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[U] Commonwealth v. Young

Superior Court of Pennsylvania

February 24, 2014



Appeal from the Judgment of Sentence August 10, 2012 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0000434-2009

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



Appellant, Antoine Young, appeals from the judgment of sentence entered August 10, 2012, following his jury conviction of murder in the second degree and other offenses. For the reasons discussed below, we affirm.

The underlying facts and procedural history in this matter are taken from the trial court's opinion of June 11, 2013.

On July 22, 2008 at approximately 6:30p.m., [Appellant] telephoned his friend Milton Henry and asked Mr. Henry to meet him at his mother's house located near the intersection of 12th and Green streets in Philadelphia. Mr. Henry arrived as [Appellant] emerged from a friend's vehicle, and [Appellant] entered Mr. Henry's vehicle, stating that he planned to meet with the decedent, Robert Battle. [Appellant], who was engaged in illegal drug sales, told Mr. Henry that Mr. Battle had recently been involved in an altercation with members of [Appellant]'s family, but despite that, he intended to complete a drug transaction with him. [Appellant] explained that he planned to sell Mr. Battle approximately one (1) pound of marijuana, for a purchase price of $900. Knowing that Mr. Battle would only have $500, [Appellant] planned to await payment of the balance before delivering the marijuana. [Appellant] knew that Mr. Henry routinely travelled with weapons in his car, and almost immediately upon entering the vehicle, asked Mr. Henry for a weapon to take with him when he met with Mr. Battle. Prior to Mr. Battle's arrival, he and [Appellant] spoke briefly on the phone, and shortly thereafter, Mr. Battle arrived on the scene.
When Mr. Battle arrived, [Appellant] left Mr. Henry's vehicle and entered Mr. Battle's vehicle. Mr. Battle and [Appellant] drove to a secluded area, with Mr. Henry following close behind. After Mr. Battle parked, Mr. Henry parked approximately three (3) car lengths behind. [Appellant] and Mr. Battle spoke for approximately 15 to 20 minutes, during which time Mr. Henry briefly telephoned [Appellant] to ensure that everything was okay. After ensuring that everything was okay, Mr. Henry ended the call, and [Appellant] continued his conversation with Mr. Battle. Shortly thereafter, [Appellant] got out of Mr. Battle's car and started toward Mr. Henry's car. [Appellant] then turned back toward Mr. Battle's car, walked to the open passenger side window, and fired two (2) shots into Mr. Battle's body. Seeing this, Mr. Henry switched his car into drive, and pulled closer to Mr. Battle's car, allowing [Appellant] to get in. The two fled the scene, and went to a Getty gas station nearby on Broad Street, where [Appellant] paid for the gasoline. Mr. Henry directed [Appellant] to put the gun back in the bag from where he retrieved it, and asked [Appellant] why he shot Mr. Battle. Without further explanation, [Appellant] merely stated his reason for shooting at Mr. Battle "was personal, " and requested that Mr. Henry take him home. Mr. Henry abided, and took [Appellant] to his home near the area of 26th and Lehigh Avenues in Philadelphia.
At approximately 7:30p.m., Mr. Battle's body was discovered on the 1300 block of Green Street in Philadelphia by [a] passersby on the street. Alvin Littlejohn called the 911 [sic] after being told that there was a man in a car with what appeared to be a bruise on his head. Crime scene officers were dispatched at 8:00p.m., and arrived on the scene around 8:40p.m. Officers discovered Mr. Battle, seated in his car, suffering from a bullet wound to his head and his hand. As the area was considerably secluded, officers were unable to locate any witnesses who had seen or heard anything. Officer[s] searched the vehicle for ballistics evidence, DNA, and fingerprints, and also recovered the victim's cell phone. Officers were able to recover a bullet and a bullet jacket fired from a Smith and Wesson revolver, DNA samples from a spoon and a yogurt cup in the front of the vehicle, and four partial fingerprints. Although officers were able to match the ballistics evidence to the murder weapon, they were unable to match any DNA to [Appellant]. Of the fingerprints that were found, only one was usable and it belonged to the victim. Although Mr. Battle normally wore jewelry, [and] carried a wallet and cash, only his keys and $0.21 were found with his body.
On July 24, 2008, Mr. Henry was arrested after being stopped for a traffic violation when officers discovered two (2) weapons in the trunk of his car. After ballistics evidence matched the gun found in Mr. Henry's truck with the gun used to kill Mr. Battle, homicide detectives approached Mr. Henry, and he gave a statement implicating [Appellant] in this shooting. On August 6, 2008, detectives executed a search warrant for Mr. Battle's cell phone records. From those records, police determined that the last calls made prior to Mr. Battle's death included a phone call to a cellular phone owned by Macy Kee, [Appellant]'s purported wife. On August 25, 2008, detectives visited the home of Macy Kee. When they arrived, she was at home with an adult male, ultimately determined to be [Appellant], and her five children. Unable to speak with detectives at that time, Ms. Kee went down to the homicide unit and gave a statement the next day. In that statement, Ms. Kee told detectives that after the officers left her home the day before, she and [Appellant] argued about the cell phone because [Appellant] wanted to get rid of it, and he subsequently broke it.
[Appellant] gave two (2) statement[s] in this case, both implicating Mr. Henry as the shooter. The first was on September 5, 2008. In that statement, [Appellant] said that at the time of the shooting he had been at home. He said that he'd briefly spoken to Mr. Battle before giving the phone to Mr. Henry and allowing Mr. Henry to borrow his phone for a few hours. He said that Mr. Henry returned the phone but it wasn't until hours later that he learned that Mr. Battle had been killed. Finally [Appellant] said that he telephoned Mr. Henry who then told [Appellant] that he had in fact shot Mr. Battle.
[Appellant] gave a second statement to homicide detectives on September 13, 2008, after being read his Miranda[1] rights. In that statement, [Appellant] said that he lied in his earlier statement, and, in fact, he had been present at the scene. However, he again implicated Mr. Henry, stating that he was merely present as Mr. Henry decided to rob Mr. Battle, before stealing his money, and shooting him twice. [Appellant] went on to say that later he was told that Mr. Battle had been killed and that it was Mr. Henry who telephoned him to ask if he'd watched the news that evening.
Using Ms. Kee's and Mr. Battle's cell phone records, officers were able to chart the general physical location of the phone calls that were made between the two phones. Using the signal towers throughout the city, officers were able to explain to the jury [Appellant]'s location during the times just before, during, and just after Mr. Battle's murder. The records showed that the [Appellant] was "dead in the heart" of the crime scene at the time that Mr. Battle was murdered, and that in the minutes following the murder he gradually made his way back to his home. Finally, the cell phone record analysis also showed that there were no phone calls between Mr. Henry and Mr. Battle. Based on their investigation, [Appellant] was taken into custody.

(Trial Court Opinion, 6/11/13, at 2-5) (record citations omitted).

Following an August 2012 trial, the jury convicted Appellant of murder in the second degree, robbery, criminal conspiracy, and possessing instruments of crime (PIC).[2] On August 10, 2012, the trial court sentenced Appellant to life imprisonment in a state correctional facility without the possibility of parole on the conviction for murder in the second degree, to be followed by a consecutive sentence of not less than twelve and one-half nor more than twenty-five years on the remaining charges.

On August 20, 2012, Appellant filed a post-sentence motion. The trial court denied that motion by operation of law on December 19, 2012. The instant, timely appeal followed. On January 16, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On February 11, 2013, Appellant filed a petition asking that the court accept a late-filed Rule 1925(b) statement. (See Petition to Accept 1925(b) Statement as Timely Filed, 2/11/13, at 1). The trial court did not take any action on the petition. On February 27, 2013, Appellant filed his Rule 1925(b) statement. On June 11, 2013, the trial court issued an opinion addressing the merits of each of Appellant's claims. See Pa.R.A.P. 1925(a).[3]

On appeal, Appellant raises four questions for our review:

I. Is [Appellant] entitled to an arrest of judgment on all charges as there is a lack of sufficient evidence 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. Is [Appellant] entitled to a new trial as the result of court error when the court ordered the testimony of [Appellant's] wife in violation of Rule of Evidence 527 and 42 Pa.C.S. §5914?
IV. Is [Appellant] entitled to a new trial where the court refused to charge the jury that it could not find [Appellant] guilty simply because it disbelieved [Appellant's] version of the incident, all pursuant to the case of Commonwealth v. Torres, 766 A.2d 342 (Pa. 2001)?

(Appellant's Brief, at 3).

In his first claim, Appellant challenges the sufficiency of the evidence underlying his conviction of murder in the second degree, robbery, and criminal conspiracy.[4] (See Appellant's Brief, at 8-11). Our standard of review for sufficiency of the evidence claims is well settled:

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and 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. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012) (citations omitted).

Appellant challenges his conviction of murder in the second degree and robbery. (See Appellant's Brief, at 8-11). "A criminal homicide constitutes murder of the second degree when it is committed while the defendant is engaged as a principal or an accomplice in the perpetration of a felony." Commonwealth v. Montalvo, 956 A.2d 926, 934 (Pa. 2008), cert. denied, 556 U.S. 1186 (2009) (citation omitted). The statute defines "perpetration of a felony" in pertinent part, as "the act of . . . engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempt to commit robbery. . . ." 18 Pa.C.S.A. § 2502(d). A person is guilty of robbery as a felony, if, in the course of committing a theft, he or she: "inflicts serious bodily injury upon another[.]" 18 Pa.C.S.A. § 3701(a)(1)(i). "An act shall be deemed in the course of committing a theft if it occurs in an attempt to commit theft or in flight after the attempt of commission." Id. at § 3701(a)(2) (internal quotation marks omitted).

Here, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, (see Tarrach, supra at 345), the evidence was sufficient to sustain Appellant's conviction of murder in the second degree and robbery. The evidence at trial demonstrated that Appellant arranged a meeting with the victim to sell drugs. Appellant then arranged for Henry to act as his driver and to provide the weapons. When Appellant met the victim, in full view of Henry, he stole the cash the victim brought for the drug purchase, and shot him twice, once in the eye and once in the hand. (See N.T. Trial, 8/07/12, 184-98). The victim's personal jewelry and cash were missing from his remains. (See id. at 50). This is ample evidence to convict Appellant of robbery and felony murder. See Commonwealth v. Chambers, 852 A.2d 1197, 1200-01 (Pa.Super. 2004), appeal denied, 871 A.2d 188 (Pa. 2005) (holding evidence sufficient to sustain conviction for felony murder and robbery where appellant and co-defendants went to victim's residence, shot victim in head, and victim's drugs turned up missing); Commonwealth v. Ennis, 574 A.2d 1116, 1120 (Pa.Super. 1990) (holding that jury could have inferred Appellant robbed victim where $280 was missing from victim's pocket and police did not find money at crime scene).

Appellant also challenges his conviction of criminal conspiracy. (See Appellant's Brief, at 8-11). The crime of conspiracy is set forth at 18 Pa.C.S.A. § 903, which provides, in relevant part:

(a) Definition of conspiracy.-A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903(a). Thus, to sustain a conviction for conspiracy, the Commonwealth must prove that:

the defendant (1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent and (3) an overt act was done in furtherance of the conspiracy.
Circumstantial evidence may provide proof of the conspiracy. The conduct of the parties and the circumstances surrounding such conduct may create a "web of evidence" linking the accused to the alleged conspiracy beyond a reasonable doubt.

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005) (citations and some quotation marks omitted). When determining whether the evidence was sufficient to support a conviction for conspiracy, we consider the following factors:

(1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002), appeal denied, 805 A.2d 521 (Pa. 2002) (citations omitted). Each co- conspirator is liable for the acts of the other co-conspirators. See Commonwealth v. King, 990 A.2d 1172, 1178 (Pa.Super. 2010), appeal denied, 53 A.3d 50 (Pa. 2012).

Here, the evidence demonstrated all four factors necessary to sustain a conviction for criminal conspiracy. Appellant and Henry drove together to a fixed location to meet the victim. Henry provided the weapons. Appellant robbed and killed the victim. Appellant and Henry fled the scene together, stopping to get gas, which Appellant paid for. (See N.T. Trial, 8/07/12, at 184-98). This evidence was sufficient to establish criminal conspiracy. See Commonwealth v. Gibson, 668 A.2d 552, 555 (Pa.Super. 1995) (holding that appellant's presence with co-conspirator during entire criminal episode proved conspiracy); Commonwealth v. Cooke, 492 A.2d 63, 67-68 (Pa.Super. 1985) (holding evidence sufficient to sustain conviction of conspiracy where appellant was present at scene, strongly associated with co-conspirator and personally participated in crime); Commonwealth v. Olds, 469 A.2d 1072, 1075 (Pa.Super. 1983) (holding evidence sufficient to sustain convictions for conspiracy, robbery, and murder in the second degree, where appellant and co-conspirators arrived together and left together, even though all conspirators did not directly participate in robbery or murder). Appellant's sufficiency of the evidence claims lack merit.

In his second claim, Appellant claims that the verdict was against the weight of the evidence. (See Appellant's Brief, at 12-13). Appellant argues that the sole evidence connecting him to the crime was Henry's self-serving testimony, and that the greater weight of the evidence demonstrates that Henry, not Appellant, was the killer. (See id.).

Our standard of review of a weight of the evidence challenge is well-settled.

. . . [O]ur review of the trial court's decision is extremely limited. Generally, unless the evidence is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, these types of claims are not cognizable on appellate review.
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. Trippett, 932 A.2d 188, 198 (Pa.Super. 2007) (citations and quotation marks omitted).

In this case, because Appellant argues that the jury should not have credited Henry's testimony, he asks us to reassess the credibility of the witness. (See Appellant's Brief, at 12-13). However, we cannot substitute our judgment for that of the trier of fact. See Commonwealth v. Holley, 945 A.2d 241, 246 (Pa.Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008). Further, the jury, sitting as finder of fact, was free to believe the Commonwealth's witness and to disbelieve Appellant's theory of the case. See Commonwealth v. Griscavage, 517 A.2d 1256, 1257 (Pa. 1986). "[I]t is for the fact-finder to make credibility determinations, and the finder of fact may believe all, part, or none of a witness's testimony." Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa.Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation omitted). Here, the jury heard all of the testimony and, as finder of fact, chose to believe the Commonwealth's version of events. Because Appellant's challenge goes to the weight of the evidence, he necessarily concedes that the evidence is sufficient to sustain the verdict and the trial court did not abuse its discretion in denying Appellant's weight of the evidence claim. See Commonwealth v. Clay, 64 A.3d 1049, 1055-56 (Pa. 2013). Thus, we will not disturb the trial court's findings.

In his third claim, Appellant argues that the trial court erred as a matter of law in permitting Appellant's purported wife, Macy Kee, to testify against him, as such testimony was in violation of 42 Pa.C.S.A. § 5914.[5](See Appellant's Brief, at 14-16). Our standard of review is well-settled: we may only reverse a trial court's ruling regarding the admissibility of evidence if the trial court abused its discretion. Commonwealth v. O'Brien, 836 A.2d 966, 968 (Pa.Super. 2003), appeal denied, 845 A.2d 817 (Pa. 2004). Where, as here, the trial court has supplied the reasons for its decision, our scope of review is limited to "an examination of the stated reason." Id. (citation omitted). We cannot overturn a trial court's discretionary ruling merely because we might have reached a different conclusion. See id. The Supreme Court of Pennsylvania has stated that an abuse of discretion is not simply an error of judgment but an overriding or misapplication of the law. See Commonwealth v. Kocher, 602 A.2d 1308, 1310 (Pa. 1992). Further, an abuse of discretion will be found if the trial court's judgment was "manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will as shown by the evidence of record." Id. (citation omitted).

In the instant matter, the trial court found that the spousal privilege did not apply because Appellant was unable to produce any evidence showing that he and Kee were lawfully married. (See Trial Ct. Op., at 12-13). We agree.

This Court has held that "[t]he very foundation for invoking the marital privilege is the existence of a valid marriage. The test is not whether the parties believe they are married but whether they are married under the law." Commonwealth v. Lewis, 39 A.3d 341, 346 (Pa.Super. 2012), appeal denied, 51 A.3d 838 (Pa. 2012) (citations omitted, emphases in original).

Here, Kee testified that the parties married in an Islamic religious ceremony, wherein the couple made promises to each other. (See N.T. Trial, 8/08/12, at 153). However, she admitted that there was no civil ceremony, they never obtained a marriage license, and that she was no longer in possession of religious paperwork relating to the ceremony. (See id. at 155-56). Kee conceded that they did not file a joint tax return, their house was solely in her name, and that she was listed on prison visitation forms as a friend, not a spouse. (See id. at 156-58). Lastly, Kee acknowledged that she had previously been married; while she claimed to have divorced prior to "marrying" Appellant, she was unable to provide any documentation to substantiate that claim. (See id. at 160). "[A] lawful marriage is defined based upon the law and not the couple's behavior with respect to that marriage." Commonwealth v. Valle-Velez, 995 A.2d 1264, 1269 (Pa.Super. 2010), appeal denied, 13 A.3d 478 (Pa. 2010) (citation omitted). Because there was no evidence demonstrating that Appellant and Kee were legally married, the trial court did not abuse its discretion in allowing her testimony.

In his final claim, Appellant argues that the trial court erred when it refused to charge the jury that it could not find Appellant guilty solely because it disbelieved his version of the facts, in accordance with the Pennsylvania Supreme Court's decision in Commonwealth v. Torres, 766 A.2d 342 (Pa. 2001). (See Appellant's Brief, at 17). The standard governing our review of a challenge to jury instructions is as follows:

When reviewing a challenge to part of a jury instruction, we must review the jury charge as a whole to determine if it is fair and complete. A trial court has wide discretion in phrasing its jury instructions, and can choose its own words as long as the law is clearly, adequately, and accurately presented to the jury for its consideration. The trial court commits an abuse of discretion only when there is an inaccurate statement of the law.

Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.Super. 2008), appeal denied, 962 A.2d 1196 (Pa. 2008) (citation omitted).

Here, Appellant's reliance on Torres is misplaced. Torres did not concern a jury charge. In fact, it was a non-jury trial. In Torres the appellant claimed that the evidence was insufficient to sustain his conviction because he raised a valid claim of self-defense and the Commonwealth failed to rebut it. See Torres, supra at 344. Our Supreme Court agreed, noting that only evidence adduced by the Commonwealth was testimony by a police officer regarding statements made by the victim at the scene and the victim's medical records. See id. at 345. We found that this demonstrated that an altercation occurred, something the appellant did not dispute. See id. Thus, we stated that, in a situation where the appellant raised an affirmative defense of self-defense, "the Commonwealth cannot sustain its burden of proof solely on the fact finder's disbelief of the defendant's testimony." See id.

In the instant matter, Appellant did not raise the affirmative defense of self-defense, and he has not shown that Torres has any applicability outside of that context. Further, we have reviewed the jury charge as a whole, and find that the trial court thoroughly, correctly and completely instructed the jury on the Commonwealth's burden at trial, reasonable doubt, and its options should it believe or disbelieve parts or the entirety of witnesses' testimony. (See N.T. Trial, 8/09/12, at 101-02, 104-05, 107, 112). Thus, the trial court did not abuse its discretion in failing to give the requested charge.

Accordingly, for the reasons discussed above, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Jurisdiction relinquished.

Judgment Entered.

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