Appeal from the Judgment of Sentence entered July 14, 2009, in the Court of Common Pleas of Delaware County, Criminal, at No. CP-23-CR-0002312-2008.
The opinion of the court was delivered by: Opinion BY Allen, J.:
BEFORE: STEVENS, P.J., SHOGAN, and ALLEN, JJ.
Shataan Adams ("Appellant") appeals from the judgment of sentence imposed following his convictions for second-degree murder, burglary, aggravated indecent assault, and criminal conspiracy to commit robbery.*fn1 We affirm the trial court's determination that Appellant's constitutional right to silence was not violated in this case. We also conclude that the Commonwealth presented sufficient evidence to support Appellant's aggravated indecent assault conviction. However, we find that the trial court imposed an illegal sentence, and therefore we vacate the judgment of sentence and remand for resentencing.
The trial court summarized the pertinent facts as follows:
This case arises from the murder of, [the victim]. The events culminating in [the victim's] death are as follows. At the time of the incident, the [victim's] family lived [in the Highlands Garden area of the City of Chester, Delaware County]. In August of 2007, the [victim and his] family purchased a Lincoln Navigator, which subsequently developed mechanical malfunctions. The dealership from which the vehicle was purchased loaned the [victim and his family] approximately four vehicles between August and September 2007, since the
Navigator was covered under a full warranty. The ephemeral nature of these multiple vehicles, in addition to [the victim's] visibly Rastafarian ideology seemingly piqued the interest of the neighborhood. Appellant and co-defendants Byron Hammond and Charles Redfain, all residents of the Highland Gardens area, were particularly intrigued by [the victim's] activities. On multiple occasions, Dyeisha Wallace - a neighbor of the [the victim and his family] - overheard Hammond and Redfain discuss robbing [the victim]. On one particular occasion, while the [the victim and his family] drove down the street, Hammond commented to Redfain, "Damn, they can't figure out what kind of car they want to keep," and also articulated his intention to rob them.
On approximately September 21, 2007, an altercation occurred between [the victim] and Redfain. Redfain approached [the victim], and the two proceeded to smoke marijuana together. As Redfain reached for one of [the victim's] rolling papers, a fight broke out and the two began wrestling. At some point following this quarrel, Redfain went to Ms. Wallace's house to inquire about the [the victim's] vehicle situation. Redfain also testified that on separate occasions he had clocked [the victim's] movements: gauging when he entered and departed his household, and observing the types of vehicles he drove. Also, the three men had allegedly been planning to steal marijuana and money from the [the victim's] residence, and to split up the proceeds in equal shares.
The day in question, September 27, 2007, was an atypical day for the [victim's] family, and one which would forever change the composition of their household. [M.B.], wife of [the victim] and a full-time school teacher in the Philadelphia School District, attended back-to-school night at her place of employment. [The victim] picked up [M.B.] around 8:00 p.m.; when they arrived home, Clive Cummings - a lifelong friend of [the victim's] who he had not seen in a few months - greeted them. At approximately 8:45 p.m., Cummings and [the victim] left in Cummings' car to get gasoline and reminisce, while [M.B.] went into the family's home and attended the nighttime routine for their young children.
Unbeknownst to the [victim's] family, [Appellant],
Hammond, and Redfain were simultaneously plotting a robbery of the [victim's] home. On September 27, 2007, Redfain and [Appellant] were hanging out - smoking marijuana and drinking beer - on the side of "John John's house", located on Price Street. As nighttime approached, Hammond approached and exclaimed to the other, "It's about to go down." Hammond gave Redfain a shotgun, and [Appellant] gave Redfain a mask.
Hammond and [Appellant] each possessed firearms of their own.
The testimony of Ms. Wallace corroborated the group's intention to rob the [the victim]. On her walk home from work, at approximately 8:30 p.m., Ms. Wallace passed by "John John's" and observed several notable occurrences on Price Street. She noticed Redfain dressed in all black attire. She also noticed Hammond approach him wearing a black hooded sweatshirt, which she found peculiar due to the warm summer weather. [Appellant] approached the two. Redfain then inquired, "Are you all ready?" to which Hammond responded, "Nigger are you ready?" Hammond then asked [Appellant] "Are you in this with us?" Ms. Wallace then witnessed the group walk down Price Street towards the [victim's] home, where she lost sight of them.
At approximately 10:00 p.m., after [M.B.] had bathed her children; she was lying in her bed with them when she heard a loud noise downstairs. This was the thunderous crack of Hammond kicking in [her] back door. Complete mayhem ensued as [Appellant], Hammond and Redfain entered the [victim's] residence. As [M.B.] peered downstairs, she "saw three men coming up the stairs with guns." Hammond then yanked [M.B.] by her hair, away from her children, and pulled her downstairs to the kitchen area. Hammond placed [M.B.] face down on the kitchen floor, striking her repeatedly, and continually demanding that she produce money and marijuana. Although [M.B.] gave the perpetrators $160 and explained that she did not have any drugs, [Appellant] and Redfain ransacked the first floor of the [the victim's] residence, searching for drugs and money, while Hammond controlled her and demanded more money. At some point during the burglary, once [Appellant] and Redfain had returned to the kitchen, [M.B.]'s panties were ripped off, and Redfain digitally penetrated her.
Even though she was on the floor, [M.B.] was able to discern the appearances - the facial features, clothing, and hairstyles - of the three individuals in her home, since the kitchen was illuminated by the living room and utility room lights. [M.B.] observed three African American males: one individual wearing a ski mask and dark clothing pointing a shotgun; one individual with lighter skin and of shorter stature than the others, with small twists in his hair, holding a handgun; and a darker-skinned individual wearing a bandana and a baseball hat, also carrying a small handgun.
During this period of turmoil, Cummings and [the victim] arrived back at the [victim's] home in Cummings' truck. Inside the house, [Appellant] alerted the other perpetrators that [the victim] had arrived and ordered them to "tie the bitch up." The three intruders then prepared to ambush [the victim] once he entered. [Appellant] shut off the utility room light, Hammond shut off the kitchen light, they attempted to place [M.B.] in the back yard, and positioned themselves in the dark with their weapons drawn. Concerned for the safety of her husband, [M.B.] freed herself from the grip of one of her captors, punched her right hand through a window, and screamed out in order to alert [the victim] not to come inside. As [M.B.] ran out of the front door screaming, [the victim] grabbed Cummings' firearm; [M.B.] entered the passenger side of Cummings' vehicle simultaneously to the sound of gunshots fired from the residence. As Cummings observed the muzzle flashes of firearms emanate from the front door of the [victim's] home, he sped off with [M.B.] in the passenger seat, leaving [the victim] behind. Redfain and Hammond continued to discharge their firearms at [the victim]. While circling the block in his vehicle, Cummings called 9-1-1. When Cummings and [M.B.] arrived back at the [victim's] residence, they observed [the victim] lying on the ground, suffering from a bullet wound to the head.
Dr. Frederic Hellman, admitted as an expert witness in forensic pathology on behalf of the Commonwealth, conducted an autopsy of [the victim] and subsequently prepared a post-mortem report and medical examiner findings. Dr. Hellman testified that to a reasonable degree of scientific certainty, [the victim's] cause of death was a single gunshot wound to the head, and he determined the manner of death to be homicide.
Trial Court Opinion, 12/8/2010, at 1-6 (footnotes and citations to notes of testimony omitted).
On May 8, 2009, following a trial during which Appellant did not testify on his own behalf, a jury found Appellant guilty of the aforementioned crimes. On July 14, 2009, the trial court sentenced Appellant to life imprisonment on the charge of second-degree murder, a consecutive twenty years for robbery, and a consecutive ten to twenty years for burglary. Appellant filed a timely notice of appeal. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Did the trial court commit error and abuse of discretion in allowing testimony of Appellant's pre-arrest invocation of his right not to incriminate himself?
2. Was the Appellant's conviction for the crime of indecent assault, based on insufficient evidence?
3. Did the trial court impose an illegal sentence for the crime of burglary, the underlying felony for Appellant's Second Degree Murder (felony murder) conviction, where the sentence was imposed consecutively to the sentence for Second Degree Murder?
1. Appellant's Constitutional Right to Silence
In his first issue, Appellant challenges the trial court's admission of testimony from Sergeant John Gretsky of the Chester Police Department, concerning Appellant's pre-arrest refusal to speak with Sergeant Gretsky when the sergeant attempted to interview him. Appellant's Brief at 15-22. Appellant argues that Sergeant Gretsky's testimony and the Commonwealth's subsequent references thereto, violated Appellant's right to remain silent pursuant to Article 1 § 9 of the Pennsylvania Constitution and the Fifth Amendment of the Constitution of the United States. Appellant also contends that the testimony was highly prejudicial, and that its admission did not constitute harmless error. Id. at 2.
Appellant expressly challenges the following testimony:
Assistant District Attorney:
Assistant District Attorney:
Assistant District Attorney:
Assistant District Attorney:
During your investigation, did you have the occasion to locate [Appellant]?
And did you attempt to interview [Appellant]?
Yes we did; however, he didn't want to speak to us at that time.
Did you identify yourselves as law enforcement?
Yes. We identified ourselves and told him that we'd like to interview him in reference to the [victim's] homicide and that his name came up in the matter.
And in response to that what ...