Appeal from the Judgment of Sentence, February 14, 2011, in the Court of Common Pleas of Northumberland County Criminal Division at No. CP-49-CR-0000899-2008
The opinion of the court was delivered by: Ford Elliott, P.J.E.:
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.
OPINION BY FORD ELLIOTT, P.J.E.:
Michael Anson Harrell appeals from the judgment of sentence of February 14, 2011, following his conviction of two counts of first degree murder and related offenses. We affirm.
The trial court has summarized the history of this case as follows:
At approximately 1:00 a.m. on January 18th, 2008, Amy Baney called 911 to report a shooting at the residence of 226 North Fourth Street. She identified the shooter as "Mike" on the phone. Two Sunbury police officers were dispatched to the scene. The witness would again identify the shooter as "Mike" and told the officers he was a black male. The witness told police that "Mike" had used a "long gun; a rifle." She also informed the officers that he had fled the scene by running through the backyard.
Inside the home the officers discovered a haze in the air. The officers identified the haze as smoke and smelled gunpowder. Through the living room into the kitchen, the officers discovered the body of the first victim, David Moore. The black male was lying face down, motionless. The officers checked Mr. Moore for possible signs of life, however there were none. The officers then proceeded upstairs. At the far end of the upstairs hallway, the officers noticed a wedged door and a pool of blood creeping out from under the door. They entered the blocked room through a door in the closet of an adjacent room. They discovered a young female, Crystal Gordon, propped against the door. After checking her vitals, the officers determined there were no signs of life.
As they continued their sweep of the area, the officers discovered footprints in the light snow covering of the early morning. One of the officers is a trained K9 officer, and he had his dog, Rocky, with him in his cruiser. As other officers arrived on the scene, the K9 unit was taken to the footprints at the back of the house. As the dog picked up the scent, the tracking began. The dog tracked the footprints over a significant distance. The officers were reassured they were on the right track as they repeatedly took notice of footprints along the way which looked similar to those footprints at the crime scene. At the intersection of Race Street and Eighth Street, Rocky stopped tracking. The Commonwealth concedes it does not know why the dog ceased tracking. Possible explanations included that the dog was tired, it expected a reward, the scent was faint or gone, or the track stopped.
The tracking officer called another Officer to the scene. This officer also had a K9 unit with him. Rocky was taken up Race Street. The new K9 unit proceeded down Eighth Street. For about half a block, the second K9 unit wandered from one side of the street to the other, presumably looking for a scent. Finally, the K9 put its head to the ground and began tracking, with the officers being drug [sic] along. The Officer testified that as the dog was tracking, he was looking for footprints, however the snow had long since melted in the center of the street. As the dog turned into an alley, footprints did appear in the snow. The escorting officer would testify that the footprints he observed in the alley way looked very similar to those at the crime scene.
The K9 unit continued to track until he got to Fairmount Avenue. There the dog traveled up the steps and onto the porch of the house at 19 Fairmount. The officers retreated with the dog, down the block to the parking lot of Alexander Motors. Other officers from throughout the area were then called to the scene. At about 2:30 a.m., an individual emerged from the house.
An officer on scene recognized the individual and identified him as Michael Harrell to the other officers. At that point, the officers approached, they instructed Mr. Harrell (hereafter Appellant) to get on the floor of the porch, and he complied. He was then taken into custody. At that point, a female[*fn1 ] emerges from the dwelling and was temporarily taken into custody. She was asked if anyone else is in the house. She responded that there are children in the house. The officers conducted a protective sweep of the house to ensure that no other individuals who might be armed and dangerous are in the house. They removed the children from their bedroom and collect[ed] them in the front room of the house, along with the female. Finding no one else, the officers remained on scene while application was made for search warrants for the house. While conducting the sweep, the officers noticed a large blue tub in the kitchen, and the stove with glowing elements. There appeared to be water in the tub along with a pair of black sweat pants.
Appellant, at this time, was in violation of his parole as both the Omnibus Hearing Testimony of Officer Hare and the evidence in the record shows. There was also testimony concerning his failure to appear at a scheduled hearing and a bench warrant being issued for his arrest as a result. The testimony included a conversation held between Appellant and Officer Hare concerning Appellant's decision to leave the state after his failure to appear.
As Appellant was being taken to Sunbury Police department, he made a statement to Officer Hare that all he had done was "break her f***ing jaw, and I'm in custody for that." He was then placed in the holding cell at Sunbury PD.
At the same time, the lead investigators in the case were dispatched to the crime scene where they interviewed the eye witness and thoroughly reviewed the crime scene.
Appellant was observed at various times throughout the morning lying down on the bench in the holding cell. There was testimony that Appellant was provided a piece of pizza later in the day with a cup of water, but the pizza remained untouched. Appellant denies this event took place and maintains that he was denied a trip to the restroom and was ignored when asked what would happen to him.
From 8:30 a.m. to 9:44 a.m., the lead investigators were interviewing the eye witness to the murders in an attempt to settle some issues which had come to light from the information received from the witness. The investigators then decided to show the eye witness a photo lineup. A lineup was constructed, and consisted of eight photographs of eight black men. See Commonwealth's Exhibit #148. The lineup was given to the witness at 9:44 a.m. Prior to receiving the lineup, the witness was instructed to pick out the person who shot David Moore and Crystal Gordon, if that person was present in the photo lineup. She was also instructed that if that person was not present in the lineup, that she should not pick someone out. The investigator looked at his watch after he handed her the lineup. His testimony is that it took Amy Baney exactly 12 seconds to identify the picture of the defendant in the lower left corner of the exhibit. That photograph was, in fact, a picture of the Appellant.
At approximately 10:35 a.m. the morning of January 18th, Appellant was taken into an interview room. The lead investigators identified themselves, showed Appellant their identification, and informed him they were investigating the murders of David Moore and Crystal Gordon. He was asked if he could read and write the English language, and Appellant acknowledged that he could.
The lead investigator, Corporal Bramhall, then placed the Miranda Warning form in front of Appellant. See Commonwealth's exhibit #276.
Corporal Bramhall told the Appellant he was free to read along, and then the Corporal read aloud the rights and warning form to the Appellant. The Corporal would testify that it appeared to him that Appellant was reading along. Prior to giving the rights and warning form to Appellant, the Corporal filled out the particulars on the form, including Appellant's name, date of birth, the time and date, the location of the interview, and the Corporal's name. After reading the rights and warning portion of the Miranda Warnings, the waiver statement was read aloud to Appellant by Corporal Bramhall. When Appellant was asked if he understood those rights and the waiver, he acknowledged that he did. When Appellant was asked if he'd be willing to talk to the police, Appellant acknowledged that he would. He was asked if he had any questions, he indicated he did not. He was asked to sign the form, and he did. Then the interview commenced.
Appellant denied his involvement with the murders. Corporal Bramhall asked him then to recount his activities from the previous day, and Appellant complied. What is noteworthy about Appellant's recollection of his daily activities is that he includes specific times -- down to the minute -- that he conducted his normal activities. This was the narrative portion of the interview.
At approximately 12:30 p.m., Appellant was informed by Corporal Bramhall that they did not believe his account of his prior day's activities, and that they knew that he had killed both David and Crystal, they just didn't know why. See Omnibus Pre-trial Transcript pg. 44. The officers had amassed a great deal of information from the eye witness to the murders and from the female living with Appellant at the residence on Fairmount Avenue. After being confronted with this information, Appellant admitted to the murders. He then gave the officers a statement. The Appellant indicated that he used a .30 caliber carbine, .30 caliber carbine rounds, and fifteen rounds were fired. Fifteen shell casings were recovered at the scene of the crime.
Following that, he was asked to give a written statement. He agreed and was given a written statement form. The officers then left the room and Appellant wrote for a short time. He then sat without writing for a time, then wrote again, and then sat again. He then ripped up the statement. The Corporal entered the room, recovered the ripped pieces of paper, and reconstructed them. See Commonwealth's Exhibit #274. The statement reads, "I, Michael Harrell state the following: I went to Amy's house and was involved in an altercation with the deceased."
The officers asked Appellant to give another written statement. He complied and wrote "I will take the needle. I want to take the needle. Nothing is worse than this much grief or pain. I would like to take the time and get it over with at the earliest time, like tomorrow or right now," and initialed the document, M.H. The officer then wrote a question,
"Why do you want to take the needle?"
Appellant replied, "Maybe the next life will be better," and initialed again.
The officer wrote, "Did you kill someone today?"
Appellant replied, "Yes," and initialed. The officer wrote, "Who did you kill?"
Appellant responded, "David and Crystal," and initialed.
The officer wrote, "How did you kill them?"
Appellant refused to answer. He was asked to give a taped statement and he refused.
As officers executed three warrants on the residence at Fairmount Avenue, they recovered several items of interest. A sneaker was recovered which belonged to the Appellant. The tread mark was analyzed and matched the tread mark in the footprints in the snow indicating defendant had, in fact, been at Amy Baney's house. DNA evidence was recovered from the bullet casings, though it was not a positive match it gave a percentage of exclusion with regard to the individuals in the population and the defendant. There was testimony that the DNA on the casings was consistent with the Appellant's DNA to the exclusion of over 90 percent of the population.
The Appellant and eye witness both gave accounts that other individuals were present at the crime scene. However, through police investigation, the presence of any of the individuals that either Appellant, or the eye witness indicated, was definitively ruled out -- as there was testimony that each of the individuals were observed the night of the murder in another location.
While Appellant was housed at Northumberland County Prison, his girlfriend visited him. A prison guard, sitting eight feet away, testified that he heard Appellant admit the killings to his girlfriend. Another guard would testify that he heard the Appellant state that the Commonwealth would never find the murder weapon.
A forensic pathologist testified that David Moore had seven areas of gunshot wounds. He would also testify that Crystal Gordon had seven areas of gunshot wounds through her body. His opinion, to a reasonable degree of medical certainty, was that the bullet paths line up if Ms. Gordon was in a crouched position, with her hands over her head. This position is inconsistent with Appellant's contention during his oral statement to police that the victim was armed with knives when he shot her.
The eye witness gave several differing accounts of the events that transpired in the early morning of January 18th, 2008. Her accounts included various individuals being present, who were, in fact, not present. However, through all of her ...