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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 court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. This appeal followed.

Appellant presents the following questions in this appeal:

Whether the Trial Court erred in denying [Appellant's] request for a mistrial after the Commonwealth introduced hearsay statements allegedly made by the Co-Defendant which implicated the [Appellant's] involvement in the crimes for which he was convicted?
Whether the Trial Court erred by permitting the Commonwealth to ask leading questions of its own witness where the witness was not unwilling to testify nor belligerent; but rather unable to remember the incident exactly as the Commonwealth wanted him to?
Whether the Trial Court erred by permitting the Commonwealth to impeach its own witness by reading verbatim from a prior inconsistent statement which had been reduced to writing by the police and signed by the witness?

Appellant's Brief at 2.

At the outset, we note that the trial court opined "Appellant has failed to identify, with sufficient specificity, the issues he intend[ed] to raise on appeal" because his Pa.R.A.P. 1925(b) statement did not identify the specific witnesses whose testimony gave rise to the rulings challenged on appeal.[4]Trial Ct. Op., 1/31/13, at 3. The court further suggested that "the judgment of sentence be affirmed as Appellant has, by virtue of filing a vague 1925(b) statement, waived any and all issues which he could have otherwise raised on appeal." Id.

Although a review of Appellant's Pa.R.A.P. 1925(b) statement reveals some merit to the trial court's suggestion of waiver, our determination of vagueness requires a "very case-specific" inquiry. See Pa.R.A.P. 1925, note. In the present case, trial counsel for Appellant raised a single motion for mistrial based on Bruton principles in response to the testimony of Monique Hill. Moreover, the trial court ruled that leading questions were permissible with respect to one Commonwealth witness, namely, Marcello Wilson. Similarly, although the trial evidence contained numerous references to witnesses' prior statements, the Commonwealth only proffered a witness' prior statements to police as evidence of prior inconsistent statements with respect to Wilson. Accordingly, given the unique circumstances of this case, we decline to find waiver based on the apparent vagueness of Appellant's Pa.R.A.P. 1925(b) statement.

Appellant first contends that the trial court erred in denying his request for a mistrial following Monique Hill's testimony regarding his brother's statement following the shooting. Specifically, Appellant contends that Hill's testimony that Appellant's brother stated that "he can't believe that [Appellant]-" violated his right to confront a nontestifying codefendant under Bruton.[5] No relief is due.

Our standard of review is as follows:

[T]he review of a trial court's denial of a motion for a mistrial is limited to determining whether the trial court abused its discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will . . . discretion is abused. A trial court may grant a mistrial only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict.

Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (citation omitted).

Assuming, arguendo, the challenged fragment contained statements that ran afoul of Bruton, we detect no abuse of discretion in the decision of the trial court to deny Appellant's motion for mistrial. As the court noted, the Commonwealth interrupted the witness before she testified that Appellant's brother implicated him in the shooting. Moreover, the trial court offered to give a cautionary instruction striking the witness's statements as nonresponsive.[6] Lastly, our own review confirms that the isolated, partial reference to Appellant's brother's statement did not have an unavoidable effect of depriving Appellant of a fair trial, particularly since several witnesses testified to Appellant's statements inculpating himself in the shooting. See Fortenbaugh, 69 A.3d at 193; N.T. at 299-300, 380-82, 388, 423. Therefore, we detect no basis to disturb the trial court's decision to deny Appellant's request for a mistrial.

Appellant next contends that the trial court erred in permitting the Commonwealth to examine Marcello Wilson as of cross. He argues that Wilson was not sufficiently hostile as a witness to permit leading questions. We disagree.

The standard governing our review of this contention is well settled: "[T]he trial judge has wide discretion in controlling the use of leading questions[, and t]he court's tolerance or intolerance for leading questions will not be reversed on appeal absent an abuse of discretion." Commonwealth v. Bibbs, 970 A.2d 440, 453 (Pa. Super. 2009) (citations omitted).

Former Pa.R.E. 611 provided, in relevant part:

(c) Leading questions. Leading questions should not be used on the direct or redirect examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party or a witness identified with an adverse party, interrogation may be by leading questions; a witness so examined should usually be interrogated by all other parties as to whom the witness is not hostile or adverse as if under redirect examination.

Pa.R.E. 611(c) (subsequently amended Jan. 17, 2013).

As this Court noted, "[a] witness may be treated as hostile by the party calling him where the testimony of the witness is unexpected, contradictory to earlier statements, and harmful to the party calling the witness, and where an injustice would result if the request to treat the witness as hostile is denied." Bibb, 970 A.2d at 453 (citation omitted). Factors in an assessment of the witness include cooperation and responsiveness on the stand, willingness to appear at trial and answer questions, and any apparent evasiveness when testifying. Id. (discussing Commonwealth v. Lambert, 765 A.2d 306, 360 (Pa. Super. 2000)).

Instantly, Wilson refused to take the oath and complained that the Commonwealth dragged him "off the street" and into court, which prompted the trial court to warn him that he would be held in contempt. N.T. at 181-85. Once Wilson was sworn in, his answers were often nonresponsive and rambling. Id. at 190-92, 195-96. The Commonwealth then requested that it be able to lead the witness because "he's purposefully being evasive, " and the court granted the request. Id. at 196.

Following our review, we discern no error of law or abuse of discretion in the decision of the trial court to grant the Commonwealth's request to lead Wilson based on his initial refusal to testify, his failure to provide responsive answers, and his apparent evasiveness while testifying. See Bibbs, 970 A.3d at 453. Therefore, Appellant's contention warrants no relief.

Appellant lastly claims that the trial court erred in permitting the Commonwealth to examine Wilson using his December 25, 2002 statement to the police.[7] He argues that under Commonwealth v. Payne, 317 A.2d 208 (Pa. 1974), it was improper for the Commonwealth to confront Wilson by reading portions of his December 25, 2002 statement into the record. We conclude this issue has been waived.

Instantly although Appellant initially objected to the use of leading questions, he did not object to the Commonwealth's use of the December 25, 2002 statement when examining Wilson.[8] N.T. at 196-215. Therefore, this claim has not been preserved for appellate review. See Pa.R.A.P. 302(a); Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1287 (Pa. Super. 2004) (en banc).

Judgment of sentence affirmed.

Judgment Entered.

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