Appeal from the Judgment of Sentence June 16, 2009 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004908-2007
The opinion of the court was delivered by: Stevens, P.J.
BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., and GANTMAN, JJ.
OPINION BY STEVENS, P.J.:
This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Chester County following Appellant's conviction by a jury on the charges of first-degree murder, 18 Pa.C.S.A. § 2502(a), and possessing instruments of crime, 18 Pa.C.S.A. § 907(a). Appellant contends
(1) the trial court erred in denying Appellant's motion to dismiss on the basis the Commonwealth met its burden of proving it did not "use or derivatively use" Appellant's immunized grand jury testimony, (2) the trial court erred in permitting defense witness Ataya Shabazz to testify on cross-examination as to prior consistent statements made by Commonwealth witness Adrienne Beckett, and (3) the trial court erred in limiting Appellant's cross- examination of Commonwealth witness David Johnson. We affirm.
The relevant facts and procedural history are as follows: During the evening of October 19, 2005, in an alley in the city of Coatesville, Pennsylvania, Charles Corey "Peen" Jennings was shot and killed. During the investigation, on October 26, 2006, the Commonwealth subpoenaed
Appellant to testify before the thirteenth investigating grand jury. Appellant appeared before the grand jury; however, he invoked his Fifth Amendment privilege against compulsory self-incrimination.
On November 16, 2006, the Commonwealth obtained an order compelling Appellant to appear before the grand jury under the grant of immunity. Thus, on that same date, Appellant again appeared before the thirteenth investigating grand jury and, while testifying about the death of Mr. Jennings, Appellant implicated himself in the murder.
On November 24, 2007, the police arrested Appellant, who filed a counseled motion seeking to dismiss the prosecution under the auspices of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653 (1972), and its progeny. The Commonwealth filed a reply in opposition to the motion to dismiss, and the trial court held numerous evidentiary hearings on the matter at which several police officers and members of the Chester County District Attorney's Office testified. For instance, Assistant District Attorney Peter Hobart confirmed Appellant had received immunity before the thirteenth investigating grand jury and, on November 16, 2006, ADA Hobart examined Appellant before the grand jury. N.T. 3/12/08 at 40. At the conclusion of Appellant's grand jury testimony, in which Appellant implicated himself as the shooter, ADA Hobart, accompanied by Detective Kevin Campbell, so informed his supervisor, Deputy District Attorney Steve Kelly, who in turn informed District Attorney Joseph Carroll regarding the substance of what had transpired during Appellant's grand jury testimony.
N.T. 3/12/08 at 40-41, 52. DA Carroll ordered ADA Hobart and Deputy DA Kelly not to discuss the circumstances of the case with anyone, and ADA Hobart specifically testified he never violated this order. N.T. 3/12/08 at 41. ADA Hobart testified he was not involved in the decision to charge Appellant with the murder of Mr. Jennings, he did not assist in the investigation of Mr. Jennings' homicide after November 16, 2006, and he "remained silent as to the contents of [Appellant's] immunized testimony." N.T. 3/12/08 at 43.
On cross-examination, ADA Hobart testified that, prior to examining Appellant before the grand jury, Detective Campbell told ADA Hobart that Appellant and David Johnson were both present during Mr. Jennings' homicide. N.T. 3/12/08 at 45. Additionally, Detective Campbell told ADA Hobart Mr. Jennings had stolen Appellant's chain prior to this death and, on the date of the shooting, there was an altercation between Mr. Jennings, Appellant, and Mr. Johnson. N.T. 3/12/08 at 45. ADA Hobart admitted he was "surprised" by the testimony he elicited from Appellant before the grand jury. N.T. 3/12/08 at 52.
Assistant District Attorney Thomas Ost-Prisco testified that, in late November of 2006, Deputy DA Kelly reassigned him to Mr. Jennings' homicide. N.T. 3/12/08 at 65. He was not given a specific reason as to why the case was assigned to him; however, he was specifically instructed that he could not discuss the case with Deputy DA Kelly, Deputy DA Ron Yen, Detective Campbell, ADA Hobart or DA Carroll. N.T. 3/12/08 at 66. ADA Ost-Prisco testified he did not violate the instruction. N.T. 3/12/08 at 67. He indicated he did not have much information when the case was assigned to him; however, he was told that he could speak to Detective Marty Quinn, Detective Kevin Dykes, Chief Albert DiGiacamo, and Detective Frank Martin.
N.T. 3/12/08 at 67. ADA Ost-Prisco was aware Appellant's girlfriend, Adrienne Beckett, had testified before the grand jury and he reviewed her grand jury testimony in its entirety. N.T. 3/12/08 at 69. ADA Ost-Prisco did not review any other testimony from the thirteenth investigating grand jury.
ADA Ost-Prisco indicated he was going to be prosecuting Appellant, and he summarized the evidence, which he intended to present at Appellant's trial. For instance, he intended to call as a witness Mr. Johnson, who began cooperating with the police in January or February of 2007. N.T. 3/12/08 at 74. Mr. Johnson gave the police a detailed statement of what occurred on the night of Mr. Jennings' murder, including the fact Appellant shot Mr. Jennings multiple times. N.T. 3/12/08 at 74.
Mr. Johnson's cooperation led to his girlfriend, Ataya Shabazz, wearing a body wire to record a conversation she had with Adrienne Beckett, which in turn led to Ms. Beckett giving the police a statement in March of 2007.
N.T. 3/12/08 at 74. ADA Ost-Prisco intended to call Ms. Beckett as a witness so that she could testify consistently with her March of 2007 statement. In her statement, Ms. Beckett indicated that Mr. Jennings had stolen a gold chain from Appellant, and, after the murder, Appellant told Ms. Beckett he "did what [he] had to do." N.T. 3/12/08 at 71. Additionally, she informed the police that, a few hours after the homicide, she drove with Appellant to Maryland, where she watched as Appellant dumped a plastic shopping bag into a dumpster in a parking lot behind a strip mall. N.T. 3/12/08 at 72.
ADA Ost-Prisco further intended to call as witnesses Dante Carter, Francis Washington, and Duron Peoples, all of whom would testify about Mr. Jennings taking Appellant's gold chain, as well as investigating police officers and the medical examiner who performed the autopsy of Mr. Jennings. N.T. 3/12/08 at 75.
On cross-examination, ADA Ost-Prisco testified he sought to secure Wendell Fields' testimony before the investigating grand jury and Deputy DA Kelly was not involved in the matter. N.T. 3/12/08 at 79-80. ADA Ost-Prisco explained that, before he was assigned to prosecute the homicide of Mr. Jennings, Mr. Fields had given a statement to the police indicating that, the day after the murder, Mr. Fields had breakfast with Appellant, who informed him Mr. Johnson had shot Mr. Jennings. N.T. 3/12/08 at 94. ADA Ost-Prisco further explained Mr. Fields' statement was the "beginning point" of his investigation and he was "looking at [Mr.] Johnson as being the possible shooter." N.T. 3/12/08 at 97. That is, at the time ADA Ost-Prisco was assigned to handle the case, which was after Appellant had implicated himself before the grand jury, he was not specifically looking at Appellant as the shooter. N.T. 3/12/08 at 97. However, ADA Ost-Prisco later concluded Mr. Fields was lying about Appellant's claims of innocence based on subsequent statements made by Kurtis Allen and Daryl Buchanan. N.T. 3/12/08 at 94. Specifically, Mr. Allen told authorities that, while he was incarcerated in the Chester County Prison, he spoke to Mr. Fields, who told him Appellant had confessed to him that he shot Mr. Jennings and Mr. Fields concocted a story to deflect the blame onto Mr. Johnson. N.T. 3/12/08 at 94-95. Additionally, following the interview with Mr. Allen, the police interviewed Mr. Buchanan, who reported that, after the homicide, Mr. Fields told Mr. Buchanan Appellant had killed Mr. Jennings. N.T. 3/12/08 at 96.
ADA Ost-Prisco admitted he entered into negotiations with Mr. Johnson as to an unrelated case in order to "get him to talk" about the shooting of Mr. Jennings. N.T. 3/12/08 at 87-89. At this point, ADA Ost-Prisco was "still operating under the assumption that [Mr. Johnson] might have been the shooter[,...and] [i]t was only after [the police] got to Ms. Beckett, with Mr. Johnson's help, that [ADA Ost-Prisco] felt a lot more comfortable talking to Mr. Johnson." N.T. 3/12/08 at 88. In February or March of 2007, after speaking with Ms. Beckett and Mr. Johnson, he concluded Appellant shot Mr. Jennings. N.T. 3/12/08 at 87.
ADA Ost-Prisco admitted that, while he was never specifically advised Appellant offered immunized grand jury testimony, it was an assumption he formed shortly after he was assigned to handle Mr. Jennings' homicide. N.T. 3/12/08 at 81. ADA Ost-Prisco first learned definitively that Appellant offered immunized grand jury testimony when he read a newspaper article, which discussed Appellant's motion to dismiss. N.T. 3/12/08 at 122-23.
As to what investigative action the district attorney's office took after Appellant implicated himself during his immunized testimony before the grand jury, ADA Ost-Prisco specifically testified as follows on cross- examination:
[Defense counsel,] you...[are] assuming that we took the focus off of Mr. Johnson and focused solely on [Appellant]. That's not the case. I was still focused on Johnson. I didn't know what Ms. Beckett was going to give me. For all I know, the testimony that was going to be produced was that while [Appellant] was there, he may have been involved in an assault. Johnson was still the shooter. I don't know what he said before the grand jury. I never found out. I don't want to find out today. But at the time I didn't know what happened, so we were still thinking that Johnson was the shooter. So, the focus didn't change from Johnson to [Appellant]. The focus was on both of them.
Chester County Detective Kevin Dykes testified that, on October 20, 2005, the day after Mr. Jennings was killed, he was assigned to investigate the homicide and, as of the date of the hearing, he was still actively involved in the investigation. N.T. 3/12/08 at 145. Detective Dykes was involved in the thirteenth grand jury's investigation into Mr. Jennings' homicide, and more specifically, it was his role to conduct interviews of possible witnesses.
N.T. 3/12/08 at 146. Regarding transcripts from the grand jury, Ms. Beckett's transcript was the only one reviewed by Detective Dykes. N.T. 3/12/08 at 146. He specifically testified that, aside from Ms. Beckett's testimony, he was unaware of any other information stemming from the grand jury's investigation of Mr. Jennings' homicide. N.T. 3/12/08 at 147. Regarding Appellant's involvement with the grand jury, the relevant exchange occurred during Detective Dykes' direct examination:
Q: Did you serve any subpoenas for the Jennings investigation? A: Yes, I did.
Q: Do you recall who you served? A: Yes.
A: I served [Appellant] via his attorney's office[.] I served him on October 20th of 2006 and Adrienne Beckett.
Q: Do you know whether [Appellant] did, in fact, testify? A: No, I don't.
Q: At some point, were you given any instructions concerning individuals involved with the thirteenth grand jury? A: Yes.
Q: What were those instructions?
A: I was instructed by my chief, Chief Albert DiGiacamo, and District Attorney Joseph Carroll that from that point forward, I was no longer to discuss the Jennings homicide with anyone who was involved with the grand jury.
Q: Do you recall when those instructions were given to you?
A: [S]ometime around November of '06. Q: Were you told the reason as to why? A: No.
Q: Did you ever violate those instructions? A: No, I did not.
Q: As of what date did you stop your communications with those individuals identified?
Q: Currently, are you maintaining those instructions? A: Yes.
N.T. 3/12/08 at 147-48. Detective Dykes discussed the fact that, whenever the Chester County Murder Task Force discussed Mr. Jennings' murder, individuals who had been involved with the thirteenth investigating grand jury were required to leave the room. N.T. 3/12/08 at 150. Such individuals included Deputy DA Kelly, Deputy DA Yen, ADA Hobart, and Detective Campbell. N.T. 3/12/08 at 150.
Detective Dykes was involved with Appellant's arrest. N.T. 3/12/08 at 150. In summarizing his investigation, Detective Dykes gave a chronological account of his findings. He testified that, on September 15, 2006, Ms.
Beckett informed the police that her son had heard "on the streets"
Appellant may have had "something to do with the death of Mr. Jennings."
N.T. 3/12/08 at 153. Moreover, on October 13, 2006, Mr. Fields told the police that Appellant told him Mr. Johnson had shot Mr. Jennings in retaliation for him stealing Appellant's gold chain. N.T. 3/12/08 at 155. In February of 2007, Detective Dykes met with Mr. Johnson, who informed the police he was a witness to the homicide of Mr. Jennings but that he would not give a statement until he had the opportunity to consult with his attorney. N.T. 3/12/08 at 156. During the meeting, Mr. Johnson said to Detective Dykes, "[T]his was all over a stupid chain." N.T. 3/12/08 at 156. Detective Dykes met with Mr. Johnson later in the month of February of 2007, at which time Mr. Johnson gave a detailed account of what transpired on the night Mr. Jennings was murdered. N.T. 3/12/08 at 157. In particular, Mr. Johnson implicated Appellant as shooting Mr. Jennings, who attempted to flee. N.T. 3/12/08 at 157. Mr. Johnson told the detective his girlfriend, Atya Shabazz, told him Ms. Beckett told her Appellant admitted he killed Mr. Jennings. N.T. 3/12/08 at 160. Mr. Johnson told Detective Dykes he was coming forward with information about the murder because, when he was incarcerated in the county prison on unrelated charges, a corrections officer told him that he was "being blamed" for killing Mr. Jennings. N.T. 3/12/08 at 160. Mr. Johnson decided to come forward to correct any misinformation, which may have been provided to the police. N.T. 3/12/08 at 161.
In February of 2007, Detective Dykes met with Ms. Shabazz, who confirmed Ms. Beckett had told her Appellant admitted he shot Mr. Jennings.
N.T. 3/12/08 at 161. Ms. Shabazz agreed to wear a body wire, and on February 21, 2007 and March 22, 2007, the police recorded conversations she had with Ms. Beckett. N.T. 3/12/08 at 162. On April 7, 2007, Detective Dykes watched a video recording of Mr. Jennings' funeral and he observed as Mr. Peoples placed an item, presumably Appellant's gold chain, in the coffin. N.T. 3/12/08 at 162-63. The police later exhumed Mr. Jennings' coffin and discovered inside Appellant's gold chain.
On April 26, 2007, Ms. Beckett made a statement to the police wherein she admitted Appellant was mad because his chain had been stolen. N.T. 3/12/08 at 167. A few hours after the murder, Appellant told her he "did what [he] had to do," and they drove to Maryland, where she saw Appellant place a plastic bag in a dumpster behind a strip mall. N.T. 3/12/08 at 167- 69. In October of 2007, Mr. Allen told the detective that, while he was in prison, Mr. Fields told him Appellant shot Mr. Jennings and he was attempting to place the blame on Mr. Johnson. N.T. 3/12/08 at 172.
After summarizing his investigation, Detective Dykes specifically testified he never discussed the murder of Mr. Jennings with anyone who had information concerning Appellant offering immunized testimony before the thirteenth investigating grand jury. N.T. 3/12/08 at 173.
On cross-examination, Detective Dykes confirmed that, as of early fall 2006, the police had statements from four people, who indicated Mr. Johnson had told them he had killed Mr. Jennings. N.T. 3/12/08 at 177. Detective Dykes testified that, initially, the police sought Appellant's cooperation because they believed Appellant had witnessed Mr. Johnson shooting Mr. Jennings. N.T. 3/12/08 at 177. Thus, with the expectation Appellant had been a witness to the shooting, "steps were put in motion to compel [Appellant] to testify before the grand jury[.]" N.T. 3/12/08 at 178.
Detective Dykes confirmed that, prior to October 1, 2006, police had approached Appellant's attorney asking him to encourage Appellant to cooperate as a witness to the shooting, and the "state of belief of the law enforcement community" was that Appellant was a witness but not the suspected shooter. N.T. 3/12/08 at 179.
Prior to the issuance of Appellant's subpoena, Detective Dykes, Detective Quinn, and Deputy DA Kelly knew Appellant was going to be compelled to appear before the grand jury to testify as to what he witnessed on the night of the murder. N.T. 3/12/08 at 179. Detective Dykes testified he served the subpoena upon Appellant for his grand jury appearance in October of 2006; however, he did not serve the subpoena upon Appellant for his November 16, 2006 grand jury appearance. N.T. 3/12/08 at 180.
Detective Dykes confirmed he knew Appellant had appeared before the grand jury and then "all of a sudden" he was directed not to speak to certain people regarding the investigation of Mr. Jennings' murder. N.T. 3/12/08 at 180-81. Detective Dykes testified he had no idea why he was not permitted to speak to these people about the murder; however, there were "a lot of thoughts that crossed [his] mind" as to why he could not speak to them any longer. N.T. 3/12/08 at 181. Appellant offering immunized testimony was "one of those thoughts." N.T. 3/12/08 at 181-82. The following relevant exchange then occurred:
Q: Did it become apparent to you that the investigation was changing direction after November of 2006?
Q: And who changed the direction?
A: At that time we had information that came forward, I believe, to us. And I don't think it was anybody in particular that told us. It was myself and Detective Quinn conducting interviews. Q: Can you identify a single interview that led you from your belief that Johnson had admitted to at least four people that he had done the shooting between November 16th, 2006 and, let's say, February 1st, 2007?
A: Some of the people we had interviewed probably, I would say, September to November, we had discovered were not truthful and forthcoming with their information.
Q: Tell the judge what happened between November 15th and February 1st that caused you to change the direction of your investigation.
THE COURT: Let's use years after the dates, because we are covering '06 and '07.
[APPELLANT'S COUNSEL]: I apologize, Your Honor. That's a fair request.
Q: Detective, identify for the judge what happened between November 15th, 2006 and February 1st, '07 to change the course and direction of your investigation, other than the fact that [Appellant] had testified with immunity before the grand jury. A: If I'm not mistaken, the task force, we were conducting multiple homicide investigations. Once we were told not to speak to these individuals, myself and Detective Quinn assumed something had taken place. And we at that point--that investigation sort of laid dormant until these issues could be resolved. That's what we were told.
Q: What's the next thing that happened that caused you to change the direction of your investigation?
A: I believe Mr. Johnson came forward.
Q: When Mr. Johnson came forward, he was the same Mr. Johnson who you believed was the shooter who had already confessed to four different people, right?
A: I didn't believe anything. It was based on information during the course of our investigation that led us in the direction. It wasn't a matter of what I believed.
Q: Here's what I'm troubled by. See if you can help me out. Before November 15th, 2006, you and other investigators believed that Johnson was the killer and he had confessed to at least four different people, correct?
A: Yes, we had obtained information to that effect.
Q: On November 16th, you assumed [Appellant] had testified with immunity before the grand jury. And you were told you were no longer allowed to talk to any of the people who knew what he said.
A: No, I did not know when [Appellant] actually testified before the grand jury until I actually saw in the newspaper from the article which you had published.
Q: Which I had published?
A: Well, which you were quoted by saying what was going on with the prosecution.
Q: You mean in which the motion that we filed was quoted. A: That's correct[.]
Detective Dykes testified that, at some point, ADA Ost-Prisco asked to be briefed about the murder of Mr. Jennings and they never discussed why he was reassigned to the case. N.T. 3/12/08 at 191-94.
On redirect examination, the following relevant exchange transpired:
Q: Sir, [Appellant's counsel] had asked you about your assumptions and I believe educated suspicions regarding the grand jury. Is that why you arrested [Appellant]? A: No.
A: Based on information we had developed during our investigation.
Q: And is that the information that you testified on direct examination as receiving?
Coatesville City Police Detective Martin Y. Quinn testified he has been involved in the investigation of Mr. Jennings' murder from the moment it occurred on October 19, 2005; however, he was neither involved in the grand jury investigation nor reviewed any grand jury transcripts. N.T. 3/12/08 at 204-05. He indicated his awareness that the grand jury convened in the latter part of 2006, Appellant was subpoenaed to testify, and at some point, his chief informed him at a task meeting that "a Chinese Wall [had been] erected." N.T. 3/12/08 at 204-07. His chief did not tell him why the "Chinese Wall" had been erected; however, he was ordered not to speak with certain detectives and members of the District Attorney's Office about Mr. Jennings' murder. N.T. 3/12/08 at 208. Detective Quinn never violated his chief's instructions and continued investigating the murder without ...