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Commonwealth v. Kearney

Superior Court of Pennsylvania

May 6, 2014


Argued: January 29, 2014.

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[Copyrighted Material Omitted]

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Appeal from the Judgments of Sentence of the Court of Common Pleas, Fulton County, Criminal Division, No. CP-29-CR-0000211-2011, CP-29-CR-0000223-2011, CP-29-CR-0000226-2011, CP-29-CR-0000227-2011. Before KROM, J.

Elizabeth A. Clark, Greencastle, for appellant.

Travis L. Kendall, Assistant District Attorney, McConnellsburg, for Commonwealth, appellee.

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.[*] OPINION BY PLATT, J. Olson, J., concurs in the result.


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Appellant, Richard Muliek Kearney, appeals from the judgments of sentence in these four inter-related cases, which were

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consolidated sua sponte by this Court.[1] Appellant challenges the trial judge's decision not to recuse herself, two photo arrays and other identifications, and the sufficiency of the evidence. We affirm.

This is a complicated and convoluted set of cases. The complications were further exacerbated procedurally by Appellant's substantial, documented disagreements over strategy, tactics, and legal issues (as evidenced in part by his complaints to the Disciplinary Board)[2] with at least four, if not all, of his appointed counsel.[3] In addition, he persistently attempted to engage in hybrid representation despite admonitions by the court to desist. He repeatedly vacillated over procedural issues such as election of a jury or non-jury trial, and whether defense counsel should represent him directly or serve only as back-up counsel. Last, but certainly not least, he engaged in confrontational and obstreperous conduct directly toward the presiding trial judge. We summarize the facts most relevant to the issues Appellant has raised in this appeal.

During the months of January and February, 2011 Jacob Colby Mellott lived at the Cardinal Glen(n) Terrace Apartments in McConnellsburg, Fulton County.[4] (See N.T. Trial No. 211 of 2011; 223 of 2011, 10/11/12, at 10). His cousin, Skylar Vincenti, was living with him. (See id. at 13). Mellott and Vincenti were acquainted with Travis Smith, who lived in the apartment below them. (See id. at 37). Smith owned a mountain cabin in Ayr Township, also in Fulton County, but testified that sometimes, including the period at issue here, he rented an apartment for the winter months because the cabin had no running water or electricity and the only heat was a woodstove. (See id. at 36). Smith was renting a room in his apartment to Appellant, whom he knew as " Benny," and a friend of Appellant.[5] (See id. at 38).

When Mellott and Appellant woke on the morning of February 2, 2011 in Mellott's apartment, they realized that Appellant's book bag was missing. The book bag contained cocaine, marijuana, over a hundred Percocet tablets, and Vicodin. (See Trial Ct. Op., 5/07/13, at 26 (citing N.T. Trial, 10/11/12, at 41)). Vincenti testified at trial that he stole the book bag, left the apartment with Travis Smith, and went to Smith's mountain cabin to use the drugs. (See N.T. Trial, 10/11/12, at 108, 115).

That same day, Appellant and Mellott arrived at Smith's cabin.[6] They knocked down the door and entered. Smith retreated upstairs. Appellant, who was

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brandishing a handgun, demanded the return of his drugs. Smith fired a crossbow down at the intruders. They left. (See Trial Ct. Op., 5/07/13, at 26 (citing N.T. Trial, 10/11/12, at 41)).

Several months later, on the evening of June 29, 2011, around dusk, at the same cabin, while Smith was on the front porch with Vicki (Smalley) Vance, they saw the truck of Vance's father approach. (See id. at 32 (citing N.T. Trial, 10/11/12, at 45[-46])). Smith had a " bad feeling," went inside, upstairs, and picked up a machete, hatchet, and an axe. (Id.). Appellant got out of the truck, came inside, pointed a gun at Smith and demanded money for his drugs. Smith threw the axe down. Appellant fled.

Later on the same evening of June 29, 2011, between 11:30 p.m. and midnight, Tabetha Lynn Mellott [7] received a telephone call from a friend, Justin Smalley.[8] (See N.T. Hearing, 4/02/12, at 16-17). Smalley asked Ms. Mellott to put him and two friends up for the night. Despite the lateness of the hour, Ms. Mellott drove out to the farm of Smalley's grandfather, picked up Smalley, his two friends, and a young woman. The two friends were Appellant and a cohort, later his co-defendant, Marc Dorce. They all returned to Mellott's home and eventually went to sleep around 2 AM.

On the morning of June 30, when Ms. Mellott woke up, Smalley and the woman had already left. Ms. Mellott spoke with Appellant and Dorce. After forty-five minutes of conversation, Appellant went to the bathroom. When he returned he had a handgun and demanded repeatedly to know where his " shit" was. (N.T. Hearing, 4/02/12, at 22). Ms. Mellott replied she did not know what he was talking about. Appellant went to the bedroom where Ms. Mellott's friend, Joshua Weaver, was still sleeping. Appellant woke Weaver, put the handgun in his face and again demanded to know where his " shit" was. He also saw a shotgun under the bed and took it.

Appellant ordered Ms. Mellott to strip, turn around, squat, and cough in a search for his drugs. She complied. (See N.T. Hearing, 4/02/12, at 23). Afterward, Dorce went to the bathroom and summoned Ms. Mellott to join him. Eventually, in the bathroom cabinet, they found a sandwich bag full of other smaller baggies containing a white substance.[9] They returned to the living room. Ms. Mellott sat on the couch at gunpoint for several hours while Appellant and Dorce made numerous phone calls in an effort to find someone to pick them up and give them a ride. (See id. at 24).

Around seven to eight in the evening of the same day, June 30, 2011, Ashley Leeann Ramp, driving a rented silver HHR station wagon she had been using to move her belongings out of her house, saw Appellant and Dorce on the street in McConnellsburg. Ms. Ramp knew Appellant and Dorce because they had been living with her and her family for several weeks that June, prior to the move, again at the request of Justin Smalley. (See N.T. Hearing, 4/09/12, at 53; see also Trial Ct. Op., 1/16/13, at 6-7).

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Appellant and Dorce asked Ms. Ramp for a ride. She agreed.

Once inside the vehicle, Appellant put his arm around Ms. Ramp's neck and a pistol to the right side of her head. (See N.T. Hearing, 4/09/12, at 59; see also Trial Ct. Op., 1/16/13, at 7). Appellant threatened to kill her if she did not get out of the car. (See Trial Ct. Op., 1/16/13, at 7). Ms. Ramp complied.

Ms. Ramp did not call the police. She did call Enterprise Rental Car, giving equivocal explanations about the delay in the return of the vehicle. Eventually the car was returned to Enterprise. While she was retrieving her personal belongings Ms. Ramp found the handgun. She showed it to Enterprise employee, Eric Light, as proof of her statement that the car had been stolen. Mr. Light called the police. (See Trial Ct. Op., 1/16/13, at 8).

Following up a Wal-Mart receipt found in the vehicle, Pennsylvania State Police obtained Wal-Mart surveillance video showing Appellant, Dorce, and an unidentified female arriving at the store in a silver station wagon, making purchases, and returning to the silver vehicle. At the same time, the State Police were looking for Appellant as a result of fugitive warrants from Maryland. Eventually, they were able to identify Appellant to be the man known as " Benny" or " B," through the JNET driver's license database.

Appellant was subsequently charged with a variety of offenses, including simple assault, false imprisonment, recklessly endangering another person, robbery of a motor vehicle, theft by unlawful taking, and violations of the Uniform Firearms Act.[10]

On April 9, 2012, prior to the first two trials, the court denied Appellant's motion to quash or dismiss the informations based on his challenge to the witnesses' identification. (See Order, 4/17/12, at 1-2). On April 25, 2012, the court denied Appellant's omnibus pre-trial motion, including, inter alia, Appellant's challenge to the two eight-photograph black-and-white photo arrays developed by the Pennsylvania State Police which were shown to Ashley Ramp and Tabetha Mellott. (See Order, 4/26/12, at 2-4).

Case number 227 of 2011 (false imprisonment of Tabetha Mellott, etc. ) was tried before a jury, on April 26, 2012.[11] The parties stipulated that Appellant was not allowed to carry a firearm, by virtue of prior convictions. The jury convicted Appellant of all ten charges.[12]

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Case number 226 of 2011 (carjacking of Ashley Ramp) was tried separately before a jury the next day, April 27, 2012. The jury convicted Appellant of Count 1, robbery of a motor vehicle, 18 Pa.C.S.A. § 3702(a); and Count 3, theft by unlawful taking or disposition, 18 Pa.C.S.A. § 3921(a).[13] (See Verdict Slip, 4/27/12, at 1).

On May 29, 2012, the court sentenced Appellant on both criminal cases to an aggregate term of imprisonment of not less than 204 months' nor more than 408 months' incarceration in a state correctional institution.

The remaining two cases were scheduled for October of 2012. The court held a hearing on October 8, 2012, three days before trial, primarily to address Appellant's pro se motions challenging his representation by Attorney Michael O. Palermo. (See N.T. Hearing--Omnibus Motions, 10/08/12, at 2). It bears noting that both Appellant and the Commonwealth, as well as the trial court itself, invite our special attention to the transcript of that hearing. (See Trial Ct. Op., 5/07/13, at 14; see also Commonwealth's Brief, at 5; Appellant's Brief, at 26, 33, 35). The trial court and the Commonwealth cite that hearing as evidence of Appellant's hostility and disrespect to the trial court. Appellant cites the hearing as evidence of the trial court's animosity ...

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