Appeal from the Judgment of Sentence November 29, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003924-2010
The opinion of the court was delivered by: Stevens, P.J.
BEFORE: STEVENS, P.J., WECHT, J., and COLVILLE, J.*fn1
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County after a jury convicted Appellant Willie James of second-degree murder,*fn2 robbery,*fn3 conspiracy,*fn4 and possessing an instrument of crime (PIC).*fn5 Appellant claims the trial court violated his rights under the Confrontation Clause pursuant to the U.S. Supreme Court's decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968)*fn6 when it admitted the redacted confession of his non-testifying co-defendant which implicated Appellant as a participant in the relevant crimes when linked with other evidence presented at trial. Appellant also claims the prosecutor made an improper remark during her closing argument that negated the redaction. We affirm.
Appellant was charged with the aforementioned offenses in connection with a shooting that occurred on May 31, 2006 on the 1700 block of Mascher Street in Philadelphia. When Philadelphia Police Officer Michele Winkis arrived on the scene, she found a white male lying face up in the street. After Officer Winkis discovered the man did not have a pulse, she called for an ambulance. The victim, who was identified as Robert Mitchell Harris ("the victim"), was transported to Hahnemann University Hospital where he was pronounced dead. The autopsy revealed the victim's cause of death was a fatal gunshot wound to his back as the bullet traveled through the victim's body and punctured his aorta. From the location of the bullet wound and the position of the victim's body, examiners inferred that the victim tried to run away from his attacker and then fell backwards after being shot.
Nearly two years later, Darren Cunningham was arrested on unrelated charges. Cunningham gave several statements to the police indicating that he and two of his friends were involved in the shooting of the victim. Cunningham identified the two men as Randall Singletary and Appellant, who were cousins. Cunningham revealed that he and Appellant approached a man on the street, held him up at gunpoint, and Appellant shot the victim when he tried to run away. Although Cunningham confessed that the men planned to rob the victim, he claimed he did not know Appellant would harm the victim. Immediately after the shooting, Cunningham and Appellant jumped back in their vehicle and told Singletary to drive away. When the men read in the newspaper that the victim had died, they agreed to keep their involvement a secret. However, Cunningham told police that Appellant had bragged about the homicide, asserting he had "put work in." N.T. Trial, 10/5/11, at 146. The Commonwealth offered to allow Cunningham to plead guilty to third-degree murder, robbery, and conspiracy if he cooperated with the prosecution in testifying against Appellant and Singletary.
Appellant and Singletary were subsequently arrested and charged with the victim's murder. The two men proceeded to a joint jury trial, where both Appellant and Singletary chose not to testify. Prior to trial, the trial court ruled that the Commonwealth would be permitted to introduce a statement given by Singletary under the co-conspirator exception to the hearsay rule. However, the trial court required the Commonwealth to redact the statement to remove all references to Appellant to avoid a violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution. All references to Appellant in Singletary's statement were replaced with the phrase, "the other guy." Before the trial began, the trial court instructed the jury that it was required to consider the evidence "separately against each defendant" and provided that they "must exercise caution not to consider against one defendant evidence presented against the other defendant." N.T. Trial, 10/5/11, at 11.
When Cunningham was called to testify on the first day of trial, he attempted to invoke the Fifth Amendment to remain silent. Throughout the Commonwealth's direct examination, Cunningham was uncooperative and denied making any statements about the robbery to the police. However, the Commonwealth admitted Cunningham's three signed statements as substantive evidence as they constituted prior inconsistent statements under Pennsylvania Rule of Evidence 803.1.*fn7 In one of the statements, Cunningham had given police the following information:
Me, Willie James [(Appellant)], and Randall Singletary were riding around looking for some money. We spotted a white oldhead getting out of a car. We rode around the block and we parked up. Me and Willie got out. Willie had the gun and Randall stayed in the car. Willie went ahead of me and walked up to the oldhead and pointed a gun in his face and told him to give that shot up. The oldhead turned to run and Willie shot him one time in the back.
N.T. Trial, 10/5/11, at 113. At the conclusion of Cunningham's testimony, the trial court concluded the trial proceedings for the day.
The next day, Appellant's counsel moved for a mistrial before the jury reconvened in the courtroom. N.T. Trial, 10/6/11, at 5-7. Appellant claimed that, in the context of Cunningham's statement, the jury would be able to infer that Appellant was the "other guy" mentioned in Singletary's statement to police. As Appellant claimed that Cunningham's testimony completely eviscerated the redaction of Singletary's statement, Appellant would be denied the right to confront Singletary, his non-testifying co-defendant. The trial court denied Appellant's motion for a mistrial, but offered to give a curative instruction to the jury. N.T. Trial, 10/6/11, at 7.
Later that day, the Commonwealth presented Singletary's statement to the jury. Singletary's defense was that he was merely present at the scene of the crime, sitting in the car waiting for Appellant and Cunningham when the murder occurred. Singletary denied knowing that Appellant attempted to rob and murder the victim. In the statement, Singletary referred to Cunningham as "Doughboy" and all references to Appellant were replaced with the phrase "the other guy." Singletary's statement included the following language, in relevant part:
[Singletary:] [The morning of the shooting,] I was riding around in my mother's Durango with another guy and Doughboy. We had been smoking. I was high. We was, like, running low on weed and dutches [sic] and we needed to refill our supplies. I wasn't going to finance it because I was paying for the gas, so it was up to the other guy and Doughboy to get the money or the weed.
We were driving around in the area where the shooting happened and they were going to try and get some weed. As we were spinning around, they said we gonna stop here and get some weed. So me as the driver was like, where? And they was like, just pull over around here. I parked and the other guy and Doughboy exited the vehicle and they walked around the corner. They were around there for a while, and then I heard a gunshot. Then I saw the other guy and Doughboy come running back around the corner.
I asked them, what the f*** was that. I get the response like, it was nothing but it went down. That's when I was made aware that there was a ratchet in the car. When I say ratchet, I mean a gun. . They didn't have any weed or any money but they told me to get the f*** out of here. [Question:] What did the other guy and Doughboy tell you about what happened around the corner? [Singletary:] We never discussed it in detail, but when they said it went down and after hearing the gunshot and the gun being in the car I figured that somebody had got shot or shot at. So naturally I asked them who got hit, but I don't recall what was said. We continued to drive around still looking for some weed and we ended up getting some from North Philadelphia.
N.T. Trial, 10/6/11, at 160-61.
The next day, after the evidentiary portion of the trial was closed, the parties were permitted to make closing arguments to the jury. During one point in the Commonwealth's closing argument, the district attorney misspoke and inadvertently transposed Randall Singletary and Darren Cunningham's names to create the name "Randall Cunningham." As a result, Appellant and the Commonwealth disagreed on which man the district attorney intended to reference in her subsequent statements. N.T. Trial, 10/7/11, at 66. The relevant part of her closing argument is as follows:
[District Attorney:] What does Randall Cunningham say? "He's asked: "What did the other guy, "N" or Doughboy --," Darren Cunningham, " -- tell you ...