J-S56006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
ANTHONY CAIBY
Appellant No. 3145 EDA 2016
Appeal from the Judgment of Sentence April 6, 2016 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002035-2013
BEFORE: BOWES, STABILE, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 21, 2017
Anthony Caiby appeals from the judgment of sentence of life in prison
without the possibility of parole, plus a consecutive sentence of forty-two to
eighty-four months incarceration, imposed after he was convicted of first
degree murder, two counts of criminal conspiracy, tampering with physical
evidence, abuse of a corpse, and possession with intent to deliver (“PWID”).
We affirm.
At approximately 4:30 p.m. on October 8, 2005, the victim, David
McEntire, left his home. His family never saw him again. Mr. McEntire’s
disappearance remained a mystery until 2009, when Lisa Stavish was
arrested for retail theft. Ms. Stavish intimated to her arresting officer
specifics of a murder of a man named “David.” Ms. Stavish offered details of
* Retired Senior Judge specially assigned to the Superior Court. J-S56006-17
the event, and stated that she witnessed Edwin Kelly, James Gaines, and
Appellant attack and kill the victim in Mr. Kelly’s house. Based on the
information provided by Ms. Stavish, investigators executed a search
warrant on Mr. Kelly’s residence. At that time, Mr. Kelly agreed to speak
with police. Thereafter, Mr. Kelly confessed to his participation in Mr.
McEntire’s murder and corroborated specific details of the incident recounted
by Ms. Stavish, that were not made public, including that they had returned
the victim’s van to his place of work, left the keys in the ignition, and locked
the doors.
At the time of his death, Mr. McEntire was addicted to crack cocaine.
Appellant sold the victim cocaine during the month preceding the attack, and
used Mr. Kelly’s house to distribute the illicit substance. On October 8,
2005, Appellant lured the victim to Mr. Kelly’s residence. When the victim
entered the living room, Appellant bludgeoned him in the head with the claw
end of a hammer. The assailants then moved the victim to the basement
where he was shot in the legs four times with a .22 caliber rifle. Ms. Stavish
administered Mr. McEntire two “hot shots,” an injection of bleach and
cocaine, using cocaine provided by Appellant. Following the second
injection, the victim died. After Mr. McEntire perished, the conspirators
burned his body in a fire pit behind the house, and disposed of the remaining
bones near a junkyard in West Hazelton, Luzerne County. His remains were
never recovered.
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Based on the foregoing, Appellant was charged with the
aforementioned offenses. Prior to trial, Ms. Stavish and Mr. Kelly reached
plea agreements with the Commonwealth, agreeing to plead guilty to third-
degree murder in exchange for their testimony against Appellant. They each
received a sentence of seven to twenty years incarceration following their
pleas. Also prior to trial, the Commonwealth filed a notice of its intent to
introduce evidence of other crimes, wrongs, or acts pursuant to Pa.R.E.
404(b). After a hearing on the matter, the trial court permitted the
Commonwealth to introduce evidence that Appellant was subsequently
arrested for assault and drug dealing, as well as evidence of another assault
he participated in at Mr. Kelly’s residence, which was never reported to the
police. It ruled other proposed prior bad acts evidence was inadmissible.
Following a jury trial, Appellant was found guilty of first-degree
murder, conspiracy to commit first-degree murder, PWID, conspiracy to
commit PWID, abuse of a corpse, and tampering with physical evidence.
The trial court imposed a sentence of life in prison without the possibility of
parole on the first-degree murder conviction and a consecutive sentence of
forty-two to eighty-four months incarceration for PWID. Appellant filed a
post-sentence motion, which the trial court denied, and filed a timely notice
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of appeal to this Court.1 Appellant and the trial court complied with
Pa.R.A.P. 1925, and this matter is now ready for our review.
Appellant raises five questions for our consideration:
1. Did the lower court err in finding sufficient evidence to support the jury verdict of First Degree Murder when the Commonwealth failed to establish [Appellant] committed murder or acted with any specific intent to kill?
2. Did the lower court err in finding sufficient evidence to support the verdict regarding [PWID] when the Commonwealth failed to present any evidence that [Appellant] possessed or constructively possessed a controlled substance and did so with the intent to deliver it?
3. Did the lower court err in denying [Appellant’s] request for a new trial when the jury’s verdict was against the weight of the evidence and is so deficient as to shock one’s sense of justice?
4. Did the lower court err in denying [Appellant’s] request for a new trial for prosecutorial misconduct during closing remarks?
5. Did the lower court err in denying [Appellant’s] pretrial motion regarding notice of 404(b) other crimes evidence thereby permitting the Commonwealth to introduce prejudicial bad act evidence?
Appellant’s brief at 4.
Appellant’s first two issues challenge the sufficiency of the evidence
underpinning his convictions for murder in the first degree and PWID. We
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1 After trial, Appellant’s trial counsel was permitted to withdraw. The trial court appointed current counsel, who filed an amended post-sentence motion, and represents Appellant on this appeal.
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consider them together. We utilize the following standard when reviewing a
challenge to the sufficiency of the evidence:
Whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact- finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the 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. Fitzpatrick, 159 A.3d 562, 567 (Pa.Super. 2017)
(citation omitted).
The Crimes Code defines murder, in pertinent part, as an “intentional
killing.” 18 Pa.C.S. § 2502(a). To convict a person of first-degree murder,
the Commonwealth must establish: “(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.” Fitzpatrick,
supra at 567 (brackets and citation omitted). A killing is intentional if it is
done in a “willful, deliberate and premeditated fashion.” 18 Pa.C.S. §
2502(d). However,
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[t]he period of reflection needed to establish deliberation and premeditation may be as brief as a fraction of a second. Indeed, the deliberation and premeditation needed to establish intent exists whenever the assailant possesses the conscious purpose to bring about death. The Commonwealth may use circumstantial evidence to establish the elements of first-degree murder, including the element of intent.
Id. (citing Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009)
(internal citations omitted)). Finally, “[w]hen there is no direct evidence of
intent to kill, the fact-finder may glean the necessary intent from the act
itself and from all surrounding circumstances.” Id. (citation omitted). As
such, “[s]pecific intent to kill can be proven when the defendant knowingly
applies deadly force to the person of another.” Id. (emphasis omitted).
Appellant contends there was insufficient evidence that he “planned or
perpetrated the killing of the victim.” Appellant’s brief at 22. He concedes
that he participated in disarming and assaulting the victim, who arrived at
Mr. Kelly’s house bearing a shotgun, but argues that he did not act with
malice or a specific intent to kill. He maintains that Ms. Stavish
administered the hot shots which ultimately killed Mr. McEntire. As such, he
concludes the evidence does not establish that he committed murder in the
first degree.
Instantly, Ms. Stavish testified that Appellant and Mr. Kelly suspected
the victim of being involved in the theft of $1500 and an ounce of cocaine
from Mr. Kelly. When the victim arrived at Mr. Kelly’s house, “there was a
lot of yelling going on and [Appellant] struck him over the head with a
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hammer, the claw end and he was bleeding profusively [sic][.]” N.T.,
1/8/16, at 151-152. She stated that this attack occurred “right in the
opening to a living room of the house,” and involved “[Appellant], [Mr.] Kelly
and [Mr. Gaines] all kicking him.” Id. at 152; 161. After this attack, Ms.
Stavish continued, the assailants dragged Mr. McEntire to the basement, and
subsequently, she “heard about three or four gunshots go off.” Id. She
noted that, following the victim’s death, they dropped his van off at his
workplace, burned his body, and disposed of the remains in a remote area of
Hazleton. Id. at 154-156.
Mr. Kelly corroborated much of Ms. Stavish’s testimony. He observed
that the victim arrived at his house carrying a shotgun.2 N.T., 1/11/16, at
15. Mr. Kelly stated that he, Appellant, and Mr. Gaines took the weapon
from Mr. McEntire and “proceeded to give him a beating.” Id. At that point,
Mr. Kelly left the residence to conduct a drug transaction. However, when
he returned, the victim had been moved to the basement, and Mr. Kelly
heard gunshots which originated from that location. Mr. Kelly testified that
2 The record suggests that the victim brought the shotgun to Mr. Kelly’s house not to defend himself, but rather, to trade for drugs. This theory is bolstered by evidence that Mr. McEntire had exhausted his financial resources, and that he may have traded another firearm to Appellant at some point. Shortly after the victim’s death, his wife reported to police that her personal firearm was missing. That firearm was later recovered in Brooklyn, New York, within one-half mile radius of an apartment complex linked to Appellant and Mr. Gaines.
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Ms. Stavish injected the victim with a hot shot of “coke and bleach,” and
that Appellant provided the cocaine. Id. at 15, 25. After the victim died, he
stated that “[the victim] was taken out to my burn pit in a carpet, gas
poured on him and he was burned.” Id. at 15.
In addition to this testimony, the Commonwealth offered forensic
evidence collected during the search of Mr. Kelly’s residence. Trooper John
Corrigan testified that there was evidence of blood located throughout the
house, including in the living room, in the basement stairs, and in the
basement. N.T. 1/8/16, at 75, 78-93. The trooper observed that there was
evidence of an attempt to clean the crime scene, such as shampooing the
carpet and painting the walls. The investigation also uncovered blood
specks on ceiling beams in the living room that were “consistent with a blood
shedding event such as a beating.” N.T., 1/11/16, at 147. Further, the
Commonwealth proffered the victim’s phone records, which revealed that
Appellant was the last person to contact the victim prior to his
disappearance.
When viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, we find that the Commonwealth
proffered sufficient evidence to prove that Appellant committed first-degree
murder beyond a reasonable doubt. Appellant conceded that Mr. McEntire
was dead. N.T., 1/13/16, at 20. In addition, the evidence and testimony
provided by the Commonwealth established that Appellant lured Mr.
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McEntire to Mr. Kelly’s house. When the victim arrived, Appellant hit him in
the head with a hammer, causing severe bleeding, establishing that he
applied deadly force to a vital part of the victim’s body. Rivera, supra;
Commonwealth v. Fortson, 165 A.3d 10, 16 (Pa.Super. 2017) (noting jury
may infer specific intent to commit murder from attack on vital part of
victim’s body). Further, Mr. Kelly’s testimony indicated that Appellant
provided the cocaine used in the hot shot injections, which ultimately led to
the victim’s demise. Moreover, the testimony revealed that the conspirators
attempted to cover up their crime by returning Mr. McEntire’s van, burning
and disposing of the body, and cleaning up the crime scene. When
considering this evidence together, we find that it supports the conclusion
that Appellant deliberately assaulted the victim, and participated in the
actions which led to his death, with the specific intent to kill him. Hence, no
relief is due.
Next, Appellant challenges his conviction for PWID. The Crimes Code
prohibits, in relevant part, “the manufacture, delivery, or possession with
intent to manufacture or deliver, a controlled substance by a person not
registered under this act[.]” 35 Pa.C.S. § 780-113(a)(30).
Appellant argues that the only evidence adduced to support this
conviction was “general character testimony that [he was] a known drug
dealer.” Appellant’s brief at 19. He concedes that the Commonwealth
offered evidence that Ms. Stavish made drug deliveries on his behalf, that
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Mr. Kelly sold cocaine with him for eight years, and that other witnesses
testified that they bought drugs from him. Id. Nevertheless, he claims that
there “was no specific evidence that [Appellant] possessed or constructively
possessed any particular drug at any particular point in time[.]” Id.
We find that Appellant’s argument is belied by the record. Numerous
witnesses testified that they had purchased drugs from Appellant. For
example, Heather D’Auria stated that she purchased crack from Appellant.
N.T., 1/7/16, at 179-180. Jessica Bajwa confirmed that she bought cocaine
from Appellant. N.T., 1/8/16, at 113. Danielle Joye, Appellant’s former
girlfriend, stated that she witnessed Appellant sell drugs. Id. at 146. Mr.
Kelly offered testimony as to the extent of Appellant’s drug operation, in
which he was a participant. N.T., 1/11/16, at 6-11. He specifically noted
that Appellant regularly sold crack cocaine to the victim. Id. at 13. The
jury could have reasonably inferred from Mr. Kelly’s testimony that the
victim traveled to Mr. Kelly’s residence on the day in question with the intent
to purchase cocaine from Appellant. In addition to Appellant’s own
admissions, we find that the Commonwealth offered sufficient evidence that
he possessed an illegal narcotic with the intent to deliver it. No relief is due.
Appellant’s third issues assails the trial court’s denial of his challenge
to the weight of the evidence underlying his convictions. Our standard of
review is well-settled:
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When we review a weight-of-the-evidence challenge, we do not actually examine the underlying question; instead, we examine the trial court’s exercise of discretion in resolving the challenge. This type of review is necessitated by the fact that the trial judge heard and saw the evidence presented. Simply put, one of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice. A new trial is warranted in this context only when the verdict is so contrary to the evidence that it shocks one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.
Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa.Super. 2016)
(citations, internal quotation marks, and brackets omitted).
Appellant’s argument in this regard is fairly straight-forward. He
asserts that the only evidence of his involvement in Mr. McEntire’s murder
was provided by Ms. Stavish and Mr. Kelly. Appellant highlights that these
individuals provided testimony against him in exchange for favorable plea
agreements. In addition, Appellant posits that the evidence supports a
finding that those two individuals committed the homicide, without
conclusively revealing Appellant’s role in the incident.
In determining that the verdict was not against the weight of the
evidence, the trial court noted that the testimony of Ms. Stavish and Mr.
Kelly alone supported the verdict. Trial Court Opinion, 12/16/16, at 21.
However, it observed that the Commonwealth proffered additional evidence
consistent with that testimony. The trial court recognized that Ms. Stavish
and Mr. Kelly “were classic ‘corrupt and polluted sources,’” but emphasized
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that the jury was well aware of their status and was properly instructed on
how to view their testimony. It highlighted that defense counsel also
“hammered the point home in his cross-examinations of both witnesses and
in his closing.” Id. at 22. The trial court observed that, even with the
knowledge of the witnesses’ plea deals, “[t]he jury chose to believe them
anyway.” Id. The court concluded that the verdict did not shock the
conscience. Since the trial court applied the proper legal standing in
rejecting Appellant’s claim, we find no abuse of discretion. Hence, the jury’s
verdict does not shock the conscience, and this claim fails.
Appellant’s fourth issue assails the trial court’s denial of his motion for
a mistrial premised upon the prosecutor’s purported misconduct during
closing remarks. We observe,
[n]ot every unwise remark made by an attorney amounts to misconduct or warrants the grant of a new trial. Comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict.
Commonwealth v. Collins, 70 A.3d 1245, 1252-1253 (Pa.Super. 2013)
(citation omitted). In addition,
[i]n determining whether the prosecutor engaged in misconduct, courts must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel’s conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing. A remark by a prosecutor, otherwise improper, may be appropriate if it is in fair response to the argument and comment of defense counsel.
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Id. at 1253 (citation and brackets omitted).
The following statements made during summation are relevant to our
analysis:
Defense Counsel: And one thing that I thought was pretty important – and I thought we would hear DNA evidence – is you heard evidence about how these people supposedly took all of these efforts to clean up blood and shampoo rugs; and again they were able to shampoo the top of the rug but it looks like there was blood underneath the rug, but there was some pristine DNA samples or potential DNA samples that were on the beams and I thought for sure that we were going to hear evidence that that blood was Mr. McEntire’s blood because you could tell that if that’s the evidence that while the people may have been good at cleaning around the walls and the floors they missed up there. We didn’t hear that evidence.
N.T., 1/13/16, at 56.
Prosecutor: Now in this case police generated reports, charges were filed. I mean hundreds and hundreds of police reports, lab reports get sent to the defense – hundreds and hundreds of pages. Everything we got they get. That’s called discovery. That’s so the defense can prepare and they can read the charges.
So when the defense is up here and saying I was expecting to see DNA, I was expecting to see DNA here or there; he knew there were insufficient quantities of DNA. That’s a hyperbole.
One of the instructions you’re going to hear from the Court is that the Commonwealth doesn’t have to produce the body because otherwise the guy that gets rid of the body totally will never ever be found guilty of murder.
The Commonwealth does not have to produce any part of a body including DNA. You’ve got proof that the victim died, proof that it was by criminal means and frankly the defense has conceded in the closing argument that Stavish and Kelly killed the man.
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So if you make that concession than you really can’t – you really can’t quibble about whether or not there’s DNA evidence. We know that a significant amount of blood was shed right there (indicating); the luminol shows us that.
Id. at 102-103.
Appellant argues that the prosecutor’s statements during closing
prejudiced the jury by implying that the defense bore the burden of
producing a DNA expert, and that they failed to meet this burden. He
contends that, since neither the prosecution nor the defense called a DNA
expert, these comments created bias against the defense. We disagree.
We find that the trial court did not abuse its discretion in denying
Appellant’s motion for a mistrial based on the prosecutor’s remarks. We do
not agree that the prosecutor’s statements imply that the defense bore any
burden with regard to producing a DNA expert. Rather, the prosecutor’s
comments fairly responded to the defense counsel’s statements during
summation. The defense openly questioned why the prosecutor did not
present DNA evidence, despite evidence of bloodshed within Mr. Kelly’s
house. The prosecution explained that, although they discovered evidence
of significant blood-letting within the house, the samples recovered were not
suitable for DNA testing. Such an explanation was a fair response to the
defense’s open question, and thus, it was an appropriate response in the
context of the closing. Collins, supra. No relief is due.
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Finally, Appellant asserts that the trial court abused its discretion by
permitting the introduction of prejudicial evidence of his prior bad acts. A
trial court’s evidentiary rulings are afforded great deference. As such, “[w]e
give the trial court broad discretion, and we will only reverse a trial court’s
decision to admit or deny evidence on a showing that the trial court clearly
abused its discretion.” Commonwealth v. Talbert, 129 A.3d 536, 539
(Pa.Super. 2015) (citation omitted). An abuse of discretion “is not merely
an error in judgment, but an overriding misapplication of the law, or the
exercise of judgment that his manifestly unreasonable, or the result of bias
prejudice, ill-will or partiality, as shown by the evidence of record.” Id.
We have long understood that,
Generally, evidence of prior bad acts or unrelated criminal activity is inadmissible to show that the defendant acted in conformity with those past acts or to show criminal propensity. However, evidence of prior bad acts may be admissible when offered to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. In determining whether evidence of prior bad acts is admissible, the trial court is obliged to balance the probative value of such evidence against its prejudicial impact.
Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa.Super. 2016) (citation
omitted); Pa.R.E. 404(b).
The trial court permitted the Commonwealth to offer evidence of an
unreported assault Appellant allegedly committed in August 2008, and an
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arrest for domestic violence on April 1, 2006. The trial court described the
incidents as follows:
The Commonwealth seeks to admit evidence of an assault that occurred on or about August 29, 2008, when [Appellant] along with accomplices Kelly and an unidentified African-American male, assaulted a 26 year-old Caucasian male named Michael Librizzi as a result of a drug-related dispute. The beating caused Mr. Librizzi to suffer a facial fracture, various other head trauma, and a broken leg.
....
The Commonwealth intends to introduce facts relating to an April 1, 2006 arrest in which [Appellant] was arrested by Pocono Township police following a violent domestic altercation with his girlfriend, Danielle Joye . . . [W]hile fleeing the scene, [Appellant] discarded cocaine and drug paraphernalia. In addition, when ultimately apprehended, he had large sums of money on him. During the ensuing investigation, Ms. Joye provided her cell phone number to police. The Commonwealth represents that several witnesses will testify they used that number to contact [Appellant] to buy drugs, that many calls were made to that number from the victim’s phone, and that the last call made on the victim’s phone was an outgoing call to that number.
Trial Court Opinion, 2/6/15, at 18, 22-23.
With regard to the unreported assault on Michael Librizzi, the trial
court, relying on Commonwealth v. Weakley, 972 A.2d 1182 (Pa.Super.
2009), permitted the Commonwealth to introduce this evidence to identify
Appellant’s participation in Mr. McEntire’s murder and, additionally, to
establish Appellant’s motive. Employing the analysis pertinent to the
identity exception enunciated in Weakley, it noted that “the motive, manner
of execution, and location of the two crimes are the same,” and that “at
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least two of the same actors are implicated in both crimes.” Trial Court
Opinion, 2/6/15, at 19-20. Since the Commonwealth intended to prove that
the victim was Appellant’s customer, and Appellant believed he stole money
and drugs from him, the assault on Mr. Librizzi, the court found that the
incident was probative of his motive for the killing. Further, the court found
the probative value of the proffered evidence outweighed its prejudicial
effect since “the events surrounding [the victim’s] murder and the beating of
Mr. Librizzi possess a high degree of similarity, drug trafficking is the reason
and motive for both the murder and the assault on Librizzi, the time lapse
between events is not great, especially when the evidence is viewed as a
chain and sequence of events, and the evidence provides history and
context.” Id. at 25.
With regard to the subsequent arrest on April 1, 2006, the court
limited the Commonwealth to presenting evidence “regarding [Appellant’s]
continuous drug dealing, especially out of Kelly’s residence, the methods and
locations of his operation, and the discarding of drugs when fleeing from
police.” Id. at 24. It observed that this evidence was “probative of identity
and motive[.]” Id. As noted above, the court ruled that the probative value
of this evidence outweighed its prejudicial effect. Id. at 25.
Appellant argues that the trial court erred in permitting this evidence.
He contends that neither identity nor motive serve to justify the admission of
his prior bad acts. He claims that, although the telephone number provided
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by Appellant’s former girlfriend, Danielle Joye, matched the last phone
number to contact the victim, this alone should not justify admission of the
other details of his domestic dispute arrest. Furthermore, he maintains that
the assault perpetrated on Mr. Librizzi was not sufficiently similar to the
attack on Mr. McEntire to prove his identity, since that crime occurred
several years later, the injuries were different, and it involved different
weapons. As it pertains to motive, he asserts that the bad acts in question
bear no logical connection to the homicide, and were, therefore, not
relevant. Appellant concludes, that “the lower court erred by allowing the
Commonwealth to introduce the assault case from August of 2008 and the
Domestic arrest case from April 1, 2006.” Appllant’s brief at 29.
Although we agree with Appellant that the prior bad acts in question
were not admissible pursuant to the motive exception to Rule 404(b), we
find that the trial court did not abuse its discretion in permitting the
Commonwealth to present evidence of Appellant’s arrest following his
domestic dispute with Ms. Joye. First, the telephone number linked to Ms.
Joye, who was dating Appellant at the time of Mr. McEntire’s murder, was
highly probative of the identity of his attacker. Mr. McEntire’s phone records
revealed that he made numerous calls to that phone number in the month
leading up to his death, including the final phone call he made. Until
Appellant was arrested on April 1, 2006, the investigators were unable to
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connect that phone number to an individual, and this evidence linked
Appellant to the murder victim.
Moreover, the evidence that Appellant possessed drugs, drug
paraphernalia, and a large amount of cash at the time of his arrest was
probative of his conduct as a drug dealer, and his relationship with the
victim, who was a known crack cocaine addict. Not only was this evidence
probative of Appellant’s identity, insofar as it corroborated the victim’s
relationship with Appellant, it also supported the Commonwealth’s theory
that the victim died as a result of a drug-related dispute, i.e., that Appellant
attacked the victim because he believed the victim had stolen money and
cocaine from his drug organization.
We also find the trial court did not abuse its discretion in admitting
evidence regarding the assault on Mr. Librizzi. As we noted in Weakley,
supra, “[i]dentity as to the charged crime may be proven with evidence of
another crime where the separate crimes share a method so distinctive and
circumstances so nearly identical as to constitute the virtual signature of the
defendant.” In determining whether a crime is sufficiently similar under this
exception, we consider: “(1) the manner in which the crimes were
committed; (2) weapons used; (3) ostensible purpose of the crime; (4)
location; and (5) types of victims.” Weakley, supra at 1189. Finally,
“[r]emoteness in time between the crimes is also factored, although its
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probative value has been held inversely proportional to the degree of
similarity between crimes.” Id.
Here, Mr. Kelly testified that Appellant assaulted Mr. Librizzi at Mr.
Kelly’s house. N.T., 1/11/16, at 40. He stated that Mr. Librizzi was a
“customer,” and that he lured him to the house by telling him he “needed
something.” Id. at 39, 42. Mr. Kelly attested that Appellant then physically
assaulted Mr. Librizzi because “[h]e was dealing [drugs] to people he
shouldn’t have been[.]” Id. at 40. Likewise, as noted above, Appellant
spoke with Mr. McEntire, who then met him at Mr. Kelly’s residence.
Appellant then assaulted the victim because he suspected that Mr. McEntire
had stolen money and narcotics from Mr. Kelly, his partner in the drug
organization. Additionally, we note that the Commonwealth proffered
evidence that Appellant utilized Mr. Kelly’s house as the base of his drug
operation.
The attack on Mr. McEntire and the attack on Mr. Librizzi were
executed in the same manner, for similar purposes, in the same location,
and involved Appellant’s drug customers. We find these circumstances
sufficiently similar as to be probative evidence that Appellant committed
both crimes. Weakley, supra. Finally, we find that the probative value of
this evidence outweighs its prejudicial effect, and in any case, the trial court
provided a proper jury charge explaining the limited basis for which the jury
could consider this evidence, and we presume it followed that instruction.
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N.T., 1/13/16, at 146, 166-167; Commonwealth v. Storey 167 A.3d 750,
758 (Pa.Super. 2017) (citation omitted). Thus, relief is not warranted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/21/2017
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