Appeal from the Judgment of Sentence entered on July 26, 2005 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 0405-0297 1/2.
The opinion of the court was delivered by: Madame Justice Todd
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
Aquil Bond appeals the sentence of death imposed on July 26, 2005 by the Philadelphia Court of Common Pleas after a jury convicted him of first-degree murder,*fn1 possession of an instrument of crime,*fn2 reckless endangerment of another person,*fn3 and criminal conspiracy.*fn4 For the reasons that follow, we affirm his convictions and judgment of sentence.
The evidence of record establishes the following facts. On November 29, 2002, two rival gangs engaged in a gunfight at the North American Motor Inn on City Line and Belmont Avenue in Philadelphia. Appellant was a member of one of the gangs, and, during the gunfight, two of his fellow gang members, Michael Allen Finney and Antoine Steed, were killed. Afterward, Appellant's gang decided to avenge the deaths of Finney and Steed; Appellant and several other gang members, including Christopher Smith (hereinafter "Smith" or "co-defendant"), Jawayne Brown, Richard Brown (Appellant's cousin), Vincent Smithwick, and two others named Damar and Lonnie, gathered at the home of Richard Brown's girlfriend, Tammy, to formulate a plan. N.T. Trial, 5/4/05, at 93. The group decided that two members of the rival group, "Brent" and "G Bucks," whom they believed were responsible for shooting Finney and Steed, must be killed. Id. at 94. Richard Brown, the reputed leader of Appellant's gang, gave orders that any member of the rival gang should be shot on sight. Id. at 92.
A day or two later, shortly after midnight on December 1, 2002, Richard Carter was sitting with a female friend on the steps of 4220 Ogden Street. N.T. Trial, 5/5/05, at 10. Several other men from the neighborhood were standing outside on the street, including someone whom Carter knew as "Buck," Brent Jenkins, and Jared Barkley. Id. at 12-13. At one point, Carter noticed a burgundy Park Avenue car circling the corner. Id. at 15. Jenkins was outside as the car circled the corner the first time, but left the area by the time it circled a second time. Id. at 16. As the car circled the corner for the second time, Carter saw the driver's side window open, and saw Appellant, whom Carter recognized from the area, exit the car with a gun in his hand. Id. at 18-19. Appellant approached an unidentified male who resembled Jenkins; however, apparently realizing that the man was not Jenkins, Appellant returned to the car. Id. at 18. The car circled the corner a third time, and then stopped in front of 4210 Ogden Street, at which time Appellant and Smith jumped out of the car and began firing shots down Ogden Street. Id. at 19. Moments before the shooting began, Carter observed Rasheed Abdul Grant, also known as Abdul Brooks, or "Rev," id. at 14, standing near the passenger side of his maroon Pontiac Bonneville, which was parked in front of Grant's father's house at 4219 Ogden Street. Id. at 21-22. When the shooting began, Carter ran. Id. at 19.
At approximately 1:40 a.m., Philadelphia Police Officer Joseph Rogers received a radio call indicating gunshots in the area of 42nd and Ogden Streets and the 800 block of Brooklyn Street. N.T. Trial, 5/4/05, at 179. When Officer Rogers arrived at the scene, he observed Grant lying face down in the street with his eyes open and not breathing. Id. at 179, 181. Rogers radioed for a rescue squad, which arrived approximately ten minutes later. Id. at 180-81. Grant was pronounced dead at the scene at 1:53 a.m., having suffered seven gunshot wounds to his body. Id. at 31-32. Another man, Antwoin Weston, had been shot in the leg and was crawling along the sidewalk. Id. at 185, 187. He was transported to the hospital for treatment. Id. at 187.
At approximately 2:10 a.m., William Whitehouse of the Philadelphia Police Crime Scene Unit arrived at 42nd and Ogden Streets to process the crime scene and observed the following vehicles: (1) a maroon Crown Victoria with two holes in the windshield parked in front of 4210 Ogden Street; (2) a maroon Pontiac Bonneville in front of 4219 Ogden Street, next to which Grant's body was found; and (3) a red Jeep with some damage in front of 4221 Ogden Street. Whitehouse recovered 30 spent cartridges from three separate areas of the scene, including the area in front of 4205 and 4207 Ogden Street; the sidewalk in front of 4217 and 4219 Ogden Street; and the street in front of 4217 and 4219 Ogden Street. All of the cartridges were.357 caliber, and it was determined that 19 were fired from a single weapon, and 11 were fired from a second weapon.
Nearly four months after the Ogden Street shooting, on April 13, 2003, Officer Jerrell Short of the 9th Police District was working nightclub detail at 6th and Spring Garden Streets in Philadelphia. At approximately 3:30 a.m., Officer Short observed Smith and Richard Brown running towards him. Id. at 191-193. Officer Short stopped them and ordered them to stand against a gate and show their hands. Id. at 194. Smith appeared to be fumbling around the midsection of his pants or jacket. Id. Ultimately, Smith and Brown ran away, and Officer Short and several other officers, including Officer Short's partner, Officer Gregory Welsh, pursued them on foot. Id. at 195, 202. As they did so, Officer Welsh observed Smith remove a black gun from his waistband and throw it into the street. Id. at 202. Officer Welsh retrieved the gun, a Sig Pro 2340.357 caliber black semi-automatic handgun, serial number SP0061985. Id. at 205. He removed the magazine from the gun, as well as one live round from the chamber. Id. Police also collected seven fired cartridges from the area, and ballistics analysis established that five of them came from the gun thrown into the street by Smith.*fn5 Smith was captured by police and arrested.
On May 14, 2003, Agent Anthony Tropea of the federal Bureau of Alcohol, Tobacco, and Firearms questioned Smith's girlfriend, Juanita Stokes-Steadley, regarding her purchase of a Sig Pro.357 caliber semi-automatic pistol from the Firing Line Gun Store on November 29, 2002, following the gunfight at the North American Motor Inn. Id. at 56. When first questioned, Stokes-Steadley maintained that she purchased the firearm for her own use, with her own money. Id. Agent Tropea asked Stokes-Steadley to produce the firearm, and she indicated that the gun was in the basement of her residence. Id. When agents went to retrieve the firearm, they found an empty gun box bearing the serial number SP0061985, the serial number of the gun Stokes-Steadley admitted to having purchased. Id. at 57. Upon further questioning, Stokes-Steadley admitted to Agent Tropea that Smith gave her the money for the firearm and gave her specific instructions to purchase the Sig Pro.357 caliber pistol and ammunition. Id. At trial, Stokes-Steadley testified that Smith first asked her to purchase the gun two days before November 29, 2002*fn6; that Smith gave her the money to purchase the gun and ammunition on November 29, 2002; and that after she purchased the gun and ammunition on November 29, 2002, she gave it to Smith, and that was the last time she saw the gun. Id. at 57-58; N.T. Trial, 5/2/05, at 36; N.T. Trial, 5/3/05, at 59, 69, 89. It later was determined that 19 of the spent cartridges recovered from the scene of the Ogden Street murder came from this gun.
In September 2003, one of Appellant's fellow gang members, Vincent Smithwick, nicknamed "Scooter," was arrested on federal drug charges. As part of a plea agreement, Smithwick gave a statement to police concerning seven different homicides, implicating himself in two of the murders. Smithwick also provided information regarding the murder of Grant. At trial in the instant case, Smithwick testified that the members of Richard Brown's gang decided to retaliate against their rivals for the November 29, 2002 shooting at the North American Motor Inn. N.T. Trial, 5/4/05, at 92. Smithwick described how, on November 30, 2002, he, Appellant, and Jawana Moore, who was Smithwick's half-sister and Appellant's girlfriend, went to the Firing Line Gun Store to purchase a.357 caliber Sig Pro firearm. Id. at 95. Smithwick testified that Appellant wanted to purchase that particular model because "Richard Brown had one first and liked the model." Id. He also testified that only he and Moore went inside the store, and that Moore actually purchased the gun. Id. The serial number of the gun purchased by Moore was SP0061983. N.T. Trial, 5/3/05, at 168.
Smithwick further testified that he was at the home of Richard Brown's girlfriend, Tammy, on December 1, 2002, when Appellant and Smith stated that they were going to 42nd and Ogden Streets to kill whoever they saw "that was hanging with Brent and Malik [and] G Bucks." N.T. Trial, 5/4/05, at 97. Smithwick recounted that, after Appellant and Smith returned to the house, Smith bragged that he had shot one man in the leg, and Appellant stated that "he needed more bullets" and that both he and Smith had shot someone in the face. Id. at 98. The following morning, Smithwick learned that someone named Rev, i.e., Grant, had been shot and killed. Smithwick indicated that he spoke with Appellant about Rev getting killed, and Appellant stated "That wasn't the right person, man." Id. at 99.
Finally, Smithwick testified that a couple of days after Grant was killed, he and Appellant were at the home of Chante Baker, another of Appellant's girlfriends, at 54th and Girard Streets, when police arrived to arrest Appellant on another matter. Smithwick stated that, after Appellant and Baker left the house, he returned to the house because he had some drugs inside and wanted to retrieve them. Id. at 107. In addition to removing the drugs from the house, Smithwick also admitted to removing a.357 caliber Sig Pro firearm, the same gun that Jawana Moore purchased for Appellant on November 30, 2002, which Smithwick knew Appellant kept under Baker's mattress. Id.
Baker also testified at trial. She recounted that, in late November 2002, Appellant asked her to purchase a gun for him, but she was unable to do so because she had a prior felony conviction. N.T. Trial, 5/5/05, at 139. She indicated that Appellant subsequently advised her that he had another individual, Moore, purchase a gun for him. Id. She testified that she eventually saw the gun, and that Appellant kept it underneath her mattress when he stayed at her house. Id. at 140. She indicated that she was at home with Appellant when police arrived to arrest him on December 10, 2002, and that she was arrested at that time for attempting to stop the officers from entering the house. Id. at 141.
Baker testified that she subsequently asked Smithwick what had happened to the gun that had been under her mattress, and he advised her that he removed it. Id.
On December 10, 2002, police executed a search warrant of the apartment of Richard Brown, also known as Richard Bond or "Mannie-Boo," at 4000 Presidential Boulevard, Apartment 2006. Id. at 118. The police recovered from the apartment two.357 caliber Sig Pro semi-automatic weapons, including one with the serial number SP0061983, which was the serial number of the gun purchased by Moore from the Firing Line Gun Store on November 30, 2002. Ballistics analysis established that 11 of the spent cartridges recovered from the scene of the Ogden Street shooting came from the gun purchased by Moore. While the bullets lodged in Grant's body were too damaged to be positively matched to either Appellant's or Smith's weapon, the bullets were the same type of ammunition as used in their weapons.
Appellant and Christopher Smith were jointly tried before the Honorable Sheila Woods-Skipper. On May 6, 2005, a jury convicted Appellant of the aforementioned charges; it acquitted him of attempted murder with regard to Antwoin Weston.*fn7 At the penalty phase, the jury found one aggravating factor,*fn8 and no mitigating factors, and recommended a sentence of death. Appellant was formally sentenced to death on July 26, 2005. This appeal followed.
I. Sufficiency of the Evidence
Although it is this Court's practice to review the sufficiency of the evidence for first-degree murder in all death penalty direct appeals regardless of whether the appellant raises such a challenge, see Commonwealth v. DeJesus, 580 Pa. 303, 308, 860 A.2d 102, 105 (2004), we note that, in the instant case, Appellant does, in fact, claim that his conviction for first-degree murder, in addition to his conviction for criminal conspiracy, was not supported by sufficient evidence.*fn9 In reviewing the sufficiency of the evidence, this Court must determine whether the evidence admitted at trial, and all the reasonable inferences derived therefrom viewed in favor of the Commonwealth as the verdict winner, supports the jury's finding of all the elements of the offense beyond a reasonable doubt. Commonwealth v. Montalvo, 598 Pa. 263, 274, 956 A.2d 926, 932 (2008), cert. denied, 129 S.Ct. 1989 (2009).
Evidence is sufficient to sustain a conviction for first-degree murder when the Commonwealth establishes that: (1) a human being was unlawfully killed; (2) the accused is responsible for the killing; and (3) the accused acted with specific intent. 18 Pa.C.S.A. § 2502(a); Montalvo, 598 Pa. at 274, 956 A.2d at 932. An intentional killing is a "[k]illing by means of poison, or by lying in wait, or any other kind of willful, deliberate, and premeditated killing." 18 Pa.C.S.A. § 2502(d); Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444 (1998). The Commonwealth may establish that the defendant intentionally killed the victim through wholly circumstantial evidence, such as the use of a deadly weapon on a vital part of the victim's body. Montalvo, 598 Pa. at 274, 956 A.2d at 932.
In order to convict a defendant of conspiracy, the trier of fact must find that: "(1) the defendant intended to commit or aid in the commission of the criminal act; (2) the defendant entered into an agreement with another... to engage in the crime; and (3) the defendant or one or more of the other co-conspirators committed an overt act in furtherance of the agreed upon crime." Id. (ellipsis original and internal quotation marks omitted). Each member of a conspiracy to commit homicide can be convicted of first-degree murder, regardless of who inflicted the fatal wound. Id. at 274-75, 956 A.2d at 932.
Appellant argues that the evidence was insufficient to support his conviction for first-degree murder because Smithwick and Carter were not credible witnesses and because the verdict was the result of mere speculation. With regard to his conspiracy conviction, Appellant maintains that, although he may have been present when Richard Brown demanded retribution, there was no evidence that Appellant agreed to share in the criminal conspiracy to seek retribution on the rival gang members. Appellant's Brief at 11. He further suggests that even if he was in the vicinity of the shooting, it might have been because "he was interested in seeing what was going to happen as a result of Brown's orders and as a further result of the killings at the North American Motor Inn." Id.
Addressing Appellant's conspiracy conviction first, we conclude the evidence was sufficient to sustain his conviction. As noted above, Smithwick testified at trial that, following the murder of Finney and Steed on November 29, 2002, members of Richard Brown's gang, including Appellant and Smith, gathered at the home of Richard Brown's girlfriend, Tammy, and discussed their plan for retaliation. N.T. Trial, 5/4/05, at 93. Smithwick testified that, on the following day, November 30, 2002, he, Appellant, and Moore went to the Firing Line Gun Store, where Moore purchased a firearm at the direction of Appellant. Id. at 95. Smithwick further described how, on December 1, 2002, he again was at the home of Brown's girlfriend, Tammy, when Appellant and Smith announced they were going to 42nd and Ogden Streets to kill whoever they saw "that was hanging with Brent and Malik [and] G Bucks." Id. at 97.
In addition, Carter testified that he observed Appellant and Smith circle the corner of 42nd and Ogden Streets in a burgundy Park Avenue twice before Appellant exited the car and approached a man who resembled Brent Jenkins. Upon realizing that the man was not Jenkins, Appellant returned to the car. Carter then saw the car circle the corner a third time, after which both Appellant and Smith exited the vehicle and the shooting began. This evidence established more than Appellant's mere presence at the scene of the crime; it established that Appellant, over several days, engaged in a deliberate, pre-mediated plan to exact revenge on individuals believed responsible for the shootings of Finney and Steed. To the extent Appellant contends that Smithwick was not a credible witness, such argument is a challenge to the weight of the evidence, which we discuss infra. We hold that the evidence was more than sufficient to support Appellant's conviction for conspiracy.
Similarly, we hold the evidence was sufficient to support Appellant's conviction for first-degree murder. As the trial court noted, the assistant medical examiner testified that Grant suffered seven separate gunshot wounds to his body, including wounds to his left and right lungs, his spleen, his liver, his left shoulder, his arms, and his head. See Trial Court Opinion, 11/15/07, at 11; N.T. Trial, 5/4/05, at 32-34. This evidence clearly was sufficient to enable the jury to conclude that Grant was intentionally killed. See Montalvo, 598 Pa. at 274, 956 A.2d at 932 (use of a deadly weapon on a vital part of the victim's body sufficient to establish and intentional killing).
Moreover, Carter testified that he observed Appellant exit a burgundy Park Avenue with a gun in his hand and begin firing shots down Ogden Street, and that moments before the shooting began, Grant had been standing nearby. Ballistics evidence established that the 30 spent cartridges recovered from the Ogden Street area were.357 caliber Sig Remington brand ammunition. N.T. Trial, 5/4/05, at 232. Nineteen of the recovered cartridges were attributable to the gun identified by serial number SP0061985, the gun purchased for and given to Smith by Stokes-Steadley. Id. at 235. Eleven of the spent cartridges recovered from the scene were determined to have been fired from the gun identified by serial number SP0061983, which was purchased by Moore at Appellant's behest and which was recovered from the home of Richard Brown. Id. at 244. Although the bullet fragments recovered from the decedent's body could not positively be matched to either firearm, analysis revealed that they were.357 caliber with a similar configuration to the spent cartridges recovered from Ogden Street. Id. at 247. This evidence clearly was sufficient to enable the jury to conclude that the bullet that fatally wounded Grant was fired by either Appellant or Smith. Accordingly, the evidence was sufficient to support Appellant's conviction of first-degree murder. See Montalvo, 598 Pa. at 274-75, 956 A.2d 932 (each member of a conspiracy to commit homicide can be convicted of first-degree murder, regardless of who inflicted the fatal wound); Commonwealth v. Boxley, 575 Pa. 611, 618, 838 A.2d 608, 612 (2003) (evidence was sufficient to support appellant's conviction for first-degree murder, regardless of whether appellant or one of his co-conspirators fired the fatal shot).
II. Weight of the Evidence
As an alternative to his argument that the evidence was insufficient to support his convictions, Appellant contends that he is entitled to a new guilt phase trial because his convictions were against the weight of the evidence. The Commonwealth maintains that Appellant has waived this claim by failing to raise it in a post-sentence motion. We agree.
Rule 607 of the Pennsylvania Rules of Criminal Procedure requires that a claim that the verdict was against the weight of the evidence be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607. As noted in the comment to this rule, "[t]he purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived." Id. cmt.*fn10 As Appellant failed to challenge the weight of the evidence in the manner prescribed, he has waived his claim.
III. Voluntary Manslaughter Charge
Appellant next argues that this Court should award him a new guilt phase trial because the trial court erred in denying his request to have the jury charged on the crime of voluntary manslaughter. In its opinion written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, the trial court explained that it denied Appellant's jury charge request because "[t]here was no evidence that appellant killed the victim in a sudden and intense passion. Evidence established an intentional killing where appellant planned to shoot someone and shot the victim as the victim stood there." Trial Court Opinion, 11/15/07, at 24.
Appellant avers, however, that "[a] rational finder of fact could have concluded that [he] acted in the heat of passion as the result of the murders at the North American Motor Inn." Appellant's Brief at 15. He asserts that the trial court, by refusing to charge the jury on voluntary manslaughter, improperly ...