February 24, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
KEITH WRIGHT Appellant
Appeal from the Judgment of Sentence June 4, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003580-2011
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and WECHT, J.
Keith Wright appeals from the judgment of sentence imposed on June 4, 2012, in the Court of Common Pleas of Allegheny County. On February 3, 2012, a jury convicted Wright of murder of the second degree, burglary, and conspiracy to commit burglary. Wright was sentenced to a term of life imprisonment. On appeal, he raises sufficiency, weight, and legality of the sentence claims. Based upon the following, we conclude the Commonwealth presented sufficient evidence to support Wright's three convictions. However, as indicated and acknowledged by the trial court, it imposed an illegal sentence as to the burglary crime, and therefore, we vacate the judgment of sentence on the burglary conviction at count two.
The trial court set forth its findings of fact as follows:
On December 31, 2010, David Spence hosted a New Year's Eve party at his townhouse at 2305 Lincoln Avenue, Clairton, Allegheny County. Spence invited several of his friends, including the victim in this case, Tauvea Hurt. Shortly before midnight Spence went outside and encountered Lindsey Wright, Keith Wright's brother. Spence was aware that Keith Wright … was on very bad terms with Hurt.5 Lindsey inquired about attending the party, but Spence told Lindsey that he was not invited and that there was no one his age at the party. Lindsey walked away and Spence returned to the party.
5 I n October 2010, Hurt and three other individuals were involved in an incident in which Keith Wright was shot in the face and several items were stolen from his apartment. Based on information provided by Wright, arrest warrants were issued for Hurt and the other individuals. Hurt had never been apprehended.
Upon returning to the party Spence immediately approached Hurt and they went upstairs to talk with a few other friends. Spence and the others were concerned about Hurt's safety, and told him that it might be best for him to leave. Hurt stated that he had talked to the Wright brothers and that they were now on good terms. Reassured, everyone returned to the party.
Lindsey, however, immediately called [ Wright] and told him to hurry to Lincoln Avenue because Hurt was across the street. [ Wright] drove to Lincoln Avenue and the two brothers prepared to go across the street to shoot and kill Hurt. Shortly before 1: 00 A.M., [ Wright] and Lindsey Wright entered Spence's apartment, wearing masks, dark clothing, and baseball caps. Lindsey pushed people into the walls as he made a path to the living room. [ Wright] followed immediately behind Lindsey and positioned himself between the edge of the couch in the living room and the steps leading upstairs. Upon seeing Lindsey, Hurt tackled him onto the couch. Hurt and Lindsey fought while [ Wright] stood next to the couch. Lindsey pulled out a gun and shot Hurt once in the chest, causing him to fall to the ground at the base of the stairs. Lindsey stood over Hurt and shot him in the chest and arm s eight m ore times. All but two of the bullets passed through Hurt, and one actually struck [ Wright] in the foot as he stood next to the couch. [ Wright] and Lindsey fled out the back door.
Spence called 911 and a friend administered CPR to Hurt as he lay on the floor at the base of the steps. Emergency responders arrived within minutes and medics transported Hurt to the hospital, but efforts to save his life were to no avail. Hurt suffered a perforated lung, liver, and thoracic ascending aorta (the largest blood vessel from the heart). The cause of death was multiple gunshot wounds to the trunk and extremities, and the manner of death was homicide.
After fleeing the immediate scene [ Wright] went to the hospital to have the gunshot wound to his foot treated. A bullet was removed from his shoe and eventually compared to bullets recovered during Hurt's autopsy, as well as bullets and casings found at the scene. The crime lab determined that the bullets and casings all matched each other and were discharged from the same firearm . The police investigation led to arrest warrants being issued for [ Wright] and Lindsey Wright. On January 4, 2011, both fled to Columbus, Ohio, where they were ultimately captured by the U.S. Marshal's Fugitive Task Force on January 18, 2011, and brought back to Allegheny County.
Trial Court Opinion, 7/ 11/ 2013, at 5- 7 (record citations and some footnotes omitted).
Wright was charged with multiple offenses relating to the incident. His case proceeded to a jury trial from January 31, 2012 to February 3, 2012. As noted above, the jury convicted him of murder of the second degree, burglary, and conspiracy to com m it burglary. On June 4, 2012, the trial court sentenced Wright to life imprisonment for the murder conviction, a consecutive term of two to four years' incarceration for the burglary crime, and a consecutive term of five to ten years' imprisonment for the conspiracy conviction. Wright filed a post-sentence motion on June 15, 2012, and an amended motion on October 4, 2012. Both motions were denied on January 16, 2013. This appeal followed.
In Wright's first issue, Wright challenges the sufficiency of the evidence with respect to his murder of the second degree, burglary, and conspiracy to com m it burglary convictions. Wright's Brief at 16. First, he states there was no evidence admitted at trial that would have supported his burglary conviction because the party was considered "open, " in that people came and left at their own will, including Wright, and therefore, without the underlying felony, there was nothing to support his second-degree murder conviction. Id. at 19. Second, he argues that only one witness, Ingram, testified that Wright was at the party, wore a black mask that covered everything but his eyes and that he was not blocking the front door, did not have a weapon, and did not fight or attempt to fight with anyone. Wright contends that Ingram observed no other identifying physical features.
Moreover, he asserts that Ingram was not a credible witness because she gave inconsistent statements to police, with whom she initially failed to identify the masked men but then two days later, she was able to tell them that Wright and his brother were the perpetrators. Third, Wright argues that his version of the shooting establishes that there was insufficient evidence to convict him of the three crimes. He points to his account that he gave to police during his initial interview and another explanation that he gave during a subsequent interview and at trial: (1) that he was drinking at a bar and then saw that his cousin was having a party so he went inside to the kitchen, got himself a beer and immediately heard seven to eight gunshots, and then felt pain in his leg and ran from the house; and (2) that his brother, Lindsey, forced him to go to the party where Lindsey shot the victim and then shot Wright in the foot to keep him from telling anyone. Id. at 22-24. Fourth, Wright argues the evidence at trial did not establish that he conspired with Lindsey to commit the crimes because there was no evidence of an agreement to commit burglary or murder, a shared intent, or any overt act done by Wright in furtherance of a conspiracy. Id. at 24. Lastly, Wright claims there was no evidence that he acted as an accomplice to his brother because the testimony at trial demonstrated that Lindsey was the shooter and Wright was merely present and offered no assistance. Id. at 25.
Our standard of review regarding a sufficiency claim is well-settled:
A claim challenging the sufficiency of the evidence presents a question of law. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (Pa. 2000). We must determine "whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt." Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1267 (Pa. 1989). We "must view evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict." Id.
Our Supreme Court has instructed:
[ T] he 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. 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 witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1236 n.2 (Pa. 2007). Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa.Super. 2013).
"A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony." Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666, 681 n.19 (Pa. 1999); 18 Pa.C.S. § 2502(b). The term "perpetration of a felony" is defined as "the act of … engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit … burglary …. " 18 Pa.C.S. § 2502(d).
Commonwealth v. Montalvo, 956 A.2d 926, 934 (Pa. 2008), cert. denied, 556 U.S. 1186 (2009). "[ A]n accomplice is criminally liable for the acts of another if he agrees, aids, or attempts to aid such other person in either planning or committing a crime and acts with the intent of promoting or facilitating the commission of that offense, 18 Pa.C.S. § 306(c)(1)(ii)." Commonwealth v. Roebuck, 32 A.3d 613, 615 n.2 (Pa. 2011).
A person commits burglary if he "enters a building or occupied structure … with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter." 18 Pa.C.S. § 3502.
"To sustain a conviction for criminal conspiracy, the Commonwealth must establish 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." Commonwealth v. Devine, 2011 PA.Super. 163, 26 A.3d 1139, 1147 (Pa.Super. 2011). "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." Id. The conspiratorial agreement "can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode." Id.
Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa.Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013). Here, the discussion of the Honorable Edward J. Borkowski thoroughly addresses and properly disposes of this claim, and, as such, we adopt that discussion as dispositive:
[Wright] claim s the evidence was insufficient to support the conviction of burglary because the party was open to the public. However, the record established that: (1) Spence invited specific people to his party; (2) Spence knew everyone at his party; (3) Lindsey was expressly told that he was not invited to the party; and (4) [Wright] admitted in his testimony that he entered the party without an invitation.
This evidence was sufficient to sustain the conviction of burglary. Commonwealth v. Diggs, 949 A.2d 873, 878-879 (Pa. 2008) (evidence sufficient to support burglary conviction where defendant had been expressly told not to enter the home, victim's family knew he was not permitted in the home, and defendant had to "shove" his way into the home).
. . . .
[ Wright] alleges that the evidence was insufficient to sustain his conspiracy conviction based on the argument that there was no evidence of a conspiracy. However, the record established that: (1) [ Wright] had recently been robbed and shot in the face by Tauvea Hurt; (2) Lindsey Wright learned that Hurt was at Spence's party; (3) Lindsey called [ Wright] to notify him, and [ Wright] immediately responded to meet Lindsey; (4) Lindsey did not know what Hurt looked like; (5) [Wright] and Lindsey donned dark clothing, hats, and masks and together entered Spence's home with the intent to shoot Hurt; (6) [ Wright] blocked the front entrance as Lindsey shot Hurt nine times; and (7) both fled the immediate scene and the state together.
This evidence of the relationship and conduct of the Wright brothers was sufficient to sustain the conviction of conspiracy. See [ Commonwealth v. Huddleston, 55 A.3d 1217, 1224-1225 (Pa.Super. 2012)] (defendant was considered an active participant in conspiracy where he planned murder with co-conspirator and led victim to site where co-conspirator shot victim). See also Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002) (conspiracy may be proven by circumstantial evidence, such as the relationship of the parties and conduct between the co-conspirators).
. . . .
[ With respect to Wright's claim that the evidence was insufficient to convict him of second degree murder], the record established that once Lindsey learned that Hurt was across the street, he called [ Wright] to notify him, and the two brothers immediately met, donned dark clothing, masks, and hats, and unlawfully entered Spence's townhouse in order to shoot and kill Hurt. [ Wright] blocked the front entrance while Lindsey shot Hurt nine times, and the two brothers fled the immediate scene and the state together. This evidence was sufficient to sustain the conviction of second degree murder. See Huddleston, 55 A.3d at 1224-1225 (defendant was considered an active participant in conspiracy where he planned murder with co-conspirator and led victim to site where co-conspirator would shoot him, and thus defendant was properly held responsible for all actions of his co- conspirator).
Trial Court Opinion, 7/ 11/ 2013, 8-11 (record citations omitted).
Based on our review of the record, we find no error in the trial court's analysis. The Commonwealth presented evidence that both Wright and his brother were not invited to the party, and that Wright's brother acted with the necessary intent when he fought and then shot at the victim because he was seeking retribution from the victim for previously shooting Wright. Therefore, one could reasonably infer that Wright and his brother intended to commit a burglary when they entered the residence, which they were not licensed or privileged to do so, intending to commit a crime, as evidenced by Wright's brother firing the gun and shooting the victim numeroustimes. See 18 Pa.C.S. § 3502.
Moreover, contrary to Wright's argument, the brother's actions were attributable to Wright as a co-conspirator, where Wright testified that he knew his brother was going to shoot and kill the victim and both men acted in concert where they wore dark clothing, hats, and masks and together entered the home. The trial testimony also established Wright stood at the front entrance as his brother shot the victim nine times, and both m en fled the scene and the state. See Feliciano, supra. Furthermore, based on these facts, there was sufficient evidence to support the murder conviction.
We emphasize that the jury, sitting as the fact-finder was free to believe all, part, or none of the evidence presented and here, they found Ingram more credible than either of Wright's two explanations of what happened on the night of the shooting. See Lyons, 79 A.3d at 1062 ("jury [ sitting] as finder of fact is entitled to credit all, part, or none of the evidence presented at trial"). With respect to Wright's argument regarding Ingram 's inconsistent statements, we reiterate this "Court has previously held that inconsistencies in a witness's prior statement can be explained by testimony which corroborates the emotional condition of the witness at the time he or she gave the prior inconsistent statement." Commonwealth v. Randall, 758 A.2d 669, 677 (Pa.Super. 2000), appeal denied, 764 A.2d 1067 (Pa. 2000). As such, Ingram 's failure to identify the shooters in her initial statement as a result of being "scared, " was reasonable.
Moreover, she testified she was familiar with both Wright and his brother because they lived in the same community. N.T., 1/ 30/ 2012-2/ 3/ 2012, at 160. She stated on the night of the party, she was not drinking or taking drugs. Id. at 161. She also testified that she recognized Wright's brother as the shooter and that Wright was standing by the door with his mask on and he followed behind his brother when they fled. Id. at 165-169. We note the trial testimony established that a gunshot residue kit was performed on Wright at the hospital on January 1, 2011, and the results indicated he either fired a gun or was in close proximity to a gun that was fired. N.T., 2/ 1/ 2012, at 35. Additionally, a .32 caliber bullet was recovered from Wright's shoe at the hospital, which matched ballistics evidence recovered from the scene. N.T., 1/ 30/ 2012-2/ 3/ 2012, at 256. Likewise, a nine millimeter caliber bullet was also recovered from the sole of Wright's shoe and it matched the other bullets received from the scene as well as from the victim 's body. Id. at 259- 260.
Therefore, based on the totality of the circumstances, the jury could reasonably conclude that Ingram 's identification of Wright as one of the masked men was reliable. As such, the facts and circumstances, taken in a light most favorable to the Commonwealth as the verdict winner, were sufficient to sustain Wright's convictions for second-degree murder, burglary, and conspiracy. Accordingly, we conclude Wright's challenge to the sufficiency of the evidence is without merit.
Next, Wright contends that the verdict is against the weight of the evidence with respect to his three convictions. Wright's Brief at 26. Wright points to the following evidence to support his argument: (1) he testified that his life was threatened by his brother, he was forced to attend the party, and he had no role in the killing or any crime that occurred that evening; (2) Taryn Ingram was the only witness who observed Wright at the party and she testified that he did nothing except stand by the front door; (3) Ingram gave inconsistent statements to the police; (4) Ingram's identification of Wright and his brother was based on the only visible part of the perpetrators, the eyes, because both men were wearing masks; (5) another witness, Rheyshawn Lee, testified that she recognized the voice of one of the masked men as "Qualynn Twilley" and stated she never saw Wright at the party; and (6) a third witness, Parris Shepherd, testified she never saw Wright in the house or outside the house on the night of the incident and she could not identify the perpetrators. Id. at 27-29. Wright concludes his convictions "are solely the product of Ingram only allegedly seeing [ Wright] 's eyes and nothing else[ .] " Id. at 29.
The Pennsylvania Supreme Court expounded upon the nature of the appellate standard of review for a weight claim:
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
[ Commonwealth v.] Widmer, 560 Pa. [ 308, ] at 321-22, 744 A.2d at [ 745, ] 753 [(Pa. 2000)] (emphasis added).
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). Accordingly, we focus on whether the trial court's ruling is "manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill- will." Id.
Here, the trial court noted the jury found the Commonwealth's witnesses were credible and Wright's version of events incredible. See Trial Court Opinion, 7/ 11/ 2013, at 12; see also Lyons, supra. Moreover, the court stated:
[ T] he record established that Taryn Ingram: (1) was familiar with [ Wright] and Lindsey Wright from the neighborhood; (2) was not intoxicated the evening of the shooting; (3) could see the eyes of the two masked men; (4) was in close proximity to [ Wright] and Lindsey; (5) did not identify the masked men at a police interview in her home in Clairton on the morning of January 1, 2011, because she was scared; (6) went to the police station two days later and identified the masked men as [ Wright] and Lindsey Wright; (7) identified [ Wright] at the preliminary hearing; and (8) identified [ Wright] at trial.
It is clear that the jury, in its fact finding function, found the identification testimony by Ingram to be credible. Thus, the Trial Court did not err in denying [ Wright] 's weight claim as the verdicts were not against the weight of the evidence. See Commonwealth v. Murphy, 613 A.2d 1215, 1220 (Pa.Super. 1992) (verdict for third degree murder not against the weight of the evidence and identification testimony of witness credible even though witness did not identify defendant at preliminary hearing as witness had been threatened and was frightened, and witness remained unshaken in identification of defendant even after extensive cross examination).
Trial Court Opinion, 7/ 11/ 2013, at 14.
We conclude the court did not abuse its discretion in denying Wright a new trial based on his claim. Wright asks this Court to reweigh the evidence and give the greatest weight to his own testimony. We decline to do so. As our Supreme Court has made clear, we may not reweigh the evidence and substitute our judgment for the trial court's decision. See Clay, supra.
As stated above, eyewitness, Ingram, was familiar with Wright and his brother. She could see the eyes of the two perpetrators and was able to identify, with little difficulty, that Wright and his brother were the m asked men. Moreover, even though Ingram failed to name the men during her initial police interview because she felt frightened, she consistently identified them in a subsequent police interview and later criminal proceedings. Further, it is of no consequence that two of the other witnesses failed to identify Wright, because the jury apparently found Ingram's identification was sufficient. On the other hand, it is evident the jury disbelieved Wright's own version of events. As such, the verdict does not shock one's sense of justice. Accordingly, we conclude the law was properly applied and discern no partiality, prejudice, bias or ill- will. See Clay, supra . Therefore, Wright's weight claim fails.
In his final argument, Wright alleges his burglary conviction should have merged with his second-degree murder crime for sentencing purposes.
A claim that the trial court imposed an illegal sentence by failing to merge sentences is a question of law. Accordingly, our standard of review is plenary. The Pennsylvania legislature passed a statute governing merger, which states:
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.
Commonwealth v. Schmohl, 975 A.2d 1144, 1149 (Pa.Super. 2009), quoting 42 Pa.C.S. § 9765. "The statute's mandate is clear. It prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other." Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).
Here, the trial court concedes that it erred:
The Superior Court has held that a felony conviction merges with a second degree murder conviction for purposes of sentencing where it is the underlying felony supporting the second degree murder conviction. Commonwealth v. Wade, 33 A.3d 108, 121 (Pa.Super. 2011) (citing Commonwealth v. Tarver, 426 A.2d 569 (Pa. 1981) and Commonwealth v. Harper, 516 A.2d 319 (Pa. 1986) (Papadakos, J., concurring)).
As [ Wright] 's burglary conviction was the underlying offense for his second degree murder conviction, the sentence as imposed was in error and thus the sentence for the burglary conviction should be vacated. Commonwealth v. Adams, 39 A.3d 310, 325 (Pa.Super. 2012), appeal granted on other grounds (error to impose separate sentences for second degree murder and underlying felony of burglary as two merged for purposes of sentencing; vacated and remanded for resentencing solely on that basis).
Trial Court Opinion, 7/11/2012, at 16.
In accordance with Adams, supra, we agree with both parties and the trial court that the separate sentence for burglary was in error. Accordingly, we vacate the sentence for burglary (count two) because it should have merged with the second-degree murder for sentencing purposes. Nevertheless, Wright's sentencing remains the same because the sentencing scheme is not upset since Wright received a life sentence for the second-degree murder conviction. Therefore, there is no need to remand for resentencing.
Judgment of sentence at count two (18 Pa.C.S. § 3502(a)) vacated. Judgment of sentence affirmed in all other respects. Jurisdiction relinquished. Judgment Entered.