might result in someone getting shot and killed. The
79
evidence showed that Defendant conspired with the others to actively plan the crime,
80
and he committed acts in furtherance of the crime when he gave Bradshaw the gun and
81
entered the store as a look out. Based on the foregoing direct and circumstantial
evidence, the jury’s guilty verdict regarding the conspiracy to criminal homicide charge
was supported by sufficient evidence.
Jury Instructions
Defendant’s final argument on appeal is that this Court erred in failing to include
an instruction regarding the “in furtherance” element of second degree murder during its
jury instruction. Defendant did not raise this issue at trial, despite several opportunities
for Defendant to do so, and therefore waived the right to appeal the issue.
According to the Pennsylvania Rules of Appellate Procedure, issues not raised in
the lower court are waived and cannot be raised for the first time on appeal. Pa.R.A.P.
302(a). An “absence of contemporaneous objection\[s\]” renders an appellant's claims
waived. Commonwealth v. May, 887 A.2d 750, 761 (Pa. 2005). Furthermore, “a general
exception to the charge to the jury will not preserve an issue for appeal. Specific
exception shall be taken to the language or omission complained of.” Pa.R.A.P. 302(b).
It is well settled that to preserve an issue for appellate review, “specific timely objection”
must be made at trial. Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974).
This rule allows trial courts to remedy their own errors and ensures appellate courts have
appropriate record for appeal. Id.
With regards to the present case, the following instruction appears in brackets in
the standard jury instruction for second degree murder:
\[5. I shall now explain the meaning of the “in furtherance” element:\]
78
Id. at 59.
79
N.T., September 9, 2014, at 58-59.
80
Id. at 130-132.
81
Id. at 113.
18
\[A partner’s act that kills is not in furtherance of the felony if the partner does the
act for his or her own personal reasons that are independent of the felony.\]
While the above-quoted language appears in the standard jury instructions for
second degree murder, it is not part of the main jury instruction in that it appears in
brackets, to be read when appropriate under the facts of the case. In the present case, the
Court had two detailed discussions with defense counsel, on the record, regarding their
82
requests for jury instructions. Furthermore, counsel for Defendant was given a copy of
this Court’s proposed jury instructions on September 10, 2014 and asked for input on the
83
same. On September 10, 2014, on the record and in the presence of Defendant and his
counsel, the Court reviewed singly and in succession each of the instructions it would be
84
including in its jury instructions. When the Court brought up the instruction on second
degree murder, Defendant made no objection, nor did he request for the instruction on “in
85
furtherance” to be included. Notably, this court would not otherwise have included the
“in furtherance” instruction as no defense was presented at trial that Bradshaw’s actions
in pulling the trigger were done for his own personal reasons that were independent of the
86
robbery. Finally, at the conclusion of this discussion on September 10, 2014, and again
87
on the morning of September 11, 2014, this Court asked all parties whether they had
any other issues to discuss regarding the jury instructions. Defendant failed to request the
“in furtherance” instruction, or to even mention the subject to the Court, despite several
opportunities to do so. Accordingly, Defendant failed to make timely and specific
objection as required under Pa.R.A.P. 302(a). Therefore, Defendant has not properly
preserved this matter for appeal, and it has been waived.
82
N.T., September 10, 2014, at 178, et seq.; N.T., September 11, 2014, at 9, et seq.
83
N.T., September 10, 2014, at 178.
84
Id. at 178, et seq.
85
Id. at 181.
86
N.T., September 10, 2014, at 195.
87
N.T., September 11, 2014, at 15.
19
CONCLUSION
In conclusion, this Court’s decision to proceed with a joint trial without severing
the burglary and conspiracy to burglary charges was not in error. The jury’s conviction
of Defendant for second degree murder and conspiracy to criminal homicide were
supported by sufficient evidence, as reflected in the record of the case. Finally, because
Defendant has not properly preserved his challenge to the jury instructions regarding
second degree murder, such issue is waived.
BY THE COURT,
______________________
Christylee L. Peck, J.
Jaime M. Keating, Esq.
First Assistant District Attorney
Jacob Jividen, Esq.
3329 Market Street
Camp Hill, PA 17011
Court-appointed Attorney
for Defendant
20