February 21, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
ROBERT SPIVEY, Appellant
Appeal from the Judgment of Sentence entered April 1, 2013, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0000470-2012.
BEFORE: ALLEN, JENKINS, and FITZGERALD [*] , JJ.
Robert Spivey ("Appellant") appeals from the judgment of sentence entered after a jury convicted him of first degree murder and carrying a firearm in Philadelphia. We affirm.
The trial court recited the factual accounts presented at trial as follows:
On July 7, 2011, at 7:34 p.m., at Temple University Hospital, Alonzo Guy was pronounced dead as a result of gunshot wounds, including a perforating wound to his back that injured his kidney, liver, stomach, and small bowel. Doctor Edwin Lieberman, an expert in forensic pathology, testified that this perforating wound caused Guy's death from internal bleeding. Guy had been shot earlier that afternoon.
Jermaine Harvin testified that at the time of the shooting, he was selling PCP on the 4400 block of Cleveland Street in North Philadelphia for his cousin Guy, who he knew as Lonnie, and that he and Guy were friends with [Appellant], who he knew as Beano. He considered [Appellant] a good friend from childhood, and his uncle has a child with [Appellant's] aunt. Harvin had been reselling drugs for approximately a year prior to the shooting, and during some of that time, [Appellant] had been absent from the neighborhood. However, he returned approximately six months prior to the shooting, and began selling drugs. [Appellant] sold drugs on Cleveland Street, but not for Guy. [Appellant], Guy, and Harvin had apparently been getting along until the night before the shooting.
On the evening of July 6, a drug purchaser came to the corner of Cleveland Street and Cayuga Street and spoke to Guy, to say that he was going to purchase from Guy's seller, indicating [Appellant]. Guy clarified that [Appellant] was not selling drugs for him, and then directed the purchaser toward Harvin, who completed the sale. Guy left the block shortly thereafter.
After Guy left the block that night, [Appellant] prevented Harvin from making another sale, telling the buyers that nobody would be buying anything that night. He then approached Harvin while holding a gun, and told him that he would be taking his and Guy's money, and that nobody would be making any more money on the block. He also said, "I'm not playing with you all." Harvin called Guy to warn him about [Appellant's] threat. Guy then returned to the block and had a heated conversation with [Appellant] there.
The next day, Harvin resumed selling drugs in the neighborhood. During the day, he made several sales on Gratz Street, one block over from Cleveland Street, in order to avoid potential surveillance from several PennDOT vehicles that were parked just past Cayuga Street nearer to (and within sight of) Cleveland. While he was on Gratz Street, Harvin saw [Appellant] drive by. The PennDOT trucks left, and Harvin returned to Cleveland Street in order to sell PCP there. At approximately 3 o'clock p.m., Guy came to Cleveland Street as well.
Shortly before the shooting, Harvin received a call from a potential buyer, and went into an alley in order to get the drugs he would need in order to complete the sale. He was carrying a handgun in his pocket at the time. Harvin had acquired the gun from a friend named Dwayne Marks earlier that day, after telling Marks about [Appellant's] threats from the previous night. As Harvin was completing the sale, [Appellant] started firing toward Guy. When Harvin pulled his gun and tried to shoot back, the gun did not fire.
Harvin heard [Appellant] fire approximately five shots, and heard Guy scream. He also saw [Appellant] walk away from the scene of the shooting. By the time Harvin pulled his gun to return fire, [Appellant] had finished shooting and was already leaving the scene. Later, Harvin spoke to Marks about the gun, and Marks showed him that the gun fired when the safety was properly activated. Later that night, Harvin found out that Guy had died as a result of the shooting. Harvin did not see [Appellant] on the block again after that day.
Miyoshi McClellan testified that immediately prior to the shooting she was outside of her house on the 4400 block of Cleveland Street, sweeping up leftover trash from the trash collection earlier that day. While she was sweeping, she saw [Appellant] and Guy on the block. She went back into her house and went upstairs, and then she heard what she thought at the time were firecrackers. Her fiancée, who was downstairs, screamed her name and started from the kitchen, as he had not noticed her come back into the house and was worried that she was still outside during the shooting. McClellan looked out the window and saw [Appellant] driving away at a high rate of speed.
Audrey Bivens-Ross, who also lives on the 4400 block of Cleveland Street, was inside her house when the shooting began. She looked out a window and saw [Appellant] approaching the driver's side of his vehicle. She then saw him drive away, taking a left on Cayuga Street, which is a one-way street going the other way. Harvin, McClellan, and Bivens-Ross each testified that they did not see [Appellant] on the block again after the shooting.
Officer Robert Stott of the Philadelphia Police Firearms Identification Unit determined that all five fired cartridge casings found at the scene had been fired from the same .9 mm handgun.
Trial Court Opinion, 6/10/13, at 2-5 (citations to notes of testimony omitted).
Appellant was arrested and charged with murder and related firearms offenses, some of which were nolle prossed. A jury trial commenced on March 4, 2013, and on March 8, 2013, the jury rendered its guilty verdicts. On April 1, 2013, the trial court sentenced Appellant to life imprisonment without parole for first degree murder, with a concurrent one to two years for carrying a firearm in Philadelphia. Appellant filed a post sentence motion on April 10, 2013, which the trial court denied. This timely appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. Is [Appellant] entitled to an arrest of judgment on the charge of Murder in the First Degree as the verdict is not supported by sufficient evidence as the Commonwealth did not prove that [Appellant] acted with a specific intent to kill, nor did the Commonwealth prove that [Appellant] was aware of that intention to kill at the time of the shooting, and where the Commonwealth did not prove malice?
II. Is [Appellant] entitled to a new trial as the verdict is not supported by the greater weight of the evidence?
III. Is [Appellant] entitled to a new trial as a result of [trial court] error where the [trial court] failed and refused to charge on the issue of justification/self-defense and failed to charge on the issue of Voluntary Manslaughter?
IV. Is [Appellant] entitled to a new trial as the result of [trial court] error where the [trial court] would not permit full and fair impeachment of Commonwealth witness [J]ermaine Harvin as to his potential bias in the case?
V. Is [Appellant] entitled to a new trial as the result of [trial court] error where the [trial court] failed and refused to give cautionary instruction[s] to the jury with regard to certain comments by the prosecutor which were prosecutorial misconduct in nature and at the very least, grossly inappropriate and unfairly prejudicial?
Appellant's Brief at 3.
In his first issue, Appellant argues that the evidence was insufficient to sustain his first degree murder conviction.
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all 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. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of the witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa. Super. 2003) (citations omitted).
The crime of first degree murder is defined as an intentional killing, i.e., a "willful, deliberate and premeditated killing." 18 Pa.C.S.A. § 2502(a) and (d). "In order to prove first-degree murder, the Commonwealth must establish: (1) a human being was killed; (2) the accused caused the death; and (3) the accused acted with malice and specific intent to kill." Commonwealth v. Staton, 38 A.3d 785, 789 (Pa. 2012) (citations omitted). The jury may infer the intent to kill based upon the accused's use of a deadly weapon on a vital part of the victim's body. Staton, 38 A.3d at 789. A deadly weapon is defined as "[a]ny firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury." 18 Pa.C.S.A. § 2301. "[M]alice … may be found from the circumstances surrounding the murder. Malice can be demonstrated by evidence of 'wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.'" Commonwealth v. Hall, 701 A.2d 190, 200 (Pa. 1997) quoting Commonwealth v. Wharton, 607 A.2d 710, 720 (1992).
The trial court found that the evidence was sufficient to support Appellant's conviction, and explained:
Here, eyewitness testimony established that [Appellant] pulled a gun and shot the decedent in the back, penetrating his chest cavity and causing his death. It is long-established Pennsylvania law that the torso, which contains multiple vital organs, including the kidneys and the liver, is a vital part of the body.
[Appellant] threatened the decedent and Jermaine Harvin on the night prior to the murder, and then followed through on his threat the following afternoon. [Appellant] fired his weapon five times, belying any argument that he did not intend to shoot at the decedent and Jermaine Harvin. The Commonwealth established that [Appellant's] motive was to control the drug trade on the block where the shooting occurred, by eliminating a rival dealer.
Trial Court Opinion, 6/10/13, at 6.
Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, we agree with the trial court that this evidence was sufficient to sustain Appellant's first degree murder conviction. Our review of the record confirms that Mr. Harvin, whom the jury found credible, testified that Appellant, while carrying a gun, told Harvin that he and Mr. Guy were not to sell drugs on Cleveland Street anymore. N.T., 3/5/13, at 89-91. When Mr. Harvin informed Mr. Guy of this development, Mr. Guy returned to Cleveland Street and engaged in a heated conversation with Appellant. Id. at 96-97. The following day, when Mr. Harvin was conducting drug sales in the Cleveland Street area with Mr. Guy, Appellant approached, firing a weapon at Mr. Guy. Id. at 105-108, 126. Both Ms. Bivens-Ross and Ms. McClellan identified Appellant as being present at the scene. Id. at 304, 325. Given the foregoing law and testimony, we conclude that the evidence was sufficient to show that Appellant possessed the specific intent to kill. See Commonwealth v. Hawkins, 701 A.2d 492, 500 (Pa. 1997) (citations omitted) ("When there is no direct evidence of intent to kill, the fact-finder may glean the necessary intent from the act itself and from all surrounding circumstances."); Commonwealth v. Faulk, 928 A.2d 1061, 1069 (Pa. Super. 2007) ("The jury, not this Court, is charged with the responsibility of evaluating the credibility of the witnesses, and in doing so, the jury is free to believe all, part, or none of the evidence."). Appellant's sufficiency claim fails.
In his second issue, Appellant argues that the verdict was against the weight of the evidence. Appellant's Brief at 14-18. The weight of the evidence is exclusively for the finder of fact, who is free to believe all, part, or none of the evidence, and to assess the credibility of the witnesses. ... An appellate court cannot substitute its judgment for that of the jury on issues of credibility." Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011). "Thus, we may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim." Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted).
Here, in reaching its verdict, the jury apparently found the testimony of Mr. Harvin, Ms. Bivens-Ross and Ms. McClellan to be credible, and their identification of Appellant to be reliable, despite cross-examination by Appellant designed to impeach their credibility. As the trial court observed, "[m]ultiple eyewitnesses gave consistent testimony as to how the shooting occurred, and there was no testimony that called into question Jermaine Harvin's credible account of what happened. Further, Harvin's account was supported by the physical evidence, including the ballistic evidence and the examination of the decedent's body." Trial Court Opinion, 6/10/13, at 7-8.
Appellant asserts that Mr. Harvin's testimony was self-serving, and was not credible because his account of the events at trial varied from his account to police at the time of the incident. However, "[such] [q]uestions concerning inconsistent testimony and improper motive go to the credibility of the witnesses. [An appellate court] cannot substitute its judgment for that of the [fact finder] on issues of credibility." Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004). The trial court found no merit to Appellant's post-sentence challenge to the weight of evidence, concluding that the verdict was not so contrary to the evidence as to shock the conscience. Based upon the testimony of record, we find no error in the trial court's rejection of Appellant's weight claim.
In his third issue, Appellant argues that the trial court erred in denying his request to charge the jury on the issue self-defense, justification, and voluntary manslaughter. See 18 Pa.C.S.A. § 505.
Before the issue of self-defense may be submitted to a jury for consideration, a valid claim of self-defense must be made out as a matter of law, and this determination must be made by the trial judge. ... [S]uch evidence from whatever source must speak to three specific elements for a claim of self-defense to be placed in issue for a jury's consideration.
[T]o establish the defense of self-defense, it must be shown that a) the slayer was free from fault in provoking or continuing the difficulty which resulted in the slaying; b) that the slayer must have reasonably believed that he was in imminent danger of death or great bodily harm, and that there was a necessity to use such force in order to save himself therefrom; and c) the slayer did not violate any duty to retreat or to avoid the danger.
If there is any evidence from whatever source that will support these three elements then the decision as to whether the claim is a valid one is left to the jury and the jury must be charged properly thereon by the trial court.
Our case law makes it crystal clear that the charge of self-defense must be given upon request where the jury would have a possible basis for finding it.
While there is no burden on the defendant to prove a claim of self-defense, it is nevertheless required that before such a defense is properly in issue at trial, there must be some evidence, from whatever source, to justify such a finding.
Thus, if there was evidence which would have supported the claim of self-defense, it was for the trier of fact to pass upon that evidence and improper for the trial judge to exclude such consideration by refusing the charge.
This is so even though the evidence of self-defense may appear to the trial court as not credible, for it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced ... The fact finder is free to believe all, part, or none of the evidence.
Commonwealth v. Mayfield, 585 A.2d 1069, 1070–1071 (1991) (en banc) (quotations and internal citations omitted).
"The derivative and lesser defense of imperfect belief self-defense is imperfect in only one respect-an unreasonable rather than a reasonable belief that deadly force was required to save the actor's life. All other principles of justification under 18 Pa.C.S. § 505 must be satisfied to prove unreasonable belief voluntary manslaughter." Commonwealth v. Sepulveda, 55 A.3d 1108 (Pa. 2012). See Commonwealth v. Ragan, 743 A.2d 390, 396 (Pa. 1999) ("We have repeatedly held that a voluntary manslaughter instruction is warranted only where the offense is at issue and the evidence would support such a verdict."); Commonwealth v. Sanchez, __ A.3d __, 2013 WL 6619130 at 29 (Pa. 2013) ("imperfect self-defense," will only justify a voluntary manslaughter instruction in limited circumstances and there must be some evidence, from whatever source, to justify such a finding).
In support of his assertion that he was entitled to self-defense, justification and voluntary manslaughter instructions, Appellant relies on Mr. Harvin's testimony that at the time Mr. Guy was shot, Mr. Harvin was carrying a gun and attempted to fire it at Appellant. Appellant's Brief at 19-21. However, as the trial court explained:
Here, the only possible piece of evidence that would support a justification charge is Jermaine Harvin's testimony that he had a gun at the time [Appellant] shot and killed the decedent. However, by that same testimony, Harvin established both that he did not raise and aim the gun until [Appellant] had ceased firing, and that he was not able to shoot the gun because he did not understand how to properly operate the safety. Further, and crucially, all relevant evidence shows that [Appellant] was not free from fault in provoking or continuing the conflict from which the shooting arose, and in fact was the sole instigator of this violent act. A justification instruction was utterly unwarranted, and rightly denied.
Trial Court Opinion, 6/10/13 at 9.
Upon review, we agree with the trial court that the evidence in Appellant's case does not support Appellant's claims of perfect or imperfect self-defense, and that instructions on self-defense or voluntary manslaughter were not warranted.
Appellant next argues in his fourth issue that the trial court erred when it curtailed his cross-examination of Mr. Harvin and prevented Appellant's counsel from questioning Mr. Harvin about his fear of being charged with first degree murder and sentenced to life imprisonment for the death of Mr. Guy. Appellant's Brief at 22-24.
Appellant refers to the fact that, during opening statements, Appellant's counsel suggested to the jury that "Mr. Harvin has a reason to lie" because "in theory, he could be arrested for murder ... [I]n theory, he could have been charged with murder in the first degree and look at life in prison without the possibility of parole." N.T., 3/5/13, at 55-56. The Commonwealth objected and in response, the trial court limited Appellant's cross-examination of Mr. Harvin, explaining: "I am ruling ... that you can't repeat, and ... it's not relevant for purpose of the credibility determination of the witness as to what the sentence is for first degree murder." N.T., 3/5/13, at 230-231.
Appellant argues that his counsel should have been permitted to cross-examine Mr. Harvin about his fear of serving a life sentence, as it had bearing on Mr. Harvin's motives for testifying against Appellant. The trial court disagreed, explaining:
[T]he defense sought to allege that Harvin could have been charged with First-Degree Murder in this case, and wanted to be able to emphasize the penalty for First-Degree Murder in order to insinuate that Harvin's testimony was self-serving and that he was the real instigator in this shooting and should be held responsible for his friend's death.
The problem with this defense theory is that there is no version of the facts, even if all defense insinuations are given full weight, in which Harvin could properly be charged with First-Degree Murder. There is no evidence that he instigated the shooting, and there is no evidence that he intended to kill either [Appellant] or the decedent. The shooting had come to an end by the time Harvin first lifted his gun from his side. Because the facts do not support a charge of First-Degree Murder against anyone other than [Appellant], the defense's desired course of cross-examination was unsupportable. The Commonwealth's argument that the defense was simply (and impermissibly) trying to emphasize that the penalty for First-Degree Murder is life without parole makes the most sense and supports [the trial court's] ruling.
Trial Court Opinion, 6/10/13, at 10-11.
"The Sixth Amendment guarantees a criminal defendant the right to confront witnesses against him, which includes the right to cross-examine witnesses. However, it is well settled that it is within the discretion of the trial court to determine the scope and limits of cross-examination and that an appellate court cannot reverse those findings absent a clear abuse of discretion or an error of law." Commonwealth v. Whiting, 668 A.2d 151 (Pa. Super. 1995) (citations and internal quotations omitted). Here, we find no such abuse of discretion.
The trial court did not prevent Appellant from cross-examining Mr. Harvin about his involvement in Mr. Guy's death. The trial court precluded Appellant only from eliciting the penalty for first degree murder. Thus, contrary to Appellant's assertions, he was not precluded from cross-examining Mr. Harvin as to his motives for testifying against Appellant. In fact, during cross-examination, the Commonwealth specifically asked Mr. Harvin, "you were aware, sir, that if the Commonwealth ... believed that you were the first person to attempt to shoot ... you could be arrested for the murder..." and "that gives you a pretty strong incentive to say that [Appellant] shot first." N.T., 3/5/13, at 251.
Again, the trial court did not prevent Appellant from exploring Mr. Harvin's motives for identifying Appellant as the shooter, but only from discussing the possible penalty for first degree murder, on the grounds that matters of sentencing and possible penalties were not for the jury to consider. See Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. Super. 2003) ("It is the function of the jury to evaluate evidence adduced at trial to reach a determination as to the facts ..."); 42 Pa.C.S.A. § 9711 (sentencing procedure for murder of the first degree). We find no abuse of discretion in the trial court's ruling.
In his final issue, Appellant claims that the Commonwealth committed prosecutorial misconduct during its closing arguments, and the trial court erred in failing to issue a curative instruction. Appellant objects to the following remarks by the prosecutor:
[L]ook at [Appellant's] behavior after [the shooting]. He never goes back to that block because he knows he just did that murder. The police may not be looking for him yet because they're still investigating, but he knows. He knows Jermaine knows. I'm sure other people know.
N.T., 3/7/13, at 280 (emphasis added).
Appellant objected to this remark, and the trial court sustained the objections. Id. Appellant then requested a curative instruction, asserting:
The Commonwealth ... got up there and said other people knew my client did it, which is completely and utterly inappropriate. I am not going to ask for a mistrial [although] I think it might be mistriable. However ... I'm requesting of the Court to do a curative instruction ... that there was absolutely no evidence that ... other people knew.
N.T., 3/7/13, at 295.
The trial court, however, declined to issue a curative instruction. In its Pa.R.A.P. 1925(a) opinion, the trial court explained that a curative instruction was not warranted because the jury had already been instructed that closing arguments were not evidence and "given the speculative and fleeting nature of the comment ... the comment was unlikely to be given much weight by the jury, and drawing any further attention to it would not have been necessary or beneficial." Trial Court Opinion, 6/10/13, at 12. We find no error in the trial court's determination.
[I]n reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made. Our review of prosecutorial remarks and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial.
It is well settled that a prosecutor has considerable latitude during closing arguments and his arguments are fair if they are supported by the evidence or use inferences that can reasonably be derived from the evidence. Further, prosecutorial misconduct does not take place unless the unavoidable effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict. Prosecutorial misconduct is evaluated under a harmless error standard.
In determining whether the prosecutor engaged in misconduct, we must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel's conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing. Moreover, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.
Commonwealth v. Judy, 978 A.2d at 1015, 1019–1020 (Pa. Super. 2009) (internal citations omitted). Moreover, "the decision to give curative instructions is within the sound discretion of the trial court and will not be disturbed absent manifest error." Commonwealth v. Ford, 650 A.2d 433, 442 (Pa. 1994).
Upon review, we find no abuse of discretion or manifest error in the trial court's decision not to issue a curative instruction. Appellant has not demonstrated that the Commonwealth's remarks interfered with the jury's ability to render a "true verdict" of guilt or otherwise prejudiced him. Judy, supra. Moreover, the trial court repeatedly instructed the jury that statements by counsel are not evidence and to rely only on witness testimony as their source of evidence. N.T., 3/7/13, at 202; N.T. 3/8/13, at 10. Appellant's fifth issue is therefore without merit. Judgment of sentence affirmed.