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filed: June 6, 1988.


Appeal from the Judgment of Sentence of September 3, 1986, in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1390-1393, June Term, 1984.


Bruce A. Franzel, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.

Wieand, Kelly and Hester, JJ. Kelly, J., filed a concurring opinion. Wieand, J., filed a dissenting opinion.

Author: Hester

[ 375 Pa. Super. Page 47]

Following a jury trial held December 6-28, 1985, Ford Howard, appellant, was convicted of first degree murder, criminal conspiracy and possession of an instrument of crime. At the penalty hearing held December 31, 1985, the jury imposed a life sentence on the murder conviction. At the formal sentencing on September 3, 1986, the trial court denied post-trial motions and imposed the judgment of sentence of life imprisonment for murder, ten to twenty years imprisonment for conspiracy and two and one-half to five years imprisonment for possession, all sentences to be served consecutively. On reconsideration, the sentencing court reduced the conspiracy sentence to five to ten years and suspended the possession sentence. This appeal followed. Appellant raises seven allegations of trial error, all of which we reject. We affirm.

Five men conspired in the murder of James "Muscles" Reynolds, who died in the early morning hours of September 1, 1983, of seven gunshot wounds, three to the head and four to the body. The five men involved in the murder include: Craig Murphy (who was separately tried and convicted of first degree murder), appellant, Rodney Wells, Esau Burroughs and Morris Willis. The latter four were tried together subsequent to Murphy's trial. The murder was motivated by the victim's drug dealings with Murphy, who was characterized as the principal in the shooting. Murphy, appellant and Wells actually shot the victim, and Burroughs was involved in planning the murder, as was Willis, who arranged to have the victim meet his executioners in a deserted playground in the early morning of September 1, 1983.

Commonwealth witness Keith Johnson testified that at approximately 10:30 p.m. on August 31, 1983, he overheard Murphy talking with appellant, Burroughs and Wells in the Motorcycle Club in Philadelphia. The four were plotting the manner in which they were going to murder a man referred to as Muscles. Murphy and appellant displayed their guns to Wells and Burroughs. Johnson heard appellant

[ 375 Pa. Super. Page 48]

    say "I'm going to kill the [expletive]" and "[I'm] not going to be playing." N.T., 12/11/85 vol. 2, at 6-8. Murphy, appellant and Wells then departed, and when Johnson asked Burroughs if the three actually intended to shoot someone, the latter answered affirmatively. Murphy, appellant and Wells returned to the club at 2:00 a.m., displaying their guns. Johnson overheard appellant say to Burroughs that he had shot the victim in the head. All four left after learning that police were investigating the crime.

Commonwealth witness Bernard Williams testified that he had gone to the Motorcycle Club with Murphy early in the evening of the murder and had left that club to go to a different club across the street. Williams was leaving the second club just as Murphy, appellant and Wells were leaving the Motorcycle Club. Murphy told Williams to accompany the three men, and Williams complied. During the car ride, Williams heard Murphy discussing drug matters which he had "to take care of" with Muscles and appellant. N.T., 12/16/85, at 223-225. The four men went to the vicinity of the playground where the shooting occurred. Wells and appellant exited the car, which Murphy then parked. Murphy left Williams in the car, and Williams heard gunshots several minutes later. Soon afterward, Murphy returned to the car, informing Williams that he had "taken care of business." N.T., 12/17/85 vol. 1, at 44, 46. Williams testified that he was never informed of the murder plot.

The victim's wife, Sonia Mackie, testified that at around midnight on August 31, 1983, she received a call from co-defendant Willis, who informed her that she and Muscles were to meet him in the playground where the shooting later occurred in order to pick up drug money. Mackie decided to stay home while Muscles left for his rendezvous with death. Willis subsequently telephoned Mackie with the news of Muscle's death. Sometime later, appellant admitted to Mackie that he was present at the murder, showing her the gun that he had used and admitting that Murphy had ordered him to kill her.

[ 375 Pa. Super. Page 49]

Appellant first alleges that he was improperly denied access to written reports made by two police witnesses as well as to grand jury testimony of several other witnesses. Two police witnesses, along with several others, testified solely to establish a relationship among the victim and the five men involved in the murder. Appellant conceded that the police witnesses' written reports to which he was denied access related to the events surrounding the arrest of Murphy and Wells on September 5, 1983, for a different murder. See N.T., 12/11/85 vol. 1, at 52-57; N.T., 12/13/85, at 25-31. Thus, it is clear that the reports did not contain information either relevant to this murder that would be beneficial to appellant or upon which he could have based cross-examination. Furthermore, the two officers' testimony was cumulative to that of several other witnesses as well as tangential to the evidence upon which appellant's conviction rests. Accordingly, if error occurred, we find that such error was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); cf. Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977).

Appellant also complains that the trial court erred in giving him edited portions of testimony of several of the Commonwealth witnesses who testified before an investigating grand jury. The trial court reviewed the grand jury testimony of those witnesses, omitted the portions relating to other investigations and gave appellant the portions relating to this murder. Although appellant speculates that the omitted portions of testimony relating to other investigations may have been helpful in his cross-examination of the witnesses, no trial error occurred. Pa.R.Crim.P. 263(b)(2); Commonwealth v. Kelly, 245 Pa. Super. 351, 369 A.2d 438 (1976), aff'd, 484 Pa. 527, 399 A.2d 1061, appeal dismissed, Kelly v. Pennsylvania, 444 U.S. 947, 100 S.Ct. 417, 62 L.Ed.2d 317 (1979).

Appellant's next allegation is that the trial court incorrectly failed to give an accomplice charge with respect to both Keith Johnson and Bernard Williams. He argues

[ 375 Pa. Super. Page 50]

    that Williams and Johnson were accomplices in the murder and testified to avoid criminal liability. An accomplice charge with respect to a witness is warranted when the evidence at trial either requires or permits the inference that the witness may have been a participant in the crime. Commonwealth v. Smith, 343 Pa. Super. 435, 495 A.2d 543 (1985). In this case, there simply was no evidence to link Williams and Johnson to the crimes. Both unequivocally denied any involvement in planning or perpetrating the murder, and no other witnesses tied them to the crime. Presence at a crime scene and association with criminals are insufficient bases upon which criminal culpability may be predicated. Presence and association are the only pieces of evidence presented by appellant in support of his position that they were accomplices. We conclude that the trial court correctly determined that Williams and Johnson were not accomplices to the murder, and accordingly, the trial court did not commit error in refusing to so charge the jury. Commonwealth v. Smith, id.; Commonwealth v. Hines, 341 Pa. Super. 456, 491 A.2d 907 (1985); Commonwealth v. Richey, 249 Pa. Super. 365, 378 A.2d 338 (1977).

Appellant's third argument is that he was denied his constitutional right to confront witnesses when the trial court failed to delete certain hearsay statements contained in a statement made by co-defendant Willis to the police. Detective Joseph Brignola testified that the day after the shooting, Willis described what he had observed the evening of the murder. Willis stated as follows. Willis called Muscles and asked to meet him at Willis' house, which is near the playground where Muscles was murdered. Willis met the victim at the designated rendezvous point; the two men injected heroin together and walked toward the playground. Muscles went into the playground alone after Willis was called back home. Once Willis arrived home, he heard shots and left the house again, yelling for a woman named Francine, who was with a woman named Toby. Willis inquired concerning the shots, and Toby answered

[ 375 Pa. Super. Page 51]

    that she had seen "three guys in the park" and that "Muscles didn't come out." N.T., 12/10/25, at 113.

Appellant objects to the quoted language as inadmissible hearsay and requests a new trial on grounds that he was denied the opportunity to confront the hearsay declarant. We find that the declarations were admissible under the present sense impression exception to the hearsay rule and that no trial error occurred. Commonwealth v. Blackwell, 343 Pa. Super. 201, 494 A.2d 426 (1985).

Appellant's fourth allegation of trial error, that he was restricted in his cross-examination of the victim's wife, is clearly meritless. Appellant tried to establish that Mackie testified solely to gain leniency in a pending drug proceeding that had been instituted against her. He cross-examined her on this issue extensively. N.T., 12/16/85, at 17-23, 44, 75. She denied that her testimony about her husband's murder was motivated by promises or threats from the district attorney's office about her drug case. Furthermore, her attorney's testimony establishes that the district attorney's office made no promises or arrangements. N.T., 12/19/85, at 61-67, 72-74, 80-87. That testimony also reveals that any expectations in that regard were not based on statements by any district attorney, but were based on Mackie's attorney's hopes that the possibility of leniency existed. Thus, appellant's efforts to cross-examine Mackie on this issue were not curtailed; there was no independent evidence to establish that leniency was promised, and no trial error occurred. Cf. Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986).

Appellant also complains that a statement made by co-defendant Wells to a man named Charles Harris implicated him in the murder and was introduced in violation of the rule set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Charles Harris testified that he had loaned his brown Toyota to Craig Murphy at the end of the summer of 1983. When Murphy returned the car to Harris at the beginning of September, 1983, Harris discovered blood on the right hand passenger's seat as well

[ 375 Pa. Super. Page 52]

    as a half-filled box of bullets inside the glove compartment. After the police informed Harris that his car had been used in a homicide, Harris ran into Wells at the Philadelphia Detention Center. At trial, Harris related the conversation that he had had with Wells. During the conversation, Harris accused "them" of using his car for a murder, and Wells reassured Harris that "they" had not used Harris' car, that "they" had used Murphy's car and that police were incorrect. N.T., 12/17/85 vol. 1, 188-190; N.T., 12/17/85 vol. 2, at 207.

Appellant posits that it is clear that Wells' use of the word "they" implicated him specifically in the murder and was introduced at trial in violation of Bruton. We disagree. Commonwealth v. Sanford, 323 Pa. Super. 436, 470 A.2d 998 (1984) (co-defendant's redacted confession containing "we" and "us," instead of specific names, admissible under Bruton); Commonwealth v. McQuaid, 273 Pa. Super. 600, 417 A.2d 1210 (1980) (introduction of co-defendant's confession containing plural pronouns in reference to other participants in crime was not a violation of Bruton); see also Commonwealth v. Guess, 266 Pa. Super. 359, 404 A.2d 1330 (1979).

Appellant also requests a new trial on the basis of two instances of alleged prosecutorial misconduct, described as follows. First, when appellant's counsel asked if he could handle and examine three bullets from the victim's body, the prosecutor objected, stating that he did not "trust" counsel and asking that someone from ballistics handle the bullets. N.T., 12/9/85, at 126. Second, during a sidebar proceeding, the prosecutor called appellant's counsel a "sucker." N.T., 12/19/85, at 56. We disagree with appellant's contention that these remarks require a new trial, which is warranted only if the unavoidable effect of the prosecution's remarks is to prejudice the jurors, forming in their minds bias and hostility toward the defendant to such an extent that they could not weigh the evidence objectively and render a true verdict. Commonwealth v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1986). As to the

[ 375 Pa. Super. Page 53]

    first remark, the prosecution was expressing concern over the handling of vital, sensitive Commonwealth evidence, and we do not view his comments as rising to the requisite level of prejudice such as to require a new trial. As to the second remark, appellant failed to establish that the jury heard the remark. The record clearly indicates that the remark was made beyond the hearing of the jury, which cannot be prejudiced by something it did not hear. Appellant failed to ask the jurors if they heard the remark. A new trial is not warranted on the basis of these two remarks.

Appellant also argues that the prosecutor committed reversible error: 1) during his closing statement with the comment that: "We don't need any new witnesses. We will go with what has brought us this far. And let's talk about one down and four to go," N.T., 12/27/85, at 8; and 2) when he hammered his fist on a large file box while repeating, "One down and four to go." On the side of the box facing the jury appeared the names of Craig Murphy, appellant and the three co-defendants. There was a check mark next to Craig Murphy's name. According to appellant, by allowing the jury to see this box and by the prosecutor's statements, the message to the jury was, in effect, a directive to the jury to find appellant and his co-defendants guilty just as Craig Murphy had been found guilty by another jury.

In assessing appellant's contentions, we are mindful that a prosecutor must limit his statements to the facts introduced at trial and the legitimate inferences therefrom. Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985) (plurality opinion). Moreover, the Commonwealth is afforded reasonable latitude in fairly presenting its version of the case to the jury. Commonwealth v. Upchurch, 355 Pa. Super. 425, 513 A.2d 995 (1986). The Pennsylvania Supreme Court recently reaffirmed that we must apply the "unavoidable prejudice test" as articulated in Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975), in determining the impact of prejudice in closing arguments.

[ 375 Pa. Super. Page 54]

[W]here the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. Commonwealth v. Crittenton, 326 Pa. 25, 31, 191 A. 358 (1937); Commonwealth v. McHugh, 187 Pa. Super. 568, 577, 145 A.2d 896 (1958). The language must be such that its 'unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.' Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). See also, Commonwealth v. Meyers, 290 Pa. 573, 139 A. 374 (1927). The effect of such remarks depends upon the atmosphere of the trial, Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421 (1962); Commonwealth v. Del Giorno, 303 Pa. 509, 519, 154 A. 786 (1931), and the proper action to be taken is within the discretion of the trial court. Commonwealth v. Silvis, 445 Pa. 235, 237, 284 A.2d 740 (1971); Commonwealth v. Simon, supra.

Commonwealth v. Johnson, 516 Pa. 527, 532-34, 533 A.2d 994, 997 (1987). The Johnson court further advised: "Under this test, we are required to judge whether the mental bias of the jury has been so 'fixed' as to implicate the truth-finding function itself." Id.

First, we address the issue of the prosecutor's use of the file box. In Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984), and Commonwealth v. Clayton, 506 Pa. 24, 483 A.2d 1345 (1984), our supreme court condemned the prosecution's use of a file box. In Beasley, a box was transported into the courtroom bearing the label, "Police shooting, homicide of police officer." The trial court did not order a mistrial, finding that the label was not readable from the bench. The supreme court did not reverse, as it found no adequate basis upon which to determine the exact position of the box or the length of time the box was present. Nor could it conclude that the label could be read by any of the jurors. The court wrote:

[ 375 Pa. Super. Page 55]

Nevertheless, the prosecutor's blatant and inexcusable inattention in bringing the labeled box into the courtroom is to be most strongly condemned. Such conduct needlessly injected this case with an issue that, under less speculative circumstances, could be deemed to have impaired the integrity of the trial. In the present case, however, any prejudice to ...

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