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HomeMy WebLinkAbout2000-1591 CRIMINALCOMMONWEALTH V. EMMETT LOCKHART IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.. 2000-1591 CRIMINAL TERM IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., May ,2002 After a trial by jury, the defendant and a codefendant were convicted of first degree murder and various other charges in connection with the killing of Sydney Bull, a fellow student at Shippensburg University. On July 23, 2001, the defendant was sentenced to a mandatory term of life imprisonment.~ He filed several post sentence motions which were denied. This timely appeal followed. IN his concise statement of matters complained of on appeal, defendant raises the following issues: (1 .) His motion for judgment of acquittal should have been granted. (2.) His motion for a new trial should have been granted. (3.) The Commonwealth's attorney engaged in prosecutorial misconduct in violating the rules of discovery. ~ He received concurrent sentences of varying lengths on the related charges. 00-1591 CRIMINAL (4.) We erred in failing to gram a mistrial as a result of the alleged discovery violations committed by the Commonwealth. (5.) We erred in failing to tell the jury that the Commonwealth's star witness invoked his 5th Amendment right against self incrimination and, at the request of the Commonwealth, was granted immunity. We will address each issue in the following opinion.2 Sufficiency of the Evidence. The defendant filed a post sentence motion for judgment of acquittal in which he contended that the evidence was insufficient to sustain the verdict. The standard of review on a sufficiency of the evidence claim is whether all of the evidence together with the reasonable inferences to be drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to enable the fact finder to conclude that all of the elements of the offense, including defendant's involvement, were established beyond a reasonable doubt. Commonwealth v. Cox, 556 Pa. 368, 728 A.2d 923, (1999). In the instant case, we were satisfied that the standard had been met. The defendant did not suggest that the elements of first degree murder, or the various other crimes for which he was convicted, had not been proven in connection with the killing of Sydney Bull. Rather, he contended that his involvement had not been proven beyond a reasonable doubt. He argued that without the testimony of erstwhile eyewitness Dontae Chambers (hereinafter "Chambers") the evidence was insufficient as a : We have consolidated the third and fourth issues in our discussion. 00-1591 CRIMINAL matter of law to prove his participation in the crime. While we disagree with that proposition, we also note that Chambers' testimony is part of the evidence and must be considered in reviewing defendant's claim. In any event, with or without Chambers' testimony, the evidence was such as to enable the fact finder to conclude beyond a reasonable doubt that the defendant committed the crimes with which he was charged. The Commonwealth's case consisted of both eyewitness testimony and circumstantial evidence. The eyewitness testimony came from Chambers.3 He testified that he, the defendant, and the codefendant, Matthew Norris (hereinafter "Norris"), had planned to rob Sydney Bull of drugs and money. The three of them were in a vehicle which Bull, carrying a duffel bag, voluntarily entered. The defendant drove them into the mountains. At some point, Norris produced a pistol grip shotgun which he held on Bull. They eventually reached a place along a mountain road where they parked in a pull-off area. They marched Bull at gunpoint 20 to 30 yards into the woods. When they came to a clearing, the victim and defendant began to scuffle. Norris shoved the shotgun into Bull's face and he froze. The barrel of the shotgun was only 2 or 3 feet from his face as he pleaded for his life. Then "from out of the blue, out of nowhere, Matt shot Sydney".4 Bull fell onto his back. Norris went through his duffel bag and began digging through his front pockets. The defendant had brought along a gas can and began pouring gasoline onto the body. Norris threw lit matches onto the victim's chest and the fire spread to his head and down to his feet. The defendant then set the gas can on fire about ~ Chambers was also charged in connection with the killing, but tried at a later time. 4 Trial Transcript, Volume 1, p. 200. After relating these events, Chambers began sobbing uncontrollably, necessitating a recess. 00-1591 CRIMINAL 20 feet from Bull's head. During the course of a masterful cross examination by Norris' s counsel, Chambers recanted his entire testimony. He denied any knowledge of, or involvement in, the killing of Sydney Bull. He said that he made up everything he told the police "just to get them off my back.''5 However, Chambers gave the police details which were corroborated by other evidence, including physical evidence found at the scene. Furthermore, those details had never been made public. They included the following: · The victim was shot once with a shotgun. · The wound was to the left side of his face in the mouth area. · The shot was fired at very close range. · The victim was killed before he was burned. · The victim was lying on his back when he was burned. · The body was found in a clearing in the woods about 50 feet from a pull off area along a mountain road. · The body had been doused with gasoline. · A melted plastic gas container was found several feet from the head of the body. · The change and keys found near the body made it clear that someone had gone through the victim's pockets. · The victim's duffel bag was found at the scene. While Chambers gave numerous contradictory statements to the police, all of the above facts were contained within those statements. It is certainly reasonable to infer that those details could have been known only to someone who had witnessed the murder. In addition to the eyewitness testimony and the corroborating evidence referred to above, there was circumstantial evidence which also bolstered Chambers' testimony. The victim was killed by a 12-gauge shotgun. Norris owned a 12-gauge pistol grip Trial Transcript, Volume 2, p. 58. 00-1591 CRIMINAL shotgun.6 The victim was killed with a Remington No. 8 shotgun shell. Norris had purchased a box of Remington No. 8 shotgun shells just a few days before the murder. Finally, the victim' s DNA was found on Norris' s shotgun, about five inches from the front end of the barrel. In addition to the above, there was evidence which directly linked the defendant to the murder. One of his cellmates recounted a conversation with the defendant as follows: Now, at some point did you ask him, why did you boys shoot the brother? Yes. What was his response when you asked him that question? He should have gave it up. They had to do what they had to do. He said those exact words? Yes. Did he specify what it was that the victim was supposed to give up? It was like cocaine. What else? And some money. Did he tell you or talk to you in reference to anything with regard to whether he knew the police were looking for him or a car at all? It was his girlfriend's car. He said it was his girlfriend's car. He knew the police was coming for him, so he had to clean it up.? In view of the above, we were satisfied that the evidence was sufficient to sustain the convictions. Verdict Against the Weight of the Evidence. Our appellate courts have often articulated the standard to be applied in determining whether a new trial should be granted on the grounds that the verdict is against the weight of the evidences. As the Superior Court recently stated: Commonwealth Exhibit 13. Trial Transcript, Volume 4, p. 112. 00-1591 CRIMINAL A new trial is warranted on a challenge to the weight of the evidence only if the verdict is so contrary to the evidence as to shock one's sense of justice. Furthermore, issues of credibility are left to the trier of fact; the jury is free to accept all, part, or none of the witnesses' testimony. (citations omitted). Commonwealth v. Zugay, 745 A.2d 639, 645 (Pa. Super. 2000). Defendant argued that any verdict based upon the testimony of Dontae Chambers is inherently unreliable. However, that could be said of any verdict in which a codefendant or accomplice testifies. The jury was charged with the task of determining which portion, if any, of Chambers' testimony it chose to believe. It obviously chose to believe that portion which implicated the defendant in the commission of these crimes. There were many factors to support that decision, including Chambers' demeanor on the stand,8 the physical and circumstantial evidence that corroborated his statements to the police, and the defendant's statements to his cellmate. In any event, we were not prepared to substitute our judgment for that of the jury. Stated another way, the verdict was not such that it shocked our sense of justice. Therefore, we refused the defendant's request for a new trial. Prosecutorial Misconduct and Denial of Defense Requested Mistrial. The defendant's counsel requested a mistrial based upon the Commonwealth's failure to disclose "exculpatory" evidence in discovery. During direct examination, Chambers testified that he had told the police that a Bernard Adams had been on the mountain with him earlier on the day of the murder. The circumstances surrounding that 8 One of several dramatic moments in this trial came as Chambers recounted the chilling events surrounding the murder. It appeared as though he was reliving those events. When he described the victim pleading for his life as the defendant shot him in the face, he began to cry uncontrollably, necessitating a recess. Trial Transcript, Volume 1, p. 200. 00-1591 CRIMINAL statement were described by Cpl. Junkin in the following exchange with defendant's counsel: Q. Where is the wall with regard to - - if the red is where the body was found, how far away is the wall past the red dot? A. ! believe it is a half-mile to a mile, further up the mountain on Hogshead Road. Q. At any point in time during his story on the 9th, did he say anything to you with regard to previously being up on the mountain with anyone else earlier in the day? A. Yes. Q. Okay. What did he tell you in regards to that? A. He stated at one point when he was discussing about the robbery of Sydney, that he had been dropped off earlier in the day up at the wall, which would have been the location half a mile to a mile from that scene. And that he and another black man were dropped off. ! asked him about that. Q. How? ! mean, how did you ask him about that? Did you shout at him? Did you threaten him? What did you do? A. No, ! said another black man? ! said, Who was it? He said ! don't know. ! said, Dontae, you were dropped off in the middle of the mountain with a guy. Who were you dropped off with? And he said, Nard. Q. Who you knew to be? A. Bernard Adams. Q. What did you say in that regard? A. ! basically sat back in my chair, folded my arms, and said, Dontae, ! said, you are telling me that two black men got dropped off in the middle of the mountain, in the middle of the afternoon to hang out? And he said, No. And said, Why? Q. And he said? A. Because rednecks would mess with us. Q. Did you put that in your report at all? A. No. Q. Why not? ! mean, here he said that he was a half-mile away from the murder scene on the day with somebody else in the middle of the day. Why didn't you put that in your report, Corporal? A. Because it was a fleeting statement. It was one of those where he started to go off. ! redirected. That happens in every interview. And many interviews in this particular case where statements were made that were a quick one, and right away it was recanted, and was proven or obviously not true.9 9 Trial Transcript, Volume 3, pp. 69-71. 00-1591 CRIMINAL The Commonwealth recounted the passing nature and immediate recantation of the reference to Bernard Adams. It also explained the circumstances surrounding its failure to provide the details of the statement to the defense. We were satisfied that the failure was inadvertent. While we denied the request for a mistrial, we offered to recess, for up to several days, to give counsel the opportunity to investigate further. We also directed the Commonwealth to make the police officers available to be interviewed by defense counsel regarding the circumstances surrounding the statement. Pa. Rule of Criminal Procedure 573(e) gives us broad discretion in fashioning an appropriate remedy for the violation of discovery rules, with the remedy of mistrial to be warranted only if the defendant is deprived of a fair trial. Commonwealth v. Ligons, 565 Pa. 417, 773 A.2d 1231 (2001). In the instant case, we were of the opinion that the remedies offered were sufficient to insure a fair trial. We did not see the need to resort to the drastic remedy of granting a mistrial. This was especially true in light of the fleeting nature of the reference to Bernard Adams and the immediate recantation of the story in which he was mentioned. In its brief in opposition to codefendant's post sentence motions, the Commonwealth contended that it did not violate any discovery rules. It argued that the police are not required "to tape every conversation or take detailed notes of all activity on every investigation." Commonwealth v. Small, 599 Pa. 423,741 A.2d 666, 677 (1999). The Commonwealth also asserted that it was not a violation of Brady v. Maryland, 373 U.S. 83, 83 $.Ct. 1194 (1963) because the evidence was not "material" in that it could not have affected the outcome of the trial. United States v. Bag/ey, 473 U.S. 667, 105 S.Ct. 3375 (1985) and Commonwealth v. dohnson, 556 Pa. 216 727 A.2d 1089 (1999). While 00-1591 CRIMINAL the arguments of the Commonwealth have merit, and formed one of the bases for our refusal to grant a new trial, they were neither advanced to nor considered by us at the time the mistrial was refused. Frankly, all parties were operating under the assumption that a discovery violation had occurred. The remedy we fashioned was designed to insure a fair trial in light of that perceived violation. Chambers' Assertion of his 5th Amendment Rights. A dramatic turn of events began with the following exchange during the cross- examination of Dontae Chambers: Q. Have you been told by your attorney, Mr. Gregg Abeln, that as you sit here today that you could still be put to death? A. Yes, sir. Q. Were you even up there, Dontae? Because if you weren't ! want you to tell this judge and this jury because if you weren't, the most they can do to you is charge you with perjury. A. May ! speak with my attorney? Q. Yes. Do you want to break? A. Yes, sir.l° During the recess, and after consultation with counsel, Chambers invoked his 5th Amendment right against self incrimination. The invocation was based upon his fear of prosecution for the "false" testimony he had given at the preliminary hearing and on direct examination. The Commonwealth offered him immunity from prosecution for any perjured testimony he may have given previously. Defendant argued that we erred in refusing to allow those proceedings to occur in the presence of the jury. Trial Transcript, Volume 2, p. 41. 00-1591 CRIMINAL It has long been the law of this Commonwealth that a witness may not be allowed to invoke his 5th Amendment rights in front of the jury. Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865, (1971). Addressing an issue similar to the one before us, the Greene court held that "the jury may not draw any inference from a witness' exercise of his constitutional rights whether the inference be favorable to the prosecution or the 285 A.2d at 867. The Pennsylvania Supreme Court has also recognized defense... ". that: Although it could be argued that under certain circumstances, a refusal to testify on grounds of self-incrimination might have probative value in establishing an issue in a matter to which the witness was not a party.., it is not permissible for either defense or prosecution to attempt to capitalize on such refusal. Commonwealth v. Todaro, 524 Pa. 64, 69, 569 A.2d 333,335 (1990) quoting from Commonwealth v. Duva/, 453 Pa. 205 307 A.2d 229, 232-233 (1973). Based upon the above, we were satisfied that Chambers' invocation of his 5th Amendment rights should not have taken place in the presence of the jury. Defendant also contends that we erred in failing to advise the jury that Chambers was granted immunity. We note that we were never asked to advise the jury of this fact. ~ However, even if we had been asked, we would have refused to give such an instruction because it was a fact that could properly have been elicited through cross examination. ~2 Furthermore, we fail to see how it would have added anything to the truth determining process. The jury was well aware that Chambers' prior sworn testimony ~ While defendant's counsel requested that we allow Chambers to assert the 5*h Amendment in front of the jury, he did not renew that request with regard to the grant of immumty. (Trial Transcript, Volume 2, pp. 49-54). We further note that we approved all of the defendants requested points for charge (Trial Transcript, Volume 8, p.4) and that defense counsel was satisfied with our charge as given (Trial Transcript, Volume 8, pp. 128-129). ~: While defense counsel had the opportunity to bring the grant of immumty to the jury's attention during the cross examination of Chambers, he elected not to do so. 10 00-1591 CRIMINAL implicating the defendant was inconsistent with his subsequent sworn testimony exonerating the defendant. If there was anything clear at the trial of this case, it was that Dontae Chambers lied under oath. It was for the jury to determine which portion of his testimony was the lie and which portion the truth. DATE: Edward E. Guido, J. Jaime Keating, Esquire For the Commonwealth Royce L. Morris, Esquire Jerry J. Russo, Esquire For the Defendant :sld 11