Decided: April 29, 2015.
Appeal from the Judgment of Sentence, October 1, 2012, in the Court of Common Pleas of Allegheny County. Criminal Division at No. CP-02-CR-0016050-2011.
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA, DONOHUE, SHOGAN, MUNDY, OLSON, AND OTT, JJ.
Bender, P.J.E., Panella, Donohue, and Ott, JJ. join the Opinion. Shogan, J. files a Dissenting Opinion which is joined by Gantman, P.J., Mundy, and Olson, JJ. DISSENTING OPINION BY SHOGAN, J.
FORD ELLIOTT, P.J.E.:
Myron Cox appeals from the judgment of sentence of October 1, 2012, following his conviction of criminal attempt (homicide), aggravated assault, recklessly endangering, and other charges. We vacate and remand for re-trial.
The testimony in this case is summarized as follows. Taza Clardy testified that on August 31, 2011, he was walking on the North Side of Pittsburgh toward a friend's residence. Since his friend was not yet home, Clardy walked in the direction of Ashley Cochran's residence, another acquaintance in the area. He saw Cochran speak with one of a number of individuals in front of her home, and then go inside. As Clardy waited on the street for his friend to arrive, he observed Appellant with another male and two females. Appellant was wearing black jeans and a black hoodie. Clardy recognized Appellant from seeing him in the neighborhood. Appellant was standing next to a black BMW or Mercedes. Clardy spoke with the two men briefly, discussing a CD that was playing.
After waiting approximately fifteen to twenty minutes, Clardy decided to walk to the Circle K convenience store. As he was walking up the street, texting on his phone, he heard one pop, then another. Clardy turned around and saw a person wearing a black hoodie and black jeans pointing a firearm at him. Clardy asked what the man was doing. The question was answered by Clardy seeing the flash of gunfire. Clardy ran and heard five or six more shots, one of which struck him in the leg. He told the paramedics that he did not know who had shot him because he was shot from behind. Clardy has a scar and residual pain in his leg as a result of the incident. He identified Appellant out of a photo array as a person in the area when he was shot.
Ashley Cochran testified that she heard seven or eight gunshots that night from the living room in her house. When she heard the first shot, she grabbed her two year old son, who was sitting on her lap, and opened the door. She looked left, where she heard the gunfire, and saw Appellant come around the corner, put both hands in his pocket while staring at her, and get into the passenger side of a BMW. Appellant was dressed in a dark hoodie with the hood up and dark jeans. Ashley identified the driver as Jerome Cox, and testified that Jerome quickly turned the car around and drove away at a speed in excess of the posted limit.
Cochran also testified that she was involved in an incident earlier that month involving Appellant. Cochran observed a fight in front of her house involving a group of friends, Appellant and his brother Jerome. Jerome unsuccessfully attempted to collect a $5 debt from a game of Spades from a week before. The argument turned physical when Appellant punched Cochran's friend from behind.
Alexandra Poss, a neighbor, testified that she also heard gunshots. Poss and her roommate, Cayla Zahoran, got down on the floor because the shots sounded close. When she went upstairs, she observed bullet holes in her bedroom window. Zahoran's account of the incident mirrored that of her roommate.
Forensic evidence established that the ten shell casings found at the scene were fired from the same weapon.
In contrast, Britney Brown testified that she was with Appellant at her cousin's house for a cookout the entire day and night of August 31, 2011. Brown
testified that the cookout was not scheduled because of any special occasion, yet a substantial amount of food was prepared for the Wednesday night affair. She and Appellant stayed overnight because they had been drinking and did not have a ride back. Brown testified that it seemed out of Appellant's character to commit such an offense, but also testified to being unaware of Appellant's numerous arrests, including several convictions for Possession with Intent to Deliver a Controlled Substance.
Trial court opinion, 3/27/13 at 3-5 (citations to the record omitted).
Appellant has raised the following issues for this court's review:
I. Was due process and the right to a fair trial violated where the court permitted the Commonwealth to introduce prior bad acts with no notice given until the morning of trial, where such acts were not proper 404(b) evidence and where the evidence was overly prejudicial?
II. Was the evidence insufficient to sustain the conviction, and therefore an enhanced sentence, for attempted homicide with serious bodily injury where, there was no evidence of risk of death, serious impairment, protracted loss, or permanent disfiguration; and should not the sentence therefore be set at a maximum of 10-20 years instead of 20-40 years?
III. Did the court err in determining the defense counsel open[e]d the door to character evidence, and therefore appellant's prior criminal history when a question was asked of a witness regarding their personal opinion of [appellant]?
IV. Did the court err in failing to award a new trial based on after-discovered evidence and did this error result in [appellant] being ...