Com. v. Johnson, D.

• Court: Superior Court of Pennsylvania
• Decided: October 8, 2014
• Docket: 3080 EDA 2013
• Status: Unpublished

Opinion

J-S62030-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DARRELL JOHNSON,

Appellant No. 3080 EDA 2013

Appeal from the Judgment of Sentence of March 24, 2010 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010412-2008

BEFORE: ALLEN, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.: FILED OCTOBER 08, 2014

Appellant, Darrell Johnson, appeals from the judgment of sentence

entered on March 24, 2010. We affirm.

The trial court accurately summarized the factual background of this

case as follows:

In the early morning of December 24, 2007, [Appellant] confronted his cousin Tyrone Coleman [“(Coleman)”] on the corner of 5300 Delancey Street in the City and County of Philadelphia about money he was owed. Curtis Johnson [(“Johnson”)], another cousin of Appellant, was an eyewitness to the argument. During the course of the argument, Appellant pulled out a black semi-automatic handgun. Coleman said, “What are you going to do, shoot me . . . You’re not going to shoot me.” Appellant did in fact shoot Coleman once in the neck.

Tianna Thomas was walking on Delancey Street with two [] friends when she saw [Appellant] shoot [] Coleman. She gave a full statement and identified [Appellant] from a photo array. J-S62030-14

Appellant and Johnson left Coleman in the street and went to Helen Durham’s [(“Durham’s”)] house where they discussed the shooting in Isaac Whitaker’s [(“Whitaker’s”)] presence. [] Whitaker also had been with [Appellant] and [] Johnson earlier in the evening at Durham’s house. Whitaker and [] Johnson were upset with [Appellant] because [] Coleman was their cousin. Both men gave statements to law enforcement. [] Johnson also testified at the preliminary hearing.

[] Coleman was pronounced dead at the scene having sustained a single fatal gunshot wound to his neck which severed the carotid artery. One [] .38 caliber fired cartridge casing was recovered from the sidewalk.

Trial Court Opinion, 11/10/10, at 1-2 (internal citations omitted).

The procedural history of this case is as follows. On January 6, 2008,

Appellant was charged via criminal complaint with first-degree murder,1

possession of a firearm by a prohibited person,2 carrying a firearm without a

license,3 carrying a firearm on the streets of Philadelphia,4 and possession of

an instrument of crime.5 On August 22, 2008, a criminal information

charging those same offenses was filed.6 On March 16, 2010, Appellant

was found guilty of first-degree murder, carrying a firearm without a license,

1 18 Pa.C.S.A. § 2502(a). 2 18 Pa.C.S.A. § 6105(a)(2)(i). 3 18 Pa.C.S.A. § 6106(a)(1). 4 18 Pa.C.S.A. § 6108. 5 18 Pa.C.S.A. § 907(a). 6 However, the possession of a firearm by a prohibited person charge was changed from a violation of section 6105(a)(2)(i) to a violation of section 6105(a)(1).

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carrying a firearm on the streets of Philadelphia, and possession of an

instrument of crime. On March 24, 2010, Appellant was sentenced to an

aggregate term of life imprisonment without the possibility of parole.

Appellant filed a timely notice of appeal. This Court dismissed the

appeal for failure to file a brief. Commonwealth v. Johnson, 1072 EDA

2010 (Pa. Super. May 10, 2011) (per curiam). On March 23, 2012,

Appellant filed a pro se petition pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. § 9541-9546. Counsel was appointed and on

September 23, 2013 the PCRA court granted Appellant’s petition and

reinstated his direct appeal rights nunc pro tunc. This timely appeal

followed.7

Appellant raises three issues for our review:

1. Is the [Appellant] entitled to an arrest of judgment on all charges where the evidence is insufficient to sustain the verdict?

2. Is the Appellant] entitled to a new trial as the result of [] error where the [trial c]ourt permitted the reading of [p]reliminary [h]earing transcripts on the theory that the witness was unavailable when such a showing was never demonstrated?

3. Is the [Appellant] entitled to a new trial where the verdict is not supported by the greater weight of the evidence but rather, where the verdicts rests on speculation, conjecture[,] and surmise?

Appellant’s Brief at 3.

7 The trial court did not order a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) with respect to this nunc pro tunc appeal. However, the trial court did issue a Rule 1925(a) opinion when Appellant filed his original notice of appeal.

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Appellant first contends that the evidence was insufficient to find him

guilty of first-degree murder.8 “Whether sufficient evidence exists to

support the verdict is a question of law; thus, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Patterson,

91 A.3d 55, 66 (Pa. 2014) (citation omitted). In reviewing a sufficiency of

the evidence claim, we must determine “whether viewing all the evidence

admitted at trial in the light most favorable to the [Commonwealth], there is

sufficient evidence to enable the fact-finder to find every element of the

crime beyond a reasonable doubt.” Commonwealth v. Kearney, 92 A.3d

51, 64 (Pa. Super. 2014) (citation omitted). “Additionally, the evidence at

trial need not preclude every possibility of innocence. . . . [T]he fact-finder is

free to believe all, part[,] or none of the evidence.” Commonwealth v.

Trinidad, 90 A.3d 721, 728 (Pa. Super. 2014) (citation omitted).

“To obtain a first-degree murder conviction, the Commonwealth must

demonstrate that a human being was unlawfully killed, the defendant

perpetrated the killing, and that the defendant acted with malice and a

specific intent to kill.” Commonwealth v. Burno, 94 A.3d 956, 969 (Pa.

2014) (citation omitted). Appellant concedes that the first two elements of

first-degree murder are satisfied. However, Appellant contends that the

8 Although Appellant’s question presented states that he is challenging the sufficiency with respect to all charges, the argument section of his brief makes clear that he is only challenging the sufficiency of the evidence as it relates to his first-degree murder conviction.

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short confrontation on the streets of Philadelphia, followed by Coleman

daring Appellant to shoot him, did not evidence a specific intent to kill.

“[T]he period of reflection required for premeditation to establish the

specific intent to kill may be very brief; in fact the design to kill can be

formulated in a fraction of a second.” Commonwealth v. Rivera, 983 A.2d

1211, 1220 (Pa. 2009) (internal quotation marks and citation omitted). Our

Supreme “Court has held that evidence of death by gunshot to a vital organ

of the body may be sufficient to establish the requisite intent for first-degree

murder.” Commonwealth v. Morales, 91 A.3d 80, 88 (Pa. 2014)

(citations omitted); Burno, 94 A.3d at 969 (citation omitted) (same);

Commonwealth v. Arrington, 86 A.3d 831, 840 (Pa. 2014) (citation

omitted) (same). In this case, the evidence presented was that Appellant

shot Coleman in a vital part of his body, i.e., his neck. See

Commonwealth v. Montalvo, 956 A.2d 926, 933 (Pa. 2008) (neck is a

vital part of the body); Commonwealth v. Blakeney, 946 A.2d 645, 652

(Pa. 2008) (same). This evidence alone was sufficient for the jury to

conclude that Appellant acted with the requisite specific intent to kill.

Accordingly, Appellant’s first issue is without merit.

Appellant next contends that the trial court abused its discretion by

permitting Johnson’s preliminary hearing testimony to be read at trial. The

Commonwealth, relying upon Commonwealth v. Colon, 846 A.2d 747 (Pa.

Super. 2004), appeal denied, 870 A.2d 320 (Pa. 2005), and

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Commonwealth v. Griffin, 684 A.2d 589 (Pa. Super. 1996), contends that

this issue is waived. We disagree. We adopt this Court’s reasoning in

Commonwealth v. Stokes, 78 A.3d 644 (Pa. Super. 2013), appeal denied,

89 A.3d 661 (Pa. 2014).

[I]t can hardly be said that [A]ppellant “acceded” in the trial court’s disposition of [the Commonwealth’s] motion in limine. . . . Both Colon and Griffin found that counsel “acceded” to the trial [court’s] ruling. Colon, 846 A.2d at 752; Griffin, 684 A.2d at 595. Black’s Law Dictionary, Eighth Edition, defines “accede” as “to consent or agree,” or “to adopt.” Instantly, on [March 10, 2011, prior to testimony beginning,] the trial court ruled on [the Commonwealth’s] motion in limine:

***

Clearly, while [A]ppellant did not expressly object to the ruling of the trial court, neither did he consent or agree to the ruling. Appellant did not accede to the ruling . . . as in Colon and Griffin. Once the trial court made its ruling on [the Commonwealth’s] motion in limine, it was final and conclusive. [Commonwealth v. Metzer, 634 A.2d 228, 234 (Pa. Super. 1993).] We fail to see how the issue is not adequately preserved for appeal.

Stokes, 78 A.3d at 653. As we conclude that Appellant has preserved this

issue for appellate review, we proceed to assess the merits of his claim.

“[T]he introduction of an unavailable witness’[] prior recorded

testimony from a preliminary hearing is admissible at trial . . . provided the

defendant had counsel and a full opportunity to cross-examine that witness

at the hearing.” Commonwealth v. McCrae, 832 A.2d 1026, 1035 (Pa.

2003) (citations omitted). In this case, Appellant does not allege that he

was denied counsel or was not afforded an opportunity to fully cross-

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examine Johnson at the preliminary hearing. Instead, he argues that the

Commonwealth did not prove that Johnson was unavailable.

“Where the Commonwealth seeks to admit a missing witness’[] prior

recorded testimony, a ‘good faith’ effort to locate the witness must be

established.” Commonwealth v. Wayne, 720 A.2d 456, 467 (Pa. 1998)

(citation omitted). “It is within the discretion of the trial court to determine

what constitutes a good faith effort to locate a missing witness, and the

decision of the court will not be overturned absent an abuse of discretion.”

Commonwealth v. Lebo, 795 A.2d 987, 990 (Pa. Super. 2002) (citations

omitted).

In this case, the Commonwealth presented the testimony of Detective

Steven Mostovyk, Officer Anthony Washington, and Officer James Cook.

Detective Mostovyk testified that he went to Johnson’s last known address,

his mother’s house, five or six times in an attempt to locate Johnson. N.T.,

3/9/10, at 32. Those visits began two weeks prior to trial commencing. Id.

It included one visit on the first day of trial. Id. During those visits,

Detective Mostovyk and his partner would knock on the door and ask

Johnson’s mother if he were present. See id. Detective Mostrovyk left his

name and phone number with Johnson’s mother in case she learned of her

son’s location. See id. at 33.

Officer Washington testified that Johnson lived directly across the

street from the 18th district police station in Philadelphia. Id. at 38. Officer

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Washington testified that he visited Johnson’s last known address on

multiple occasions. Id. Johnson’s mother claimed he had moved out a year

prior but that she did not know his new address or his phone number. Id.

Officer Washington knew this to be false from his patrols of the area during

the previous two months during which time he regularly saw Johnson. Id.

at 39. Officer Washington also waited outside of the bar that Johnson

frequented at closing time to see if Johnson would emerge. N.T., 3/9/10, at

38. Officer Washington also routinely patrolled the block where Johnson’s

girlfriend lives in an attempt to locate Johnson. Id.

Officer Cook testified that he, along with his partner, went to Johnson’s

last known residence several times in the three weeks prior to trial. Id. at

43. He testified that he had attempted to reach Johnson at his residence

earlier in the day. Id. Appellant and the Commonwealth also stipulated

that police had searched the morgue, the medical examiner’s office, and all

local hospitals in an unsuccessful attempt to locate Johnson. Id. at 44.

They likewise stipulated that all local prisons and Accurint9 were searched in

an unsuccessful attempt to locate Johnson. Id. at 47.

Courts in this Commonwealth have found that far less strenuous

efforts to locate a witness satisfied the good faith requirement. For

example, in Commonwealth v. Jackson, our Supreme Court concluded

that the Commonwealth’s search effort was sufficient to permit the witness’

9 Accurint is a Lexis database used to locate individuals.

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prior testimony to be entered into evidence. 344 A.2d 842, 844 (Pa. 1975).

In Jackson, the only attempt made by police to locate the witness was

asking his grandmother if she knew where he was and calling her house.

Id. When his grandmother testified that he had disappeared the previous

night, and that he was known to run away, the trial court permitted the

witness’ prior testimony to be entered into evidence. Id. Our Supreme

Court concluded that was not an abuse of discretion. Id. In

Commonwealth v. Douglas, our Supreme Court held that, notwithstanding

the Commonwealth’s failure to set up surveillance in the housing project

where the missing witness lived, the Commonwealth had made a good faith

effort in locating the witness. 737 A.2d 1188, 1195–1196 (Pa. 1999).

In this case, Appellant argues that the Commonwealth’s search was

inadequate for several reasons. First, he argues that it was inadequate

because it only began two weeks prior to trial. However, the testimony from

the officers shows that they began looking for Johnson at least three weeks

prior to trial. Furthermore, the officers had no reason to suspect that they

would have to search for months to find Johnson. Officer Washington

testified that he regularly saw Johnson in the neighborhood between one and

two months prior to trial. Furthermore, in Jackson the Commonwealth’s

search effort was deemed sufficient where the police spent only a few

minutes searching for the missing witness while in the case sub judice the

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Commonwealth expended significant resources over a three week time

period in an attempt to locate Johnson.

Appellant also argues that the police did not check federal prisons or

the welfare rolls. Such actions are not required. If checking federal prisons

were required then it would logically follow that the Commonwealth would be

required to check the state prison systems of every state. Such measures

go well beyond what is required of a good faith search. Such investigative

techniques were not taken in Jackson or Douglas and yet our Supreme

Court determined that the Commonwealth satisfied its obligation to conduct

a good faith search in both of those cases. Furthermore, Accurint was

searched and did not produce any results. Appellant argues that police

made little efforts to check locations frequented by Johnson. Officer

Washington testified, however, that he looked for Johnson at the bar he

frequented five nights a week. This was a significant effort at locating

Johnson.

Appellant also claims that, although officers went to Johnson’s

mother’s house on at least a dozen occasions, they never searched the

house. The officers lacked probable cause to believe that Johnson was

present in his mother’s house or that any crime was committed in that

location; therefore, they could not obtain a warrant that would allow them to

search his mother’s house and detain him. Thus, without consent from

Johnson’s mother, such a search would have been a violation of the Fourth

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Amendment and was therefore not required. Johnson’s mother clearly did

not want to assist law enforcement hence, her consent was not forthcoming.

The Commonwealth had at least six police officers and detectives

attempting to locate Johnson. They searched every location he frequented

and did so repeatedly over a three week timeframe. This went well beyond

a good faith attempt at locating Johnson. Therefore, we conclude that the

trial court did not abuse its discretion in permitting Johnson’s preliminary

hearing testimony to be entered into evidence.

Finally, Appellant contends that the verdict is against the weight of the

evidence. This argument is waived. As this Court has explained,

Pennsylvania Rule of Appellate Procedure 2119 compels a finding of waiver

“where an appellate brief fails to provide any discussion of a claim with

citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review[.]” Tosi v. Kizis, 85 A.3d 585, 589

n.6 (Pa. Super. 2014) (citation omitted). Appellant does not include any

argument as to how the verdict was against the weight of the evidence.

Although the issue is listed in the questions presented section of his brief,

the argument section of his brief only addresses the first two issues raised

on appeal. Accordingly, Appellant has waived his claim that the verdict was

against the weight of the evidence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/8/2014

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