February 11, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
EDILBERTO CRUZ CASTRO, Appellant
Appeal from the Judgment of Sentence Entered on August 3, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013711-2010
BEFORE: BENDER, P.J., LAZARUS, J., and FITZGERALD, J. [*]
Appellant, Edilberto Cruz Castro, appeals from the judgment of sentence of an aggregate term of 26 – 52 years' incarceration imposed following his conviction for third degree murder and two violations of the Uniform Firearms Act. Appellant contends the trial court erred when it prevented him from correcting the statement of a cooperating witness who misrepresented to the jury the maximum sentence the witness faced had he not entered into a favorable plea agreement with the Commonwealth that secured his testimony against Appellant. Appellant also asserts the trial court erred by admitting the preliminary hearing testimony of a witness who was not proven to be unavailable, and where there was not a full and fair opportunity to cross-examine the witness at the hearing. Appellant also contends that the trial court erred by issuing a jury instruction regarding flight. After careful review, we affirm.
The trial court summarized the facts adduced at trial as follows:
On July 2, 2010, Robert Torres advised Rene Ortiz Acevedo that someone had stolen crack cocaine from him. Shortly thereafter, Rene Ortiz Acevedo picked up Robert Torres in his burgundy Jeep Cherokee from outside the former's apartment. The two men drove to a Chinese store on the corner near Rene Ortiz Acevedo's apartment where they picked up [Appellant] and Darnell Watson. At that time Robert Torres was in the driver's seat, while [Appellant] sat in the front passenger seat. Rene Ortiz Acevedo and Darnell Watson sat in the back passenger seats. About twenty minutes later, at about 8:53 p.m., the four (4) men arrived at 4th and Ashdale Streets, where they found Benjamin Tucker and his friend. The men believed that Mr. Tucker was the person who had stolen drugs from Robert Torres.
Robert Torres and Darnell Watson remained seated while [Appellant] and Rene Ortiz Acevedo exited the vehicle and approached Mr. Tucker and his friend. Rene Ortiz Acevedo tried to grab Mr. Tucker in an effort to pull him into the vehicle, but Mr. Tucker pushed him away. During the struggle, Mr. Tucker's friend managed to escape. [Appellant] then pulled out a gun and shot Mr. Tucker in the chest. After Mr. Tucker fell to the ground, [Appellant] stood over the victim and shot him two more times. [Appellant] and Rene Ortiz Acevedo then returned to the Jeep Cherokee, and the men drove away, turning left onto 4th Street. When they reached an alley, all four men abandoned the vehicle and ran away from the scene. On July 3, 2010, Detectives Thorsten Lucke and Tracy Byard recovered video surveillance from Elvis Grocery store located at 326 West Ashdale Street. The video displayed a confrontation that involved people who were in a dark colored SUV that arrived on location at 20:52:36 and left going eastbound on Ashdale Street at 20:53:10.
Police Officer Michelle Long responded to the crime scene immediately after the shooting and observed Mr. Tucker lying on the ground. The victim displayed an obvious wound, and he was able to point to the side of his chest after being asked where he had been shot. The victim also indicated that he could not identify his shooter when Officer Long asked him if he could identify the perpetrator. Officer Long remained with the victim until rescue arrived.
At approximately 9:24 p.m., Benjamin Tucker was pronounced dead. Dr. Gary Collins, Deputy Chief Medical Examiner, conducted an autopsy of the victim and testified at trial as an expert in forensic pathology. Dr. Collins concluded to a reasonable degree of scientific and medical certainty that the cause of Mr. Tucker's death was multiple gunshot wounds. Mr. Tucker's injuries included a perforating gunshot wound to his chest. The bullet entered the right side of Mr. Tucker's chest and exited the right side of his back. This bullet travelled through the chest, through the right atrium, through the right lung, and through the soft back muscle tissues before it exited Mr. Tucker's body. In addition, Mr. Tucker suffered a graze wound to his left shoulder, a superficial wound to his left cheek with a bullet fragment inside, and an abrasion on the right side of his flank. The graze wound and chest wound were inflicted by two separate bullets. The bullet fragment found in Mr. Tucker's cheek appeared to have ricocheted onto his skin. The bullet that pierced through Mr. Tucker's right atrium caused significant internal bleeding, causing the victim to bleed to death. Dr. Collins also concluded to a reasonable degree of scientific and medical certainty that the manner of Benjamin Tucker's death was homicide. Dr. Collins observed on Mr. Tucker's body stippling marks, which indicate that the gun was fired within one to three feet from the victim.
On July 3, 2010, at approximately 12:05 a.m., Police Officer William Trenwith responded to the crime scene and recovered two .40 caliber fired cartridge casings, one copper fragment and one lead fragment directly across the street from the 400 block of West Ashdale Street. In addition to retrieving ballistics evidence, Officer Trenwith also found a hat and sneakers. While at the crime scene, Officer Trenwith, then assigned to the Crime Scene Unit, took photographs, prepared a scaled sketch of the crime scene, and submitted a report.
Officer Trenwith submitted the ballistics evidence to the Firearms Identification Unit for examination. A latent fingerprint examination on the ballistics evidence was attempted, but no fingerprints were found. Police Officer Ernest Bottomer, an expert in firearms identification and ballistic evidence, examined the ballistics evidence and prepared a report. After examining the two .40 caliber fired cartridge casings, Officer Bottomer determined that they were both fired from the same firearm. He was unable to compare [the] same to a gun because one had not been submitted for examination. Officer Bottomer examined a lead bullet core and a bullet jacket and was unable to determine their exact caliber. Officer Bottomer was also unable to compare the uncoated lead fragment taken from the victim's left cheek to any other ballistics evidence because it was unsuitable for microscopic examination. At trial, Officer Bottomer explained that a .40 caliber semiautomatic travels about 900 to 950 feet per second when it leaves the gun barrel.
Officer Daniel Gilmore also responded to the original crime scene. While securing the scene, he was met by [two witnesses, ] Dr. Juan Ignacio Espinoza and Michael Roseboro. At the direction of his sergeant, Officer Gilmore remained with Dr. Espinoza and Mr. Roseboro until the detectives could interview them. While they waited for detectives, Mr. Roseboro indicated that a vehicle was involved in the shooting. Dr. Espinoza told Officer Gilmore that he had witnessed the shooting as he was driving on 4th Street. He also saw the two perpetrators get back into a vehicle and flee the scene. Dr. Espinoza followed the vehicle and obtained the license plate. While chasing the vehicle, Dr. Espinoza called 911. After reporting the vehicle's license plate, Dr. Espinoza returned to the crime scene and found the victim drowning in blood. Dr. Espinoza remained [at] the scene and waited for police to arrive. Dr. Espinoza informed Officer Gilmore that a burgundy Jeep Cherokee was involved in the shooting and gave him the license plate number that he had obtained.
Approximately five minutes after the shooting, Police Officer Brian Hilbert found the Jeep Cherokee in an abandoned lot at the corner of Front Street and Roosevelt Boulevard, approximately three blocks away from Ashdale Street. The driver door of the Jeep Cherokee was open and the motor was still running. Officer Gilmore drove Dr. Espinoza and Mr. Roseboro to view the Jeep Cherokee for identification purposes. About one hour after the shooting, Dr. Espinoza confirmed that the Jeep Cherokee was the vehicle involved in the shooting. The vehicle matched the description that he had provided to Officer Gilmore. After this identification was made, police photographed the vehicle and towed it to a garage.
When the Jeep Cherokee was processed, police found fingerprints of Letitia Marquez. On August 5, 2010, Letitia Marquez was interviewed. During this interview, she informed police that the Jeep belonged to her mother's boyfriend, Rene Ortiz Acevedo. After being shown a photograph of Rene Ortiz Acevedo, she identified him as "Rico" and signed and dated the photograph. After interviewing Letitia Marquez, Detective Byard requested that her mother, Glorimar Marquez, be interviewed. On August 7, 2010, police interviewed Gloria Marquez. After being shown a photograph of Rene Ortiz Acevedo, she identified him as "Rico" and signed and dated the photograph. During this interview, Glorimar Marquez was also shown photographs of Robert Torres and [Appellant]. She identified Robert Torres as "Memo" and [Appellant] as "Pella" and signed and dated each photograph.
Shortly after Glorimar Marquez's interview, Rene Ortiz Acevedo surrendered himself to police. On August 10, 2010, Rene Ortiz Acevedo provided a statement to police, which he signed and dated. During the interview, Rene Ortiz Acevedo was shown a photograph of Robert Torres, whom he identified as "Memo, Munchow." Rene Ortiz Acevedo signed and dated the photograph. Rene Ortiz Acevedo was also shown a photograph of [Appellant], whom he identified as "Pella." He signed and dated the photograph. A follow up interview of Rene Ortiz Acevedo was conducted by Detective Phillip Nordo on August 11, 2010. In his second statement to police, Rene Ortiz Acevedo identified Darnell Watson as the fourth person inside the car during the shooting. After being shown a photograph of Darnell Watson, Rene Ortiz Acevedo signed and dated the photograph. Based on Rene Ortiz Acevedo's interview, police brought Darnell Watson in for questioning.
On August 10, 2010, Officer William Hunter, from the Dangerous Drug Offender Unit of the District Attorney's Office, was working in plainclothes when he was assigned to search for [Appellant] and Robert Torres. Around 1:00 p.m., Officer Hunter saw Robert Torres driving a red pickup truck near 5th and Westmoreland Streets, one block away from 5th and Allegheny Streets. Officer Hunter exited his unmarked patrol car and walked toward Robert Torres's vehicle. At that time, Officer Hunter made eye contact with Robert Torres, who immediately drove northbound on 5th Street at a high rate of speed. Officer Hunter followed the car and notified police radio of Torres's flight. Robert Torres drove around the block and returned to 5th and Westmoreland Streets, where the vehicle was initially parked. Officer Hunter stopped the vehicle and found [Appellant] sitting in the passenger seat. At that time, additional officers responded. Shortly thereafter, police transported [Appellant] and Robert Torres to the Homicide Unit.
On May 17, 2012, Rene Ortiz Acevedo pled guilty to third-degree murder and criminal conspiracy to commit murder. He was offered a twelve and one-half (12 1/2) to thirty (30) year prison sentence if he testified "truthfully and completely before any grand jury or any hearing or trial in this case in which the assistant district attorney requests him to testify." Rene Ortiz Acevedo was also advised that he would be prosecuted for perjury if he made a false statement under oath. As a result of this plea agreement, Rene Ortiz Acevedo testified against Robert Torres and [Appellant].
In August 2010, Darnell Watson met Edward Cameron, the assistant chief of the Homicide Unit in the District Attorney's Office and told him that he feared retaliation from these men because they were dangerous. Although Mr. Cameron explained the relocation program to Darnell Watson, Darnell Watson expressed no interest in being enrolled. On November 2, 2010, the Honorable Benjamin Lerner signed an order granting Darnell Watson immunity in this case. Darnell Watson was subpoenaed to testify as a Commonwealth witness at trial, but he failed to appear. As a result, this court determined that he was unavailable and that [Appellant] had been provided a full and fair opportunity to cross-examine him at the preliminary hearing. Consequently, the jury was able to consider Darnell Watson's preliminary hearing testimony as substantive evidence.
[Appellant] and Robert Torres were tried jointly before a jury, [and] both were found guilty of third[ ]degree murder, and carrying a firearm without a license in violation of Section 6106 of the Uniform Firearms Act, and carrying a firearm on public streets or property in Philadelphia in violation of Section 6108 of the Uniform Firearms Act on June 6, 2012.
Trial Court Opinion (TCO), 1/17/13, at 2 – 9.
Appellant now presents the following questions for our review:
1. Was not [A]ppellant deprived of Due Process of Law and the right to confront witnesses, as guaranteed by the United States and Pennsylvania Constitutions, when he was denied the right to show that a cooperating witness faced a mandatory life sentence before he pled to a lesser offense, an error compounded by the prosecution['s] failure to correct the witness' erroneous testimony that he originally faced a sentence of a term of years and not a life sentence?
2. Was not [A]ppellant deprived of the right to confront witnesses, as guaranteed by the United States and Pennsylvania Constitutions and by Pennsylvania decisional law, when preliminary hearing testimony was presented of a witness who was not proved [to be] unavailable and where there was not a full and fair opportunity to cross-examine the witness at the hearing?
3. Did not the lower court err, and deny [A]ppellant a fair trial, by instructing the jury on flight when the facts did not warrant such a charge?
Appellant's Brief at 5.
Appellant's first claim arises out of his cross-examination of Acevedo. Appellant questioned Acevedo regarding the plea bargain he made with the Commonwealth in exchange for his testimony against Appellant and Torres:
Q. Before you were looking at 12-and-a-half to 30 years in prison, what were you looking at before you cut your deal?
A. Forty to 80.
Q. Really. What happens if you had gone to trial and been convicted of first[ ]degree murder?
A. I guess I would be guilty.
Q. Life in prison without parole, correct?
THE COURT: Sustained.
N.T., 5/30/12 Afternoon Session, at 46.
The trial court explained that it acted within its discretion in sustaining the Commonwealth's objection. TCO, at 16 – 18. The trial court reasoned that it had to balance Appellant's interest in exposing Acevedo's potential bias (for having entered into a plea agreement with the Commonwealth in exchange for his testimony), against the court's determination that the maximum sentence for first degree murder was not material to Appellant's guilt or innocence. Appellant complains that as a result, Acevedo was permitted to testify falsely, because had Acevedo been convicted of first degree murder, he would have faced a mandatory sentence of life without the possibility of parole, not 40 – 80 years' incarceration. Appellant argues that by sustaining the Commonwealth's objection, the trial court deprived him of his due process and confrontation clause rights. The Commonwealth counters that Appellant waived this claim for failure to assert these constitutional theories of admissibility to the trial court when he sought to elicit the evidence at issue. We are compelled to agree with the Commonwealth.
Rule 103 of the Pennsylvania Rules of Evidence provides, in pertinent part, as follows:
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or motion in limine; and
(B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
Pa.R.E. 103(a) (emphasis added).
At the time the Commonwealth made its objection, Appellant did not make any offer of proof concerning the admissibility of the evidence he sought to elicit from the witness. Furthermore, Appellant does not direct our attention to any other portion of the record wherein his constitutional theories for the admission of that evidence were preserved. Moreover, the "substance" of Appellant's instant claim, whether it is characterized as a due process or confrontation clause issue, is not "apparent from the context" in which the evidence was excluded. Pa.R.E. 103(a)(2). Accordingly, Appellant failed to preserve these issues for appellate review.
Appellant's second claim posits that Watson's preliminary hearing testimony was admitted into evidence in violation of Appellant's confrontation clause rights. Appellant argues that the Commonwealth failed to demonstrate that Watson was unavailable for trial, and that the defense was not afforded a full and fair opportunity to cross-examine him at the preliminary hearing.
"Under both the Pennsylvania and United States Constitutions, a criminal defendant has a right to confront and cross-examine the witnesses against him." Commonwealth v. McCrae, 832 A.2d 1026, 1035 (Pa. 2003); U.S. Const. Amend. VI ("In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him[.]"); Pa. Const. art. I, § 9 ("In all criminal prosecutions the accused hath a right … to be confronted with the witnesses against him[.]"). "It is well-established, however, that the introduction of an unavailable witness's prior recorded testimony from a preliminary hearing is admissible at trial and will not offend the right of confrontation, provided the defendant had counsel and a full opportunity to cross-examine that witness at the hearing." McCrae, 832 A.2d at 1035.
We first consider the trial court's finding that Watson was unavailable. "Where the Commonwealth seeks to admit a missing witness's prior recorded testimony, a 'good faith' effort to locate the witness must be established." Commonwealth v. Wayne, 720 A.2d 456, 467 (Pa. 1998) (quoting Commonwealth v. Jackson, 344 A.2d 842 (Pa. 1975)). "What constitutes a 'good faith' effort is a matter left to the discretion of the trial court." Id. "An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will ... discretion is abused." Commonwealth v. Wright, 961 A.2d 119, 142 (Pa. 2008) (quoting Christianson v. Ely, 838 A.2d 630, 634 (2003)).
Appellant argues that because Watson missed three court dates in May and June of 2011, the Commonwealth was on notice of his status as a fugitive. As such, he contends the Commonwealth's delayed search for Watson, which did not commence until several weeks before Appellant's trial began, demonstrates that the Commonwealth did not engage in a good faith effort to locate the witness.
The trial court heard testimony from several police officers concerning their efforts to locate Watson, and summarized its findings as follows:
[T]here is no support for [Appellant]'s contention that the Commonwealth failed to prove Mr. Watson's unavailability to testify at trial. After conducting a hearing on the matter, this court properly admitted this evidence because Mr. Watson was nowhere to be found. …
In this case, the record shows that the Commonwealth made a good faith effort to locate Darnell Watson as a trial witness. Police officers went to Mr. Watson's last two known addresses and surrounding neighborhoods, but were unable to find him in Philadelphia. After discovering Mr. Watson's former address in Virginia, the Virginia State Police assisted in the search for him. However, he was not found at that Virginia address. Police officers further investigated Mr. Watson's whereabouts by checking local and regional hospitals as well as the Medical Examiner's office. Mr. Watson was not found in any of those medical facilities. In addition, an unsuccessful search was made for Mr. Watson in local, state, and federal prison. Because Mr. Watson had an old address in Virginia, police officers also inquired whether he was incarcerated in any prison located in Virginia. He was not found in any prison in that state. The foregoing constitutes a reasonable effort to locate and secure Mr. Watson as a witness at the trial for which he was subpoenaed.
Despite [Appellant]'s belief, evidence of three outstanding bench warrants does not lend support to his claim that the Commonwealth should have begun a search for Mr. Watson at an earlier date. Indeed, the outstanding bench warrants evidence an earlier search had been conducted and that Mr. Watson had been a fugitive since May 2011.
TCO, at 11 – 12.
Thus, the record indicates that extensive efforts were undertaken to locate Watson for trial. The crux of Appellant's argument, however, is that the Commonwealth failed to make such efforts in good faith due to the delay between the time that Watson's fugitive status was made known to the Commonwealth (by June of 2011 at the latest), and when they commenced their efforts to locate him (in May of 2012). Under similar circumstances, this Court has previously held that when extensive efforts are made to locate a witness, the fact that a search is not begun until a few days before trial will not render such efforts unreasonable or otherwise preclude a finding of good faith for purposes of determining the witness's unavailability. Commonwealth v. Cruz-Centeno, 668 A.2d 536, 542 (Pa.Super. 1995) (citing Commonwealth v. Blair, 331 A.2d 213 (Pa. 1975)). Here, in contrast, the efforts to locate Watson began a several weeks before Appellant's trial began and, apart from the delay, Appellant does not dispute the reasonableness of the search efforts. Accordingly, we conclude that the trial court did not abuse its discretion when it determined Watson was unavailable.
Next, Appellant claims he did not have a full and fair opportunity to cross-examine Watson at the preliminary hearing because the Commonwealth did not provide the defense with certain crimen falsi evidence at that time. Appellant contends that as a result, he was without significant impeachment material when Watson was cross-examined at the preliminary hearing. Consequently, he maintains that he did not have a full and fair opportunity to cross-examine the witness.
In Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992), our Supreme Court considered, as a matter of first impression, "what suffices to establish 'full opportunity' to cross-examine in the context of an unavailable witness where the Commonwealth has failed to disclose relevant impeachment evidence prior to the initial testimony[.]" Id. at 686. The Supreme Court began its analysis by discussing the "vital role that cross-examination plays, especially in a criminal setting." Id. The Court went on to hold that the opportunity to cross-examine the witness, alone, did not suffice to permit the admission of the preliminary hearing testimony of a witness who was subsequently unavailable at trial. Id. at 687. Instead, the Court held that the appropriate standard is that the defendant had a both a full and fair opportunity to cross-examine the unavailable witness at the prior hearing. Id.
Although the witness at issue in Bazemore had been cross-examined at some length during the appellant's preliminary hearing, the Supreme Court determined that introduction of that prior testimony at trial constituted a confrontation clause violation because there had not been a full and fair opportunity to cross-examine the witness. In that case, the defense was unaware that the Commonwealth's sole witness at the preliminary hearing had given a prior inconsistent statement to the police, had a criminal record, and was under investigation in the same incident for which the defendant was facing charges. Id. at 685. The witness was central to the prosecution's case, and therefore his credibility was of vital importance. Id. at 687–88. Under such circumstances, the Supreme Court concluded that the Commonwealth could not introduce the witness' preliminary hearing testimony at trial because the defense was deprived of a full and fair opportunity for cross-examination. Id. at 688–89. Citing Bazemore, this Court has explained that a defendant asserting a lack of a full and fair opportunity for cross-examination must establish that he or she was deprived of "vital impeachment evidence." Cruz–Centeno, 668 A.2d at 543.
In the instant case, by contrast, the sole basis upon which Appellant's confrontation clause claim rests is the fact that he was not provided with evidence of Watson's out-of-state crimen falsi conviction for a theft-related offense. Appellant argues that evidence was vital for impeachment purposes, and the deprivation thereof should have precluded the introduction of Watson's preliminary hearing testimony. The trial court disagreed, stating:
In this case, [Appellant] was given a full and fair opportunity to cross-examine Mr. Watson at the preliminary hearing. A review of defense counsel's cross-examination reveals that Mr. Watson was questioned extensively on a range of topics. In disputing the admission of this evidence, [Appellant] claims that there was no full and fair opportunity to cross-examine because the Commonwealth did not produce Mr. Watson's criminal record and did not provide a copy of Mr. Watson's statement to police until the last minute. This argument is without merit because defense counsel was provided with all necessary information to properly cross-examine Mr. Watson. First, the record shows that the Commonwealth informed defendant of two pending drug cases against Mr. Watson. See Commonwealth v, Jermont Cox, 556 Pa. 368, 388, 728 A.2d 923, 933 (1999) (noting the "general rule that the accused has the right to cross-examine Commonwealth witnesses for bias stemming from the existence of open criminal charges"). Notwithstanding the receipt of this information, [Appellant] was unaware of Mr. Watson's out-of state conviction for criminal possession of stolen property. The omission was cured when Mr. Watson's crimen falsi conviction was introduced as impeachment evidence at trial and the jury was instructed to treat it as such during their deliberations. As a result, [Appellant] was able to benefit from the introduction of this evidence because the jury had the opportunity to question the credibility of Mr. Watson's testimony as if he were present at trial.
TCO, at 13.
Regarding the crimen falsi evidence, the Commonwealth argues, and Appellant does not dispute, that Watson's out-of-state conviction was a matter of public record at the time of the preliminary hearing and, thus, "a fact equally accessible to both sides." Commonwealth's Brief at 21 (citing Commonwealth v. Brown, 872 A.2d 1139, 1148 (Pa. 2005)). In these circumstances, we conclude that Appellant was not deprived of a full and fair opportunity to cross-examine Watson at the preliminary hearing for the following reasons.
First and foremost, Watson's preliminary hearing testimony was merely cumulative of Acevedo's trial testimony in this case, and was not central to the Commonwealth's prosecution as in Bazemore. Second, Watson was cross-examined to a significant extent regarding his open drug charges and the grant of immunity in this case. Accordingly, the out-of-state crimen falsi evidence at issue – encompassing a relatively minor theft-related offense - was unlikely to have provided anything but a nominal degree of additional impeachment material regarding Watson's truthfulness or motive to lie. Third, we find the Commonwealth's argument persuasive, particularly in the absence of any evidence to the contrary, that the existence of the out-of-state conviction was a matter of public record equally accessible to either side and, thus, it could have been obtained by Appellant prior to the preliminary hearing. We note that "[t]he Commonwealth may not be deprived of its ability to present inculpatory evidence at trial merely because the defendant, despite having the opportunity to do so, did not cross-examine the witness at the preliminary hearing stage as extensively as he might have done at trial." Cruz-Centeno, 668 A.2d at 542. Finally, we agree with the trial court that whatever prejudice may have resulted was mitigated by the admission of Watson's prior conviction at trial and the corresponding jury charge instructing the jury to treat that evidence as impeachment material. See Id., 668 A.2d at 544 (concluding, similarly, that the admission at trial of the evidence not available to the defense at the preliminary hearing weighed against finding that the appellant had been deprived of a full and fair opportunity to cross-examine the witness). Accordingly, in consideration of the foregoing, we conclude that the trial court did not err in finding that Watson was unavailable for trial and that Appellant had a full and fair opportunity to cross-examine him at the preliminary hearing. As such, Appellant's second claim is meritless.
Appellant's third and final claim posits that the trial court erred when it issued a jury instruction concerning 'flight.' Appellant contends there were insufficient facts upon which to issue such an instruction, and that he suffered prejudice as a result. Appellant argues that evidence that he left the crime scene is not the equivalent of evidence that he fled from police. The Commonwealth argues, inter alia, that the instruction was properly given and, regardless, Appellant was not prejudiced. We agree with the Commonwealth.
"It is axiomatic that a jury charge is to be read as a whole and that the trial court has broad discretion in phrasing its instructions so long as the law is clearly, adequately and accurately presented to the jury." Commonwealth v. Overby, 836 A.2d 20, 24 (Pa. 2003) (quoting Commonwealth v. Bridges, 757 A.2d 859, 876 (Pa. 2000)). "We review jury charges … for an abuse of discretion." Commonwealth v. Greer, 951 A.2d 346, 354 (Pa. 2008).
In this case, the jury was instructed as follows:
There was evidence, including the testimony of Rene Ortiz Acevedo and Juan Espinoza, that tended to show that the defendants fled the scene immediately after the shooting alleged in this case. The credibility, weight, and effect of this evidence is for you to decide.
Generally speaking, when a crime has been committed and a person thinks he [is or] may be accused of committing it and he flees, such flight is a circumstance tending to show the person is conscious of guilt. Such flight does not necessarily show consciousness of guilt in every case. A person may flee for some other motive and may do so even though innocent.
Whether the evidence of flight in this case should be looked at as tending to show consciousness of guilt depends upon the facts and circumstances of this case or these cases and especially upon the motives that prompted the flight.
You may not find the defendant or defendants guilty solely [on] the basis of evidence of flight.
N.T., 6/4/12 Afternoon Session, at 58 – 59.
Appellant does not argue that the above instruction was an inaccurate statement of the law. Instead, he asserts that it was not warranted based upon the facts adduced at trial. We disagree. It is certainly true that
"a trial court should not instruct the jury on legal principles which have no application to the facts presented at trial." Commonwealth v. White, 490 Pa. 179, 415 A.2d 399, 400 (1980). Rather, there "must be some relationship between the evidence presented and the law upon which an instruction is requested." Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395, 407 (1994). The reason for this rule is that, "instructing the jury on legal principles that cannot rationally be applied to the facts presented at trial may confuse them and place obstacles in the path of a just verdict." White, 415 A.2d at 400.
Commonwealth v. Taylor, 876 A.2d 916, 925 (Pa. 2005).
In this case, there was evidence that Appellant was at the scene of the murder and that he shot the victim. There was also evidence that after the crime was committed, Appellant and his accomplices fled and, soon thereafter, abandoned the getaway vehicle. Appellant has offered no controlling authority that would suggest that under these circumstances, a flight instruction was unwarranted merely because his flight from the scene of the crime was not prompted by the arrival of police. In any event, the jury could have reasonably inferred that, following such a public shooting, Appellant and his accomplices would have been aware that the arrival of police was imminent. Accordingly, we cannot discern any abuse of discretion on the part of the trial court in issuing the jury instruction regarding Appellant's flight. As such, Appellant's final claim is also meritless.
Judgment of sentence affirmed.
Justice Fitzgerald concurs in the result.