Appeal from the Judgment of Sentence October 28, 2008 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0015137-2007
The opinion of the court was delivered by: Gantman, J.:
BEFORE: STEVENS, P.J., BOWES, J., GANTMAN, J., PANELLA, J., SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and WECHT, J.
Appellant, Duane Bedford, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for first-degree murder and possession of an instrument of a crime ("PIC").*fn1 Appellant presents several questions for our review, composed of challenges to the sufficiency of the evidence, the court's decision to deny a mistrial, the admission of character evidence, and alleged prosecutorial misconduct. We hold: (1) evidence showing that Appellant shot Sam Brown ("Victim") in the head at close range sufficiently established Appellant acted with specific intent to kill; (2) Appellant was not entitled to a mistrial based on purported hearsay testimony because the statements did not unduly prejudice him; (3) Appellant waived his evidentiary issue by failing to preserve it at trial; and (4) Appellant's numerous assertions of prosecutorial misconduct are unpersuasive because none of the alleged instances resulted in undue prejudice to Appellant's fair trial rights. Accordingly, we affirm.
The relevant facts and procedural history of this case are as follows. Sam Brown knew Appellant, as both men lived on the same block in Southwest Philadelphia, and hired Appellant sometime in 2005 for a construction job. Appellant did some of the work and Victim paid some of the money owed, but a dispute arose before the job was completed. The total amount at issue was $900.00, and Victim refused to pay it. The two men just avoided each other for a time, but the conflict resurfaced on May 26, 2006, when Victim discovered the windows of his car had been smashed. Victim suspected Appellant and, two days later, went to the home of Frances Quitman to confront Appellant. When asked about the car, Appellant told Victim, "I'll talk to you outside about it." As the two men walked to the front porch, Appellant reached out to grab Victim, who shoved Appellant away. Moments later, Appellant pulled a handgun from his waistband and shot Victim three times.
Victim was transported to the Hospital of the University of Pennsylvania and died there approximately one hour after the shooting.
Appellant fled the scene and the Philadelphia area entirely. Police eventually located and captured Appellant in York, PA, after a year-long search that featured a profile of Appellant on the television show America's Most Wanted. Appellant had changed his appearance and was living in York under a new name and with a new family.*fn2
Following his capture in York, police charged Appellant with first- degree murder, PIC, and numerous other offenses. The case proceeded to a jury trial, where Appellant claimed self-defense and attempted to paint Victim as the aggressor. Specifically, Appellant stated he opened fire because Victim was beating him from behind with a metallic object, which Appellant believed was a weapon. In rebuttal, the Commonwealth called Police Sergeant Sean Butts, a longtime friend of Victim, who testified to Victim's peaceable nature. Defense counsel objected to this testimony solely on the grounds of relevance. The court overruled the objection and permitted Sgt. Butts to testify. The jury found Appellant guilty of first- degree murder and PIC. The court sentenced Appellant to life imprisonment on the murder charge and a concurrent sentence of two and a half to five years' imprisonment for PIC.
Appellant timely appealed and a three-judge panel of this Court vacated and remanded for a new trial on the ground that the court erred when it allowed Sgt. Butts to give "character evidence not in the form of reputation testimony." The panel further concluded the error was not harmless, primarily because Appellant raised self-defense, making Victim's reputation for peacefulness a critical issue. The Commonwealth sought en banc reconsideration, which this Court granted on October 20, 2011.
Appellant raises five issues for our review:
IS APPELLANT ENTITLED TO AN ARREST OF JUDGMENT ON ALL CHARGES WHERE THE EVIDENCE, AS HERE, IS NOT SUFFICIENT TO SUSTAIN THE VERDICT?
IS APPELLANT ENTITLED TO A NEW TRIAL AS THE RESULT OF COURT ERROR WHERE THE COURT PERMITTED BLATANT HEARSAY WHICH ESTABLISHED THAT SOMEONE IN THE NEIGHBORHOOD HAD SAID THAT APPELLANT SHOT AND KILLED VICTIM?
IS APPELLANT ENTITLED TO A NEW TRIAL AS THE RESULT OF COURT ERROR WHICH PERMITTED SERGEANT BUTTS TO OFFER EVIDENCE OF GOOD CHARACTER OF [VICTIM] WHERE SAME WAS IMPROPER AND WAS OFFERED IMPROPERLY THROUGH THE FORM OF PERSONAL OPINION?
SHOULD APPELLANT BE AWARDED A NEW TRIAL AS THE RESULT OF PROSECUTORIAL MISCONDUCT DURING THE COURSE OF TRIAL, AND WHERE THE PROSECUTOR REFERRED TO EVIDENCE NOT OF RECORD, REFERRED TO HEARSAY, AND ASKED A PARTICULAR QUESTION ONLY TO UNFAIRLY PREJUDICE THE JURY?
SHOULD APPELLANT BE AWARDED A NEW TRIAL AS THE RESULT OF PROSECUTORIAL MISCONDUCT (A) DURING CROSS-EXAMINATION OF APPELLANT; (B) DURING CLOSING ARGUMENT WHERE THE PROSECUTOR ALLUDED TO EVIDENCE NOT PRESENTED; AND (C) WHERE THE PROSECUTOR BRANDED APPELLANT A LIAR?
(Appellant's Brief at 3).
Appellant first argues there was insufficient evidence to support his conviction for first-degree murder. Specifically, Appellant contends the Commonwealth failed to prove he acted with specific intent to kill, mostly due to Appellant's belief that Victim was the aggressor and came looking for Appellant "with hardness of heart." Appellant claims the Commonwealth's evidence was entirely lacking on this element, and without his own decision to testify in self-defense, there would have been no evidence that Appellant even shot Victim. Appellant concedes the jury was free to disbelieve his version of events, but he reasons the jury cannot find him guilty solely because they disbelieved him. According to Appellant, he should receive a new trial because the jury convicted him for an impermissible reason. We disagree.
When reviewing a challenge to the sufficiency of the evidence, we must regard all the evidence in the light most favorable to the verdict winner, giving that party the benefit of all reasonable inferences. Commonwealth v. Torres, 564 Pa. 219, 223, 766 A.2d 342, 344 (2001). Additionally, an appellate court does not weigh the evidence or substitute its judgment for that of the fact-finder. Commonwealth v. Flamer, 848 A.2d 951, 953 (Pa.Super. 2004), appeal denied, 580 Pa. 711, 862 A.2d 1253 (2004). A person is guilty of first-degree murder where the Commonwealth proves that (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. 18 Pa.C.S.A. § 2502(a), (d); Commonwealth v. DeJesus, 580 Pa. 303, 308, 860 A.2d 102, 105-06 (2004). 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.A. § 2502(d). Specific intent to kill can be inferred from the use of a deadly weapon on a vital part of the victim's body. DeJesus, supra at 308, 860 A.2d at 106. In the present case, the jury heard testimony that Appellant and Victim were involved in a dispute over $900.00 and the broken windows in Victim's car. Victim went to confront Appellant at the home of Frances Quitman. Appellant was drinking there, using cocaine, and carrying a .38 caliber handgun. Appellant had boasted earlier in the evening that he "always be packing" and "jokingly" threatened to shoot Andre Johnson, a friend of Ms. Quitman. When Victim arrived, Appellant invited him outside to discuss the broken car windows. Shortly after both men left the house, witnesses inside heard gunfire and ran to the front porch, where they saw Victim bloodied with bullet wounds to his face and leg. Appellant claimed his actions were justified because Victim began to beat Appellant from behind with a metal object that Appellant thought was a gun. Appellant then pulled out his handgun and, in his words, "let go three quick rounds," two of which struck Victim and killed him. Police responding to the scene did not find a weapon, or any metal object that could have been used as a weapon, on or near Victim's body.
On this record, a reasonable jury could conclude Appellant committed first-degree murder. Appellant possessed a gun on the night of the shooting and joked about using it. He also admitted in his trial testimony that he argued with Victim and fired three shots at Victim at close range. One shot struck Victim in the head and caused his death. These facts, viewed in the light most favorable to the Commonwealth, were sufficient to establish Appellant acted with specific intent to kill.*fn3 See Commonwealth v. Pagan, 597 Pa. 69, 84, 950 A.2d 270, 279 (2008), cert. denied, 555 U.S. 1198, 129 S.Ct. 1378, 173 L.Ed.2d 633 (2009) (holding evidence showed defendant acted with specific intent to kill where he shot his victim in head, which is vital part of human body). Appellant presented a claim of self-defense at trial, but the jury evaluated his credibility as a witness and rejected his justification defense.*fn4 Appellant's assertion, that if his testimony had been believed, the jury would have acquitted him, is actually a challenge to the weight of the evidence, not its sufficiency; and we decline Appellant's invitation to reweigh the evidence on appeal. Here, the Commonwealth presented sufficient evidence in this case to prove first-degree murder. Although Appellant seeks to re-litigate the jury's credibility findings on his self-defense claim, his attempts are unsuccessful.
In his second issue, Appellant claims the trial court should have declared a mistrial based on certain hearsay testimony from a Commonwealth witness. The testimony at issue came from Jenine Jones, who testified that Frances Quitman told her, "[Appellant] just shot [Victim] and killed him." In Appellant's view, this testimony was crucial to the Commonwealth's case because it tended to prove Appellant shot Victim without provocation. Appellant acknowledges the court sustained his timely objection to this testimony and promptly issued a cautionary instruction to the jury. Appellant further concedes that he took the stand and admitted shooting Victim, albeit in self-defense. Nevertheless, Appellant concludes Ms. Jones' testimony was so prejudicial as to require a mistrial because the jury could have used it to disbelieve Appellant's claim that Victim was the aggressor. We disagree.
We review the trial court's decision to deny a mistrial for an abuse of discretion. Commonwealth v. Boone, 862 A.2d 639, 646 (Pa.Super. 2004). A mistrial is necessary only when "the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict." Commonwealth v. Parker, 957 A.2d 311, 319 (Pa.Super. 2008), appeal denied, 600 Pa. 755, 966 A.2d 571 (2009). A mistrial is inappropriate where cautionary instructions are sufficient to overcome any potential prejudice. Id.
In the present case, Jenine Jones testified that she heard a scream at Frances Quitman's house and ran to investigate. Ms. Jones reached Ms. Quitman's porch and saw Victim, whom she described as "shot up...foaming, shaking, from the mouth." (See N.T. Trial, 8/18/08, at 148.) Ms. Jones attempted to console Victim's wife and call the police. When she asked Ms. Quitman what had happened, Ms. Quitman replied, "[Appellant] just shot him and killed him." Id. At that point in the testimony, Appellant objected; the court sustained his objection and immediately instructed the jury to "disregard anything that the witness said that someone else said." Id.
Appellant's bald claims of prejudice do not afford him relief. The court not only sustained Appellant's objection to Ms. Jones' hearsay testimony, the court also unequivocally told the jury to disregard it. We can presume the jury followed the court's instructions and Appellant is unable to show otherwise. See Commonwealth v. Mollett, 5 A.3d 291 (Pa.Super. 2010), appeal denied, 609 Pa. 686, 14 A.3d 826 (2011) (stating jury is presumed to follow court's instructions).
Appellant's assertions of gross prejudice are also misguided, given his own admissions at trial. Both Appellant and Ms. Jones stated Appellant shot and killed Victim--Appellant asserted he did so in self-defense, while Ms. Jones was merely silent on that point. Appellant draws a straight line from Ms. Jones' silence to prejudice and treats Ms. Jones' testimony as the sole cause of his guilty verdict. Our review shows otherwise. Ms. Jones' testimony left open the central issue of Appellant's defense--provocation-- and allowed the jury to reach its own conclusion based on the totality of the evidence presented, including the credibility of all witnesses. The verdict shows the jury resolved the justification issue against Appellant, and his current attempt to pin his conviction solely on a single piece of testimony, which the court instructed the jury to disregard, is entirely without support. For these reasons, Appellant's second issue fails.
In Appellant's third issue, he objects to the form of character testimony offered by Sgt. Sean Butts, a Philadelphia Police Officer and longtime friend of Victim. Appellant believes Sgt. Butts' testimony was improper because he expressed his opinion regarding Victim's character for peacefulness. Appellant states the Pennsylvania Rules of Evidence permit character testimony only in the form of reputation, rendering Sgt. Butts' opinion testimony inadmissible under the applicable rules. Appellant concludes the court's error in overruling his objection and permitting Sgt. Butts' testimony was so significant that it requires a new trial. We disagree.
As an initial matter, "A party complaining, on appeal, of the admission of evidence in the court below will be confined to the specific objection there made." Commonwealth v. Cousar, 593 Pa. 204, 231, 928 A.2d 1025, 1041 (2007), cert. denied, 553 U.S. 1035, 128 S.Ct. 2429, 171 L.Ed.2d 235 (2008). If counsel states the grounds for an objection, then all other unspecified grounds are waived and cannot be raised for the first time on appeal. Commonwealth v. Arroyo, 555 Pa. 125, 142, 723 A.2d 162, 170 (1999); Commonwealth v. Stoltzfus, 462 Pa. 43, 60, 337 A.2d 873, 881 (1975) (stating: "It has long been the rule in this jurisdiction that if the ground upon which an objection is based is specifically stated, all other reasons for its exclusion are waived, and may not be raised post-trial"); Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa.Super. 2003), appeal denied, 577 Pa. 694, 845 A.2d 816 (2004) (stating party must make timely and specific objection to preserve issue for appellate review).
Instantly, the Commonwealth offered Sgt. Butts as a rebuttal witness, and the court allowed for an offer of proof. The following exchange occurred:
[THE COMMONWEALTH]: Sergeant [Sean] Butts [whom] I indicated to counsel before for purposes of discovery that he knew [Victim] personally for 13 years, and he would just testify that he had never known [Victim] to be a violent person, never to carry a weapon, never to be physical, and that's it.
[DEFENSE COUNSEL]: I would object to it. I don't think it's relevant. If you want me to expand on his prior history in terms of whether he was a nice guy or a peaceful person, I don't think it's of [any] moment at this point. We're dealing with what happened on that particular day.
[THE COMMONWEALTH]: [Appellant] has put it at issue by making a claim that he was violent and overly aggressive or physical. It's simply to rebut that.
[DEFENSE COUNSEL]: Again, I believe it's of no moment as to his prior history. There's no evidence in this record to indicate that [Victim] had any violent propensities in the past. All we're talking about is that particular day at that particular time. That's what [Appellant] testified to, that he was assaulted at that time. Whether this man may have never assaulted anybody in his life before or was a peaceful person, never carried a gun, I don't believe is relevant to the issues...which is what happened on that moment, on that date.
[THE COURT]: We'll allow it and just address it with the appropriate point for charge if you feel it necessary. The [c]court has determined [Victim's] character was brought into issue during the ...