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Commonwealth v. Brooker

Superior Court of Pennsylvania

September 23, 2014


Argued: July 15, 2014.

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[Copyrighted Material Omitted]

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Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division at No(s): CP-51-CR-0006874-2009. Before TEMIN, J.

Bradley S. Bridge, Philadelphia, for appellant.

Suzan Willcox, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.



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Appellant, Mikechel Brooker, appeals from the December 17, 2012 aggregate judgment of sentence of 35 to 70 years' imprisonment, imposed after a jury found him and his co-defendants, Ferock Smith and Alonzo Ellison[1] guilty of murder in the first degree, criminal conspiracy, firearms not to be carried without a license, and possession of an instrument of a crime (PIC).[2] After careful review, we affirm.

In its opinion on Ellison's appeal, the trial court summarized the relevant facts and procedural history of this case as follows.

On July 18, 2008, Barry Jacobs, Jr. (" Jacobs" ) was shot and killed on the 8700 Block of Glenoch Place in Philadelphia, by [Alfonso Ellison (Ellison)], Ferock Smith (" Smith" ) and [Appellant] in an apparent dispute over drug territory after Antoniette Gray (" Gray" ) refused to purchase drugs from [Ellison]. When Gray[,] shortly thereafter[,] purchased drugs from Jacobs, [Ellison], Smith, and [Appellant] shot Jacobs multiple times. At trial, Gray testified that she did not remember the shooting and her July 20, 2008, statement to police was admitted. In her statement, Gray identified [Ellison], Smith, and [Appellant] as the three people who shot Jacobs. Gray also saw [Ellison], Smith, and [Appellant] the next day and heard them laughing about shooting Jacob[s]. Another eyewitness, Jeffrey Gould (" Gould" ), testified that he saw someone standing over Jacobs and shoot him in the head. Gould had identified that person as [Ellison] in a July 18, 2008 statement to police, which was introduced at trial.
At trial, Eleanore Sampson (" Sampson" ) testified that she did not remember the events after the shooting and her July 19, 2008 statement to police was admitted. In her statement, Sampson stated that [Ellison], Smith, and [Appellant] came to her apartment on the night of July 18, 2008. Sampson stated that she let [Ellison], Smith, and Brooker use her apartment because they gave her drugs. [Ellison], Smith and [Appellant], had a conversation in Sampson's apartment that night, during which she heard Smith say he shot Jacobs. Smith and [Appellant] had handguns with them which they placed in Sampson's apartment. Sampson asked [Ellison] to remove the guns from her apartment and [Ellison] took a 9 millimeter handgun from Smith. [Appellant] and Smith left Sampson's apartment shortly thereafter, at which time, [Ellison] gave the 9 millimeter handgun back to Smith. [Ellison] stayed and slept at Sampson's apartment and was arrested leaving from the rear of the apartment when the

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police were knocking at the front door. A .32 caliber handgun was found during a search of Sampson's apartment after [Ellison]'s arrest. ...

Trial Court Opinion, 2564 EDA 2012, 12/26/12, at 2-3.

On June 1, 2009, the Commonwealth filed an information charging Appellant with the above-mentioned offenses, as well as one count each of persons not to use a firearm and carrying firearms in public in Philadelphia.[3] On July 10, 2012, Appellant proceeded to a jury trial. At the conclusion of said trial, on July 16, 2012, the jury found Appellant guilty of first-degree murder, criminal conspiracy, firearms not to be possessed without a license, and PIC. The Commonwealth nolle prossed the remaining two charges.

Relevant to this appeal, on November 21, 2012, Appellant filed a motion to declare 18 Pa.C.S.A. § 1102.1 unconstitutional as violating the Eighth Amendment and Ex Post Facto Clause of the Federal Constitution as well as the Original Purpose, Single Subject, and Ex Post Facto Clauses of the Pennsylvania Constitution. The Commonwealth filed its answer to Appellant's motion on December 11, 2012. On December 17, 2012, the trial court denied Appellant's motion and sentenced him to an aggregate term of 35 to 70 years' imprisonment for first-degree murder, six to 12 years' imprisonment for criminal conspiracy and no further penalty on any of the remaining charges.[4] See N.T., 12/17/12, at 16. The sentences were to run concurrently. Appellant did not file a post-sentence motion. On January 2, 2013, Appellant filed a timely notice of appeal.

On January 17, 2013, the trial court entered an order directing Appellant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant timely filed his statement on January 22, 2013. The trial court did not file a Rule 1925(a) opinion, as the trial judge who presided over the trial retired from the bench in the interim. Upon application from Appellant, on August 20, 2013, this Court entered an order remanding this case to the trial court for the filing of a supplemental Rule 1925(b) statement. Appellant filed his supplemental Rule 1925(b) statement on September 5, 2013, and the record was re-transmitted to this Court.

On appeal, Appellant raises the following six issues for our review.

1. Was the evidence sufficient to find [Appellant] guilty of first[-]degree murder where the Commonwealth failed to establish beyond a reasonable doubt that [Appellant] had the specific intent to kill?
2. Did the trial court err in denying the defense motion for mistrial where the improper question regarding prior bad acts by the [Commonwealth] had the unavoidable effect of prejudicing the jury against the [Appellant], and which could not

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be cured by court instruction or admonition to the jury?
3. Was the law under which [Appellant] was sentenced unconstitutional because the original purpose of the bill for which he was sentenced dramatically changed during the legislative process in violation of Article III, Section 1 of the Pennsylvania Constitution?
4. Was the law under which [Appellant] was sentenced unconstitutional because it contains more than one subject in violation of Article III, Section 3 of the Pennsylvania Constitution?
5. Was the law under which [Appellant] was sentenced unconstitutional because it violates the United States and Pennsylvania constitutional bans on cruel and unusual punishment?
6. Was the law under which [Appellant] was sentenced unconstitutional because it violates the [E]x [P]ost [F]acto [C]lauses of the United States and Pennsylvania Constitutions?

Appellant's Brief at 3-4.

We begin with Appellant's first issue regarding the sufficiency of the Commonwealth's evidence. Our standard of review regarding challenges to the sufficiency of the Commonwealth's case is well settled. " In reviewing the sufficiency of the evidence, we consider whether the evidence presented at trial, and all reasonable inferences drawn therefrom, viewed in a light most favorable to the Commonwealth as the verdict winner, support the jury's verdict beyond a reasonable doubt." Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation omitted). " The Commonwealth can meet its burden 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. Watley, 2013 PA Super 303, 81 A.3d 108, 113 (Pa. Super. 2013) ( en banc ) (internal quotation marks and citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review " the entire record ... and all evidence actually received[.]" Id. " [T]he 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. Kearney, 2014 PA Super 97, 92 A.3d 51, 64 (Pa. Super. 2014) (citation omitted). " Because evidentiary sufficiency is a question of law, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation omitted).

Appellant challenges the sufficiency of the Commonwealth's evidence regarding his conviction for murder in the first degree. Specifically, Appellant argues the Commonwealth did not present sufficient evidence of a specific intent to kill for murder in the first degree. Id. at 11. The relevant statute provides as follows.

§ 2502. Murder

(a) Murder of the first degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

(d) Definitions.--As used in this section the following words and phrases shall have the meanings given to them in this subsection:
" Intentional killing" . Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.
" Principal" . A person who is the actor or perpetrator of the crime.

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18 Pa.C.S.A. § 2502. Furthermore, our Supreme Court has consistently stated when proving the sufficiency of the evidence for first degree murder, the Commonwealth's burden is as follows.

In order to sustain a conviction for first-degree murder, the Commonwealth must prove that: (1) a human being was unlawfully killed; (2) the defendant was responsible for the killing; and (3) the defendant acted with malice and a specific intent to kill. Specific intent and malice may be established through circumstantial evidence, such as the use of a deadly weapon on a vital part of the victim's body.

Commonwealth v. Arrington, 86 A.3d 831, 840 (Pa. 2014) (internal citation omitted).

In the case sub judice, the Commonwealth presented the testimony of Gray. Gray testified that she could not recall the events that transpired on the night of the shooting. N.T., 7/10/12, at 112-113. As a result, the Commonwealth admitted Gray's original witness statement to the police during Gray's testimony as substantive evidence. At the time of said statement, Gray told the police that she was only a few feet away from Jacobs when he was killed, and that she knew who killed him. Id. at 122. Recalling the events of July 18, 2008, Gray told the police that prior to the incident she had just bought a " dime bag" from Jacobs. Id. at 123.[5] Gray told the police that shortly after that, a man named Worm " just pointed a gun at [Jacobs] and shot him [in the head], like, two or three times." Id. at 123, 124-125. She further testified that after Jacobs fell to the ground, two other men named Butter and Doughnut each shot Jacobs in the head and in the chest while he was on the ground. Id. at 123-125. Gray was shown a photo array and picked out photographs of Appellant and his co-defendants as those who shot Jacobs. Id. at 148. In addition to Gray's statement, Eleanore Sampson, who was an acquaintance of all three defendants, identified Appellant as " Doughnut." N.T., 7/11/12, at 214.

Based on the above evidence, we reject Appellant's sufficiency argument. The Commonwealth presented substantive evidence that identified Appellant as one of the three men who shot Jacobs in the head and in the chest, through the account of an eyewitness who was only a few feet away at the time of the shooting. Pennsylvania courts have consistently held that such evidence is sufficient for a first-degree murder conviction. See Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013) (concluding sufficient evidence existed where, " eye witness testimony demonstrate[d] that after [the defendant] ... fatally shot the victim in the head at close range while the victim was lying defenseless on the ground[]" ); Commonwealth v. Chine, 2012 PA Super 28, 40 A.3d 1239, 1242 (Pa. Super. 2012) (concluding the defendant " surely intended the shooting to have fatal results as he fired three shots at the victim's head, a vital part of the body[]" ), appeal denied, 619 Pa. 685, 63 A.3d 773 (Pa. 2013). As a result, Appellant is not entitled to relief on this issue. See Diamond, supra.

In his second issue, Appellant avers the trial court erred when it denied his request for a mistrial when the Commonwealth insinuated that Appellant was a drug dealer and that a dispute over drug turf was his alleged motive for the killing. Appellant's Brief at 14.

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We begin by stating our ...

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