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Commonwealth v. Drummond

Superior Court of Pennsylvania

September 9, 2013


Appeal from the Judgment of Sentence, January 13, 2011, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0015491-2008.




In these consolidated appeals, co-defendants Gerald Drummond and Robert McDowell appeal the judgment of sentence entered following their conviction for first degree murder and related offenses. Finding no merit, we affirm the judgment of sentence as to each appellant.

The victims in this case are 27-year-old Damian Holloway and 14-year-old Timmy Clark. Holloway was the apparent target of Drummond and McDowell; the Clark child was apparently killed because he was an unfortunate witness present at the scene when Holloway was confronted.

Much of the evidence in this case consisted of testimony from friends of Drummond and McDowell to whom the pair had made incriminating admissions. At trial, some of these witnesses disavowed earlier statements because of a fear of reprisal. Evidence was presented that both Drummond and McDowell had a motive to kill Holloway. Drummond, who is Caucasian, resented the fact that his sister was in a relationship with Holloway, who was African-American. Drummond and Holloway had recently been quarrelling because Drummond believed Holloway was "disrespecting" his sister. As for McDowell, his dispute with Holloway also involved his sister. Approximately three weeks before the murders, Holloway had an argument with McDowell's sister during which he called her a "bitch." In response, she telephoned McDowell, who subsequently arrived at the scene yelling at and smacking Holloway, ordering him not to "f**k with his sister."

Drummond and McDowell confronted the victims in the early morning hours of July 13, 2007. Drummond and McDowell surrounded the victims from the front and rear. The victims were made to kneel in the street with their hands interlaced behind their heads. McDowell was armed with a revolver but apparently "couldn't do it"; consequently Drummond took the gun from him and shot each victim in the head, execution-style. Drummond subsequently bragged about his actions to various witnesses while McDowell acknowledged his participation.

On December 20, 2010, a jury convicted both appellants of two counts of first degree murder, two counts of criminal conspiracy, one count of carrying a firearm in public in Philadelphia, and one count of possessing criminal instruments.[1] On January 13, 2011, appellants were sentenced to two consecutive life terms plus 15 to 30 years' imprisonment. These timely appeals followed.

On appeal, Robert McDowell raises the following seven issues:[2]

I. Is the Defendant, Appellant herein, entitled to an arrest of judgment on each of two counts of murder in the first degree, as well as on all related charges, where the verdict is not supported by sufficient evidence, as the Commonwealth did not prove, beyond a reasonable doubt that the Defendant was the perpetrator of the crimes, nor an accomplice to, or an accomplice of, the co-defendant?
II. [I.] Is the Defendant entitled to a new trial on all charges where the verdict is against the greater weight of the evidence, and based on speculation, conjecture and surmise?
III. [V.] Is the Defendant entitled to a new trial as the result of Court error when it answered the jury's question incorrectly as it pertains to a "shared specific intent to kill" necessary for first degree murder?
IV. Is the Defendant entitled to a new trial as the result of Court error in incorrectly denying the pretrial motion to suppress the Defendant's out-of-court statement, which was taken without necessary and adequate warnings and which was obtained as the result of psychological and emotional coercion?
V. [III.] Is the Defendant entitled to a new trial as the result of prosecutorial misconduct in closing argument?
VI. [IV.] Is the Defendant entitled to a new trial as the result of Court error, where the Court permitted impermissible hearsay without any exception to the hearsay rule, or without any case law permitting same?
VII. [II.] Is the Defendant entitled to a new trial where the Court impermissibly permitted a homicide detective to testify as to his opinion that they "had" arrested the two people who committed the murders?

McDowell brief at 3.

In his first issue, McDowell claims that the evidence was insufficient to convict him of any charge because the evidence did not show that he was a perpetrator, conspirator, or accomplice to the crimes. We begin our analysis with our standard of review:

As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld.

Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.Super. 2013), quoting Commonwealth v. Norley, 55 A.3d 526, 531 (Pa.Super.2012) (citations omitted).

While it is true that McDowell was not the actual perpetrator of the two murders, he may still be found criminally liable on a theory of conspirator liability:

Once there is evidence of a conspiracy, all conspirators are equally criminally responsible for the acts of their co-conspirators committed in furtherance of the conspiracy regardless of their individual knowledge of such actions and regardless of which member of the conspiracy undertook the action. Even if a defendant did not act as a principal in committing the underlying crime, therefore, he is still criminally liable for the actions of the co-conspirator taken in furtherance of the conspiracy.

Commonwealth v. Figueroa, 859 A.2d 793, 798-799 (Pa.Super. 2004) (citations omitted).

To prove a conspiracy, the Commonwealth must establish three elements: 1) the defendant entered into an agreement with another to commit or aid in the commission of a crime; 2) he shared the criminal intent with that other person; and 3) an overt act was committed in furtherance of the conspiracy. Commonwealth v. Knox, 50 A.3d 749, 755 (Pa.Super. 2012), appeal granted in part, ___ Pa. ___, 68 A.3d 323 (2013). Proof of a conspiracy, however, need not demonstrate an explicit agreement:

The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove the formation of a criminal confederation. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt.

Id., quoting Commonwealth v. McCall, 911 A.2d 992, 996-997 (Pa.Super.2006) (citation omitted).

Amy Rudnitskas testified that she discussed the murders at issue with both Drummond and McDowell and each admitted to her that he had participated. (Notes of testimony, 12/9/10 at 205-213 (Drummond); at 215-220 (McDowell).) Drummond described the crime in greater detail, noting that he and his co-conspirator surrounded the victims from the front and behind, forced them to kneel on the ground, and then put their hands behind their heads, interlocking their fingers. (Id. at 205; 211-212.) At this time, his co-conspirator had the gun out. (Id. at 212.) McDowell stated that he "couldn't do it." (Id. at 218-219.) Drummond stated that he took the gun from the co-conspirator and shot first the child, and then Holloway as he attempted to run. (Id. at 212.)

Susan Coulter testified that McDowell's girlfriend, Erica Marrero, confided in her. Coulter testified that on the night of the killing McDowell and Drummond returned to Marrero's apartment and McDowell gave her a gun and told her to dispose of it, which she did. (Notes of testimony, 12/13/10 at 76-77.)

The testimonies of these two witnesses alone are sufficient to show that Drummond and McDowell entered into a conspiracy to murder the victims. McDowell had recently displayed hostility to the victim Holloway. McDowell actively participated in bringing the murder weapon to the crime scene, in helping to surround the victims, in brandishing the weapon, and in ordering the victims to their knees. Following the murders McDowell took responsibility ...

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