Appeal from the Judgment of Sentence, October 19, 2011, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0002599-2010
Joseph D. Seletyn, Esq.
BEFORE: FORD ELLIOTT, P.J.E., BENDER AND WECHT, JJ.
FORD ELLIOTT, P.J.E.
Following a jury trial, on October 19, 2011, appellant was found guilty of murder in the first degree, violating the Uniform Firearms Act ("VUFA"), and aggravated assault. Appellant was found not guilty of possessing an instrument of a crime ("PIC"). The charges related to the December 26, 2009 shooting death of Gjon Goods. Immediately following trial, appellant received a mandatory sentence of life imprisonment without the possibility of parole for first-degree murder, followed by a consecutive sentence of 10 to 20 years for aggravated assault. Appellant's sentence of 3½ to 7 years' incarceration for VUFA was run concurrently with his sentence for aggravated assault. Timely post-sentence motions were filed October 26, 2011, and denied on November 18, 2011. This timely appeal followed.
Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.
Appellant has raised the following issues for this court's review:
I. Whether the evidence was insufficient to find the defendant guilty of first degree murder, aggravated assault, and violations of the firearms act because the Commonwealth did not meet its burden to prove that the defendant had the intent to kill or that he killed with malice and the jury did not find that the defendant possessed an instrument of crime[?]
II. Whether the verdict of guilty of first degree murder, aggravated assault, and violations of the firearms act was against the weight of the evidence because the Commonwealth did not meet its burden to prove that the defendant had the intent to kill or that he killed with malice and the jury did not find that the defendant possessed an instrument of crime[?] The three eyewitnesses that did identify the defendant as the person who shot and killed Gjon Goods gave descriptions of the assailant that so greatly conflicted with each other and rose to the level of being irreconcilable. Further, each of their accounts of the shooting was significantly in conflict. The Commonwealth did not present other evidence to connect the defendant to the fatal shooting. A verdict based on this scant evidence must shock one's sense of justice.
III. Whether the trial court erred by failing to suppress the physical evidence of the search warrant from 342 Winton Street[?] This evidence included (1) four loose .32 caliber bullets; (2) empty ammo box of .9 mm caliber bullets[;] (3) two targets[;] and (4) photographs. The admission of this evidence should have been precluded because it was irrelevant to this crime and any alleged evidence was outweighed by the danger of unfair prejudice pursuant to Pa.R.Evid. 403 and 404(b). The admission of this evidence suggested to the jury "other crimes." [Commonwealth v. Marshall, ] 743 A.2d 489 (Pa.Super. 1999)[, appeal denied, 563 Pa. 613, 757 A.2d 930 (2000).] The decedent, Gjon Goods, was shot by a .44 caliber firearm.
IV. Whether the trial court erred by permitting the Commonwealth to introduce ballistic evidence that included target[s], bullets and an empty ammunition box that were not related to the fatal shooting and painted a violent picture of the defendant that completely tainted the jury from its duty to be fair and impartial[?]
Appellant's brief at 4.
Before proceeding to address appellant's issues on appeal, we recite the underlying facts of this case, as aptly summarized by the trial court:
On December 26, 2009, [at] approximately 10:00 PM, the decedent, Gjon Goods, escorted his girlfriend, Shannon Miller to a party at the Fireside Tavern at 6th Street and Oregon Avenue, Philadelphia, PA. N.T. 10/12/2011 @ 100- 103.[Footnote 2] Decedent did not stay and left the group shortly after arriving. Id . When Decedent returned to the tavern to pick up Shannon he saw Shannon was grabbed whereupon he commented to Appellant that he should not touch a female like that. Decedent was then attacked and a fight ensued between the two males and joined by Appellant's friend, Christopher Fickling. N.T. 10/13/2011 @ 6-8, 52-56. Shaina, Shannon's sister, testified that she, Shannon, and other patrons, attempted to stop the fight and that she and Decedent were pushed out the back door of the tavern in the process. Id . @ 56. Once outside, Sha[in]a attempted to calm Decedent, however, Appellant appeared at which point Appellant stated "what now, pussy" and Appellant then retrieved a weapon and fired at them. Id . @ 58-59. Sean [Miller], who observed the incident from his car parked at the corner, testified that after the first shot, Decedent pulled Shaina to [the] ground and tried to cover her. Appellant then approached closer and fired two more shots while Decedent and Shaina were on the ground. Id . @ 115. Decedent got up and fled and Appellant followed, firing his weapon at the decedent as he ran. Id . As Appellant passed by Shaina she yelled that Appellant shot her, to which Appellant responded: "I didn't shoot you, bitch". Appellant replaced the firearm in his waistband and walked away. Id . @ 116. Shaina was later transported to the hospital and treated for a gunshot wound to the hand.
Meanwhile, Shannon searched unsuccessfully for the decedent. Philadelphia Police Officer John Burke testified that while he was en route to the tavern he found the decedent lying on nearby Marshall Street suffering from a gunshot wound to the chest. Id . @ 148. Burke immediately transported Decedent to Jefferson Hospital where he was later pronounced dead.
Detective John Keen was the lead investigator in the case and he interviewed and obtained a statement from Shaina Miller. Shaina ha[d] been previously interviewed when she was initially brought to the hospital by Detective James Burns and she positively identified Appellant as the shooter from a photo array. After Miller[']s interview with Keen and after obtaining her supplemental statement, Miller was again shown a photo array and she again positively identified Appellant as the shooter. She also positively identified a photograph of Christopher Fickling from a photo array. Id . @ 143-144, N.T. 10/13/201 @ 74-75.
Detective Levy Morton interviewed Sean Miller and took his statement. Id . @ 103-104. Miller was shown a photo array and he likewise identified Appellant as the shooter. Id . @ 113. Shaina and Sean described the gun Appellant used as a large silver revolver. Id . @ 159.
After conferring with the other officers and detectives involved in the case, and obtaining Shaina's statement, Detective Keen prepared an arrest warrant for Appellant and a search warrant for his last known address. Id . @ 10/17/2011 @ 45, 145. Keen, accompanied by Detective Burns, Officer Brian McMenamin of the SWAT unit, along with other members of the SWAT team, located Appellant at 342 Winton Street, Philadelphia, PA, the home of his aunt, where Appellant was arrested in his second floor bedroom. Incident to the arrest, the officers and detectives executed the search warrant and recovered from the second floor bedroom where Appellant was located four live rounds, .32 caliber, an appointment card in Appellant[']s name, photographs, and a poster size target similar to those at the firing range for practice containing bullet holes together with an empty box of [.9 mm] ammunition. Id . @ 147-149. No actual weapons were recovered from Appellant's bedroom and no weapon was found at or near the crime scene. Id . @ 10/17/2011 @ 17, 54-55.
[Footnote 2] N.T. refers to the Notes of Testimony taken at the trial before the Honorable Gwendolyn N. Bright on October 12-19, 2011. The specific date to which reference is made follows the designation N.T.
Trial court opinion, 7/20/12 at 2-4.
In his first issue on appeal, appellant argues that the evidence was insufficient to support the jury's verdict. Appellant contends that the Commonwealth failed to prove that he was the shooter or that he had the requisite specific intent to kill. (Appellant's brief at 22-23.) We disagree.
In reviewing the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable [the factfinder] to find every element of the crime beyond a reasonable doubt. This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Although a conviction must be ...