Com. v. Davis, A.

Superior Court of Pennsylvania·Decided July 6, 2016·No. 1325 MDA 2015·Unpublished

Opinion

J-S36041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ANTHONY MARCUS DAVIS,

Appellant No. 1325 MDA 2015

Appeal from the Judgment of Sentence June 25, 2015 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004356-2014

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 06, 2016

This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Dauphin County after a jury convicted Appellant of

Criminal Solicitation—Kidnap to Facilitate a Felony.1 Sentenced to a

mandatory term of incarceration of not less than 120 months nor more than

240 months2, which the court ran consecutively to an existing 20 ½ to 41

year sentence Appellant was serving for robbery, aggravated assault,

burglary, and multiple counts of kidnapping for ransom, Appellant raises

challenges to the weight of the evidence and the imposition of consecutive

sentences. We affirm.

____________________________________________

1 18 Pa.C.S. § 902(A). 2 This sentence was mandatory under the second strike provision of the recidivist sentencing statute at 42 Pa.C.S. § 9714(a).

*Former Justice specially assigned to the Superior Court. J-S36041-16

The trial court has aptly summarized the pertinent procedural and

factual history of Appellant’s case as follows:

Appellant, Anthony Marcus Davis, was charged with a single count [of] Criminal Solicitation—Kidnap to Facilitate a Felony. Following a jury trial held on June 8-9, 2015, Appellant was found guilty. On June 25, 2015, sentence was imposed at which [Appellant] was committed to incarceration for a term of not less than 120 months nor more than 240 months set to run consecutively with his sentence at Lancaster County Docket No. CP-36-CR-5282-2005.

Appellant timely filed a post-sentence motion. In his Motion, Appellant requested an arrest of judgment asserting that the verdict was against the weight of the evidence as the Commonwealth had failed to disprove the defense of renunciation beyond a reasonable doubt. He also asked that this Court modify his sentence contending it was excessive and unreasonable in that it had been set to run consecutively with the sentence he was already serving on a Lancaster County docket. Upon review of his motion and the Commonwealth’s response, [the trial court] denied his request for relief by order dated July 1, 2015.

On July 31, 2015, Appellant timely filed a Notice of Appeal to the Superior Court. In compliance with this Court’s order, he also timely filed his Concise Statement of Matters Complained of on Appeal in accordance with Pa.R.A.P. 1925(b). On appeal, Appellant raises [issues challenging the weight of the evidence and the discretionary aspects of his sentence].

A jury trial held on June 8-9, 2015, established the following facts: At the time of trial, George Zozos (“MDJ Zozos”) had been a Magisterial District Justice (“MDJ”) in Dauphin County for 34 years. (N.T., Trial 6/8/15 at 34). MDJ Zozos’ wife is named Ginger (“Mrs. Zozos”). On or about July 15, 2014, MDJ Zozos became aware of Appellant’s plot to kidnap him and his wife by way of a meeting with Detective John Goshert (“Chief Goshert”), Chief of the Dauphin County Criminal Investigation Department (“CID”). (N.T. at 35-38). Based on the threat, MDJ Zozos and his wife were placed under guard by the Harrisburg City Bureau of Police. (N.T. at 36).

-2- J-S36041-16

The kidnapping came to light when Kenneth Lee Pailen (“Lee” or “Mr. Pailen”) gave a July 9, 2014, letter he had received from Appellant to his parole officer and, subsequently, to detectives investigating the case. (N.T. 6/9/15 at 71). Chief Goshert, Detective Sergeant Todd Johnson (“Det. Sgt. Johnson”) and Detective Peter Fure (“Det. Fure”) proceeded to investigate the plan to kidnap MDJ Zozos outlined in the letter.

Matthew Zeno (“Zeno”) met Appellant while they were housed on the same cell block in SCI-Rockview. (N.T. 6/9/15 at 10). The pair began an emotional and sexual relationship that lasted approximately one year until Zeno was released on parole. (N.T. at 10-12). Zeno was paroled on June 14, 2014, at which time he moved to an approved residence at 317 North Sixth Street, in Reading, Pennsylvania. (N.T. at 12-15).

Zeno remained in telephone contact with Appellant after he was released. (N.T. at 13). Later, Zeno received a letter postmarked June 24, 2014, that had a return address reading “Anthony Davis, HM6876, 301 Institution Drive, Bellefonte, PA 16823[, the mailing address for SCI_Benner Township,] and was addressed to Zeno’s Reading residence. (N.T. at 16-17). The greeting was addressed to “La” and the closing was signed by “Guy, Guy” which Zeno confirmed were nicknames for himself and Appellant. (N.T. at 18, 22). Upon inspection of the letter, Zeno testified to recognizing the hand writing on the envelope and letter as belonging to Appellant. (N.T. at 17, 22).

The prosecutor had Zeno read the letter aloud for the jury. The beginning of the letter included a thank you for a birthday card sent by Zeno to Appellant and a long recitation of Appellant’s expressions of love, appreciation and longing for Zeno. (N.T. at 19-20). The letter went on to indicate that Appellant needed Zeno to do a favor for him, “I really need you to pull off the impossible, which I need—which I know now is possible because I believe in you and trust you more than ever.” (N.T. at 20). The favor Appellant had asked for in the letter read as follows:

I need you to get me out of jail by July 14, 2014. If you love me like you say you do and you’re my ride or die soulmate bitch get the ball moving because unless you do this, me – or we won’t be together

-3- J-S36041-16

and can’t be together. Actions speak louder than word [sic].

Read carefully. Find one or two people you trust to ride with you on this. *** Get some gloves, duct tape, rope, taser gun, and everything you think you might need to pull off a kidnapping.

*** Find transportation, someone who can drive. Find a safe location to keep a hostage at for a day or two.

*** Search the computer to find the home addresses of the following people, Harrisburg, Camp Hill, New Cumberland, et cetera area. John E. Wetzel, Secretary of Corrections. Tammy Ferguson, acting warden here at Benner.

*** P.S., make this a priority, La. Don’t play with me. I’m in no mood.

(N.T. at 22-23).

Det. Fure conducted a recorded interview with Zeno on July 31, 2014, along with Det. Sgt. Johnson. (N.T. at 101-103). Det. Fure testified with respect to a transcribed version of the recorded interview by reviewing and reading certain portions of the question and answer. (N.T. at 102-103). The interview revealed that Zeno had a telephone conversation with [Appellant] after receiving the letter outlining the kidnapping plot instructions during which [Appellant] told Zeno to forget the plan as “I got Lee. I got someone else to do it.” (N.T. at 103). When questioned about the last time he had spoken to [Appellant], Zeno relayed to the Detectives that Appellant initially indicated that he did not want them to go through with the plot anymore but, as the conversation continued he directed Zeno “to call Lee and ask Lee if his is going to do it or not.” (N.T. at 104). Det. Fure testified that, during the entire interview, Zeno never said the plan was just a joke. (N.T at 105).

-4- J-S36041-16

Kenneth Lee Pailen[,] a former inmate who goes by the name Lee met [Appellant] when they were housed together at SCI-Benner Township. (N.T. at 42-43). They were initially on the same block and eventually became cellmates. (N.T.

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