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[U] Commonwealth v. Blake

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JAQUILL JAMES BLAKE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered on September 17, 2012 in the Court of Common Pleas of Berks County, Criminal Division, No. CP-06-CR-0003085-2011

BEFORE: SHOGAN, ALLEN and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Jaquil James Blake ("Blake") appeals from the judgment of sentence imposed following his convictions of first-degree murder, third-degree murder, carrying a firearm without a license, possessing an instrument of crime and reckless endangerment.[1] We affirm.

The trial court has set forth the relevant underlying facts in its Opinion, as follows:

On April 14, 2011, around 6:00 p.m., witnesses saw an argument ensue between two men in the Glenside Housing Project, located in the city of Reading, Pennsylvania. One of the men, [Blake], was dressed in ripped jeans, black sneakers, and a dark hooded sweatshirt; the other, whose name was Alexis Rosario ["Rosario"], was wearing a white tee shirt and basketball shorts. Suddenly, [Blake] opened fire on Rosario, who backed away and tried to run. Rosario couldn't run away much, however, because he fell between two parked cars. [Blake] then proceeded to fire at least five additional shots at Rosario after he fell. While bystanders fled the area, [Blake] ran from the scene, climbed into a red truck parked nearby, and quickly departed from the neighborhood. The red truck was driven by Dean Schappell ["Schappel"], of Hamburg, Pennsylvania. Schappell was in the city that evening to purchase illegal drugs from [Blake]. [Schappell] had previously met up with [Blake] downtown, and [Blake] asked Schappell to drive him to the Glenside neighborhood, which he did. [Blake] exited the vehicle and asked Schappell to wait for him. While Schappell waited, he heard gunshots, then turned his head and saw [Blake] with a gun, shooting a man in the street. After [Rosario] had been shot numerous times, [Blake] returned to Schappell's truck and said "let's go." Schappell complied and drove [Blake] to an Econolodge hotel located approximately three miles away. At that location, Schappell purchased six bags of cocaine from [Blake], who exited the vehicle and went inside the hotel. Schappell then returned to his home in Hamburg.
Meanwhile, police were called and began an investigation into the shooting. Officer Adana Linderman arrived at the scene and found a large crowd of people at the scene of the crime. He found [] Rosario, lying facedown, bleeding, between two vehicles. While rendering first aid, Officer Linderman noted at the time that Rosario had suffered multiple gunshot wounds. Rosario was pronounced dead at 8:18 p.m. [Rosario's] body was transported that evening to the morgue at the Reading Hospital, where an autopsy was performed the next morning. The autopsy report identified ten distinct gunshot wounds to [Rosario].
Investigators found eight spent cartridge casings at the scene of the crime. They found two divots in the asphalt underneath [Rosario's] body, as well as numerous bullet holes in [his] clothing. Additional bullet fragments and projectiles were found inside and around [Rosario's] body.
Police subsequently interviewed witnesses[, ] whose statements named [Blake] as the person who shot Rosario. A warrant to search [Blake's] apartment was executed on May 13, 2011. When police arrived at the apartment, they found [Blake's] belongings, which had been placed in trash bags and were located outside the apartment in a carport. Inside one of the bags, police found a brass casing containing the same identifying markings as the casings found at the scene of the crime.

Trial Court Opinion, 4/24/13, at 3-4 (citations and some quotation marks omitted).

Blake was subsequently arrested, and proceeded to a jury trial in September 2012. After hearing the evidence, the jury found Blake guilty of the above-referenced crimes. The trial court sentenced Blake to an aggregate sentence of life in prison without the possibility of parole. Blake filed no post-sentence motions, instead filing a Notice of appeal. The trial court directed Blake to file a Pa.R.A.P. 1925(b) concise statement, and Blake complied.[2]

On appeal, Blake raises the following questions for our review:

1. [Whether the evidence was insufficient to support] the [jury's] verdict [that Blake was] guilty [of] murder in the first degree []?
2. [Whether] the [jury's] verdict [that Blake was] guilty [of] murder in the first degree [was] against the weight of the evidence?
3. [Whether the trial court erred or abused its discretion at trial by] overruling a defense objection to [the] testimony [of] a prosecution witness [that Blake] was in custody[?]
4. [Whether the trial court erred or abused its discretion at trial by] overruling a defense objection to redirect testimony [of] a prosecution witness which reinforced [Blake's] role in the distribution of controlled substances, wholly unrelated to the charges at hand[?]
5. [Whether the trial court erred or abused its discretion at trial by] denying a defense request for a mistrial after a prosecution witness was questioned by the prosecution concerning trial spectators[?]
6. [Whether the trial court erred or abused its discretion at trial by] overruling a defense objection to a prosecution witness reviewing a prior written statement [] without a proper foundation[?]
7. [Whether the trial court erred or abused its discretion at trial by] permitting certain exhibits to go out with the jury during their deliberations[?]

Brief for Appellant at 4 (issues reordered for clarity).

In his first claim, Blake contends that the evidence at trial was insufficient to support the jury's verdict that Blake was guilty of first-degree murder. Id. at 10-11. Specifically, Blake contends that the Commonwealth failed to establish that he intended to kill Rosario. Id. at 10. Blake further claims that the jury ignored trial testimony that, prior to the shooting, he and Rosario were arguing, and that Blake felt "jeopardized" by Rosario. Id.

[O]ur 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. [T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence. 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.

Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa.Super. 2013) (citations and quotation marks omitted).

In order to prove first-degree murder, the Commonwealth must establish that (1) a human being was killed; (2) the accused caused the death; and (3) the accused acted with malice and the specific intent to kill. Commonwealth v. Staton, 38 A.3d 785, 789 (Pa. 2012). The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Commonwealth v. Cousar, 928 A.2d 1025, 1032 (Pa. 2007). Moreover, a defendant's deliberate use of a deadly weapon on a vital part of the victim's body raises a permissible inference of malice and a specific intent to kill. Commonwealth v. Lee, 626 A.2d 1238, 1241 (Pa.Super. 1993).

The trial court addressed Blake's sufficiency of the evidence claim and concluded that it is without merit. See Trial Court Opinion, 4/24/13, at 4-6. We adopt the trial court's sound reasoning for the purpose of this appeal. See id.

In his second claim, Blake contends that the verdict was against the weight of the evidence because there was "substantial direct evidence … that [he] may have been acting out of fear or anger, and not with the fully formed intent of killing [] Rosario." Brief for Appellant at 11-12. Blake points out the evidence that, prior to the shooting, he and Rosario were arguing and that he felt jeopardized by Rosario, and, therefore, the jury should not have found him guilty of first degree murder. Id. at 12.

Pursuant to Pa.R.Crim.P. 607, a claim that the verdict was against the weight of the evidence must be raised with the trial judge in a motion for a new trial before sentencing or in a post-sentence motion. Here, Blake did not raise his weight of the evidence claim at any time before sentencing or in any post-sentence motion. Accordingly, this issue has been waived. See Commonwealth v. Filer, 846 A.2d 139, 142 (Pa.Super. 2004).

Blake's third and fourth claims involve rulings by the trial court regarding the admissibility of testimony at trial. Thus, we will address them together. In his third claim, Blake argues that the trial court should not have permitted his landlady, Mary Shealer ("Shealer"), to testify that she was going to "have all [of Blake's] things put into the car port" as "he wouldn't be coming back to the apartment because he was detained … by the police."[3] Brief for Appellant at 13. In his fourth claim, Blake contends that the trial court should not have permitted Schappell to testify, on redirect examination, that he acted as a taxi-driver to a drug dealer, namely, Blake. Id. at 13-14.

The standard of review employed when faced with a challenge to the trial court's decision as to whether or not to admit evidence is well settled. Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and a reviewing court will not reverse the trial court's decision absent a clear abuse of discretion. Abuse of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa.Super. 2010) (citations omitted).

Here, the trial court addressed Blake's admissibility claims, and concluded that they are without merit. See Trial Court Opinion, 4/24/13, at 6-8. We adopt the trial court's sound reasoning for the purpose of this appeal. See id.

In his fifth claim, Blake contends that the trial court erred by not granting a mistrial after the prosecution asked a witness if he knew four gentlemen who had just walked into the courtroom. Brief for Appellant at 14-15.

Our review of a trial court's denial of a motion for a mistrial is limited to determining whether the trial court abused its discretion. See Commonwealth v. Fletcher, 41 A.3d 892, 894 (Pa.Super. 2012). A trial court may grant a mistrial only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict. Id. Likewise, a mistrial is not necessary where cautionary instructions are adequate to overcome any possible prejudice. Id.

Comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jurors, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence objectively and render a true verdict. Commonwealth v. Purcell, 589 A.2d 217, 225 (Pa.Super. 1991). The determination as to whether the prosecutor's remarks were unfairly prejudicial rests within the sound discretion of the trial court. Id.

Here, the trial court addressed Blake's mistrial claim, and concluded that it is without merit. See Trial Court Opinion, 4/24/13, at 10-12. We agree, and adopt the trial court's reasoning for the purpose of this appeal. See id.

In his sixth claim, Blake contends that the trial court erred by permitting a witness, Daniel Guzman ("Guzman"), to review his prior written statement before a proper foundation had been laid for the document. Brief for Appellant at 15-16.

Here, the trial court addressed Blake's claim regarding Guzman's prior written statement, and concluded that it is without merit. See Trial Court Opinion, 4/24/13, at 9-10. We agree, and adopt the trial court's sound reasoning for the purpose of this appeal. See id.

In his final claim, Blake contends that the trial court erred by permitting photographs, including a color photograph, of Rosario in a pool of blood to be sent out with the jury while they deliberated. Brief for Appellant at 16-18. Blake claims that the photographs were not essential to the jury's understanding because there was ample testimony at trial concerning Blake's position in relation to Rosario's body at the time of the shooting, which rendered the photographs superfluous and inflammatory. Id. at 17. Additionally, Blake claims that the trial court erred by permitting cartridge casings found at the scene of the crime and at Blake's apartment, as well as a bag of cartridges which had not been opened during the course of trial, to be sent out to the jury while they deliberated. Id. at 16-18. Blake further contends that the cartridges were the subject of extensive expert testimony at trial, and, because the jury did not possess the requisite expertise, information, training and knowledge to examine and compare the cartridges, they should not have had them in their possession during the course of their deliberations. Id. at 17-18.

Here, the trial court addressed Blake's claims regarding the exhibits provided to the jury during their deliberations and concluded that they are without merit. See Trial Court Opinion, 4/24/13, at 12-13. We agree, and adopt the trial court's sound reasoning for the purpose of this appeal. See id.

Judgment of sentence affirmed.

Judgment Entered.

Dated: April 24, 2013

COMMONWEALTH OF PENNSYLVANIA,

v.

JAQUILL JAMES BLAKE, Appellant

IN THE COURT OF COMMON PLEAS OF BERKS COUNTY, PENNSYLVANIA CRIMINAL DIVISION No. CP-06-CR-0003085-2011 PAUL M. YATRON, PRESIDENT JUDGE

Jonathan H. Kurland, Esq., Attorney for the Commonwealth

William C. Bispels, Jr., Esq., Attorney for the Appellant at Trial P. David Maynard, Esq., Attorney for the Appellant on Appeal

1925(a) Opinion

On September 14, 2012, a jury convicted the Appellant, Jaquill James Blake, of first-degree murder. Appellant was sentenced on September 17, 2012, to life imprisonment. Appellant filed no post-sentence motions. Appellant's trial counsel filed a notice of appeal on October 5, 2012. On October 9, 2012, we ordered that a concise statement of errors be filed, in accordance with Pa.R.A.P. 1925(b), within 21 days. On October 17, 2012, we granted a request from Appellant's trial counsel to withdraw his appearance and appointed appellate counsel.

Appellate counsel entered his appearance on November 27, 2012, and filed a request for transcription of trial proceedings the next day. On January 8, 2013, in recognition that the transcription of proceedings had not yet been completed, we issued an order directing that a Rule 1925(b) statement be filed within 14 days of the filing of all transcripts.[1] Transcripts were filed on January 25, 2013. On February 8, 2013, appellate counsel made an oral motion in open court requesting an additional 14 days to file the statement, and we issued an order the same day granting the requested extension.[2] Counsel filed the statement on February 21, 2013.

In his 1925(b) statement of matters complained of on appeal, Appellant alleges the following errors:

1. The verdict of guilty as to murder of the first degree was against the weight and sufficiency of the evidence in that the prosecution did not prove beyond a reasonable doubt the Defendant had the requisite specific intent to kill.
2. The Court erred in overruling the defense objection (N/T Page 105) concerning certain testimony by the Defendant's landlord, which subsequently indicated the Defendant was in police custody.
3. The Court erred in overruling the defense objection to redirect examination of Dean Schappell concerning a drug taxi driver (N/T Page 105) as this reinforced with the jury the Defendant was involved in the distribution of controlled substances.
4. The Court erred in denying the defense motion for a mistrial made after a witness was questioned concerning trial spectators (N/T Page 235 & 375), wholly unrelated to the witnesses] testimony.
5. The Court erred in overruling the defense objection to a witness being given a written statement, made earlier by this witness, to review during his initial testimony (N/T Page 258) as no foundation was laid with regard to the statement, the witnesses] ability to recall, etc.
6. Despite the lack of objection by the defense, the Court erred in permitting the introduction of testimony by Dean Schappell concerning the delivery of controlled substances by the Defendant (N/T Page 151).
7. The Court erred in permitting Exhibit 5 and Exhibit 6, photographs of the victim in a pool of blood, and Exhibit 50 and Exhibit 52, shell casings, to go out with the jury. The prejudicial aspect of the photographs outweighed any probative value, and the shell casings were not necessary for the jury[']s understanding of the events in question, permitting the jury to ascribe far more weight to them than was necessary or appropriate.

("Statement of Matters Complained of on Appeal, " Feb. 21, 2013.)

FACTUAL SUMMARY

On April 14, 2011, around 6:00 p.m., witnesses saw an argument ensue between two men in the Glenside Housing Project, located in the city of Reading, Pennsylvania. One of the men, the Appellant, was dressed in ripped jeans, black sneakers, and a dark hooded sweatshirt; the other, whose name was Alexis Rosario, was wearing a white tee shirt and basketball shorts. (N.T. 81; 142.) Suddenly, the Appellant opened fire on Rosario, who backed away and tried to run. (N.T. 82; 147.) Rosario "couldn't run away much, " however, because he fell between two parked cars. (N.T. 82; 147.) Appellant then proceeded to fire at least five additional shots at Rosario after he fell. (N.T. 83; 147.) While bystanders fled the area, Appellant ran from the scene, climbed into a red truck parked nearby, and quickly departed from the neighborhood. (N.T. 84; 148.)

The red truck was driven by Dean Schappell, of Hamburg, Pennsylvania. (N.T. 139.) Schappell was in the city that evening to purchase illegal drugs from the Appellant. (N.T. 139— 40.) He had previously met up with the Appellant downtown, and Appellant asked Schappell to drive him to the Glenside neighborhood, which he did. (N.T. 140-41.) Appellant exited the vehicle and asked Schappell to wait for him. (N.T. 142.) While Schappell waited, he heard gunshots, then turned his head and saw the Appellant with a gun, "shooting a man in the street." (N.T. 147.) After the victim had been shot numerous times, the Appellant returned to Schappell's truck and said "let's go." (N.T. 149.) Schappell complied and drove Appellant to an Econolodge hotel located approximately three miles away. (N.T. 151.) At that location, Schappell purchased six bags of cocaine from the Appellant, who exited the vehicle and went inside the hotel. (N.T. 151.) Schappell then returned to his home in Hamburg. (N.T. 152.)

Meanwhile, police were called and began an investigation into the shooting. (N.T. 88-89; 119-20.) Officer Adam Linderman arrived at the scene and found a large crowd of people at the scene of the crime. (N.T. 89.) He found the victim, Alexis Rosario, lying facedown, bleeding, between two vehicles. (N.T. 90.) While rendering first aid, Officer Linderman noted at the time that Rosario had suffered multiple gunshot wounds. (N.T. 91.) Rosario was pronounced dead at 8:18 p.m. (Commonwealth's Exhibit 57 at ¶4.) The victim's body was transported that evening to the morgue at the Reading Hospital, where an autopsy was performed the next morning. (Id. at ¶5.) The autopsy report identified ten distinct gunshot wounds to the victim. (Commonwealth's Exhibit 62.)

Investigators found eight spent cartridge casings at the scene of the crime. (N.T. 192; 195; Commonwealth's Exhibit 52.) They found two divots in the asphalt underneath the victim's body (N.T. 194; see Commonwealth's Exhibit's 5-6), as well as numerous bullet holes in the victim's clothing (N.T. 204; Commonwealth's Exhibits 55-56). Additional bullet fragments and projectiles were found inside and around the victim's body. (N.T. 202; see Commonwealth's Exhibits 1-2.)

Police subsequently interviewed witnesses whose statements named Appellant as the person who shot Rosario. (See N.T. 255-67 (testimony of Daniel Guzman); N.T. 296-311 (testimony of Jose Santiago); N.T. 137-180 (testimony of Dean Schappell).) A warrant to search Appellant's apartment was executed on May 13, 2011. (N.T. 123.) When police arrived at the apartment, they found the Appellant's belongings, which had been placed in trash bags and were located outside the apartment in a carport. (Id.) Inside one of the bags, police found a brass casing containing the same identifying markings as the casings found at the scene of the crime. (N.T. 125-26; see Commonwealth's Exhibit 31.)

Appellant was arrested on June 2, 2011, and charged with first-degree murder and related offenses.

CONCLUSIONS OF LAW

A. Evidence of Specific Intent to Kill

Appellant alleges that the verdict of first-degree murder was contrary to the weight and sufficiency of the evidence "in that the prosecution did not prove beyond a reasonable doubt the [Appellant] had the requisite specific intent to kill." (Concise Statement ¶1.) The standard of review for a sufficiency claim is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact finder to find every element of the crime beyond a reasonable doubt. Commonwealth v. Zingarelli, 839 A.2d 1064, 1069 (Pa.Super. 2003). The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence, and any doubt regarding a defendant's guilt is left to 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. Id.; Commonwealth v. Hopkins, 747 A.2d 910, 913-14 (Pa. 2000). To sustain a finding of first-degree murder, the Commonwealth must prove the following elements beyond a reasonable doubt:

(1) the defendant acted with a specific intent to kill,
(2) a human being was unlawfully killed,
(3) the defendant did the killing, and
(4) the killing was done with premeditation or deliberation.

18 Pa.C.S. § 2502(a); Commonwealth v. Fletcher, 861 A.2d 898, 907 (Pa. 2004).

The issue of whether the verdict reached by the finder of fact is contrary to the weight of the evidence is in the sound discretion of the trial court, and will not be overturned absent abuse of discretion. Id. "Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the records shows that the action is the result of partiality, prejudice, bias, or ill will." Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa.Super. Ct. 2005) (citations omitted). Not surprisingly, "a trial court's exercise of discretion in finding that a verdict is or is not against the weight of the evidence is '[o]ne of the least assailable reasons for granting a new trial.'" Commonwealth v. Sullivan, 820 A.2d 795, 807 (Pa.Super. Ct. 2003) (quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).

In the instant matter, the jury was presented with evidence that the Appellant and the victim were engaged in an argument in a residential neighborhood. According to eyewitness testimony, the Appellant pulled out a gun and began firing it at the victim. The victim backed away and tried to run, but Appellant continued shooting. Even after the victim fell into the street, Appellant continued firing shots. (See N.T. 81-84; 142-52.) An autopsy revealed ten gunshot wounds to the victim's body. (N.T. 272; Commonwealth's Exhibit 62.) Dr. Neil A. Hoffman, who provided expert testimony in the field of forensic pathology, gave the following testimony regarding one of the gunshot wounds, which he classified as a "defense wound":

It was even at autopsy obvious that this wound with its entrance here and its exit here (indicating) it was easily approximated over the face of the victim in this fashion (indicating) leading to number one the fragmentation of the bullet and having passed through the arm first and then re-entrance of the bullet in the nose region and following the path already described in gunshot wound number four.

(N.T. 286.) Two divots were found underneath the victim's body in the asphalt, indicating that the victim was shot while on the ground. (N.T. 194.)

Corresponding with the ten gunshot wounds identified by the autopsy, nine spent cartridge casings were found at the scene of the shooting, and an additional spent casing was found in Appellant's belongings at his apartment. (N.T. 125-26; 192.) Sergeant Kurt Tempinski of the Pennsylvania State Police, who provided expert testimony in the field of forensic firearms examinations, gave the opinion that the cartridge casings and bullet fragments found at the scene all came from the same firearm—specifically, from a Glock semiautomatic pistol. (N.T. 222; 228-29.) This type of weapon requires that the trigger be pulled in a separate instance for each shot. (See N.T. 219.)

There was ample evidence presented at trial that the Appellant not only shot the victim, Alexis Rosario, intentionally, but that he did so multiple times even after the victim fell and while the victim attempted to raise his arm to block the gunshot. We conclude that there was sufficient evidence for the jury to conclude beyond a reasonable doubt that the Appellant possessed the specific intent to kill Alexis Rosario.

B. Evidence of Appellant's Incarceration

The Commonwealth presented the testimony of Mary Shealer, who testified that she and her husband owned an apartment located at 1046 Pike Street in the city of Reading, and that the Appellant had signed a rental lease for that apartment on April 7, 2011. (N.T. 101-106.) The jury also heard testimony that the victim, Alexis Rosario, was killed on April 14, 2011, and that a police investigation of his death had commenced at that time. (N.T. 93.) Testimony was also given that on May 6, 2011, police went to 1046 Pike Street, in search of the Appellant, who by then had been named a "suspect." (N.T. 123.)

Shearer testified that Appellant did not pay his May rent on time, and that she tried to contact him by phone. (N.T. 102.) She testified:

I called Jaquill and left him a message because he didn't answer. I was aware that ... he wouldn't be coming back to the apartment because he was detained or whatever by the police. So I was going to put—have all his things put into the car port and they would have a week to pick them up.

(N.T. 105.) Appellant objected to Shearer's testimony at the time it was given, [3] and he now contends that the Court erred in permitting it because it "indicated that [he] was in police custody." (Concise Statement ¶2.)

Although references to past criminal conducted generally may not be heard by a jury, evidence that "that an accused is incarcerated on the present charges does not imply past criminal conduct on his part." Commonwealth v. Hailey, 480 A.2d 1240, 1242 (Pa.Super. 1984). The testimony by this witness that Appellant "was detained or whatever by the police" was clearly a reference to the Appellant's incarceration on the current homicide charges and was not impermissible under our law.[4]

C. Evidence That Appellant Was Engaged in Drug Trade

The Commonwealth also called Dean Schappell, who testified that he drove the Appellant to a location in the city, that he saw Appellant shoot the victim, and that after Appellant ran back to the vehicle, he and Appellant drove back out of the city. (N.T. 142-150.) Schappell explained that he used to buy drugs from the Appellant. (N.T. 138.) On redirect examination, Schappell testified that he had driven the Appellant around on errands before, and that he acted as a "taxi driver" for the Appellant, whom Schappell described as a "drug dealer." (N.T. 178-79.) Appellant objected at trial to this testimony on the basis that the questioning exceeded the scope of cross-examination. On appeal, Appellant contends that the Court "erred in overruling the defense objection to redirect examination of Dean Schappell concerning a drug taxi driver" because it "reinforced with the jury [that Appellant] was involved in the distribution of controlled substances." (Concise Statement ¶3.)

"The scope of redirect examination is largely within the discretion of the trial court.... When a party raises an issue on cross-examination, it will be no abuse of discretion for the court to permit re-direct on that issue in order to dispel any unfair inferences. Commonwealth v. Dreibelbis, 426 A.2d 1111, 1117 (Pa. 1981) (internal citations omitted). On direct examination, the witness testified that the nature of his relationship with the Appellant was buying drugs from the Appellant. (N.T. 138.) The witness testified that the reason he picked the Appellant up the day of the murder was to buy drugs from him—and that he "didn't know anything else was going to happen." (N.T. 151.)

Appellant's trial counsel questioned the witness on cross-examination regarding the drug transaction that took place that day. (N.T. 171.) While questioning the witness about whether he felt threatened by the Appellant, defense counsel asked if Appellant owned a car:

Q. He doesn't even have a car. He needs you to drive him to playgrounds, he's got no car?
A. I suppose so, yes.

(N.T. 174.) On redirect examination, counsel for the Commonwealth asked the witness to clarify the extent to which he provided transportation to the Appellant or other drug dealers. (N.T. 178.) The witness explained that this "taxi service" is common in the drug culture and that he only provided this service to the Appellant. (N.T. 179.) We found that this issue was raised by the defense on cross-examination, and we consequently overruled defense counsel's objection to this testimony.[5]

D. Witness's Identification of Commonwealth's Exhibit 60

The Commonwealth called Daniel Guzman to testify at trial. After Guzman took the stand, counsel for the Commonwealth showed him a document which counsel identified as Exhibit 60.[6] Counsel asked the witness to identify the document. (N.T. 257-58.) Defense counsel objected on the basis that counsel for the Commonwealth "seem[ed] to be bolstering his own witness who has not yet said anything that needs bolstering." (N.T. 258.) We overruled the objection as premature, and we permitted Guzman to identify the exhibit. Guzman identified it as a statement containing "everything [he had] been questioned about of the murder." (Id.) The witness went on to answer questions by the assistant district attorney regarding his interrogation by the police. (N.T. 258-60.) When at one point he was unable to remember a portion of his prior statements, the assistant district attorney directed him to refer to the statement at a specific place in the document. (N.T. 260.) Guzman then began to read directly from the document but was interrupted by the assistant district attorney:

Q. Wait. Read it to yourself, see if it refreshes your memory?
A. Oh, sorry. (Witness complies).
Q. Does that refresh your memory as to any specifics the defendant told you?
A. Yes.
Q. With your memory refreshed, can you tell the jury about the specifics of what the defendant told you about the death of Alexis Rosario?

(Id.) Guzman then proceeded to respond to counsel's questions without further reference to the document. (N.T. 260-61.)

"A witness may use a writing or other item to refresh memory for the purpose of testifying." Pa.R.E. 612. This rule permits a witness to "use a prior writing to refresh his present memory of past events." Commonwealth v. Canales, 311 A.2d 572, 574 (Pa. 1973).

The proper procedure for a party to refresh his own witness's recollection is to show the writing, or other evidence, to his witness and after the witness's recollection is refreshed, to proceed with direct examination and have the witness testify from present recollection.

Commonwealth v. Payne, 317 A.2d 208, 210 (1974). This procedure was followed correctly here. When the witness was shown the document initially, it was for the purpose of identifying the document and not to refresh his memory. Only after the witness had provided foundational testimony of events surrounding the murder, then stated that he could not recall some specifics about what Appellant had told him, did the assistant district attorney direct the witness to refer to the document to refresh his recollection.

E. District Attorney's Reference to Courtroom Spectators

Appellant contends that it was error for this Court to deny defense counsel's motion for a mistrial after counsel for the Commonwealth made reference to trial spectators while questioning a witness. (Concise Statement ¶4.) Upon learning that an event "prejudicial to the defendant" has occurred during trial, the defendant is permitted to move for a mistrial. Pa.R.Crim.P. 605. The trial court may grant a mistrial only where "the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict." Commonwealth v. Fletcher, 41 A.3d 892, 894 (Pa.Super. 2012) (internal citations omitted). Likewise, statements by the district attorney do not constitute reversible error unless their "unavoidable effect" would be to prejudice the jurors, "forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict." Commonwealth v. Purcell, 589 A.2d 217, 225 (Pa.Super. 1991). A determination as to whether such statements are unfairly prejudicial "rests within the sound discretion of the trial court." Id.

During the morning of the second day of trial, four young men entered the courtroom together and sat in the rear of the gallery. The men, who were black, all wore dark trousers or jeans and a plain white tee shirt. At the commencement of direct examination of one of the Commonwealth's witnesses, the assistant district attorney turned around and, gesturing towards the four young men in the rear of the courtroom, asked the witness, "Do you know those four gentlemen sitting in the back of the courtroom on the right?" (N.T. at 235:10-12.) Before the witness answered, defense counsel objected to the question, and we sustained the objection. (N.T. at 235:13-14.)

Defense counsel then made an oral motion for mistrial, which we denied (N.T. at 235:13-16). The defense did not request a curative or cautionary instruction, nor did we give one.[7] In an in camera discussion after the conclusion of testimony, defense counsel stated for the record its grounds for having requesting a mistrial. According to defense counsel, the four young men's race and their manner of dress, presented the impression that they were "some sort of.. . thugs, " and when the assistant district attorney turned and made reference to these four men, he effectively "introduced four new witnesses into this trial." (N.T. at 376.)

The arrival of the four young men was certainly noteworthy. They appeared to the Court to be dressed in a uniform of sorts, and they entered the courtroom together and sat together in the rear of the courtroom. Whether any jurors who noticed the men thought they were "thugs, " we do not know. But it is certainly not "unavoidable" that the jurors should reach such a conclusion. Even after the assistant district attorney drew the jurors' attention to the young men by asking a witness if he knew them, we cannot conclude that the unavoidable effect of this question was to create such bias or hostility against the Appellant as to impede the jury's ability to weigh the evidence objectively or to render a true verdict.

Additionally, we find no merit in the argument made by defense counsel that the question introduced new witnesses for which the defense was not prepared. Both parties complied with the mandatory provisions of Rule 573 of the Rules of Criminal Procedure. Additionally, both the Commonwealth and the defense were ordered to provide the Court with a list of all potential witnesses (Order, Feb. 27, 2012), and both parties complied with this order. It is clear to the Court that neither party intended to call the four young men discussed herein as witnesses. Even if a violation of discovery rules had been committed here, a remedy for such a violation is provided under those rules. The court may order the offending party to permit discovery or inspection, grant a continuance, or prohibit the evidence from being introduced. See Pa.R.Crim.P. 573(E). In the instant matter, we did not permit any testimony by the witness who was on the stand at the time the assistant district attorney made reference to the four spectators, in reference to those spectators. Accordingly, even if a violation of this rule had occurred, the subsequent actions by the Court constituted an adequate remedy.

Because we concluded that the incident in question here did not have the unavoidable effect of prejudice to the Appellant during trial, we submit that it was not error for the Court to deny the motion for mistrial.

F. Materials Sent with Jury for Deliberation

Appellant alleges that this Court erred in permitting certain evidence to be taken with the jury for use during their deliberations. Specifically, Appellant contends it was error to permit the jury to have Commonwealth's Exhibits 5 and 6 (photographs depicting the victim lying in the street in a pool of blood), Commonwealth's Exhibit 50 (bag containing a brass cartridge casing found in Appellant's apartment), and Commonwealth's Exhibit 52 (bag containing eight spent cartridge casings found at the scene of the shooting). (Concise Statement ¶7.)

The Rules of Criminal Procedure provide that the trial court may permit any materials it deems proper to accompany the jurors when they retire for deliberation. Pa.R.Crim.P. 646(A).[8] Decisions regarding which exhibits should be allowed to accompany the jury are within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa.Super. 2012); Commonwealth v. Rucci, 670 A.2d 1129, 1141 (Pa. 1996). Reversal is required where the evidence has a "clearly prejudicial impact" on the defendant's right to a fair trial. Commonwealth v. Bricker, 581 A.2d 147, 156 (Pa. 1990). A trial court did not abuse its discretion when it permitted two color photographs of a deceased victim at the scene of the crime, in which some blood was visible, to go out with the jury. Rucci, 670 A.2d at 1141. The Rucci court reasoned that the photographs were "clearly admissible" and that their probative value outweighed their prejudicial effect, and that no evidence of ill will or partiality in favor of the Commonwealth was evidenced from the record. Rucci, 670 A.2d at 1141-42.

It is not contested that the exhibits challenged here were admissible. Commonwealth's Exhibits 5 and 6 are photographs that depict the deceased victim at the scene of the crime. The victim's blood is visible in these photographs. They are also probative of whether there was a specific intent to kill. The photographs show a divot in the roadway, marked with chalk, from which bullet fragments were found underneath the victim's body. The location of the divot is probative of the shooter's location relative to the victim. Witnesses for the Commonwealth testified that after the victim fell to the ground, Appellant continued to shoot him multiple times. (N.T. 83:12-24; 147:9-19.) This testimony would tend to prove that the shooter possessed the specific intent to kill the victim, and photographs showing that the divot and fragments were found underneath the victim's body would be probative of the accuracy of these witnesses' testimony. The shell casings were also admissible; they functioned as evidence of the number of times the victim was shot, which was probative of whether the shooter possessed specific intent to kill the victim. (See Section A, supra.)

Based on these reasons, we concluded that this evidence was appropriately sent with the jury when they retired for deliberations.

CONCLUSION

For all of the foregoing reasons, we respectfully request that the instant appeal be DENIED and the judgment of sentence AFFIRMED.


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