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Commonwealth v. Brown

December 29, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
LAVAR BROWN, APPELLANT



Appeal from the Judgment of Sentence entered on 06/02/2005 in the Court of Common Pleas, Criminal Division of Philadelphia County at No. 0402-0809 1/1.

The opinion of the court was delivered by: Mr. Justice Eakin

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

SUBMITTED: April 14, 2009

OPINION

This is a direct appeal from a death sentence imposed after a jury convicted appellant of first degree murder, possession of an instrument of crime, and carrying a firearm without a license.*fn1 At the penalty phase, the jury found two aggravating circumstances and no mitigating circumstances. We affirm the first degree murder conviction and the sentence of death.*fn2

On December 10, 2003, appellant, then age 24, and Rahsaan Anderson were standing on Girard Avenue in Philadelphia, near a school, subway station, gas station, and restaurant. Around 3:00 p.m., appellant saw Robert Crawford crossing Girard Avenue, and stated, "There go that pussy." N.T. Trial, 5/26/05, at 33. Appellant approached Crawford and, without provocation, shot him multiple times in the back.

After shooting Crawford, appellant and Anderson began to run but were quickly deterred by two police officers in a patrol vehicle. One officer stopped and frisked Anderson, but found no weapon. The second officer saw appellant across the street with his right hand in his jacket pocket and ordered him multiple times to show his hands. Appellant refused to remove his hand from his pocket and instead ran back toward the crime scene and down an alley. The officer pursued him, commanding him to stop. Appellant continued to run, and other officers joined the chase. Appellant eventually crawled beneath a vehicle; the officers pulled him out and took him into custody. A .380 caliber semi-automatic firearm was found near the vehicle's right rear axle.

Multiple witnesses identified appellant as Crawford's shooter. Royal Smith, a youth advocate worker, and Christiana Ellison, her client, were seated in a vehicle three to five feet away when the shooting occurred. Both identified appellant as the shooter, stating he shot the victim, stood over him after he had fallen, and shot him again. Rahsaan Anderson also identified appellant as the shooter. Angela Sutton testified solely to the shooter's appearance, confirming previous testimony that the shooter was a dark-complected man, standing 5'7"- 5'10" tall, and wearing a dark-hooded sweatshirt or dark jacket.

Several police officers testified to appellant's flight and arrest, as well as to finding the gun. Crime Scene Investigator Leo Rahill testified to the ballistic evidence recovered from the scene, including three .380 caliber fired cartridge cases, one fired copper-jacketed projectile bullet, and a sample of Crawford's blood. Ballistics expert John Cannon opined the three cartridges and fired bullet were collected from locations consistent with someone standing in one spot and firing multiple projectiles, and the semi-automatic weapon found under the vehicle was the same weapon used to fire the projectiles into Crawford's body.

Medical Examiner Dr. Edward Chmara testified Crawford died from multiple gunshot wounds, specifically from blood loss due to a ruptured aorta. The first bullet wound was fatal and entered his upper right back, puncturing his right lung and aorta, and exited under his first rib. The second bullet entered Crawford's right elbow; bullet and jacket fragments remained in his arm's soft tissue and bone. The third and fourth wounds were located in Crawford's lower left back. All bullets recovered from Crawford's body were .380 caliber, consistent with the gun found under the vehicle where appellant hid from police. Appellant did not have a license to carry a firearm.

During the penalty phase, the Commonwealth sought to prove two aggravating factors: during the commission of the offense, appellant knowingly created a grave risk of death to another person in addition to the victim, and appellant was convicted of a prior murder. See 42 Pa.C.S. § 9711(d)(7), (d)(11). To meet its burden, the Commonwealth again called ballistics expert John Cannon, who testified a .380 caliber bullet is capable of passing through a human body and harming another person when shot from 80-100 feet. His testimony also established a person need not be in the immediate line of fire to be lethally wounded by such a bullet, as it could ricochet, taking new, unpredictable courses. The Commonwealth also called Assistant District Attorney William Fisher to testify appellant was previously convicted of second degree murder and robbery for his involvement in the killing of a local store manager during a robbery.*fn3

Appellant presented mitigating evidence through various family members and friends who testified to appellant's difficult childhood, some admirable qualities, and alleged physical and learning disabilities. The testimony alleged appellant struggled with a foot deformity and dyslexia during childhood, his stepfather was an alcoholic, and he had no positive male role model during development. Dr. Allan Tepper, a licensed psychologist, testified appellant was of average intelligence, but had an impaired ability to control his impulses, stunted mental development, and severe personality deficits and defects. Dr. Tepper did, however, find appellant understood rules, was capable of some impulse control, did not suffer from any sort of diminished cognitive ability, was not under the influence of extreme mental or emotional disturbance when he killed Crawford, and presented no indices of an underlying thought disorder.

The jury unanimously found the two aforementioned aggravating circumstances, found no mitigating circumstances, and returned a verdict of death. The trial court sentenced appellant as to all three charges, imposing the death penalty for the first degree murder charge in accordance with the jury's penalty phase findings.

In all cases in which the death penalty is imposed, it is this Court's duty to review the record to ensure the evidence sufficiently supports the first degree murder conviction and the finding of aggravating circumstances, and that the sentence was not the product of passion, prejudice, or other arbitrary factors. 42 Pa.C.S. § 9711(h)(3)(i),(ii); see also Commonwealth v. Baumhammers, 960 A.2d 59, 68 (Pa. 2008) (citations omitted) ("In all death penalty direct appeals . this Court reviews the evidence to ensure that it is sufficient to support the conviction or convictions of first-degree murder.").

Beyond the mandatory issues of review, appellant raises six additional claims, which we have paraphrased for ease of discussion:

1. Whether the Commonwealth committed reversible error in questioning a witness so as to infer an identification, violating a pre-trial agreement that the witness would not make an in-court identification.

2. Whether the trial court erred in allowing the admission of hearsay evidence.

3. Whether the trial court erred in allowing the Commonwealth to present an expert witness during the penalty phase to unnecessarily bolster commonly known facts.

4. Whether the prosecutor committed reversible misconduct during the penalty phase by questioning a defense witness about appellant's remorse for a prior conviction.

5. Whether the trial court erred at the penalty phase in allowing a prosecution witness to describe in detail the circumstances of appellant's prior second degree murder conviction.

6. Whether the trial court erred at the penalty phase in instructing the jury on the grave risk of death to others aggravating circumstance.

Sufficiency Review

We begin by reviewing the sufficiency of the evidence for first degree murder. In conducting such an analysis, we are obliged to determine whether the evidence presented at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to satisfy all elements of the offense beyond a reasonable doubt. Baumhammers, at 68; Commonwealth v. Bridges, 757 A.2d 859, 864 (Pa. 2000).

A person is guilty of first degree murder where the Commonwealth proves: (1) a human being was unlawfully killed; (2) the person accused is responsible for the killing; and (3) the accused acted with specific intent to kill. See 18 Pa.C.S. § 2502(a); Baumhammers, at 68. An intentional killing is a "[k]illing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(d). "The Commonwealth may prove that a killing was intentional solely through circumstantial evidence. The finder of fact may infer that the defendant had the specific intent to kill the victim based on the defendant's use of a deadly weapon upon a vital part of the victim's body." Commonwealth v. Blakeney, 946 A.2d 645, 651 (Pa. 2008) (citations omitted).

Appellant argues the verdict is supported by mere speculation. He cites various testimonial inconsistencies, contending these make the evidence so unreliable and contradictory as to render the verdict pure conjecture, and claiming as much evidence for the shooting lies against Rahsaan Anderson as against himself. Appellant's alleged inconsistencies include: Christina Ellison's initial uncertainties in identifying appellant as the shooter in court,*fn4 a police officer's redaction of his prior statement that he observed officers tackle appellant before he crawled under the vehicle, and claims police were going to arrest Rahsaan Anderson for the murder but were stopped by the District Attorney. An affidavit of probable cause was prepared for Anderson, but was never approved by the District Attorney; an arrest warrant was never obtained. See Appellant's Brief, at 10-11.

The Commonwealth observes multiple people identified appellant as the shooter, and that police officers pursued appellant directly after the crime occurred, eventually detaining him and finding the murder weapon underneath the vehicle where appellant was hiding. The Commonwealth argues the inconsistencies noted by appellant come from an incomplete rendering of witness testimony.

We find the Commonwealth established each element necessary to sustain appellant's first degree murder conviction. It presented a wealth of evidence pointing to appellant as the person responsible for Crawford's killing. Eyewitnesses, located mere feet away from the shooting, each independently identified appellant as the shooter and gave consistent accounts of his actions. Further establishing appellant's identity as Crawford's shooter were the pursuing officers, who stopped appellant moments after the crime occurred, pursued him upon flight, and recovered the murder weapon from the same location where he hid and was arrested. The Commonwealth also presented medical evidence revealing at least one of the wounds inflicted by appellant was fatal.

Appellant's attempts to characterize the evidence as unreliable and contradictory are belied by the record, which manifestly identifies him as the shooter. See N.T. Trial, 5/25/05, at 150, 214-15. More importantly, the "inconsistencies" cited by appellant do not controvert his identity as the shooter or any other element of first degree murder.

Having thoroughly reviewed the record, we find the evidence satisfies each element of first degree murder: (1) Robert Crawford was unlawfully killed; (2) he was killed by appellant; and (3) appellant specifically intended to kill Crawford, as is evidenced by his use of a deadly weapon upon vital parts of Crawford's body. See Blakeney, at 651. We therefore find the Commonwealth presented sufficient evidence to convict appellant of first degree murder.

We must now consider the sufficiency of the evidence supporting the aggravating circumstances.

[T]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance . and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The ...


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