Com. v. Gardner, J.

• Court: Superior Court of Pennsylvania
• Decided: April 11, 2016
• Docket: 196 MDA 2015
• Status: Unpublished

Opinion

J-A34017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JASON GARDNER

Appellant No. 196 MDA 2015

Appeal from the Judgment of Sentence September 19, 2014 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000410-2013

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.: FILED APRIL 11, 2016

Jason Gardner appeals from the judgment of sentence imposed on

September 19, 2014, in the Court of Common Pleas of Lycoming County.

On that same day, a jury convicted Gardner of second-degree murder,

robbery, conspiracy to commit robbery, and flight to avoid apprehension,

trial, or punishment.1 The court sentenced Gardner to life imprisonment

without the possibility of parole. On appeal, Gardner raises sufficiency,

weight, evidentiary, and suppression issues. For the reasons below, we

affirm on the basis of the trial court’s opinions.

Gardner’s convictions stem from the January 9, 2013, fatal shooting of

the victim, Terrell Henderson-Littles, in an alley in Williamsport, ____________________________________________

1 18 Pa.C.S. §§ 2502(b), 3701(a)(1)(ii), 903(a), and 5126(a), respectively. J-A34017-15

Pennsylvania. In its opinion, the trial court fully and correctly sets forth the

relevant facts and procedural history of this case. See Trial Court Opinion,

3/25/2015, at 1-12. Therefore, we have no reason to restate them herein.

Gardner presents the following six issues for our review:

1. Whether the trial court erred in finding that the Commonwealth presented sufficient evidence of robbery, conspiracy to commit robbery and murder in the second degree when there was no evidence of a taking required for the robbery?

2. Whether the court erred in upholding the verdicts when the weight of the evidence was against the verdict?

3. Whether the court erred in precluding evidence of a Commonwealth witness’s prior use and possession of a firearm when the witness was a co-defendant in a murder case?

4. Whether the trial court erred in permitting the Commonwealth to play recorded telephone conversations between [Gardner] and a third party when there was no probative value to those calls?

5. Whether the court erred in permitting the Commonwealth to use a visual aid during its closing that was not supported by the evidence nor was it ever admitted as an exhibit?

6. Whether the court erred in failing to grant a motion to suppress statements when there was no continuation of interrogation as a result of being transported from Easton to Williamsport, [Pennsylvania]?

Gardner’s Brief at 4-5.

After a thorough review of the record, the briefs of the parties, the

applicable law and standard of review, and the well-reasoned opinions of the

Honorable Nancy L. Butts, we conclude Gardner’s issues merit no relief.

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With respect to issues one, two, three, and four, the trial court’s Pa.R.A.P.

1925(a) opinion comprehensively discusses and properly disposes of these

questions. See Trial Court Opinion, 3/25/2015, at 13-21 (finding: (1) there

was sufficient evidence to convict Gardner of robbery, second-degree

murder, and conspiracy where the evidence established Gardner was

brought to Williamsport to rob people, he asked permission to rob the

victim, he pulled out a gun and shot the victim, the victim died as a result of

the gunshot, and he told a third-party that he took about three bags of

marijuana from the victim;2 (2) the verdict was not against the weight of the

evidence and did not shock the trial court’s conscience 3 where (a) Gardner’s

____________________________________________

2 We note that Gardner included in his sufficiency argument two claims regarding the preliminary hearing. He asserts: (1) there was no evidence of taking presented at the preliminary hearing to support the prima facie case of robbery and (2) the Commonwealth’s use of Shabazz’s statement violated Bruton v. United States, 391 U.S. 123 (1968). See Gardner’s Brief at 12, 15. “[I]t is well-settled that errors at a preliminary hearing regarding the sufficiency of the evidence are considered harmless if the defendant is found guilty at trial.” Commonwealth v. Ricker, 120 A.3d 349, 353 (Pa. Super. 2015). Therefore, we need not address these claims further.

Nevertheless, we note the trial court addressed Gardner’s challenge to a prima facie case of robbery in its September 30, 2013, opinion. See Trial Court Opinion, 9/30/2013, at 7-9. Moreover, with respect to Shabazz’s statement, Gardner concedes there was no joint trial in the present matter and therefore, Bruton does not apply. See Gardner’s Brief at 15. 3 With respect to weight claims, our standard of review is well-settled: “[A]n appellate court does not substitute its judgment for the finder of fact and consider the underlying question of whether the verdict is against the weight of the evidence, but, rather, determines only whether the trial court (Footnote Continued Next Page)

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cohort, Mirad Shabazz, testified that he gave Gardner permission to rob the

victim, and Gardner said it was “a go” and pulled out a gun, (b) a jailhouse

informant, Gage Michael Wood, stated that Gardner admitted he came to

Williamsport to rob people and “shot the kid in the face” after the victim did

not surrender his drugs, and (c) the jury received a corrupt and polluted

source instruction regarding Shabazz and was aware of Wood’s motive in

testifying and received a cautionary instruction regarding the matter; (3)

evidence regarding Shabazz and his prior use and possession of firearms

(including an arrest in Easton, Pennsylvania while seen carrying a rifle and

an outstanding weapons charge in New Jersey) was properly precluded

because it was offered only to show that Shabazz had a propensity for

violence and carrying weapons, which violated Pa.R.E. 404(b)(1); and (4)

evidence of Gardner’s recorded prison phone conversations regarding a

“Bishop” was properly admitted as probative because Gardner’s associate,

Isaiah Fulton, testified that they called Gardner’s gun a “Bishop,” Gardner

stated a “Bishop” was brought up with them on their trip to Williamsport,

and Gardner had denied knowledge of a gun so that evidence of him talking

about the gun would refute his lack of knowledge).

_______________________ (Footnote Continued)

abused its discretion in making its determination.” Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, 134 S. Ct. 1792 (U.S. 2014)

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With respect to Gardner’s fifth issue, we note the following regarding

the Commonwealth’s use of a non-admitted visual aid during closing

argument:

“Visual aids may be used to assist the jury in understanding the evidence in appropriate cases, and permission to do so is within the sound discretion of the trial judge.” Commonwealth v. Pelzer, 531 Pa. 235, 245, 612 A.2d 407, 412 (1992). This rule applies equally to demonstrative aids used during the actual trial phase and during the parties’ opening and closing arguments. Moreover, it is well-settled that, during closing arguments, a prosecutor must be given reasonable latitude to present the Commonwealth’s theory of the case provided that the evidence and the inferences derived therefrom reasonably support such a scenario. See, e.g., Commonwealth v. Persichini, 444 Pa. Super. 110, 125, 663 A.2d 699, 706 (1995).

Commonwealth v. Rickabaugh, 706 A.2d 826, 837 (Pa. Super. 1997),

appeal denied, 736 A.2d 603 (Pa. 1999).

Here, the prosecutor explained his use for the aid: “But I wanted to

state that Mirad Shabazz in his testimony indicates that at the time of the

shooting Gardner was standing in direct front of him in a south direction and

that the victim was to his left.” N.T., 9/18/2014, at 184.

The following exchange then occurred:

THE COURT: So [the prosecutor’s] choosing to focus on one item of testimony rather than another.

[Defense counsel]: Fine. But, Your Honor, again, my objection --

THE COURT: Yeah.

[Defense counsel]: You have my objection.

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THE COURT: I do. And, again, [the prosecutor’s] going to couch this as it’s not labeled as an exhibit. It’s something that’s -- ladies and gentleman, you know, I’ve put this together based upon my recollection of the testimony. You know, you heard the judge ad nauseam say it’s your recollection that controls. But I remember that when Mirad Shabazz testified this is where he had everybody placed.

[Defense counsel]: See, my recollection is different than that. And, again, it’s obviously the jury. But okay.

THE COURT: Yeah. And I think that’s where we’re dealing with it, you know.

Id. at 184-185.

As pointed out by the trial court, Shabazz did testify that Gardner was

in front of him at the time the gun went off and the victim was to the left of

him. N.T., 9/15/2014, at 109.

During closing arguments, the prosecutor stated:

But we know based upon where the body fell dead standing that there was movement and we know the way the bullet was passing through his head from left to right, front to back, and up, his feet where he stands left to right, front to back, and up, that the bullet passes through Terrell Littles’ head and up through that drip edge and up into the sky. Colton Engel[, a friend of the victim,] doesn’t see it because he can’t see what’s happening over here, but he does see Mirad Shabazz who is raising his hand in this direction, raising his hands maybe because he’s surprised at what the heck is going on over here between these two. Maybe because things are getting out of hand with the robbery. We don’t know, but Mirad Shabazz takes the stand and says when that gun goes off Jason Gardner is in front of me, Terrell Littles is to my left. And when he says that it clicks with the Commonwealth because we say well, that’s what our physical evidence shows. That is exactly what our physical evidence shows.

N.T., 9/19/2014, at 29-30.

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In its opinion, the court found it did not err in permitting the

Commonwealth to use a visual aid during closing arguments because the aid

was supported by Shabazz’s testimony as to where Gardner and the victim

were standing in relation to him. See Trial Court Opinion, 3/25/2015, at 19-

20.

Given the foregoing, particularly that a prosecutor must be given

reasonable latitude to present the Commonwealth’s theory of the case

during closing arguments, and based upon our review of the record, in which

there were many individuals present at the shooting and the Commonwealth

was using the aid to show where the actors were located, we conclude the

trial court did not abuse its discretion in permitting the Commonwealth’s use

of the visual aid.

With respect to Gardner’s remaining claim, his sixth, the trial court

correctly addressed the issue in its September 30, 2013, opinion and order.4

In denying the motion to suppress, the trial court noted Gardner was

interviewed by the same officer that provided him with the earlier Miranda5

warnings, the second interview occurred approximately two and a half hours

after the warnings were initially given, and the interviews occurred in

different locations. See Trial Court Opinion, at 9/30/2013, at 5. The court ____________________________________________

4 The court incorporated its analysis from the September 30, 2013, opinion in its Rule 1925(a) opinion. See Trial Court Opinion, 3/25/2015, at 13. 5 Miranda v. Arizona, 384 U.S. 436 (1966).

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found that while the different locations of the interviews supported Gardner’s

position that he should have been re-advised of his rights, that was

mitigated by fact that the officers advised Gardner prior to the trip back to

Williamsport and during the first interview that they would continue to talk in

the police vehicle. Id. The court concluded that because it was the same

officer conducting both interviews and there was a short amount of time

between the inquiries, these factors further supported the determination that

the police were not required to re-advise Gardner of his rights. Id. at 5-6.

Moreover, the court indicated that in his first statement, Gardner averred he

and Shabazz went straight to their friend’s apartment and did not see the

victim or a shooting. See Trial Court Opinion, at 9/30/2013, at 6. In the

second statement, he said that he and Shabazz were at the scene of the

shooting. Id. The court emphasized that while these statements were

different, Gardner merely acknowledged he was at the scene, but did not

admit that he was involved in the shooting in any way. Id. Therefore, the

court found that these two statements were not substantively different. Id.

As such, the court concluded that based on the facts of the case, the police

did not have to re-inform Gardner of his Miranda rights before talking to

him in the police vehicle. Id.

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We conclude that the trial court’s opinions properly dispose of the

issues in this case. Accordingly, we affirm on the basis of those opinions

with respect to Gardner’s numerous claims,6 with one additional comment.

At several points in Gardner’s brief, Gardner alleges the only credible

evidence is his own testimony, which he claims is more reliable than that of

the other witnesses. We emphasize that “the fact-finder is free to believe

all, part, or none of the evidence, and credibility determinations rest solely

within the purview of the fact-finder.” Commonwealth v. Flor, 998 A.2d

606, 626 (Pa. 2010). It follows from the above principle that the jury was

not required to believe Gardner’s testimony and that it could rely on the

testimony from the other witnesses, which implicated Gardner as the

shooter.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/11/2016

6 We note Gardner raised additional claims with the trial court, which it analyzed in its opinions, that are currently not before us on direct appeal. Accordingly, we need not address those claims further.

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...

IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA

COMMONWEAL TH OF PENNSYLVANIA

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motion was heard on July 11, 2013 and July 12, 2013.

Background

On January 9, 2013, Terell Henderson-Littles (victim) was shot to death in the rear

parking lot of 1107 W 4th Street. On January 19, 2013, Easton Police Department contacted

Williamsport Bureau of Police (WBP) and advised them that they had one of the suspected

shooters, Mirad Shabazz (Shabazz). At approximately 6:00 PM, Agent Kontz (Kontz), Agent

Peacock (Peacock), Agent Dincher (Dincher), and Captain Miller (Miller) of the WBP arrived in

Easton, PA. Kontz and Peacock interviewed Shabazz while Dincher and Miller went to 1125

Ferry Street to find the other suspect in the shooting, Jason Gardner (Defendant).

At approximately 6:36 PM, Dincher, Miller, and three Easton Police officers arrived at

1125 Ferry Street, where the Defendant was suspected to be located. A black male answered the

door and identified himself as "Shawn." The black male began to walk up the stairs as a black

female came to the door and identified "Shawn" as the Defendant. The Defendant grabbed and

threw a small child at one of the Easton Police officers and began to run to the back of the house.

Dincher pursued and as they entered the kitchen in the rear of the house Dincher grabbed the

I APPKNDIX "S" Defendant and they broke through the back door landing on an outside patio. Easton Police

arrested the Defendant and he was transported to the Easton Police Department (EPD).

Kontz and Peacock interviewed the Defendant after he arrived at the EPD. Kontz first

advised the Defendant of his Miranda rights, which the Defendant waived and signed a waiver

form at 7: 11 PM. The Defendant was interviewed for approximately an hour and forty-five (45)

minutes. During the interview the Defendant stated that he was in Williamsport around the time

of the shooting. On January 9, 2013, the Defendant, Shabazz and two (2) other individuals went

to purchase marijuana. Commonwealth Ex. 3. The Defendant stated that he and Shabazz left the

other individuals prior to the purchase and they walked directly back to the apartment at which

they were staying. The Defendant stated that he did not see the victim or the shooting. While

the interview was ending Kontz and Peacock told the Defendant that they would continue to talk

on the two and a half (2 Yi) hour drive back to Williamsport.

Following the interview, Kontz and the rest of the WBP ate pizza provided by the EPD

while the Defendant's shoes were being obtained from a locker. After the Defendant's shoes

were returned, Miller and Kontz transported the Defendant by vehicle back to Williamsport at

9:30 PM. Kontz estimated that it took approximately thirty (30) minutes from the end of the

interview till the Defendant was in the vehicle.

Kontz and Miller stopped at a McDonald's approximately two (2) minutes away from

EPD and got the Defendant food. While the Defendant was eating he called his girlfriend and

talked to her for five (5) to ten (10) minutes. Following the phone call, Kontz asked the

Defendant about his daughter. The Defendant stated that he would not see his daughter again

and that his life was over. Kontz responded that he was just at a bad place at a bad time. The

2 Defendant then said Shabazz was like a brother to him and that they were at the scene of the

shooting.

On January 21, 2013, the Defendant was brought back to WBP from the county prison to

finish being processed due to computer issues on January l 91h. The Defendant was told that

Shabazz had talked to police and he stated that he also wanted to talk. The Defendant again

waived his Miranda warnings and made a statement to police.

On April 11, 2013, the Defendant filed an Omnibus Pre-Trial Motion that argued that

"statements were obtained in violation of Defendant's rights as provided in Article 1 Sections 8

and 9 of the Pennsylvania constitution as well as the Fourth, Fifth and Fourteenth Amendments

of the United States Constitution as well as Miranda v. Arizona." Following the hearing, the

Defendant specified that he should have been rewarned of his Miranda rights before he made

statements to police in the vehicle. In addition, the Defendant's inadmissible statements resulted

in the January 21, 2013 confession and should also be suppressed.

Motion to Suppress

Defense counsel alleges that the Defendant was not properly re-advised of his Miranda

rights prior to being questioned while he was being driven back to Williamsport. The purpose of

Miranda "is to assure that the individual's right to choose between silence and speech remains

unfettered throughout the interrogation process." Commonwealth v. Wideman, 334 A.2d 594,

597 (Pa. 1975).

An accused, of course, need not be reinformed of his rights, and asked whether he wishes to assert them each time he is asked a question. On the other hand, we have held that the accused must be so reinformed, and given a new opportunity to assert constitutional rights when warranted by the circumstances. Several "objective indicia" have been noted as significant in determining the issue: we have considered (1) the time lapse between the last Miranda warnings and the accused's statement; (2) interruptions in the continuity of the interrogation; (3) whether there was a change of location between the place where

3 the last Miranda warnings were given and the place where the accused's statement was made; (4) whether the same officer who gave the warnings also conducted the interrogation resulting in the accused's statement; and (5) whether the statement elicited during the complained of interrogation differed significantly from other statements which had been preceded by Miranda warnings.

Id. at 598 (citations omitted).

In Wideman, the defendant and his wife arrived at the police administration building at

5:15 AM. Id. at 596. At 5:45 AM, the defendant was given Miranda warnings by Detective

Bacher but no questions were asked. At 6:45 AM, Detective Basmajian re-warned the defendant

and asked him questions for about a half an hour. At 10:30 AM, the defendant was taken to an

interrogation room and given a lie detector test. The defendant was then interrogated again by

Detective Melfi, spoke with his wife, and took a three and a half (3 Yi) hour nap. From 5:30 to

6:00 PM the defendant was interrogated by Detective Kuester. Id. at 596-97. At 6:45 PM,

Detective Smith interrogated the defendant and he admitted to a shooting. Id. at 597. The

Defendant had not been given his Miranda warnings since 6:45 AM.

The Supreme Court of Pennsylvania found that the defendant should have been re-

advised of his Miranda rights. Id. at 598-99. The Supreme Court noted that continuity of

interrogation was broken on several occasions, the delay was twelve (12) hours, a different

officer gave the Miranda warnings than interrogated the defendant, and there was a material

difference between the statement made when Miranda warnings were given and twelve (12)

hours later. See also Commonwealth v. Wideman, 334 A.2d 594, 599 (Pa. 1975) (determining

that rewarning was necessary when twelve hours elapsed from the time of the Miranda warnings

and the interrogation, a different officer questioned the defendant, and the defendant was moved

to another location). In addition, the Supreme Court suppressed the defendant's subsequent

formal, written statement as it was a product of the inadmissible oral confession.

4 On the other hand, .in Gray, the defendant was questioned about a murder and given his

Miranda warnings at 6:00 PM. Commonwealth v. Gray, 374 A.2d 1285 (Pa. 1977). The

defendant denied any knowledge of the homicide during the forty-five (45) minute interrogation.

After an approximate hour and a half break, the defendant was re-questioned by another officer

and was not re-advised of his Miranda warnings. The Defendant then stated that he was in the

victim's house.

The Supreme Court of Pennsylvania ruled that the interrogation should not have been

suppressed. The Supreme Court noted that "[w]hile a different officer conducted the second

interview, the statements did not materially differ. In the first, [defendant] admitted being with

the victim outside her house. In the second, he added that he accompanied her inside and saw

her fall against a table. After placing her on the couch, [defendant] stated that he left." Id. at

1289. Further, the time between the Miranda warnings and the interrogation was two (2) hours

and it was conducted in the same room. Id.; see also Commonwealth v. Ferguson, 282 A.2d 378,

379-80 (Pa 1971) (finding that rewarning was not necessary when a different officer than the

one that gave the warnings conducted the interrogation).

Here, the Defendant was interviewed by the same officer that gave the Miranda warnings,

the second interview occurred approximately two and a half (2 Yi) hours after the warnings were

initially given, and the interviews occurred in different locations. The different locations of the

interviews support the Defendant's position that he should have been re-advised of his rights.

This factor, however, is mitigated by the officers' reference that they would continue talking in

the police vehicle. The Defendant was advised prior to the trip back to Williamsport and during

the first interview that they would continue to talk in the police vehicle. In addition, the same

5 officer conducting both interviews and the time between the interviews supports the

Commonwealth's position that police were not required to re-advise the Defendant of his rights.

Another of the "objective indicia" used by courts is whether the first and second

statements significantly differ. In the Defendant's first statement he stated that he and Shabazz

went straight to their friend's apartment and did not see the victim or a shooting.1 In the

Defendant second statement he stated that he and Shabazz were at the scene of the shooting. The

Defendant's subsequent statement is different than the first; however, he merely states that he

was at the scene of the shooting. The Defendant did not state that he was involved in the

shooting in any way. In Gray, the defendant denied any knowledge of a homicide and then later

said that he was inside the house and saw the victim fall to the ground. The facts here are similar

to Gray, in that the Defendant first denied knowledge and then stated that he was at the scene.

Therefore, this Court finds that the first and second statements by the Defendant were not

significantly different.

Based on the facts of this case, the Court finds that police did not have to re-inform the

Defendant before talking to him in the police vehicle. The first interview of the Defendant ended

with police stating that they would continue to talk during the drive to Williamsport. In addition,

the statements were not significantly different, occurred within a short period of time from each

other, and were conducted by the same officer.

Motion to Dismiss

The Defendant contends that the Commonwealth failed to establish aprimafacie case for

the robbery charges. Specifically, it is alleged that the Commonwealth did not provide any

I The Defendant's initial statement to police was that he was in the general area of the shooting but did not know anything about it.

6 evidence that there was any sort of taking ortheft in this matter. A person is guilty ofrobbery if

during the course of committing a theft he either:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

(iii) commits or threatens immediately to commit any felony of the first or second degree;

(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury;

(v) physically takes or removes property from the person of another by force however slight; or

(vi) takes or removes the money of a financial institution without the permission of the financial institution by making a demand of an employee of the financial institution orally or in writing with the intent to deprive the financial institution thereof.

18 Pa.C.S. § 3701(a)(l). Further, "[a]n act shall be deemed 'in the course of committing a theft'

if it occurs in an attempt to commit theft or in flight after the attempt or commission."

After reviewing the Preliminary Hearing transcript, the Court finds that the

Commonwealth has sufficiently established e prima facie case for all the robbery charges. Isaiah

Fulton (Fulton) testified that before the co-Defendants went to buy marijuana from the victim,

Gardner asked Shabazz if he would go with him to rob him. N.T., March 8, 2013, p. 45, 59.

After the shooting occurred Shabazz told Fulton that Gardner shot the victim after he refused to

give them more marijuana and reached for the gun:

HOFFA: So you didn't ask anybody what happened?

FULTON: Yeah. I asked 'em what happened and they told me.

HOFFA: Who told you?

FULTON: Mirad.

7 HOFFA: And when you say Mirad you're talking about Shabazz?

FULTON: Yeah.

HOFFA: And what did he tell you again?

FULTON: He said that Jason shot the boy.

HOFFA: Did he say why?

FULTON: He said because he tried to reach for the gun.

HOFFA: Did he - well, what - did he tell you if they took the pot or did they pay for the weed? Did he tell you that?

FULTON: No, he say they took it.

HOFFA: He took it.

FULTON: And handed him the weed and he didn't want to give the rest of it so he tried to, like, wrestle for the gun and he got shot.

HOFFA: And then what else did you say happened after that? He gave you the weed and he wouldn't give him the rest?

FULTON: Right. That's what he told me - he said that he -I guess he tried to - I don't really know. He just said that he - he wasn't trying to give the rest of the weed up and he tried to wrestle him for the gun.

HOFFA: He didn't want to give up the rest of the weed and he tried to wrestle him for the gun.

HOFFA: And that's what Shabazz is telling you?

FULTON: Right.

Id. at 70-71. In addition, Shabazz made similar statements to Agent Raymond Kontz of the

Williamsport Bureau of Police:

8 COMMONWEALTH: And in that interview with Mr. Shabazz did he make any - what did he tell you with regard to the homicide of Terell Littles?

KONTZ: He indicated that the shooter would have been Jason Gardner, that at one point during the commission of a robbery that the victim had gotten brave and reached out to grab the gun and at that point that Mr. Gardner had to shoot · him.

COMMONWEALTH: Did Mr. Shabazz indicate to you whether he knew or didn't know that this was going to be a robbery?

KONTZ: He indicated that they were going there to commit the robbery, that as they approached the victim was still inside a vehicle and that he had actually told Mr. Gardner that as long as they were in the vehicle that the robbery wouldn't take place. They weren't familiar with the area. They were afraid they would be taken somewhere where they couldn't find their way back to the residence that they were staying. When Mr. Littles got out of the vehicle Shabazz- or I'm sorry, Mr. Gardner turned to Shabazz and said it was on, so at that time the robbery was going to take place.

Id. at 84. The Defendant points out that Colton Engel (Engel) did not observe a taking. The

testimony, however, established that Engel was not observing them the entire time and also he

did not see what Gardner was doing while he was watching Shabazz. Id. at 22, 35.

Motion for Severance

The Defendant contends that the co-Defendants' case should be severed due to a potential

violation of Bruton, which states that an incriminating statement by a non-testifying co-

defendant violates the other defendant's right to cross-examine as guaranteed by the

Confrontation Clause of the Sixth Amendment. Bruton v. U.S., 391 U.S. 123 (1968). There is

no violation, however, if the incriminating statement is redacted and the trial court gives an

accurate and repeated cautionary charge. See Commonwealth v. Travers, 768 A.2d 845 (Pa.

9 2001); Commonwealth v. Johnson, 378 A.2d 859 (Pa. 1977); Commonwealth v. Whitaker, 878

A.2d 914 (Pa. Super. 2005).

Based on the law, the Court finds that severance of the co-Defendant's cases is not

necessary if the Commonwealth redacts Shabazz's statement for use at trial. The Court will

require that the Commonwealth provide defense counsel the redacted version of the statement at

least sixty (60) days before the start of trial. This will give the Defendant adequate time to raise

any issues from the redacted statement.

ORDER

AND NOW, this ]ZJ__~ of September, 2013, based upon the foregoing Opinion, the Court finds that the Williamsport Bureau of Police was not required to re-advise the Defendant

of his rights prior to interviewing him again in their police vehicle. In addition, the

Commonwealth established aprimafacie case for the robbery charges. Therefore, the

Defendant's Omnibus Pre-trial Motion is DENIED.

It is ORDERED and DIRECTED that the Commonwealth provide defense counsel with

the redacted version of Shabazz's incriminating statement at least sixty (60) days before the start

of trial.

xc: DA Robert Hoffa, Esq.

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