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[U] Commonwealth v. Truitt

Superior Court of Pennsylvania

February 20, 2014



Appeal from the Judgment of Sentence September 28, 2012 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0005449-2011

BEFORE: SHOGAN, J., OTT, J., and PLATT, J. [*]



Appellant, Lamar Truitt, appeals from the judgment of sentence imposed following his jury conviction of one count each of murder of the first degree, conspiracy to commit murder, and possessing an instrument of crime (PIC).[1] After careful review, we affirm.

The trial court set forth the following facts in its opinion of April 29, 2013:

On July 21, 2009, Horace Cunningham and Darryl Pray were walking down Bancroft Street in South Philadelphia when they ran into [Appellant] and Nieem Thomas. All four men were competing drug dealers who sold drugs on either the 1400 or 1500 block of Hicks Street. Mr. Pray and Nieem Thomas got into an argument over drug territory, as Mr. Pray had been selling drugs on a street where Nieem Thomas usually sold drugs. As they argued, Nieem Thomas pulled a gun from his waist and shot Mr. Pray multiple times, killing him. Immediately after the murder, Mr. Cunningham called his girlfriend, Shardey Adkinson, and told her about the shooting. Mr. Cunningham also told at least five other people in the neighborhood that he had witnessed Mr. Pray's murder, and that Nieem Thomas had been the shooter.
Nieem Thomas was arrested for the murder of Darryl Pray.[a] On August 3, 2009, while awaiting trial in county prison, Nieem Thomas placed a call to his cousin, Jabar Thomas.[b]During this phone call, Jabar Thomas stated to Nieem Thomas, "[w]e see the bul, Pop Pop . . . . [h]e get a hammer glance, he'll do the hammer dance."[c] Nieem Thomas then laughed and asked to speak to "Ockie, " which is [Appellant]'s nickname.[d][Appellant] then got on the phone with Nieem Thomas and said that he had run into "the bul" and that he had run away from [Appellant]. On August 8, 2009, and August 18, 2009, Nieem Thomas placed phone calls from prison directly to [Appellant]. During the August 18 phone call, [Appellant] told Nieem Thomas that "[m]utherfuckas out there talking." Nieem Thomas asked, "[w]ho?" and [Appellant] responded, "I hear they got a uh . . . they got a uh . . . warrant for the boy that was . . . the bul Pop Pop."
[a] Nieem Thomas was tried and convicted of the first-degree murder of Darryl Pray at docket number CP-51-CR-0010184-2009.
[b] A recording of this phone call, along with recordings of two other prison phone calls between Nieem Thomas and [Appellant], was played for the jury. . . .
[c] In his statement to the police, Horace Cunningham stated that his nickname around the neighborhood was "Pop-Pop." Shardey Adkinson also testified at trial that "Pop-Pop" was Mr. Cunningham's nickname. Detective Williams testified at trial that a "hammer glance" is when someone displays a gun to or points a gun at another person.
[d] In his statement to the police, [Appellant] stated that one [of] his nicknames around the neighborhood was "Ockie." Ramer Jones also testified at the preliminary hearing that this was [Appellant]'s nickname.
On August 28, 2009, Homicide Detectives interviewed Mr. Cunningham, who told them the details of Mr. Pray's murder, including that Nieem Thomas was the shooter. In the months following Mr. Pray's murder, [Appellant] repeatedly asked a friend, Nelson Jones, about Mr. Cunningham's whereabouts. [Appellant] told Nelson Jones that he thought that Mr. Cunningham might retaliate against [Appellant] for Mr. Pray's death, and [Appellant] said that he did not want to "take that chance."
On October 11, 2009, at 11:58 p.m., Ramer Jones, a friend of Mr. Cunningham, was listening to music in his aunt's apartment at the corner of 16th Street and Morris Street, when his cousin told him that someone was shooting outside. Ramer Jones went to the window and saw Horace Cunningham running north on Chadwick Street. He was being chased by [Appellant], whom Ramer Jones knew, and another man, both of whom were carrying guns. Ramer Jones heard gunshots and a few seconds later he saw [Appellant] and the second man run south down Chadwick Street. They then stopped running and Ramer Jones heard the second man say to [Appellant], "[a]ll right, Cuz, I'm out."
At the same time, Azim McKnight was at the corner of Chadwick Street and Morris Street when he heard the gunshots coming from the 1700 block of Chadwick Street. Mr. McKnight then heard a man scream and begin to pray. Mr. McKnight ran towards the sounds, and found Mr. Cunningham, who had been shot multiple times, lying facedown on the corner of 17th Street and Morris Street. Mr. Cunningham was still conscious, and he told Mr. McKnight that he could not move. Mr. McKnight pressed a towel to Mr. Cunningham's wounds and called the police. When police arrived, Mr. McKnight and the officers loaded Mr. Cunningham into a police car.
Mr. Cunningham was transported to the University of Pennsylvania Hospital, where he was pronounced dead. Mr. Cunningham had been shot four times, once each in the spinal cord, stomach, side, and thigh. Police recovered six fired ca[r]tridge casings, all from a .40 caliber handgun, from the scene of the murder.
On December 27, 2009, the police executed a search warrant on [Appellant]'s home at 212 South Alden Street in West Philadelphia. From the house, police recovered two semiautomatic handguns, one of which was a loaded .40 caliber Glock. Police also recovered an empty magazine clip, a magazine clip loaded with .45 caliber bullets, a box of .45 caliber bullets, a single 9-millimeter bullet, 8.2 grams of crack cocaine, drug paraphernalia, and a cell phone. [Appellant] was arrested for Mr. Cunningham's murder. Homicide Detectives interviewed [Appellant], who gave a statement in which he admitted that all of the items police recovered from the house belonged to him.
The police obtained [Appellant]'s cell phone records. Using these records, police were able to determine that on the night of the murder, [Appellant]'s cell phone was used first in West Philadelphia, where [Appellant] resided, then in South Philadelphia at the approximate time that the murder took place, then again in West Philadelphia. Police also obtained surveillance video from a convenience store on the corner of 17thStreet and Bancroft Street near where the shooting took place. This video showed a light-colored minivan being driven south on Bancroft Street four minutes before the murder took place. The minivan was consistent with the size and shape of a minivan that was registered to [Appellant] and that [Appellant] had been seen driving on numerous occasions.
As [Appellant] was awaiting trial, he was housed at the State Correctional Institute in Camp Hill, Pennsylvania. In January 2011, [Appellant] told his cellmate, William Gabriel, that he had killed someone because that person witnessed [Appellant]'s friend shoot someone. [Appellant] also told Mr. Gabriel that he knew that there was a witness to Mr. Cunningham's murder, and that [Appellant] had people on the outside "trying to get at him."

(Trial Court Opinion, 4/29/13, at 2-6 (record citations omitted)).

On September 28, 2012, a jury convicted Appellant of one count each of murder in the first degree, conspiracy to commit murder, and PIC. The same day, the trial court sentenced Appellant to life in prison for the murder charge, plus a consecutive sentence of not less than twenty nor more than forty years for conspiracy and not less than one nor more than two years for PIC. Appellant filed post-sentence motions which the trial court denied on January 15, 2013, and Appellant timely appealed.[2]

Appellant raises five questions for our review:

I. Is [Appellant] entitled to an arrest of judgment on [m]urder in the [f]irst [d]egree and all charges where the evidence is insufficient to sustain the verdict?
II. Is [Appellant] entitled to a new trial on all charges where the verdict is not supported by the greater weight of the evidence?
III. [Whether Appellant] should be awarded a new trial as a result of [c]ourt error where the [t]rial [c]ourt permitted testimony in the form of rampant speculation that was not supported by any special expertise?
IV. Is [Appellant] entitled to a new trial as the result of [c]ourt error where the [c]ourt permitted certain audio tapes to be played to the jury without authenticating that ...

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