Com. v. Carr, T.

• Court: Superior Court of Pennsylvania
• Decided: October 10, 2017
• Docket: 731 WDA 2016
• Status: Unpublished

Opinion

J-S54002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : TAEVON MAURICE CARR : : No. 731 WDA 2016 Appellant

Appeal from the Judgment of Sentence April 6, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012279-2013

BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.: FILED OCTOBER 10, 2017

Taevon Maurice Carr appeals from the judgment of sentence imposed

April 6, 2016, in the Allegheny County Court of Common Pleas. The trial court

sentenced Carr to an aggregate term of 25 to 50 years’ imprisonment,

following his jury conviction of, inter alia, attempted homicide and criminal

conspiracy, for his participation in the August 2013 shooting of Irvin Green

and Tashawna Sutton. On appeal, Carr contends: (1) the trial court erred in

failing to grant a mistrial; (2) the evidence was insufficient to support his

conviction of attempted homicide; and (3) the sentence imposed was illegal.

Because we agree Carr’s sentence was illegal, we are compelled to vacate the

sentence and remand for resentencing.

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S54002-17

The trial court summarized the facts presented during Carr’s jury trial,

as follows:

This matter arises out of the shooting of Irvin Green and Tashawna Sutton on August 1, 2013 in Clairton, Pennsylvania. The evidence at trial established that Green and Sutton left their home on Wylie Avenue in the early morning hours of August 1 to walk to a nearby banking machine to withdraw money from Green’s account. Green and Sutton walked up Wylie Avenue to its intersection with Miller Avenue and turned right on Miller Avenue toward the banking machine. As they were walking on Miller Avenue, [Carr] and Dakota Halcomb[1] crossed the street in front of them. Both Green and Sutton knew [Carr] and Halcomb but did not speak with them. Green and Sutton continued onto the banking machine and after withdrawing the money, walked back up Miller Avenue to Wylie. As they turned onto Wylie Avenue, they again saw [Carr] and Halcomb standing on Wylie Avenue but they were now accompanied by Parrish Linnen and a fourth unidentified man. As soon as Green and Sutton turned onto Wylie Avenue, the four men turned and began walking down Wylie Avenue towards Green and Sutton’s home but shortly thereafter Green and Sutton lost sight of them. Green and Sutton continued onto their house and as Sutton was unlocking the front door they began hearing gun shots and both Green and Sutton were immediately struck by the gun fire. Green testified that he fell but then started to get up and as he did he turned and saw three men coming out of the darkness from across the street walking closer to his house as they continued shooting. Green testified that all three had guns in their hands and he watched as they continued firing at him and Sutton as they approached within a few feet of them. Green identified [Carr], Linnen and Halcomb as the shooters. Green testified that he could clearly see their faces by the light from his front porch and he watched as they reloaded their guns. Green testified that he was shot six times and Sutton, who was also shot several times, fell to the ground just off their porch. Green testified that he then ran towards Sutton’s ____________________________________________

1 We note that the trial court refers to this co-conspirator as “Dakota Holcomb.” However, the correct spelling of his last name is “Halcomb.” See Commonwealth v. Halcomb, Docket No. 13609-2013. Accordingly, we have corrected the misspelling throughout the court’s opinion.

-2- J-S54002-17

mother’[s] home, which was about five houses away, and was pursued by [Carr] and Linnen. When he reached the house he turned and was shot by [Carr] in the shoulder and he fell to the ground. While lying on the ground, [Carr] stood over him and shot him in the face while Linnen was standing directly behind him. Green testified repeatedly that he immediately recognized [Carr] and Linnen and that he knew them from having lived in the Clairton area for much of his life and knowing their families.

Sutton also testified that as she began to open the door to their home she heard gun fire and was immediately hit. She fell to the ground and then tried to get up and as she did she was shot in the chest by Linnen. As she lay on the ground, Halcomb then stood over her pointing his gun and repeatedly pulled the trigger but it didn’t fire. She then heard Linnen say, “Fuck that bitch. She is dead anyway.” She then saw [Carr] and Linnen [] chase Green as he ran down the street. As she lay on the ground she called 911. Sutton also testified that she knew [Carr] and Linnen from living in Clariton and specifically testified that she had seen [Carr] in the community “thousands” of times. On cross[- ]examination Sutton acknowledge[d] that she did not see [Carr] shooting.

The Commonwealth also presented the testimony of Sergeant Keith Zenkovich of the Clairton Police Department who testified that he arrived on the scene shortly after the shooting. After Green was placed into an ambulance [Sergeant] Zenkovich asked Green who shot him and he stated he was shot by [Carr] and “P.Money.” [Sergeant] Zenkovich then went to the ambulance that Sutton was in and she identified the shooters as [Carr] and Linnen.

The Commonwealth also presented the testimony of Detective Steven Hitchings of the Allegheny County Police who also testified that he spoke to Green at the hospital later that morning and [Green] again identified [Carr] and Linnen as the shooters. [Detective] Hitchings also created [] photo arrays and returned to the hospital and presented the arrays to Green from which Green immediately identified [Carr] and Linnen as two of the shooters.

Trial Court Opinion, 1/9/2017, at 2-4 (record citations omitted).

-3- J-S54002-17

Carr was subsequently arrested and charged with attempted homicide

(two counts), criminal conspiracy, aggravated assault (two counts), robbery,

recklessly endangering another person (“REAP”) (two counts), persons not to

possess firearms, carrying a firearm without a license, and possession of a

firearm by a minor.2 On November 20, 2013, the trial court granted the

Commonwealth’s motion to try Carr’s case jointly with the charges against

Linnen (Docket No. 13602-2013).3 On January 15, 2016, a jury found Carr

guilty of attempted homicide (two counts), criminal conspiracy, REAP (two

counts), and possession of a firearm by a minor. 4 He was acquitted of the

remaining charges.5 On April 6, 2016, the trial court sentenced Carr to

concurrent terms of 15 to 30 years’ imprisonment for each count of attempted

homicide, and a consecutive term of 10 to 20 years’ imprisonment for criminal

conspiracy, for an aggregate sentence of 25 to 50 years’ imprisonment. 6 ____________________________________________

2 See 18 Pa.C.S. §§ 901/2502, 903, 2702(a)(i) 3701, 2705, 6105(c), 6106(a)(1), and 6110.1(a), respectively. Carr was also charged with one count of cruelty to animals, formerly 18 Pa.C.S. § 5511(a), however, the trial court granted a judgment of acquittal as to that charge on January 14, 2016.

3 Although the trial court also joined Halcomb’s case (Docket No. 13609-2013) initially, his case was later severed in March of 2015. Halcomb was subsequently acquitted of all charges following a jury trial in June of 2015.

4 Linnen was convicted of similar offenses, and his direct appeal is docketed at 614 WDA 2016.

5 The charge of persons not to possess firearms was severed from the case before trial. 6 No further punishment was imposed on the remaining convictions.

-4- J-S54002-17

Carr filed a timely post-sentence motion challenging the weight and

sufficiency of the evidence, the court’s denial of a motion for mistrial, and the

discretionary aspects of his sentence. On April 19, 2016, the trial court denied

the post-sentence motion, and this timely appeal, filed by new counsel,

followed.7

Based on our disposition, we will address Carr’s first two claims

together. In his first issue, Carr contends the trial court erred when it failed

to grant a mistrial after Green testified that Linnen had been arrested before

for “a homicide that he beat.”8 Carr’s Brief at 17, quoting N.T., 1/12-15/2016,

at 144. Although Carr recognizes the prior arrest referenced only Linnen, he

insists “[t]he inference is that these defendants commit murders all the time,

they just haven’t been caught or convicted before.” Id. at 21. Further, Carr

asserts the court’s cautionary instruction was inadequate to cure the

prejudice. See id. at 18.

In his second issue, Carr argues the evidence was insufficient to support

his conviction of the attempted homicide of Sutton. 9 See id. at 22. He ____________________________________________

7 On May 24, 2016, the trial court ordered Carr to file a concise statement of errors complained of on appeal. After requesting an extension of time until the notes of testimony from the jury trial were transcribed, Carr complied with the court’s directive and filed a concise statement on September 27, 2016.

8 “In reviewing a trial court’s denial of a motion for a mistrial, our standard is abuse of discretion.” Commonwealth v. Parker, 104 A.3d 17, 27 (Pa. Super. 2014), appeal denied, 117 A.3d 296 (Pa. 2015). 9 Our review of a challenge to the sufficiency of the evidence is well-settled.

We must determine “whether viewing all the evidence admitted at trial in the

-5- J-S54002-17

emphasizes Sutton never saw him shoot at her, and, consequently, “there is

no proof that [he] had the intent to kill Ms. Sutton at that time.” Id. at 24.

Upon our review of the record, the parties’ briefs, and the relevant

statutory and case law, we conclude the trial court properly disposed of Carr’s

first two issues on appeal in its opinion, and we rest on its well-reasoned basis.

See Trial Court Opinion, 1/9/2017, at 5-10 (finding (1) motion for mistrial was

properly denied because (a) the statement was not elicited by the

Commonwealth, (b) the statement referenced only Carr’s co-defendant, and

“did not implicate [Carr] in any manner,”10 (c) Carr did not specifically request

a mistrial,11 and (d) the cautionary instruction cured any potential prejudice;

and (2) the evidence was sufficient to support Carr’s conviction of the

attempted murder of Sutton because (a) both Sutton and Green identified

Carr as one of the shooters, (b) Green “specifically identified” Carr as one of

the men, who while walking towards the porch, fired repeatedly at him and ____________________________________________

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.” Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. 2016), appeal denied, 165 A.3d 895 (Pa. 2017).

10 Trial Court Opinion, 1/9/2017, at 7.

11 We note Linnen’s counsel moved for a mistrial after the testimony. See N.T., 1/12-15/2016, at 144. When asked by the court for his thoughts, counsel for Carr stated: “The only thing that I would say that it is such an appropriate piece of information that I think that if we don’t have a mistrial now we’re going to be trying it again later. It’s just something to taint the Jury to say he beat a homicide.” Id. at 146-147.

-6- J-S54002-17

Sutton,12 and (c) specific intent to kill may be inferred from the defendant’s

use of a deadly weapon on a vital part of a victim’s body).

With regard to Carr’s third issue, we also agree with the trial court that

the sentence imposed was illegal, and, consequently, we are compelled to

vacate the sentence, and remand for resentencing.13 See id. at 10-11.

Section 906 of the Pennsylvania Crimes Code provides:

A person may not be convicted of more than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy for conduct designed to commit or to culminate in the commission of the same crime.

18 Pa.C.S. § 906. The courts of this Commonwealth have interpreted the

term “convicted” in Section 906 “to mean the entry of a judgment of sentence,

rather than a finding of guilt by the jury.” Comonwealth v. Jacobs, 39 A.3d

977, 983 (Pa. 2012). Accordingly, while a defendant may be convicted of the

inchoate crimes of attempt and criminal conspiracy when both crimes have

the same objective, i.e., the murder of the victim, he may not be sentenced

for both crimes.

In the present case, the trial court imposed separate sentences on Carr’s

convictions of attempted homicide and conspiracy to commit homicide. There

is no dispute that both charges were directed to the commission of the same

crime. Moreover, although Carr did not raise this issue before the trial court, ____________________________________________

12 Id. at 9.

13 We note the Commonwealth concedes that Carr’s sentence, as imposed, is illegal. See Commonwealth’s Brief at 22-23.

-7- J-S54002-17

a claim that a sentence violates Section 906 implicates the legality of a

sentence and may be raised for the first time on appeal. See Jacobs, supra,

39 A.3d at 982.

“When a lower court improperly convicts and sentences a defendant for

two inchoate crimes, this Court has the option either to remand for

resentencing or amend the sentence directly.” Commonwealth v. Cooke,

492 A.2d 63, 70 (Pa. Super. 1985). Here, because the trial court imposed the

sentences to run consecutively, the vacation of one sentence will disturb the

entire sentencing scheme. Accordingly, we are constrained to vacate Carr’s

judgment of sentence and remand this case to the trial court for

resentencing.14 See Commonwealth v. Ruffin, 16 A.3d 537, 544 (Pa.

Super. 2011).

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

14It merits mentions that Linnen’s sentence was vacated on direct appeal for the same reason. See Commonwealth v. Linnen, ___ A.3d ___, 614 WDA 2016 (Pa. Super. filed July 6, 2017) (unpublished memorandum).

-8- J-S54002-17

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/10/2017

-9- Circulated 09/29/2017 02:53 PM