Com. v. Smith, M.

• Court: Superior Court of Pennsylvania
• Decided: October 14, 2014
• Docket: 311 WDA 2013
• Status: Unpublished

Opinion

J. S50002/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : MARCUS SMITH, : No. 311 WDA 2013 : Appellant :

Appeal from the Judgment of Sentence, October 3, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0002575-2011

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2014

Marcus Smith appeals the judgment of sentence entered on October 3,

2012, in the Court of Common Pleas of Allegheny County. We affirm.

The facts, as summarized by the trial court, are as follows:

Appellant spent the morning of February 12, 2011, at the home of Tanisha Helms in the Hill District section of the City of Pittsburgh. (T.T. 146-147, 157, 593).[Footnote 6] While there Appellant returned a phone call from his girlfriend, Ashley Woessner, who confronted him about getting another woman pregnant. (T.T. 476-477). Appellant, assuming that their mutual friend Dane Smith had told Woessner about the other woman, became upset with Smith. Smith and Appellant referred to each other as brothers even though they were unrelated.[Footnote 7] He told Woessner, “Dane is lying. Say no more, he is gone,” and hung up on Woessner. (T.T. 475, 477, 595). J. S50002/14

[Footnote 6] The designation “T.T.” followed by numerals refers to Trial Transcript, August 20-23, 2012.

[Footnote 7] It was established that Dane Smith introduced Marcus Smith to Ashley Woessner as his brother, though the two were unrelated. (T.T. 475). Additionally, when police interrogated Appellant about the shooting death of Dane Smith he became angry and several times stated, “I did not shoot my brother.” (T.T. 595).

Appellant exited Helms’s residence and waited on her front porch, anticipating Smith’s arrival there. Appellant’s friend Donta Ripley was already waiting outside for Appellant, and joined him on the porch. (T.T. 317, 322). Dane Smith arrived at approximately 2:00 P.M. and Appellant walked down the porch steps to confront him. The two argued and Smith began to walk away. Appellant yelled for Smith to stop, but he continued to walk away. Appellant pulled out a sawed-off shotgun and shot into the air, prompting both Smith and Ripley to run down Reed Street towards Centre Avenue. (T.T. 135, 179, 199, 208-210, 257, 323-325, 593-594).

Appellant, shotgun in hand, chased Smith onto Centre Avenue where Smith darted back and forth between midday traffic in an attempt to avoid Appellant. (T.T. 179-180, 186, 211, 226, 319-320, 325-326). Appellant shot at Smith striking him on the right side with shotgun pellets. (T.T. 239-242, 258-259). Despite being shot, Smith managed to maneuver around a truck on Centre Avenue, but Appellant followed him as Smith pleaded, “Don’t shoot me. I didn’t make this phone call. I had nothing to do with it.” (T.T. 256, 260, 263-264). Appellant shot Smith again, this time grazing his right arm and causing him to fall to the ground. (T.T. 188, 229, 245-246, 265, 285). From the ground Smith again pleaded with Appellant, “You don’t have to do this.” (T.T. 230). Appellant stood

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over Smith, pointed the gun at him, and shot him in the head. (T.T. 188, 230-231, 243, 283, 285-286).

Appellant crossed to the opposite side of Centre Avenue and ran behind a church. (T.T. 266, 283, 331). From the parking lot behind the church, Appellant jumped over a fence and slowly jogged up the hillside away from the scene. (T.T. 268-269, 289, 306).

When police arrived Smith was found lying facedown [sic] next to the front wheel of the truck; he was bleeding from his side and had an obvious gunshot wound to the head. (T.T. 163, 305-306). He was emergently transported to Mercy Hospital but attempts to save his life were to no avail. (T.T. 352). Smith suffered a gaping wound to his right arm, a large defect in his skull, and small pellet wounds on his right hip, arm, side, abdomen, and back. (T.T. 239-242). The cause of death was multiple gunshot wounds to the head and trunk, and the manner of death was homicide. (T.T. 255).

Appellant attempted to avoid taking responsibility for Smith’s death by persuading Emmanuel Robinson to turn himself in as the shooter. Robinson was a friend of both Appellant and Smith, and was of limited cognitive ability. Appellant suggested that since Appellant was expecting a child with Robinson’s aunt, and since Robinson did not have a criminal record, he could take responsibility for the shooting. Woessner and Appellant drove Robinson to the building that housed the homicide office and told him to ask for Detective Sherwood. (T.T. 332-333, 421-423). Robinson went into the homicide office and confessed to the shooting, but once it became apparent that he was not the shooter based on his limited ability and inability to answer basic questions about the shooting, Detective Sherwood had Robinson escorted home. (T.T. 425-426, 561). Undeterred, Appellant directed Robinson to locate the murder weapon in the woods near the end of Brackenridge Street where he had discarded it.

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Woessner drove Robinson to that location the following morning and Robinson retrieved the shotgun. (T.T. 427-428, 488). Woessner later drove Robinson to the homicide office and waited outside with the headlights shining into the lobby so she could update Appellant while Robinson went inside with the shotgun. Once inside, Robinson notified the front desk that he was there to confess to a murder and laid down on the ground with his limbs outstretched so detectives could retrieve the shotgun. Detectives escorted Robinson inside and Woessner drove away. (T.T. 431-433, 494). Once inside, Robinson told Detective Sherwood that Appellant sent him there. Robinson was arrested and charged with a firearms violation. (T.T. 407, 433-434). Upset that homicide charges had not been brought against Robinson, Appellant sent Woessner to police headquarters the following day to say that Robinson was the killer. However, once she arrived there and was interrogated by detectives, Woessner told them that Robinson was setup by Appellant to confess to a crime that Robinson did not commit. (T.T. 497-500).

Police executed a search warrant and recovered a backpack from the living room of Helms’s residence on Reed Street, containing indicia for Appellant and an empty Remington shotgun shell box. (T.T. 147-149, 151-152). One 12-gauge shotgun shell was recovered from the sidewalk in front of Helms’s Reed Street residence and a second 12-gauge shotgun shell was recovered from a nearby yard on Centre Avenue. It was determined that these shells were both discharged from the firearm that Appellant instructed Robinson to retrieve. (T.T. 138, 144, 161, 365-366). A 12-gauge shotgun shell wadding was recovered from Smith’s brain during autopsy, and a second shotgun shell wadding was found next to the truck where Smith was found on Centre Avenue. (T.T. 165-166, 244, 365-366).

Based on the evidence above and an interview with Woessner which revealed that Appellant hid several guns at a home in North Braddock, police

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obtained an arrest warrant for Appellant and a search warrant for that home. (T.T. 563). The SWAT team executed the search; their announcement prompted Appellant to flee from the front bedroom to the rear of the house, but he eventually emerged and was detained. SWAT found the duffel bag of guns described by Woessner in the front bedroom, as well as shotgun shells and a second loaded sawed-off shotgun. (T.T. 564, 567, 582, 584-585, 587). Appellant was formally arrested and charged as noted hereinabove.

Trial court opinion, 11/12/13 at 5-9.

Appellant was charged with one count of criminal homicide, two counts

of person not to possess a firearm, one count of altering/obliterating mark of

identification, one count of possession of a firearm with altered

manufacturer’s number, and two counts of prohibited offensive weapon.1

Appellant filed a motion to suppress and a hearing was held on August 20,

2012, before the Honorable Edward J. Borkowski. The motion was denied

and a jury trial immediately commenced. Appellant was subsequently

convicted of first degree murder, possession of a firearm with altered

manufacturer’s number, and both counts of possession of a prohibited

offensive weapon; he was found not guilty of altering or obliterating marks

of identification.

On October 3, 2012, appellant received a mandatory sentence of life

imprisonment without the possibility of parole for first degree murder, a

1 The two counts of person not to possess a firearm were severed prior to trial. On August 28, 2012, appellant was found guilty of both counts.

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consecutive term of 3 to 6 years’ imprisonment at Count 2 (person not to

possess a firearm), at Count 3 (person not to possess a firearm) and Count

5 (possession of a firearm with altered manufacturer’s number) concurrent

terms of 3 to 6 years’ imprisonment were imposed. No further penalty was

assigned for the remaining counts. Appellant’s post-sentence motions were

denied by an order entered on January 18, 2013, and a timely notice of

appeal was filed on February 11, 2013. (Docket #21, 22.)

Herein, the following issues have been presented for our review:

I. Did the lower court err in denying the Motion to Suppress the identification made by Fannie Lauw?

II. Did the lower court err in allowing the Commonwealth to present the testimony of Dionne Walker, who provided an in-court identification after providing a vague description to detectives on the day of the incident, and after being unable to identify anyone in a photo array?

III. Did the lower court err in denying the motion for a new trial on the grounds that the verdict was against the weight of the evidence?

Appellant’s brief at 3.

Appellant’s first two issues argue that the trial court erred by not

suppressing Fannie Lauw’s and Dionne Walker’s identification testimony that

appellant was the shooter.

When reviewing a challenge to a trial court’s denial of a suppression motion, our standard of review is:

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limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Delvalle, 74 A.3d 1081, 1084 (Pa.Super. 2013),

quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa.Super.

2012), appeal denied, 57 A.3d 68 (Pa. 2012).

We find no error with either the trial court’s decision or rationale.

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

applicable law, and the well-reasoned opinion of the trial court, it is our

determination that there is no merit to the first two questions raised on

appeal. The trial court’s opinion, filed on November 12, 2013,

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comprehensively discusses and properly disposes of the question presented.

We will adopt it as our own and affirm on that basis.

We note our agreement with the trial court that both witnesses had an

independent basis for their identifications and both witnesses independently

recognized appellant when they saw him in the courtroom. Additionally,

although both witnesses failed to identify appellant positively in the

photographic array after the incident, neither of them ever identified another

person as the shooter. The absence of pretrial identification affects the

weight of the identification evidence at trial, not its admissibility. See

Commonwealth v. Rush, 562 A.2d 285, 289 (Pa. 1989). Accordingly, the

witnesses are permitted to identify the defendant as the perpetrator at trial,

if they are able to do so, subject to cross-examination regarding their failure

to identify him on previous occasions. Commonwealth v. McIntosh, 476

A.2d 1316, 1320 (Pa.Super. 1984).

In the final issue presented, appellant argues that his convictions are

against the weight of the evidence. We note our standard of review:

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

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not against the weight of the evidence and that a new trial should be granted in the interest of justice.

This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court’s discretion, we have explained[,] [t]he term ‘discretion’ imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the

original) (citations omitted).

We agree with the Commonwealth that in making his argument on

appeal, appellant ignores the evidence presented against him and argues the

evidence in his favor. Here, the trial court took into consideration that the

jury heard identification testimony from three separate witnesses and also

heard testimony concerning appellant’s plan, within hours of the murder, of

having Robinson falsely confess to the crime. (Trial court opinion, 11/12/13

at 18-19.) Two inmates also testified that appellant made statements about

killing his brother and needing to get rid of a female witness. (Id.) The trial

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court found that the verdict did not shock its sense of justice. We find no

reason to overturn this decision.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/14/2014

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