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Commonwealth v. Thomas

Superior Court of Pennsylvania

May 21, 2013


Appeal from the Judgment of Sentence May 2, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002359-2011, 02-CR-0004968-2010




This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County following Appellant's negotiated guilty plea to various charges in connection with the shooting death of Mark Barry and the subsequent shooting of a weapon into the occupied home of Portia Smithson. Appellant, who was sixteen years old when he committed the crimes, contends the trial court abused its discretion in denying his pre-trial motion to decertify this case from the adult division to the juvenile division. We affirm.

The relevant facts and procedural history are as follows: Following his arrest in connection with the March 14, 2010 shooting death of a retired firefighter, Mark Barry, Appellant was charged in the adult division of the trial court with criminal homicide, robbery, carrying a firearm without a license, and criminal conspiracy.[1] Additionally, following his arrest in connection with the March 21, 2010 shooting into the occupied residence of Portia Smithson, Appellant was charged in the adult division of the trial court with two counts of aggravated assault, four counts of recklessly endangering another person, one count of conspiracy, one count of discharging a firearm into an occupied structure, and one count of possessing a firearm by a minor.[2] Upon notice by the Commonwealth, the cases were joined, and on July 2, 2010, Appellant filed a counseled motion seeking to decertify the criminal proceedings and transfer the cases to the juvenile division.

Following a hearing on the matter, the trial court denied Appellant's motion to decertify the criminal proceedings, and on May 2, 2011, Appellant proceeded to a guilty plea hearing, at which the Commonwealth set forth the facts underlying the charges as follows:

[As to case number CP-02-CR-0004968-2010, ] [t]his incident occurred on March 14 of 2010. The victim in this case, Mark Barry, who was 55 years old and a retired firefighter for the City of Pittsburgh, was a resident of the North Side, Marshall-Shadeland area. He was walking his dog on Mullins Street, at which time he was fatally shot. He was shot once in the chest, which pierced his heart, and once in the arm.
Shortly after 10:00 p.m., on [March 14], his body was found lying on his back on Mullins Street, approximately 40 feet off of Woodland Avenue. Two nine-millimeter casings were also found at the scene by the police.
The victim was declared dead at the scene by paramedics. Dr. Xu of the Allegheny County Medical Examiner's Officer performed the autopsy and found that the cause of death was a gunshot wound of the trunk, and the manner of death, homicide.
Homicide detectives investigated this case and reviewed video surveillance from a camera placed by a neighborhood group that was located at Shadeland Avenue and at Woodland Avenue, and the video showed the victim walking down the street with his dog, followed by four young males.
The police were able to identify these four young males, who included [Appellant] and Cordell Brown, who was the co-defendant.
During the course of their investigation, the detectives also learned that the victim—the bullet that killed the victim was a nine millimeter.
A week later, also, the detectives learned of the shooting of Portia Smithson's house, which is involved in the other criminal investigation—criminal information which I'll get to.
The detectives, Weismantle and Hoffman, of city homicide, interviewed [Appellant], on March 31st of 2010, after they had spoken with his uncle and got permission for him to come down to homicide and speak with them. He signed a Miranda rights form, waived his rights to remain silent, and to an attorney, and gave the following statement.
[Appellant] stated that on the day of the killing, he, Cordell Brown, and another young man named Larry Brown and another one named Derek, later identified as Derick Ambush, were spending the day together. [Appellant] admitted that on that day he was carrying a firearm on his person that he bought from someone a couple months earlier. It was a nine-millimeter Hi-Point semiautomatic pistol.
They were sitting on a porch of a house located on Woodland Avenue when one of the young men said I want some money, and the four young men discussed doing a robbery and agreed to rob the first person they saw.
Following their conversation, they saw the victim walking his dog. Cordell Brown said there's our first victim, and they began to follow the victim on Woodland Avenue, where they were viewed by the video cameras.
As the victim turned onto Mullins Street, [Appellant] said that Cordell Brown approached the victim and asked him if his dog—does your dog bite? The victim laughed in a polite way and said no, he's a good fellow. [Appellant] says that Cordell Brown then pulled the gun from his right side and shot the victim twice.
[Appellant] said that although he had been carrying the gun, he gave the gun to Cordell Brown immediately before the confrontation with the victim, Mark Barry.
[Appellant] said they were unable to actually rob the victim because the dog guarded the victim's body. They ran away to a girl's house, and when he left there, [Appellant] took the pistol with him.
He also was found not to possess a license to carry that firearm, in addition to being under 21 years old, and therefore, statutorily incapable of possessing a firearm.
That would be the case at [CP-02-CR-0004968-2010]. The second case, [CP-02-CR-0002359-2011], occurred exactly one week later, on the following Sunday night, on March 21st of 2010, approximately 1:30 a.m. The residence of Portia Smithson, located at 1100 Hall Street, also on the North Side of the City of Pittsburgh, was shot at numerous times.
Ms. Smithson and her boyfriend were in her second-floor front bedroom, along with a one-year-old infant, when numerous gunshots came through the window, which shattered powder from the doorway or the wall landed on the baby. They fled from the room and called the police. There were numerous bullet holes in the bedroom.
Also in the residence at the time of the shooting was Krista Kellem, another one of the named victims, and—well, Samuel Mitchell, who's the boyfriend. There were also two 14-year-olds and, as I said, the baby.
The detectives processed the scene and found a number of bullets, spent bullets, bullet holes and eight nine-millimeter casings on ...

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