J.S52003/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : KYLE REED, : : Appellant : No. 1269 EDA 2013
Appeal from the Judgment of Sentence December 3, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0015615-2010
BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 8, 2015
Appellant, Kyle Reed,1 appeals from the judgment of sentence of life
imprisonment entered in the Philadelphia County Court of Common Pleas
after a jury found him guilty of murder of the second degree,2 robbery,3 and
conspiracy.4 He challenges the sufficiency and weight of the evidence.5 He
* Former Justice specially assigned to the Superior Court. 1 An appeal by Appellant’s codefendant, Vincent Wallace, is pending at Commonwealth v. Wallace, 3489 EDA 2012. 2 18 Pa.C.S. § 2502(b). 3 18 Pa.C.S. § 3701(a)(1). 4 18 Pa.C.S. § 903. J. S52003/14
also filed a petition for post-submission communication6 in this Court
requesting a remand to consider his claims of newly discovered evidence.
We affirm the convictions, grant the petition for post-submission
communication, deny the petition for remand, but vacate an illegal sentence
imposed for robbery in light of the sentence for second-degree murder.
The parties are well versed in the evidence presented against
Appellant and his codefendant, Vincent Wallace (“Codefendant”), at their
joint jury trial for the killing of Ernest Miller (“Decedent”). By way of
background, Decedent was a retired police officer and maintained a
photography studio on the first floor of his residence on the 2600 block of
West Oakdale Avenue in the City of Philadelphia. According to the
Commonwealth, Appellant paid Decedent three or four years earlier to find
modelling jobs for his then girlfriend, Raffinnee Taylor, but she received no
offers. The Commonwealth alleged Appellant, a few weeks before the
killing, learned Decedent was still in business at his home on West Oakdale
Avenue. Appellant, along with Codefendant and Michael Grant, planned to
go to Decedent’s residence recover his money from Decedent.
On the afternoon of December 28, 2008, Appellant, Codefendant, and
Grant allegedly went to Decedent’s residence. Although there was no
5 We have reordered Appellant’s arguments. 6 See Pa.R.A.P. 2501.
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indication of forced entry, a gunfight occurred on the first floor inside the
home that involved at least two firearms. Decedent and Grant suffered fatal
gunshot wounds. Codefendant suffered a gunshot wound to his pelvis.
Appellant allegedly dragged Grant from the residence, but left him outside
by the front door, and drove Codefendant to Einstein Hospital.
Duane Tate was driving near the scene of the shooting, saw
Codefendant limping to the passenger side of a dark sedan with front-end
damage near the 2500 block of West Oakdale Avenue. N.T., 11/28/12, 178-
79. Three days after the shooting, on December 31, 2008, detectives asked
Tate to identify the driver of that vehicle from a photographic array. Id. at
187. Tate selected two pictures, one of which was Appellant.7 Id.
None of the firearms involved in the shooting were found. No physical
evidence linked Appellant or Codefendant to the shooting. However,
investigators obtained statements from Grant’s wife and Taylor implicating
Appellant and Codefendant.
Appellant was charged on January 6, 2009, with homicide, robbery,
criminal conspiracy, and related offenses. He was not located at his
residence, and the matter was referred to the fugitive squad. Appellant was
7 Tate subsequently identified Appellant at a preliminary hearing on February 3, 2010. N.T., 11/28/12, at 182. At the time of trial, Tate was declared unavailable and his preliminary hearing testimony was read into the record. Id. at 173. The trial court instructed the jury to consider Tate’s identifications of Appellant with caution. See Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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taken into custody at a residence on the 8100 block of Algon Avenue on April
20, 2009. At the time of his arrest, police searched a bedroom of the
residence and found his identification, a “master” key for handcuffs, and a
ballistics vest.
Appellant proceeded with Codefendant to a joint jury trial beginning
November 26, 2012. Of relevance to this appeal, the Commonwealth called
Grant’s wife, who testified that on the afternoon of December 28, 2008,
Grant told her he was “making a run with [Appellant.]” N.T., 11/26/12, at
131. Later that evening, she met Appellant in the Germantown section of
Philadelphia, and he told her there was a shootout and Grant “didn’t make it
back from this one.” Id. at 116, 120-21. He told her Grant and another
friend were shot, Grant was dead, and the person who shot Grant was dead.
Id. at 122-23. He described dragging Grant down a set of stairs, but
leaving him to take the other friend to a hospital. Id. at 121-22.
The Commonwealth also called Taylor, Appellant’s former girlfriend,
and introduced three prior statements she gave to police, two on December
30, 2008, and one on January 2, 2009. Id. at 169-70, 188-89, 207-08;
N.T., 11/28/12, at 99-122. As discussed in further detail below, the
Commonwealth presented Taylor’s third statement as substantive evidence
of motive—i.e., her enrollment in a modelling program run by Decedent, her
failure to obtain a modelling job, and Appellant’s statement that he intend to
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see Decedent about the money he previously paid to Decedent. See N.T.,
11/28/12, at 120-21.
On December 3, 2012, the jury found Appellant and Codefendant
guilty of second-degree murder, robbery, and conspiracy to commit robbery,
and not guilty of possessing an instrument of crime. That same day, the
trial court imposed a sentence of life imprisonment for second-degree
murder and concurrent sentences of five to ten years’ imprisonment each for
conspiracy and robbery.
Appellant timely filed post-sentence motions, which were denied by
operation of law on April 12, 2013, after the presiding judge retired.
Appellant filed a timely notice of appeal. An order requiring the filing of a
Pa.R.A.P. 1925(b) statement was not entered, nor was a Pa.R.A.P. 1925(a)
opinion authored. This appeal followed.
Appellant presents two questions, which we have reordered as follows:
Whether there was insufficient evidence to convict . . . Appellant of Murder in the Second Degree, Robbery and Conspiracy where there was an absence of evidence that . . . Appellant conspired, aided or encouraged the commission of a robbery or that a robbery was even taking place[?]
Whether the adjudication of guilt is against the weight of the evidence and shocking to one’s sense of justice . . . ?
Appellant’s Brief at 6. As noted above, Appellant also raises in this Court a
claim of newly discovered evidence in a petition for remand for an
evidentiary hearing.
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Appellant first challenges the sufficiency of the evidence. He asserts
the Commonwealth’s evidence failed to establish reasonable inferences he
drove Codefendant and Grant to Decedent’s residence, was armed, or was
aware Codefendant or Grant was armed. Id. at 18. He continues, “There
[was] no evidence [he] was ever inside [Decedent’s] home,” and “the whole
theory of a robbery for $400 motive which comes from Raffinnee Taylor is
incredible.” Id. at 18-19. He concludes, “[T]he inferences drawn by this
jury that [he] conspired with Grant and [Codefendant] to rob [Decedent
were] unreasonable[.]” Id. at 19. We disagree.
Our standards of review are well settled.
The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the factfinder 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 that of 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.
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Commonwealth v. Lambert, 795 A.2d 1010, 1014 (Pa. Super. 2002)
(citations and some punctuation omitted).
However,
[w]hile reasonable inferences must be drawn in the Commonwealth’s favor, the inferences must flow from facts and circumstances proven in the record, and must be of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused's guilt beyond a reasonable doubt. The trier of fact cannot base a conviction on conjecture and speculation and a verdict which is premised on suspicion will fall even under the limited scrutiny of appellate review.
Commonwealth v. Robinson, 817 A.2d 1153, 1158 (Pa. Super. 2003)
(citation and some punctuation omitted).
The elements of the relevant crimes are as follows. “Murder of the
second degree is a criminal homicide committed while a defendant was
engaged as a principal or an accomplice in the perpetration of a felony.”
Lambert, 795 A.2d at 1015 (citing 18 Pa.C.S. § 2502(b)). The phrase
“perpetration of a felony,” in relevant part, means the act of “being an
accomplice in the commission of, or an attempt to commit, or flight after
committing or attempting to commit robbery[.]” Id. (citing 18 Pa.C.S. §
2502(d)). “[A]n accomplice is someone who, ‘with the intent of promoting
or facilitating the commission of the offense aids or agrees or attempts to
aid [another person] in planning or committing’ the crime.” Id. at 1024
(citing 18 Pa.C.S. § 306(c)(1)(ii)).
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Conspiracy requires the Commonwealth to establish “that the
defendant entered an agreement to commit or aid in an unlawful act with
another person or persons with a shared criminal intent and an overt act
was done in furtherance of the conspiracy.” Id. at 1016 (discussing 18
Pa.C.S. § 903).
A conspiracy is almost always proved through circumstantial evidence. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. . . .
* * *
Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred.
Id. (citations and some punctuation omitted).
Under 18 Pa.C.S. § 3701, “[a] person is guilty of robbery if, in the
course of committing a theft, he . . . inflicts serious bodily injury.” 18
Pa.C.S. § 3701(a)(1)(i). “An 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.” 18 Pa.C.S. § 3701(a)(2).
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It is well settled that a defendant may be held criminally liable for the
conduct of others. “An accomplice is also legally accountable for the conduct
of the other person involved in committing the crimes.” Commonwealth v.
Knox, 50 A.3d 749, 755 (Pa. Super. 2012) (citing 18 Pa.C.S. § 306(b)(3)).
Furthermore, the overt act in a conspiracy need not be committed by the
defendant. Id. Rather, liability for the conspiracy extends to all actions of a
coconspirator in furtherance of the conspiracy. Id.
As to Appellant’s claim that the jury was not entitled to credit Taylor’s
prior statements, it was within the province of the jury to believe all, part, or
none of the evidence presented, and we must draw all reasonable inferences
in favor of the Commonwealth. See Lambert, 795 A.2d at 1014. Given our
standards of review, Appellant’s arguments regarding Taylor’s prior
statements go to the weight of the evidence, which we discuss below, and
do not warrant relief in the form of discharge. See id.
As to Appellant’s contentions that the jury lacked a reasoned basis to
find he intended to rob Decedent and was merely present outside Decedent’s
residence, our review reveals the following. Taylor testified at trial that
Appellant, Codefendant, and Grant were friends. N.T., 11/26/12, at 154,
163-64. The Commonwealth subsequently impeached, for substantive
purposes, Taylor’s testimony with her prior statements to police.
Specifically, in her third statement to police, she indicated that several
weeks before the shooting, Appellant learned Decedent was still in the
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photography business, became angry, and stated Decedent owed him
money. N.T., 11/28/12, at 120. He told Taylor he intended to “see”
Decedent. Id. After the shooting, Appellant told her Grant, Codefendant,
and Decedent were shot. Id. at 121.
On the afternoon before the shooting, Grant told his wife he was
“making a run” with Appellant. N.T., 11/26/12, at 131. The evidence
indicated that Appellant, Codefendant, and Grant thereafter approached
Decedent’s residence dressed in dark clothes.8 Moreover, the
Commonwealth introduced evidence suggesting that after the shooting,
Appellant drove Codefendant to a hospital parking lot, but did not
accompany him to the emergency room. Although Appellant was charged on
January 6, 2009, he was not located and arrested until April 20, 2009.
Additionally, police also found a pair of handcuffs and a walkie-talkie at
the scene of the shooting, near where Grant was discovered. N.T.,
11/27/12, at 9, 33. Expert testimony established at least one firearm, likely
a revolver, was used to shoot at Decedent, while Decedent fired toward the
8 The jury was able to view Grant’s and Codefendant’s clothing from the shooting. N.T., 11/27/12, at 36 (discussing hoody sweatshirt at scene with bullet hole and blood matched by DNA to Grant), 152 (describing Codefendant’s clothes as “black track suit, jacket, . . . matching pants, black boot, [and] black hat with a ‘G’ on it”). Moreover, Taylor’s first statement to police indicated Appellant was wearing dark jeans and a dark shirt. N.T., 11/28/12 at 104. The Commonwealth, in closing argument, argued the dark clothes supported its theory that Appellant “went down there on a mission to take care of business.” N.T., 11/29/12, at 78.
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front doorway of his home with a Glock-type semiautomatic pistol. Id. at
47, N.T., 11/28/12, at 56-58.
This circumstantial evidence, when read in a light most favorable to
the Commonwealth, sustained the following inferences. Appellant went to
Decedent’s resident to resolve a perceived debt, and arranged for
Codefendant and Grant to accompany him. Appellant, Codefendant and
Grant went to Decedent’s residence dressed in dark clothing and with at
least one firearm, a pair of handcuffs, and at least one walkie-talkie among
them. Grant entered Decedent’s residence and was mortally wounded inside
the home. Codefendant was within sufficient distance to be shot. Appellant
was aware both Grant and Codefendant were shot, dragged Grant from the
home, but left him outside the residence to assist Codefendant and flee the
scene. Significantly, the only connection among Appellant, Codefendant,
Grant, and Decedent was Appellant’s statement to Taylor that he intended to
meet Decedent about the debt.
Given these inferences, which were reasonable based on the totality of
the circumstances, we conclude that the jury was entitled to find (1)
Appellant promoted an attempted robbery and used Codefendant and Grant
to assist the satisfaction of the perceived debt by a show or use of force and
(2) Decedent was killed during the perpetration of the attempted robbery
Appellant promoted. See Knox, 50 A.3d at 757; Lambert, 795 A.2d at
1016. Thus, Appellant’s contention that the evidence only established his
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“mere presence” at the scene warrants no relief from his convictions for
conspiracy, robbery, and second-degree murder.
Second, Appellant challenges the weight of the evidence. He again
argues the evidence did not provide a proper basis for the jury’s findings and
suggests the evidence established only his “mere presence” near Decedent’s
home. Appellant’s Brief at 16. He further asserts the credibility of Taylor’s
prior statements were “tarnished by manipulation and treatment she
received from” her interrogators. Id. at 16-17. In sum, Appellant asserts if
the jury properly weighed evidence that the detectives coerced Taylor, the
Commonwealth’s theory of a conspiracy would fail, “tipp[ing] the balance”
toward a defense verdict. Id. at 17. We disagree.
It is well settled that a defendant must present his challenge to the
weight of the evidence to the trial court for a review in the first instance.
See Pa.R.Crim.P. 607(A); Commonwealth v. Griffin, 65 A.3d 932, 939
(Pa. Super. 2013). Thereafter,
appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination that the verdict is against the weight of the evidence. 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.
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Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citations
omitted).
Instantly, Appellant preserved his weight of the evidence challenge in
a timely post sentence motion. However, the trial court did not rule on the
motion before retiring. The post-sentence motion was then denied by
operation of law, and no order for a Pa.R.A.P. 1925(b) statement was
issued. Under these exceptional circumstances, we are constrained to
review this claim in the first instance. See Armbruster v. Horowitz, 813
A.2d 698, 705 (Pa. 2002) (holding “where a properly preserved weight of
the evidence claim is raised on appeal and the judge who presided at trial
failed to rule on the claim and is now permanently unavailable to do so, the
claim must be reviewed by the appellate tribunal in the first instance”).
The following principles govern our review under these peculiar
circumstances.
A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain
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facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.
Widmer, 744 A.2d at 751-52 (citations, some punctuation, and footnote
As to Appellant’s contention the jury should have disregarded Taylor’s
statements to police due to undue coercion, our review reveals the following.
One day after the shooting, on December 29, 2008, detectives obtained a
warrant to search for Decedent’s firearm at Taylor’s home. Detective
Ohmarr Jenkins testified he served the warrant in the early morning hours of
December 30th, but did not find the firearm. He brought Taylor to police
headquarters at approximately 7:00 or 8:00 a.m. that morning. Although
different pairs of detectives formally interviewed Taylor on different
occasions, Detective Jenkins testified he observed or participated in all of the
interviews.
In Taylor’s first formal statement, which was taken by Detectives
Gaines and Glenn9 at 11:55 a.m., she identified photographs of Appellant,
Codefendant and Michael Grant and noted they were all friends. N.T.,
11/28/12, at 101, 104-05. She indicated Appellant stopped at her home in
the afternoon of December 28th and left. Id. at 103-04. He was wearing
dark jeans and a dark shirt. Id. at 104. Later that day, at 9:00 p.m., she
9 The first names of Detectives Gaines and Glenn were not contained in the record.
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saw Appellant in the Germantown section of Philadelphia. Id. at 103.
Taylor adopted this first statement at trial. N.T., 11/26/12, at 167.
At 4:30 p.m. that same day, Taylor gave a second statement to
Detectives Pitts10 and Jenkins. Detective Jenkins stated she was in the lobby
area on a bench and he took her to a cubicle at the “outer-part of our
office.” N.T., 11/28/12, at 109, 139-40. Taylor stated she met Appellant in
the Germantown section of Philadelphia on the evening of December 28,
2008, and drove him “around the corner.” Id. at 111. He exited her car
and went to another car. Id. She then drove around the block and later
met Appellant where he exited her car. Id. He got back in her car and told
her Grant “got shot.” Id. She then drove him to another neighborhood.
Id. Taylor signed her second statement.
On January 2, 2009, Taylor gave a third statement to Detectives Pitts
and Glenn at 8:45 p.m. N.T., 11/26/12, at 188-89, 11/28/12, at 118-19.
She indicated Decedent took pictures of her four years earlier, when she was
eighteen. Id. at 119. According to this statement, a “few weeks” before
Decedent’s death, she went to an audition at Decedent’s residence. Id. at
119-20. Id. at 119-20. She recognized him and gave him a hug. Id. at
120. However, she left the audition due to the crowd and returned to her
home. Id. Later that day, she told Appellant she met Decedent. Id.
10 Detective Pitts’ first name was not contained in the record. However, Appellant alleges Detective James Pitts interrogated Taylor.
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Although Taylor initially denied giving these statements, she conceded their
veracity upon further confrontation by the Commonwealth.
Furthermore, Taylor’s third statement indicated that after she told
Appellant she met Decedent, Appellant became angry, stated Decedent
owed him money, and told her he was “going to go down there to see him.”
Id. When the detectives asked her about the meaning of Appellant’s
statements, she stated, “I think he was going to ask him for the money.
And if [Decedent] said no, [Decedent] was going to have a problem. . . .
That [Appellant] would just rob him.” Id. at 121. She stated she believed
Appellant paid Decedent $400 or $500 to find her modeling jobs several
years earlier. Id. She stated that after the shooting, Appellant told her
Codefendant, Grant, and Decedent were shot. Id. Taylor signed her third
statement.
At trial, Taylor recanted portions of her second and third statements
and stated the detectives told her what to say or typed their own words into
the statements. N.T., 11/26/12, at 168, 187, 197. On cross-examination,
she testified she was taken to the Homicide Unit on December 29, 2008, and
placed in an interview room in handcuffs. Id. at 248-49. She gave her first
statement, but was left in the room. Id. at 252-253. Detectives Jenkins
and Pitts, who conducted the second interview, threatened to charge her
with crimes and told her she would never see her children again. Id. at 188,
253-56. They did not offer her food, drink, water, or bathroom breaks. Id.
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at 255. Detectives took her phone and did not let her make phone calls.
Id. at 257. She was then detained incommunicado in the interview room
from December 29th to January 2nd. Id. at 256-57. She was only released
when her family obtained a lawyer and the lawyer arrived at the Homicide
Unit. Id. at 257. She was forced to sign her statements. Id. at 178, 257.
Detective Jenkins testified at trial and denied Taylor was detained from
December 29th to January 2nd. N.T., 11/28/12, at 118. He explained that
although Taylor’s first written statement was dated December 29th, he
brought Taylor to the Homicide Unit at 7:00 or 8:00 a.m. on December 30th.
Id. at 100, 118. As noted above, he testified Taylor was formally
interviewed that day at 11:55 a.m. and 4:30 p.m., and those interviews
occurred at a cubicle in the office. Detective Jenkins maintained no threats,
force, or coercion were used during any of the interviews. Id. at 114, 123.
He testified Taylor “was never handcuffed while inside the Homicide Unit at
all or being transported to Homicide.” Id. at 109.
However, the detective conceded before the second interview, he
conducted informal verbal interactions that “went on for a couple of hours,”
but did not take written notes. Id. at 140. Additionally, he did not recall
whether Taylor asked for food, water, or a bathroom break. Id. at 110. He
did not testify he offered such comforts, but rather stated, “They just have
to ask.” Id. The detective testified that after taking Taylor’s second
statement on December 30th, he took her home “later that evening.” Id. at
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115. Although Taylor’s third statement on January 2nd was transcribed at
8:45 p.m., and indicated detectives spoke to her at her home that day, the
Commonwealth adduced no evidence establishing when the detectives
arrived at her home or when she arrived at the Homicide Unit.11 Id. at 119.
Our review reveals some incongruities and gaps in Detective Jenkins’
testimony that could raise an inference of undue coercion during the
interviews of Taylor. Nevertheless, our responsibility is not to sit as a
thirteenth juror, but to determine whether certain facts are so clearly of
greater weight that to ignore them is to deny justice. See Widmer, 744
A.2d at 752. In so doing, we note Taylor essentially adopted her first
statement. The principal allegations of Taylor’s second statement, which
discussed Appellant statements after the shooting, were corroborated by
Grant’s wife’s testimony. See N.T., 11/26/12, at 132-33; N.T., 11/28/12, at
111. With regard to Taylor’s third statement, which provided evidence of
Appellant’s motive, the jury heard Taylor’s explanation that detectives held
her in custody for four days, threatened her, typed their own words into the
transcription of the interview, and coerced her to sign the statement. The
jury also heard Detective Jenkins’ testimony denying such conduct.
Following our review of the record, we conclude that the reliability and
veracity of Taylor’s statement to police was an issue for the jury to resolve.
11 As noted above, Taylor testified she was detained from December 29, 2008, to January 2, 2009.
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The questions of reliability and credibility were thoroughly presented to jury
and argued by the parties. That the jury rejected Taylor’s allegations of
coercion was not contrary to the weight of the evidence. See Widmer, 744
A.2d at 751-52. Furthermore, the jury’s decision to credit Taylor’s third
statement as substantive evidence of motive does not shock the conscience.
See id. Therefore, we decline to disturb the province of the jury to resolve
the issues of fact and credibility before it.
As to Appellant’s remaining contention that the trial evidence failed to
establish more than his mere presence at the scene, our review again
reveals no basis to disturb the jury’s resolution of credibility and its findings
of fact that Appellant promoted the robbery during which Decedent was
killed. See id. Therefore, no relief is due.
Appellant, in his petition for post-submission communication, attached
a petition for remand requesting that the trial court conduct an evidentiary
hearing to consider newly discovered evidence. In support, he alleges that
in three separate cases—Commonwealth v. Pinkney, 51-CR-
001445602998-2009, Commonwealth v. Drayton, 51-CR-0013794-2009,
and Commonwealth v. Speaks, MC-51-CR-0046522-2009—Detective
Jenkins and Detective Pitts used improper interrogation techniques to obtain
inculpatory statements. Appellant avers juries acquitted Pinkney and
Speaks, and the trial court suppressed Drayton’s confession based on the
use of coercive tactics. Appellant’s Pet. to Stay Proceedings & Remand to
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Trial Court for Hearing on After Discovered Evidence (“Appellant’s Pet. for
Remand”), 10/21/14, at ¶¶ 13-17. He asserts he did not discover this
potential new evidence until the November 6, 2013 publication of a news
article during the pendency of this appeal. Id. at ¶¶ 10-18 & Ex. A (Mensah
Dean, “Same 2 cops built 3 murder cases that fell apart,” Phila. Daily News,
11/6/13 (available at http://articles.philly.com/2013-11-
06/news/43696858_1_nafis-pinkney-nakeisha-finks-bad-cop) (“Daily News
Article”)). Appellant further asserts he intends to call the individuals
discussed in the article, former defendants, Nefis Pinkney and Unique
Drayton, as well as Shaquille Rainey, a relative of former defendant Speaks,
who was interrogated by the detectives. He submits Pinkney, Drayton, and
Rainey’s testimony could establish Detectives Jenkins and Pitts’ “habit” of
using coercive interrogation techniques. Id. at ¶ 22 (citing Pa.R.E. 406).
Preliminarily, we observe Appellant’s petition for remand, presented
for the first time on appeal, is properly before this Court, since it alleges the
discovery of facts during the pendency of this appeal. See Commonwealth
v. Castro, 93 A.3d 818, 826 n.10 (Pa. 2014). Accordingly, we grant
Appellant’s petition for post-submission communication and review the
attached petition for remand.
Given the procedural posture of this case, we follow the guidance, set
forth in Castro, that Appellant “must at the very least, describe the
evidence that will be presented at the hearing.” See Castro, 93 A.3d at
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827; Commonwealth v. Perrin, 108 A.3d 50, 53 (Pa. Super. 2015).
“[T]he proposed new evidence must be producible and admissible.” Castro,
93 A.3d at 825 (citation and some punctuation omitted). However,
“newspaper articles generally do not constitute evidence, as they contain
inadmissible hearsay.” Castro, 93 A.3d at 825 n.11 (citations omitted).
“[A]llegations in the media, whether true or false, are no more evidence
than allegations in any other out-of-court situation.” Id. at 825.
Instantly, Appellant attached a newspaper article and set forth a
description of the evidence he intends to present at the requested
evidentiary hearing, i.e., testimony from Pinkney, Drayton, and Rainey
regarding their interrogations by Detective Jenkins and Pitts. Appellant also
attached transcripts in which Pinkney, Rainey, and Drayton testified to
coercive conditions attendant to their interrogations, which included
extended detentions, the lack of food and water, shackling, and physical
attack. We conclude this meets the minimal requirement that a petition
describe the alleged evidence he intends to present at the requested
hearing.12 See Castro, 93 A.3d at 827.
12 We question whether, as Appellant suggests, testimony from Pickney, Rainey, and Drayton would be admissible at trial as “habit” under Pa.R.E. 406. See Commonwealth v. Sanchez, 848 A.2d 977 (Pa. Super. 2004) (noting two instances of forgery did not establish continuous and systematic conduct or establish frequent conduct involving a mundane matter). At this preliminary review of Appellant’s petition for remand, however, we decline to deny relief based upon a rigorous analysis of the admissibility of his proffer. See Castro, 93 A.3d at 827.
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The following principles govern our review of the merits of Appellant’s
request for an evidentiary hearing.
To warrant relief, after-discovered evidence must meet a four-prong test: (1) the evidence could not have been obtained before the conclusion of the trial by reasonable diligence; (2) the evidence is not merely corroborative or cumulative; (3) the evidence will not be used solely for purposes of impeachment; and (4) the evidence is of such a nature and character that a different outcome is likely. At an evidentiary hearing, an appellant must show by a preponderance of the evidence that each of these factors has been met in order for a new trial to be warranted.
Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citations
In Rivera, this Court determined that a newspaper article—which was
published during the pendency of the defendant’s appeal—disclosing the
arrest of a Commonwealth’s laboratory technician for stealing evidence,
constituted a claim of newly discovered evidence warranting an evidentiary
hearing. Id. at 357. The Rivera Court reasoned:
[W]e find it unlikely that [the defendant] could have discovered [the technician’s] alleged criminal activities before his trial ended in October of 2005. Consequently, this after-discovered evidence is neither corroborative nor cumulative since at no time was the veracity of [the technician’s] testimony questioned at trial; to the contrary, both the [defendant] and the prosecution stipulated that [the technician] would state at court that the bag recovered in relation to this particular crime contained 137.5 grams of cocaine. Who knows whether this was or was not a truthful rendition of her “so-called” expert opinion. Moreover, the after-discovered evidence does much more than simply impeach the testimony of [technician], it calls into serious question the type and
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amount of drug upon which [the defendant’s] conviction and sentence is based.
Id. at 359 (citation omitted) (emphasis added).
Instantly, Appellant’s proffer is, in many respects, similar to Rivera.
Appellant raises an inference of repeated official misconduct implicating
fundamental fairness. Moreover, the nature of Appellant’s allegations
regarding the treatment of Taylor, as well as the attendant lack of policies
addressing the possibility of abuse during interrogations and interviews is
troubling.13 Nevertheless, our review reveals significant legal distinctions
between the instant case and Rivera.
As discussed above, the reliability and accuracy of Taylor’s statements
were presented to the jury, with Taylor alleging the use of coercive tactics
by Detectives Jenkins and Pitts, and Detective Jenkins denying Taylor’s
allegations. Appellant had ample opportunity to develop the allegations of
abuse through cross-examination of Taylor and Detective Jenkins. Thus, we
are constrained to conclude that Appellant’s proffer of evidence that Pinkney,
Speaks, Drayton alleged or suffered similar abuse as Taylor would be
cumulative of the evidence presented at trial. See id. at 359 (noting, in
Rivera, that technician’s opinion was not challenged at time of trial).
13 We note the Philadelphia Police Department has sought to change its policies regarding interview/interrogation techniques. David Gambacorta, “Philly police to adopt sweeping interrogation reforms come Jan. 1,” Phila. Daily News, 12/20/13 (available at http://articles.philly.com/2013-12- 20/news/45381242_1_detectives-new-policy-aclu).
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Moreover, under the circumstances of this case, the proffer would be offered
to bolster Taylor’s testimony while impeaching Jenkins’ testimony.
Furthermore, to the extent Appellant seeks discovery of Internal Affairs
reports, such a request for additional information does not establish his right
to an evidentiary hearing. Thus, we are compelled to conclude Appellant’s
proffers do not merit a further evidentiary hearing. Accordingly, we deny
Appellant’s petition for remand.
Lastly, although not raised by the parties, we observe the trial court
sentenced Appellant to a term of life imprisonment for second-degree
murder and five to ten years’ imprisonment for robbery. It is well settled
that we may raise legality of sentence issues sua sponte. Commonwealth
v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013).
We note there is a common law history requiring robbery be merged
with second-degree murder at sentencing. See id. (overruling
Commonwealth v. Sparrow, 370 A.2d 712 (Pa. 1977), and holding
robbery is “constituent offense” of second-degree murder and thus “same
offense” under double jeopardy test in Blockburger v. United States, 284
U.S. 299 (1932)). However, the General Assembly, effective February 2003,
created a statutory merger provision, which states, “No crimes shall merge
for sentencing purposes unless the crimes arise from a single criminal act
and all of the statutory elements of one offense are included in the statutory
elements of the other offense.” 42 Pa.C.S. § 9765. Section 9765 reflects a
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“strict elements approach,” which “preclude[s] the courts of this
Commonwealth from merging sentences for two offenses that are based on
a single criminal act unless all of the statutory elements of one of the
offenses are included in the statutory elements of the other.”
Commonwealth v. Baldwin, 985 A.2d 830, (Pa. 2009); Commonwealth
v. Quintua, 56 A.3d 399, 402 (Pa. Super. 2012).
In Baldwin, the Pennsylvania Supreme Court observed:
Labels, such as “pure elements test” and “strict elements approach,” have often led to greater mischief. For example, in Whalen [v. United States, 445 U.S. 684, (1980)], the United States Supreme Court struggled to determine whether a felony murder conviction merged with a conviction for the underlying felony where a felony murder conviction could hinge on any one of six enumerated offenses. A “strict elements approach,” which does not consider the offenses as charged and proven in each particular case, invariably leads to the conclusion that the crimes do not merge. Nevertheless, a majority of the Court, relying on Blockburger (often used synonymously with “strict elements approach”) held that the two convictions merged for sentencing. In this regard, the Court demonstrated a recognition that examination of the elements of the crimes as charged is sometimes necessary, especially when dealing with an offense that can be proven in alternate ways.
Baldwin, 985 A.2d at 837 n.6 (emphasis added).
It is clear Section 9765 has disrupted at least some of the prior
decisional law regarding merger. See Commonwealth v. Quintua, 56 A.3d
at 402 (holding burglary and criminal trespass do not merge). However,
Tarver’s analysis was based on a strict elements approach rooted in
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Blockburger, which, in turn, reflects principles similar to those adopted by
the General Assembly when enacting Section 9765. See Baldwin, 985 A.2d
at 837 n.6. Thus, Tarver remains binding authority on this Court.
Accordingly, we agree with the parties that Appellant’s conviction for murder
of the second degree and robbery merge, and vacate the sentence for
robbery. Because our decision does not affect the aggregate sentence, a
remand for resentencing is unnecessary. See Commonwealth v.
Henderson, 938 A.2d 1063, 1067-68 (Pa. Super. 2007).
Judgment of sentence affirmed in part. Sentence for robbery vacated.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/8/2015
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