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[U] Commonwealth v. Swan

Superior Court of Pennsylvania

March 11, 2014

RICKY C. SWAN, Appellant


Appeal Nunc Pro Tunc from the Judgment of Sentence entered August 5, 2011 In the Court of Common Pleas of Dauphin County Criminal Division No(s).: CP-22-CR-0005180-2010




Appellant, Ricky C. Swan, appeals nunc pro tunc from the judgment of sentence imposed in the Dauphin County Court of Common Pleas after a jury found him guilty of conspiracy, murder of the first degree, and robbery.[1] He asserts the trial court erred by (1) denying his motion for mistrial after a witness testified to statements made by a nontestifying codefendant, (2) permitting the Commonwealth to examine a witness as of cross, and (3) permitting the Commonwealth to use a written statement when examining the same witness. We affirm.

On December 25, 2002, near the intersection of 15th and Market Streets in Harrisburg, Pennsylvania, the decedent, Videl Little, was shot three times, twice in his chest and once in his back, and also suffered blunt force trauma to his face. The Harrisburg City Police Department investigated the homicide and found, inter alia, a broken barrel of a firearm underneath the snow. The police interviewed Marcello Wilson on the evening of December 25th. Wilson stated that he was with Little when two males approached and one of males shot Little three times. Wilson was not able to identify the assailants, and the physical and forensic evidence did not lead to a suspect in the shooting.

The investigation stalled for nearly seven and one-half years. On June 11, 2010, however, Pennsylvania State Trooper Ken Tallman stopped Schamika Hill for following his vehicle too closely. The trooper eventually took Hill into custody on outstanding bench warrants and for driving without a license, but transported her to Holy Spirit Hospital in Camp Hill after she complained of suffering from asthma. At the hospital, the trooper asked Hill if she had any information regarding other crimes. Hill ultimately provided the trooper with a written statement implicating Appellant and his brother, Sheldon Swan, in a murder. Subsequently, police officers obtained a statement from Monique Hill-Schamika's sister and Appellant's brother's former girlfriend- that implicated Appellant and his brother in the killing of Little.

On August 9, 2010, Appellant was charged with conspiracy, murder, and robbery. Appellant and his brother proceeded to a joint jury trial that commenced on August 1, 2011. At trial, the Commonwealth called Marcello Wilson. During its examination of the witness, the Commonwealth stated that his testimony was intentionally evasive and obtained permission from the trial court to ask leading questions. Thereafter, the Commonwealth examined Wilson using the written statement he gave to police on December 25, 2002.

Schamika and Monique Hill also testified. The Hills stated that on December 25, 2002, they were with Appellant and his brother at a residence on South 16th Street in Harrisburg. Appellant's brother left the residence and when he returned, he stated that someone cheated him out of money. Appellant and his brother then left the residence together. When they returned, Appellant's brother had a spot of blood on his shoe, and Appellant stated that he had pistol-whipped and killed someone. Schamika Hill also testified that Appellant had money in his hand.

During the Commonwealth's examination of Monique Hill, the prosecutor asked how Appellant's brother was acting after the incident, at which time she testified, "He [Appellant's brother] didn't really want to say too much about it. He said I can't believe my brother-" N.T., 8/1-8/5/11, at 425. The Commonwealth stopped the witness from testifying further. Id. Appellant's counsel requested a sidebar conference and moved for mistrial based on Bruton.[2] Id. at 426. The trial court denied the motion for mistrial but directed the prosecutor not to revisit the line of questioning with the witness. Id. at 426-28.

The Commonwealth presented additional evidence that Appellant made inculpatory statements to another witness in 2004 and showed that witness a broken handgun. Detective Timothy Carter was also called to testify regarding his interrogation of Appellant after his arrest in 2010. The detective testified that Appellant waived his Miranda[3] rights and when confronted with the charges for killing Little, demanded to see the evidence against him. Id. at 458. After reviewing the affidavit of probable cause, he told the detective, "[Y]ou got me on paper." Id. at 459. When the detective discussed possible witnesses, Appellant stated "[n]o one will come in and testify against me." Id. at 460. At the conclusion of the detective's presentation of the evidence, Appellant stated, "You got me, big daddy." Id. at 464.

On August 5, 2011, the jury found Appellant guilty of conspiracy, murder of the first degree, and robbery. The trial court, on that same day, sentenced Appellant to an aggregate term of life imprisonment.

Appellant did not file an appeal within thirty days of the sentence, but, on December 12, 2011, filed a petition to reinstate his right to appeal. The trial court, on January 26, 2012, granted Appellant leave to appeal nunc pro tunc, and a notice of appeal was filed. On July 24, 2012, this Court dismissed the appeal for counsel's failure to file an appellant's brief.

Appellant subsequently filed a pro se PCRA petition on August 7, 2012, and the PCRA court appointed new counsel. Counsel filed an amended petition seeking restoration of Appellant's right to appeal the judgment of sentence. The PCRA court, on October 31, 2012, granted Appellant leave to appeal nunc pro tunc. Appellant timely filed a notice of appeal and a ...

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