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[U] Commonwealth v. Spivey

Superior Court of Pennsylvania

February 21, 2014



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.




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.[1] 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 ...

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