Com. v. Williams, R.

Opinion

J-A29031-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

v. :

:

RAYSHAWN WILLIAMS, :

:

Appellant : No. 537 WDA 2015

Appeal from the Judgment of Sentence February 25, 2015 in the Court of Common Pleas of Allegheny County, Criminal Division, No(s): CP-02-CR-0012281-2013;

CP-02-CR-0014922-2014

BEFORE: DUBOW, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 19, 2017 Rayshawn Williams (“Williams”) appeals from the judgment of sentence entered following his conviction of first-degree murder and persons not to possess or use a firearm.1 We vacate the judgment of sentence and remand for a new trial.

On July 31, 2013, at approximately 4:00 p.m., three men and the victim, Derick Lyman (“Lyman”), argued in the hallway outside of the apartment where Lyman lived with his girlfriend, Tayla Wright (“Wright”). In that verbal altercation, the three men, known to Wright as “Tay Tay,” “J- Zombie” and “Judd,” argued with Lyman about “someone’s brother getting robbed.” Trial Court Opinion, 1/19/16, at 6 (citation omitted). Following the argument, Tay Tay and Judd went into the apartment of Natwauna Lane

1 18 Pa.C.S.A. §§ 2501(a), 6501(a)(1).

J-A29031-16

(“Lane”) (known to Wright by the nickname, “Nay Nay”). Lyman and J- Zombie walked up the street to J-Zombie’s house. Lyman thereafter returned to his apartment.

At about 5:51 p.m., Wright looked out of the window and observed Williams approaching her apartment building.2 Shortly thereafter, Williams knocked loudly on Wright’s apartment door. When Wright opened the door, Williams told Wright that he was “looking for some answers,” at which time Lyman walked into the hallway with Williams. As she started to follow Lyman, Wright observed Tay Tay and Judd standing with Williams, and Lane standing in the hallway, listening to the conversation.

Wright subsequently gathered her daughter and walked out into the hall, in order to leave the building. As she left, she observed Williams, Lyman, Tay Tay, Judd and Lane standing in the hallway. At that time, Wright advised Lyman to go back to their apartment.

Once outside of the apartment, and after giving her daughter to a friend, Wright moved her vehicle from the front of the building to the back of the building. As Wright walked back to the building’s entrance, Williams ran past her. As Williams did so, two girls screamed, at which time Williams told the girls, “homeys, I’m not going to shoot you.” Wright observed that Williams was carrying a gun in his right hand, and running with his hoodie pulled up a “little bit over his face.” Id. (citation omitted).

2 Wright recognized Williams as “Ray Ray,” from the Homewood neighborhood in which she grew up.

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Wright’s mother screamed at Wright to get inside, as someone had just been shot. Once inside, Wright found Lyman lying on the hallway floor, near Lane’s door. Although Lyman was transported to the hospital, he died as a result of multiple gunshot wounds.

At the hospital, Wright spoke with Pittsburgh Police Detective Harry Lutton (“Detective Lutton”), and identified the shooter as “Ray Ray.” Thereafter, at police headquarters, Wright identified Williams as the assailant, from a collection of photographs in a binder.

Several days later, Williams was arrested. At the police station, upon being informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Williams elected to remain silent. However, as police detectives were leaving the room, Williams inquired as to whether he could ask the detectives a question. When the detectives responded in the affirmative, Williams stated, “[w]hat happens now?” and “what did I do?” Trial Court Opinion, 1/19/16, at 13 (citation omitted). The detectives again explained the allegations against Williams, to which Williams responded, “That’s not me. Check me out. Check my charges. I’m a drug dealer. I deal drugs.” Id. When the detectives asked Williams about video surveillance footage, Williams stated, “That’s it. I’m done talking.” Id.

Williams filed pretrial suppression Motions seeking to suppress, inter alia, his statement to police: “That’s it, I’m done talking.” N.T. (Pretrial Hearing), 4/16/14, at 5-7). Williams also sought to suppress Wright’s

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identification of Williams from the binder of photographs. The trial court denied Williams’s suppression Motions. The jury ultimately convicted Williams of the above-described charges, after which the trial court sentenced Williams to an aggregate prison term of life in prison. Williams filed a Post Sentence Motion, which the trial court denied. Thereafter, Williams filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.

Williams presents the following claims for our review:

I. Did the trial court err in denying the “Motion to Suppress Photo Array Identifications Made by [Wright,]” where the identification procedure was highly suggestive and the Commonwealth failed to establish an independent basis for []

Wright’s identification of [] Williams?

II. Did the trial court abuse its discretion by allowing Detective [Hal] Bolin [“Detective Bolin”] to impeach [Lane] with her prior inconsistent statements[,] where the probative value of this testimony was outweighed by the danger of prejudice?

III. Did the trial court err in denying [] Williams’[s] Motion to Suppress statements where the Commonwealth failed to present any evidence at the suppression hearing to rebut [] Williams’[s]

assertions that the statements were unconstitutionally obtained?

IV. Did the trial court abuse its discretion by allowing the Commonwealth to present [] Williams’[s] post-arrest, post-

Miranda silence as substantive evidence of guilt?

Brief for Appellant at 6 (some capitalization omitted, issues renumbered).

Williams first claims that the trial court improperly denied his Motion to suppress Wright’s pretrial identification of him from a binder of photographs. Id. at 56. Williams argues that the evidence presented at the suppression

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hearing “undeniably established that the photograph identification procedure was unduly suggestive.” Id. According to Williams, the trial court improperly denied suppression “without hearing any evidence to establish an independent basis for Wright’s identifications.” Id. Claiming that the photo array was unduly suggestive, Williams states that the police presented Williams with a binder containing two to three hundred photographs, which were color-coded by neighborhood and identified the individuals by name. Id. at 60-61. Williams asserts that his name was listed under his photograph, in the Homewood section of the binder, under the heading “Ra[ce] Street Crips.” Id. at 61. In addition, Williams asserts that the binder, the “Zone 5 Gang Book,” was unduly suggestive as it only contained photographs of suspected gang members. Id.

In its Opinion, the trial court set forth the appropriate law, addressed Williams’s first claim and concluded that it lacks merit. See Trial Court Opinion, 1/19/16, at 20-27. We agree with and adopt the conclusion reached by the trial court, and affirm its resolution of Williams’s claim on this basis. See id.

In his second claim, Williams argues that the trial court improperly allowed the Commonwealth to call Detective Bolin, “strictly to impeach [Lane] with her previous inconsistent statements that [] Williams was present in her apartment building shortly before the shooting.” Brief for Appellant at 65. According to Williams, Lane’s prior statements “bore

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directly on the central issue at trial: the identity of the shooter.” Id. Williams posits that the jury improperly used the testimony as substantive evidence of his guilt, despite a cautionary instruction by the trial court. Id. Williams directs our attention to case law in which testimony regarding prior inconsistent statements was deemed too prejudicial to be admissible at trial. Id. at 66-69.

The trial court set forth the relevant law in its Opinion, addressed Williams’s claim, and concluded that it lacks merit. See Trial Court Opinion, 1/19/16, at 27-31. We agree with the sound reasoning of the trial court, as set forth its Opinion, and affirm on this basis as to Williams’s second claim. See id.

In his third claim, Williams argues that the trial court improperly denied his suppression Motion, where the Commonwealth failed to present evidence at the hearing to rebut Williams’s claim that his statements to police were unconstitutionally obtained. Brief for Appellant at 29-30. According to Williams, it was the Commonwealth’s burden to produce such evidence at the suppression hearing. Id. at 30. Williams asserts that the Commonwealth presented no evidence at the suppression hearing that would meet this burden and, therefore, the statements should be suppressed. Id. at 32. Williams states that he preserved his challenge by filing his Motion to suppress his statement. Id. at 31.

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In its Opinion, the trial court set forth the appropriate law, addressed Williams’s claim, and concluded that it lacks merit. See Trial Court Opinion, 1/19/16, at 10-12. We agree with and adopt the trial court’s reasoning. See id. We additionally note the following.

At the suppression hearing, the Commonwealth did not dispute Williams’s factual basis for his suppression Motion. The Commonwealth agreed with the assertion in Williams’s Motion that, after police had arrested Williams and told him of his rights pursuant to Miranda, Williams invoked his right to remain silent. N.T., 4/15/14, at 4-6. The Commonwealth agreed that Williams reinitiated questioning, after invoking Miranda, when he asked the officers why he was going to jail. Id. The Commonwealth agreed that Williams told police that he did not commit the homicide, and that he “is a drug dealer.” Id. at 5, 6. The Commonwealth did not dispute that the police officers then asked Williams, “What about the surveillance video?” Id. at 5, 6. Finally, the Commonwealth did not dispute that Williams told the officers that he was not going to say anything else, and that he was done talking. Id.

At the hearing, defense counsel and the Commonwealth disagreed as to the application of the law to the facts, as stated by both counsel. Id. at 6-7. Defense counsel offered no objection to the trial court hearing argument as to the legal basis for Williams’s Motion. See id. Under these circumstances, we agree with the suppression court’s conclusion that

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Williams waived his challenge to the Commonwealth’s failure to present evidence at the suppression hearing, by failing to raise the issue before the trial court. See Pa.R.A.P. 302(a) (stating that an issue cannot be raised for the first time on appeal).

Finally, Williams challenges the denial of his Motion to suppress his post-arrest statement to police, “That’s it. I’m done talking.” Brief for Appellant at 46. Williams contends that this statement was taken in violation of his Fifth Amendment right against self-incrimination. Id. Williams argues that the admission of this statement violated his constitutional right to remain silent under the Fifth Amendment to the United States Constitution, and Article I, Section 9 of the Pennsylvania Constitution. Id.

As our Supreme Court has explained,

questions concerning the admissibility of evidence are within the sound discretion of the trial court and will only be reversed upon a showing that the court abused its discretion. Commonwealth v. Johnson, 615 Pa. 354, 42 A.3d 1017, 1027 (Pa. 2012). An abuse of discretion occurs where “the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record.” Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1281 (Pa. 2005).

However, to the extent the question presents as “an issue involving a constitutional right, it is a question of law; thus, our standard of review is de novo, and our scope of review is plenary.” Commonwealth v. Baldwin, 619 Pa. 178, 58 A.3d 754, 762 (Pa. 2012).

Commonwealth v. Adams, 104 A.3d 511, 517 (Pa. 2014).

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Both the United States Constitution and the Pennsylvania Constitution protect every person against being compelled to be a witness against himself or herself. U.S. Const. amend. V; PA. CONST. article I, § 9.3 In Commonwealth v. Molina, 104 A.3d 430 (Pa. 2014), an evenly divided Pennsylvania Supreme Court “view[ed] the drawing of an adverse inference from a defendant’s silence to be encompassed within the right against compelled self-incrimination.” Id. at 450. “[A]llowing reference to a defendant’s silence as substantive evidence endangers the truth-determining process[,] given our recognition that individuals accused of a crime may remain silent for any number of reasons.” Id. “To violate this rule, the testimony must clearly refer to post-arrest silence.” Commonwealth v. Smith, 995 A.2d 1143, 1155 (Pa. 2010).

While we have interpreted the constitutional right against self-

incrimination generally to prohibit prosecutors from referencing a defendant’s silence as substantive evidence of guilt, this Court has also concluded that the right against self-incrimination is not burdened when the reference to silence is “circumspect” and does not “create an inference of an admission of guilt.”

[Commonwealth v.] DiNicola, 866 A.2d [329,] 337 [(Pa.

2005)]. As noted above, “[e]ven an explicit reference to silence is not reversible error where it occurs in a context not likely to suggest to the jury that silence is the equivalent of a tacit admission of guilt.” See id. (quoting [Commonwealth v.]

Whitney, 708 A.2d [471,] 478 [(Pa. 1998)]).

Adams, 104 A.3d at 517.

3 In relevant part, the United States Constitution decrees that “No person … shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. Amend. V. The Pennsylvania Constitution dictates that the accused “cannot be compelled to give evidence against himself[.]” PA. CONST. art. 1, § 9.

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Pennsylvania Courts “have consistently regarded testimony about a defendant’s silence as having an extremely high potential for prejudice.” Commonwealth v. Clark, 802 A.2d 658, 661 (Pa. Super. 2002); see also Commonwealth v. Clark, 626 A.2d 154, 158 (Pa. 1993) (recognizing that “an impermissible reference to the accused’s post-arrest silence is innately prejudicial.”). Thus, “[a]n impermissible reference to an accused’s post- arrest silence constitutes reversible error unless shown to be harmless[.]” 4 Commonwealth v. Costa, 742 A.2d 1076, 1077 (Pa. 1999).

Upon our review of the record, we cannot conclude that the error was harmless. At the suppression hearing, the Commonwealth and defense counsel agreed that

4 “An error is harmless if it could not have contributed to the verdict, or stated conversely, an error cannot be harmless if there is a reasonable possibility the error might have contributed to the conviction.” Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015). Our Supreme Court has found harmless error where (1) the error did not prejudice the defendant or the prejudice was de minimis;

(2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or

(3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Id. at 716 (citations omitted). The Commonwealth has the burden of proving harmless error beyond a reasonable doubt. Id.

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upon questioning by the police after his arrest, [Williams]

invoked his right to remain silent. [The police officers] then told him, “You are going to the jail.” He expressed confusion about why. They again said, “Well, you are charged with a homicide.”

[Williams] said, “No, I don’t do that. I’m a drug dealer.”

Then they ask[ed] [Williams], “Well, what about the surveillance video?” He said, “I’m not saying anything else.”

N.T. (Suppression Hearing), 4/15/14, at 4-5. The trial court denied Williams’s Motion to suppress his statement, “I’m not saying anything else.” Trial Court Order, 4/15/14.

At trial, Detective Scott Evans (“Detective Evans”) testified that, following Williams’s arrest, Williams was informed of his Miranda rights. N.T., 11/20-21/14, at 92-93. Detective Evans testified as follows regarding his questioning of Williams:

Q. [The Commonwealth]: And you say you read [the Miranda warnings] to [Williams]. Do you read it word by word?

A. [Detective Evans]: Yes, sir.

Q. And do you ask him if he understands?

A. Yes, I do.

Q. And as you’re going through the form, did he indicate whether or not he understood what you were telling him?

A. He indicated every single time that I asked him—and I asked him three times, “Do you understand this?” And all three times he responded, yes.

Q. And there’s one last question, right?

A. Yes.

Q. And what was that question?

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A. “Knowing these rights, are you willing to waive your rights and answer questions without the presence of a lawyer?”

Q. And what did he say?

A. No.

Q. What did you do?

A. I got up, and I was walking out of the room, and he said, “Can I ask you a question?” And I sat back down, and I said, “Sure.” And he said, “What happens now?” And I told him he was going to be processed on homicide charges. And he said—

he asked me, “Well, what did I do?” And I started to explain to him the allegations, my understanding from what I read in the police reports, and that he shot and killed someone in the East Hills housing project in the City of Pittsburgh. And he said, “That’s not me. Check me out?” And I said, “Well, apparently there’s some video surveillance of the area where this incident occurred.” And he said, “Well, that’s it. I’m done. I’m done talking. I’m not saying anything else.”

Q. And did you conclude the interview at that point?

A. Yes, I did.

Id. at 93-94.

The trial court deemed the above statement admissible, opining that

[t]he statement at issue came on the heels of [Williams] denying his involvement in the homicide, and it was admitted to demonstrate the natural progression of the investigation and explain how the detectives’ interview with [Williams] concluded.

Had it not been admitted, the jury would have been left with even more questions about what had transpired between the detectives and [Williams] during the interview. There would be virtually no context to explain why the interview ended after [Williams] had denied guilt by saying, “That’s not me. Check me out” after he was told that he was charged with a homicide….

Trial Court Opinion, 1/19/16, at 17.

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However, upon review, the trial court’s view that the probative value outweighed the potential prejudice is not supported in the record. Police obtained this statement after Williams’s arrest, and presumably at the conclusion of its investigation. When read in context, it is clear that Williams’s final statement is a re-invocation of his constitutional privilege against self-incrimination. Further, the statement could only be interpreted as Williams’s recognition that video surveillance footage would incriminate him. The evidence was not de minimis, or cumulative of other, properly admitted evidence. See Poplawski, 130 A.3d at 716. Finally, the Commonwealth has failed to prove, beyond a reasonable doubt, that the evidence did not contribute to the verdict. See Commonwealth v. Noel, 104 A.3d 1156, 1172 (Pa. 2014) (stating that “the judgment of sentence will be affirmed in spite of the error only where the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict.”).

Here, there was no eyewitness to the shooting. Wright testified that earlier that day, she saw that J-Zombie and Judd also possessed firearms. N.T., 11/18-20/14, at 20-21, 230. Wright additionally testified that she did not see Williams with a firearm as he approached her front door, or when he was talking to Lyman prior to the shooting. Id. at 232. Lane testified that immediately after the shooting, she saw only Lyman in the hallway outside of her apartment. N.T., 11/20-21/14, at 181. Lane further stated that she

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did not see Williams inside of the apartment building or in the hallway prior to the shooting. Id. at 171. Although the Commonwealth presented circumstantial evidence of Williams’s guilt, we cannot conclude, beyond a reasonable doubt that the admission of Williams’s statement did not contribute to the verdict. See Noel, 104 A.3d at 1172. Because we cannot conclude that the error in admitting Williams’s statement was harmless, we are constrained to vacate the judgment of sentence, and remand for a new trial.

Judgment of sentence vacated. Case remanded for a new trial.

Superior Court jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/19/2017

Circulated 12/27/2016 04:03 PM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY.

PENNSYLVANIA

COivH,/!ONWEALTH OF PENNSYLVANLA., CR!M!NAL D!V!StON

vs. CC No.: 2013-12281 2014-14922

RA YSHAWN WILLIAMS,

Defendant.

OPINIO_N

This is a direct appeal from the judgment of sentence entered on February 25, ?O 15. follnvv1ng the Defendant's convictions for First Degree Murder and th?in~J a Person Not to Possc~.;s or Use a Firearm Tflt':l Oefenciant was originally charged at the information filed at CC# 2013-1228 l with Criminal Homicide ( 18 Pa.C. S.A. 2501 (a)) and Person i'Jot to Possess, Use a Firearm ( 18 Pa.C.S . .A.. 6 i 05(a)( 1 )). The Person Not to f:.)ossess charge was severed. at lhe Defenclc.rnt's request, prior to trial and proceeded forward at CCH 2014-14922 The Horrucide charqe was tried to a jury betvveen Novernt . er 18, 2014 and November :?O, 2014, ,vith a non-jury trial occurring simultaneously on the severed Person not to Possess or Use a Firearm charge. On November 25, 2014, the jury convicted the Defendant of First Degree Murder, and this court rouno the Defendant guilty of tt1e firearm offense. (Jury Trial Transcript

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;?O 15, the Defendant was sentencecJ to lif;:; imprisonment without parole on the murder charge at CC# 2013-12281, and he received a concurrent sentence of five (5) to ten

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( 10) years of incarceration for being a Person Not to Possess at CC# 2014-14922. On February 25, 2015. the Defendant filed a Post-Ssntonca Motion. which was denied on February 27, 2015. This timely appeal touowed.

On October 26, 2015, the Defendant filed his Concise Statement of Errors to be

1

Complained of on Appeal ("Concise Statement"), raising the following seven (7) issues

for review:

I. The trial court erred in denying ~Ar. Williams' Motion to Suppress a statement he made to police/detectives during a custodial interrogation on .t\ugust 5, 2013. Following his arrest, Mr. Williams invoked his Miranda rights and declined to speak to detectives without an attorney present. Shortly thereafter Mr. '1\/illiams expressed confusion over n-ie nature of his charges, at which point a detective referenced video survenlance footage that captured the incident. ,~.! that point, Mr. Wiiliams allegedly stated, "That's it. I'm done talking." In Hie Omnibus Pretriaf Motion, trial counsel specifically asserted that this statement was obtained in violation of Mr. Williams right to remain silent as proviced by the 51t1 and s1n a.nendments of the United States Constitution and Article I §9 of tTio PennsytvaniA Consntunon and shoufci therefor(~ be suoprcssco. Apart from lhe Assistant District Attorney's assertions to the contrary, the Ccrnmonwealtn failed to present any evidence to prove that this statement was constitutionally obtained. Thus, tt,e Commonwealth tailed to meet its burden and the statement at issue should have been suppressed

11. Had the Commonwealth presented evidence at the suppression hearing bearing on the constitutionality of Mr. Wifliams' statement (see issue "I"), the trial court nonetheless erred in denying Mr.

\Niliiams' Motion to Suppress this statement. Mr. Williams initially invoked his Miranda rights foilowing his arrest on August 5, 2013, and declined to speak with ofticers/detcctlves. Since detectives continued to question Mi. Williams concerning a topic that was likely to elicit an incriminating response, the statement at issue was

I The Defendant received three (J) extensions of time to fiie his Concise Statement because he was awaiting transcripts.

obtained in violation of Mr. Wllliarns' rights under the 5th and 61h amendments or the United States Constitution and Article l, Section I 9 of the Pennsylvania Constitution.

Ill. Even if suppression was not warranted, the trial court abused its discretion by allowing Mr. Wiiiiarns' statement to detectives, 'That's it, I'm done talking." Under Pa.R.E. 403, the probative value of this evidence was outvveighed by the danger of unfair prejudice to Mr.

Williams. In ma!<ing this statement, Mr. Williams merely invoked his constitutional right to remain si!ent. Yet, by hearing that Mr.

Williarns refused to speak to police when confronted with the issue of video surveillance footage, the jury may have considered this evidence of Mr. William's guilt.

IV. The trial court erred in denying Mr. Williams' motion to suppress Tayla Wright's pretrial identification and subsequent in-court identifications of Rayshawn Williams, which violated Mr. 'vVilliams'

due process rights under the U.S. and Pennsylvania Constitutions.

On July 31, 201.3, police showed Tayla Wright a police "gang book"

containing numerous mugshots that were organized by gang affiliation and neighborhood. Additionally, the book displayed the names of the individuals depicted in the mugshots. The Commomvoa!th failed to prove that this id12ntificaiion procedure did not violate Mr. WiHiarns' due process rights. Based on the content and organization of tho "gang book," Tayla Wright's pretrial identification of Mr. Williams was the product of an unduly suggestive identification procedure. Moreover, the Commonwealth failecJ to present any evidence at the suppression hearing to den:onslrcite that Ms Wright's pretrial and in-court identifications of Mr. Wi!iiams vvere independently reliable under the factors set forth by the U.S. and Pennsylvarua Supreme Courts. Without any evidence to support H1e independent reliability of Ms. V'Jright's identifications, her pretrial and subsequent in-court identifications of Mr. 'vV!IHarnsshould have been suppressed.

v. The trial court abused its discretion by ailowing Detective Hal Bolin to impeach Natwauna Lane with statements she allegedly made during an interview a coup!e days earlier. Specifically, after Ms.

Lane denied observing Mr. Williams in her apartment buildino on the day of the shootinq, Detective Bolin testified that Ms. Lane had told him that she saw Mr. Williams talking to the victim in the hallway shortly before the shooting. The Commonwealth acknowledged that these statements were strictly being offered for impeachment purposes, not as substantive evidence. However, the statements should have been prohibited under Pa.R.E. 403 since the probative value of this evidence was outweighed by the danger of unfair prejudice. Here, the statements at issue bore directiy on the only issue at trial: the identity of the shooter. Thus, there was a great risk ihal, despite a cautionary instruction, th& jury would consider Ms. Lane's alieged statements to Detective Bolin as substantive evidence of Mr. Wiliiams' guilt.

VI. Tile trial court abused its discretion in denying Mr. Williams' post sentence motion that the verdict was against the weight of the evidence. While the Commonwealth's primary witness, Tayla Wright, stated that Mr. VVilliams was present at the time of the shooting, her testimony was entireiy inconsistent and contradictory, and therefore unworthy of belief. Although Ms. Wright identified Mr.

Williams as the parson who appeared to be shooting into the apartment building, Ms. Wright also stated that Rayshawn W1!1iamswhom she identified as wearino red -· had already left the building/area some time before the shooting. See N.T., Vol. I, 11/18-20/14. p. 180. Ms. Wright's testimony was critical to the Commonwealth's case as she was the only[) who testified to personally observing Mr. Williams at her apartment building with the victim shortly before the incident. Additionally, while Narwauna !""".-,,.·.' · •,.'< .....

-:-;~; t:!:1 Lane testified that the individual in tile surveillance video "looks like nay Hay," she stated that sl1e never saw Mr. Williams at tt1e apartment building on the day of the shooting. As such, the Cornmonwe alth's evidence was so unreliable, incredible, and contradictory that the jury's guiity verdict should shock the conscience of this Honorable Court.

Vil. Tl,e trial court abused its discretion by allowinfl Detective Lutton to testify to Tayta \t'./right's hearsay statements shortly after the shooting. i'J.T., Vol. I, pp. 291-295. Wl1iie the Court admitted this testimony as prior consistent statements, such testimony was inadmissible under Pa.R.E. 613(c) as Detective Lutton - not Tayla Wrigt1t - \VJS the witness who 1,2s!ifi,c"d to the prior consistent .. o······..-::1,n·;'"'l".l.(!!.

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statements. Pa.R.E. 613(c). Moreover. this constituted hearsay under Pa.R.E. 801. Since no exception to the hearsay rules applied, the statements were Inadmissible under Pa.R.E. 802.

(Concise Statement, pp. 3-6).

The Defenc!ant's all2gaiions of error are without merit. For the reasons that follow, the verdicts and sentences shou!d be upheld.

t. FACTUAL BAC~GRQ..illiQ.

On July 31. 2013, at approximately 6:20 p.rn., Derrick Lyman, also known as ''

"Ricky," was murdered in the hailway of his apartment buiiding minutes 1atter he was !

seen and heard having a conversation with the Defendant outside of hii apartment.

I

I "' (Jury Trial Transcript, Volume !, ("TT 1 ") 11/18/14-11/20/14, pp. 139, 146-49, 175-76,

I

i

178-79, 189). Ricky resided with his giilfriend, Tayla Wright, In Apartment F of the

I

building located at 2103 Park Hill Drive. (TT 1, pp. 139, 145, 189, 243).!

!

At approximately 5:51 p.m. on the day of his murder, Ms. Wright was in her '

apartment with the victim, Ricky, and her dauqhter, Tyra. As she was looking through her window, which faced the building's front entrance, Ms. Wright savv the Defendant aoproacn tile apartment buiiding. (Tr 1, pp. 150.. 51, 175-177, r.:02-03) .. Ms. 1/v'right immediately recognized the Defendant as "Ray Ray" -- someone she knew from th1:-1 r·{ornev·-10(::,c! nei[!hb(Hh()<)d where she grt~vv up. (TT ·1. pp. 147. 209, 267). /\!though t\-1s.

Wright dio not know the Defendant's rear name or know l1irn on a personal level. she knew him "throuqh friends Gnd farnily members." and she "knew him to see him." (TT t , pp. 14 7, 251-52).

Shortiy after Ms. Wright saw the Defendant approach the building, she heard someone banging "real[!y] loud and real[ly] hard" on her door, which made her feel "uncomfortable." (T] .. 1, pp. 146-48. 150, 154, 209, 226, 243). She asked who was at

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th(·: ccor. and she heard someone say, "it's I] Ray Hay." (TT 1, pp. 147, 226). Ms.

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I- , Wrigh: opened her door, saw the Def1-rndan!, and asked him why he was banging on her

I door. (TI 1, p. i48). The Defendant recognized Ms Wright ;1nd looked shocked to see her. (TT 1. pp. 148, 244, 267). He told her that he was una . .vare that she lived at that I apartment. (TT 1. pp. 148, 227, 267). Ms. Wright asked the Defendant who he was looking tor, and the Defendant told her that he came to the apartment because he was "looking for sorne answers." (TT 1, pp. 148, 234, 243, 267). At that point, the victim, flicky, walked out into ths hallway to speak with the Defendant. (TT 1, pp. 148 50, 152).

rvls. Wrigt1t r,ec:1rd the Defendant ask Ricky "what is going on" and whether Ricky

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between Ricky and three (3) men known as "Tay Tay," "Zombie," and "Judd." (TT 1, pp.

i ,H, 148-49, 188, 190-91, 199). Ricky, Tay Tay, Zombie, and Judd were in the hallway out;icie cf Ms. VVright's apartment at around 4 p.m. that day, and they wf::re overheard hnving ,1 loud verbal altercation about "someone's bmtl1e;· getting robbed." (TT 1, pp.

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66). Tay Tay and Judd subsequently went into the apartment of their friend "Nay Nay"

(N3twauna Lane), whlte Hicky and Zombie walked up the street to Zombie's house. (TT 1, pp 144·45, 190, 203-05, 223, 225, 233). Ricky had returned to the apartment he sh,.r2d with Ms. Wright shortly before the Defendant started banging on the apartment

door 1.., -r·r1 , p. -1 'HJ ,,. .• _,, . .,-. ·34 • ?1·~ 238) .

I Ms. Wright heard Ricky explain to the Defendant that he did not have a problem

I with Tay Tay or Judd, and he told the Defendant that "sornothinq happened earlier with Zombie," Ricky's friend (TT 1, pp. 148 ·50, 190. 222, 267). Ms. Wright was preparing to walk out into the hallway with Ricky and tr,e Defendant, but, as she looked outside of her door, she saw Tay Tay and Judd standing with the Defendant. (TT 1, pp. 149-50, 152-53, 178, 229-30, 235). Ms. Wright also saw Nay Nay (Ms. Lane) standing in the hallway listening to the conversation. (TT 1, pp. 149, 152, 178, 229, 235). Ms. Wright knew that Ms. Lane was her next-door neighbor, but she did not know her personally.

(TT 1. pp. 145, 192, 195).

tv1s. Wright returned to h,2r apartment and shut the door. However, she then decided to take her daughter across ti·ie street to Ms. Wright's mother's house because she had a "funny" feeling about the situation and feit uncomfortable. (TT 1, pp. 150,

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JudcJ as Ms. Wright left the building witn her daughter. Ms. Wright told Hicxy to go back into their apartment because he did not "have anything to do with what happened"

earlier in the day witn Zombie. (TT 1, pp. 153-54, 209). Despite Ms. Wright's request, n,cky did not go back into tr1Ei apartment. (TT ·1, p. 154) .

.,

i

I.. On her ·Nay out of the building, Ms. Wright saw a friend who agreed to walk her daughter across the stroe! to Ms. Wright's mother's house. (TI 1, p. 153). Ms. Vvright stopped in tl1e parking lot in front of the building and spoke with a woman named Brittany, who also had just exited the building. (TT 1, pp. 154-57, 179, 247). As they

I. . were tatking in the parking lot, the women saw Tay Tay and Judd leave the building, get

into a vehicle that had just pulled up, and drive avvay. (TT 1, pp. 155-56); (TT 2, p. 182).

At this point, Ms. Wright decided to move her vehicle from the front to the back of the building because she was worried about something happening to her car. (TT 1, pp.

156-5/, 241-42).

rv1s. Wright was V':afking back towards tr;e t)iJilcLng aftei moving her car when she saw the Defendant run past her and heard two (2) girls scream at the sight of him.

(TT 1. pp. 157-58, 185). fv1s. Wright heard the Defendant ye!I to the two gir!s, "homeys,

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frightened and were rnoving out of the Defendant's way. (TT 1, p. i58). Ms. \//right

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hcodie pulied up a "litHe bit over his face." err 1, pp. 158-59, 182, H34-85, 187-88). She was able to recognize the Defendant because his hoocie was falling off of his face as he was running. (TT I, pp. 159, 185).

!V1s. Wri;Jht did not hear or see the actual st,ooting take place because she ,;,;as moving her vehicle: and the music in her car nad been playing at a loucl volume. (TT 1, p. 160). However, as the Defendant ran past her with the gun, Ms. \Nright heard her mother screaming at her to get inside of the building because a sheeting had just occurred (TT 1, p. 160). At this point, everything "clicked," and Ms. 'Wright reared !hat something had happened to Ricl,y. (TT 1, p. 160}. She ran back into her apartment

I »JI .

building and saw Ricky lying on the floor near Ms. Lane's door, unresponsive. (TT 1,

pp. 160-61, 187). Paramedics eventually arrived and transported Ricky to Presbyterian Hospital (TT 1, pp. 162-63). While at the hospital with Ricky's family, Ms. Wright

I .

. learned that Ricky had died after sustaining multipk~ gunshot wounds to his trunk and

forearm. (TI 1, pp. 51-62, i63).

\;\lili!e stil1 at 1r·1e hospital, Ms Wright spoke with Detective Harry Lutton and told f!:::~ tJ ED r1irn thal a person named Hay Ray shot Hicky. (TT ·1, pp. 164-65, 269, 295). She

~ aJreed to accompany the detectives to police headquarters in order to identify the i, she conf:rmerJ to the officers that she wou:c b,'? able to identify Hay Fiay if she saw his

face again. (TT 1, pp. 165, 170, 1 72, 295). Ms. Wright was shown a binder fillecl v11it11 photographs and was asked 1f she recognized the shooter in any of the pictures. (TT 1, pp. 166-67, 170, 297) While lookinq at the pictures in the book, she recognized the

Defendant's face and identified him as the shooter. (TT 1 pp 167 171 ?5,1·t ) ' 1 I - I ?t::A

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300). The Defendant was appreriended five (5) days later, after initiaily attempting to fiee from tile officers who were executing his arrest warrant. (TI 2), pp. 78, 81-84, 86, 88).

I. IL

l\. This court did not abuse Its discretion In admitting the Defendant'a statements into evidence because they were Iawtully obtained and their probative value was not outweighed by the danger of unfair prejudice under Pa. R. E. 403.

The Defendant's first three (3) allegations of error seek to attack the admission of statements that he rnade after he was taken into custody. The Defendant's first contention-· that the Commonwealth failed to present any evidence to prove that his statements were constitutionally obtained -· should be deemed waived on appeal.

(Concise Sta!t)ment, pp. 3-4).

The Defendant ii!ed a motion on April 2, 2014 seeking, arnonq other things, to suppre as statements he rnaco to detectives on Auqust S, ?01 J, subsequent to his arrest. (Pretrial Motion, filed on 4/2/14, pp. 10-12). In his motion, the Defendant stated Piat, after he was arrested. he invoked his Mirende rights and "declined lo speak with officers without an attorney present." (kL at 1 O). However, in the motion, !he Oefenclan!

immediately conceded lhc1t he rein1tiated the conversation with the detectives. {Id. at 1 O) Wlien the Def0ndant was informed that he was going to be charged with a homicide. he remarked that he was Just a cJrug dealer and that he did not do that kind of Uw1g. (id ) The detectives then asked the Defendant about the surveillance system at the apartment buitding, at which point the Defendant said, "That's it. I'm done talkinq."

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On April 15, 2014, argument was held on the motion. Neither party ever indicated an intention, desire or n..;ed to present testimony or anything ether than !cga!

argument on the issue of whether tile Defendant's statements were admissible. (Pretrial Motion ~h-=:aring, 4/15/14, pp. 4-12). In support of the Commonwealth's argument, the Ass.stan: District Attorney provided the following recitation of what transpired on the day

tr.··.· of the Defendant's arrest: 1/l WJ [The Defendant] was informed of his Miranda rights, as it were. He expressed the desire not to talk with the detectives They got up to leave and 11e said, "Can I ask you a question?" They said, "Okay." And he says, "What is this about?" So they explained, "You are being ctiarged with a homicide," at which point he says, "I'm not into that, I'm a drug dealer.

Look at my record." (The detectives] said, "What about the surveillance video?" That's when [the Defendant] says again, "That's it, I'm done talking."

(Pielri.cil fv1oticn Hearing, 4i15/14, p. 6).

Hie Oefen<1c1nt never objected to or otherwise disputed the factual accuracy of tr,e ConHnonwe,,!ih':, position as to his statements or how they were obtained, and it ;/,.::1'.j clear that the .siar·ties vvere in ngr•::e1T18nt as to the c.rcumstancas surroundinn ~ tt~e interview (Pretrial Motion Hearing, 4/15/14, pp. 5·7). The Defendant conceded that he r9initiatecf c:onversation vvith the detectives . so the sole issue at the hearing was whethei the jury shouid hear the statement, "That's it, I'm done talking." (Pretrial Motion Hearing, 4/15/14, pp. 5-7). The parties agreed, at least implicitly, that an evidentiary hearing was unnecessary since neither party disputed the facts surrounding the Dcfondan!'s statements. The Defendant never requested an opportunity to question the detectives as to how his statements were obta.ned, and he never raised an objection as to U1e absence of testimony on the issue. Although the Defendant had two (2) different

, '

'

attorneys during the course cf his representation, neither one - Mr. Aaron Sontz nor Ms.

Carrie Allman -- ever took issue with the fact that only argument was prosontsd in support of the motion "It is axiomatic that only issues raised by specific objection in the trial court may be addressed on appeal." Commonweajth v. _Wi!lis, 552 A2d 682, 690 (Pa. Super. 1988). Given the Defendant's lack of a specific objection before this court

on this issue, the Defendant's rirsl issue should be deemed waived.

I- .

The Defendant's second allegation of error is that this court erred by denying his motion to suppress the statement "That is. I'm done talking," because the statement "was obtained in vioiation of his constitutional rights.'' (Concise Statement, p. 4 ). This contention is without merit. It is weu-estabfished that an appellate court's "standard of review in a.ddrr:~ssing a challenge to a trial court's clenial of a suppression motion is limited to determining whether the tactual iindings are supported by the record and ·./\.ihsthcr the !e~Jdl conclusions drawn from those facts are correct." Ccmn1on_'-/./CC1f_ttt_Y:

Q~J~:'.'.3CJ_;?, SGO A 2cJ 102, 112 (Pa. 200<1} (citation omitted). "Where the record supports ihe factu,~l findings of the iria! court, [the revievving court is} bound bv those facts and may reverse only if the legal conclusions drawn therefrom are in error." Commomvealt.r1 v vvells. 916 A2d 1192, 1194-95 (Pa. Super. 2007).

A.s an initial matter, the Defendant's characterization of how the events transpired is inaccurate and misleading. The Defendant contends that the statement a! issue was unlc1wful!y obtained because, alter he "initially u.vokec his l'viiranda riqhts." the

!2

I .

~ "detectives continued to question" him ''concerning a topic that was likely to elicit an

incriminating response.~ (Concise Statement. p. 4). However. this case docs not involve a scenario where the Defendant invoked his Miranda rights but was nevenheless hounded by detectives to abandon riis rigr1ts and talk. To the contrary, tna detectives in tnis case completely ceased all questioning after the Defendant expressed his initial desire not to speak with them, and they never attempted to pressure him into talking after his initial invocation. The detectives immediately halted the conversation and wore preparing to leave the interview room when the Defendant stopped them and inquired whether Ile could ask them a question. (Pretrial Motion Hearing, 4/15/14, pp.

5 6) The DefE-Jndant asked, "What is this about," and the detectives explained that he was being charged with a homicide. (Let at 6). The Defendant then stated "I'm not into that, I'm a diug dealer. Look a! rny record." (ld. at 4-6). The detectives followed up his assertion with ihe question, "what about the surveillance video." It was at this point that the Defendant saicl "That's it l'rn done talkinq." (!.s:L at 6).

"[/'.\] suppression court reviewing a. statement made after thi3 defendant's initial invocation of the right to remain silent must recognize as pivotal Hie purpose tor whicn t11e renc~wed interrogation was conducted and the circumstances under which it occurred "Common,··:calth v. Harris. 972 A.2d 1196, 1203(Pa. Super. 2009).

Specifically,

judicial inquiry in each instance should focus on the circumstances attending the defendant's invocation of his[] right to silence, as well as the circumstances attending any further attempt at questioning. Hence, the test should ask wbetber the ottici«! purpose of resurning quastioning was

0

lM to entice the arrestee to abandon his right to remain silent, or simply to find out whether he or she had a change of mind. Only then can it be concluded whether, in faci, th..-: defendant's ,;right to cut off quostionino"

was "scrupulously honored."

I. . H~rris, supra. at 1203 (quoting Commonw~_?lth v. Her..£Y, 599 A.2d 1321, 1325 (Pa .

Super. 1991 )) (emphasis added). Thus, the critical inquiry in these situations is "whether the police fully respected [the defendant'sJ right to remain silent. or whether [H1e defendant] later waived that right." .ti.?.I!..i.~, supra, at 1204.

m I It is clear that the Defendant's statement 'Tm done talking" was not the product of

any police-initiated questioning. His statement was !he direct product of his own, voluntary, un-cocrced. and unprompted decision to reinit,ate conversation v,;ith tile detectives. The "law is vve1!-sr:~ttl(sd that a detcncant who requests counsel at any time during a custodial interview 'is not subject to further interrogation by the authorities untii counsel has been made available to him, unless the accused himself initiates further cornmunicetiott, exchanges, or corwersetions with the potice." Commorw,;er;!th v.

f_Q.~_fl._C~t,. 903 A2d i 139, 1150 (Pa. 2006) (quoting !;_9w9_.!:Q~ .. Y.c_!.\[i?.QD?, 45·1 U.S. 477,

The detectives "scrupulously nonorec" his initial invocation of his right to rema.n silent. In fact. they cut off all questioning and were wa:king out of the room It was only after the detectives began exiting !he room that the Defendant himself stopped them.

Tno circumstances surrounding the interaction demonstrate that ihe "orticial purpose"

~ Mi the Defendant "had a change of miner about speaking with them about !he incident after

he reinitiated conversation. After his iniiial invocation of ltAitc:1nda, the Delcndant expressed his desire to reengage the detectives and discuss the circumstances surrounding his arrest His "I'm done talf<ingr. statement was made after he reinitiated the conversation without any police prompting. Thus, this is not a case in which the detectives uf ailed to honor a decision to terminate questioning either by ref using to discontinue the interrogation or by persisting in repeated efforts to change [the Ot~fendant's] mind " Cqmrnonwe~)Jh v ... Mi.QQQ..Q[_lcl., 585 A.2d 1, 6 (Pa. Super. ·1990).

Nor does this case involve a situation where, "from the moment [the detective] initiated the conversation with the [defendant], [the detective] was attempting 'to entice the [defendant] to abandon his right to remain silent." .!:i~D.IY, supra, at 1325.

Furthermore. even if the question about the surveillance video was likely to elicit an incnrmnaunq response, the Defendant at that point had t:iffectively waived his Miranda ri:.Jhts l)y changing his mind about speaking to tile detectives without an attornev and re-inrti2,ting conversation. The Defendant expressed that he understood his rights. which was clearlv dernonstrateo by his initial and subsequent invocations, and the dctecttves had not even had an opportunity to leave the room before he questioned them about why he was arrested. (Pretrial Motion He arino, 4/15/ 14, pp. 4-

6): (TT 2, pp. 92-93). The Defendant also admittedly is no stranger to the criminal justice system. given his statement that the detectives should look at his criminal record because he is a cJrug dealer and not a murderer. (Pretrial Motion Hearing, 4/15/14, p. 6;

1/:,

Accordinqly, the totality of the circumstances indicates that tile Defendant knov,ing!y and voluntarily chose to waive his ,v1iranda rights aftGr his initial invocation. The (act that t1e changed his mind for a second time and decided to stop talking does not render his statement inadmissible under Miranda. See ~O(THnonvvearth v. Cohen, 53 A.3d 882, 886-87 (Pa. Super. 2012); See also fdY!_ards, supra, at 1150-51. Since the Defendant prompted the officers into a conversation within seconds after his initial invocation, and since the same detectives were involved, the fact that the detectives did not re-f.;1irandize him or have him till out another waiver form does not preclude a finding

of an effective waiver See CQ.!J.~n. supra, at 887; See also ·------------·-

Commonwealth v.------

Baez, 21

/\.3d 12FJO, t 286 (Pa. Super. 2011 ). Because the Defendant's voluntary statements were not obtained in violation of rv1iranda, this court did not err by denying his motion to suppress.

1 he Defendant's tr,irf.i a:legation of error is that this court erred by admitting his statement "That's it. I'm done tatkinq" because it violated rule Pa. R. E. 403. (Concise Staternenl, p 4) The court notes that the "slandc:'1rd of review with respect to evidentiary ruli,igs has been long established: The trial court's rulings will not be disturbed absent an abuse of discretion." Cornmo,Jwealth v. Einhorn, 911 A.2d 960, 9f37 (Pa. Super. 2006) "The trial court abuses its discretion if it misapplies the law or [rules] in a manner lacking reason." 1.9-' at 967 (internal quotations omitted).

1C

,v

Pursuant to Pa. R. E. 403, "[oJtherNiS(~ relevant evidence may be excluded if its probative value is outv1eighed by its potential for prejudice." Cornrn0(0.Jye;Jjth~ Ar_itido_c[QJ, 84 .,.·\.3d 736, 750 (Pa. Super. 2014). '"Unfair prejudice' means a tendency to suqqast decision on an improper basis or to divert the jury's attention away f rorn its duty of weighing the evidence impartially." Cqmmonwealth "'._....fQ.Q...Q, 965 A.2d 1212, 1220 (Pa. Super. 2009) (quoting Pa. R. E. 403). The Defendant argues that the probative value of his statement was outweighed by the danger of unfair prejudice because "the

I jury may have considered [the statement] as evidence of the Defendant's guilt."

(Concise Statement, p. 4). This contention has no merit under these facts.

The statement at issue came on the heels of the Defendant denying his 1rlVulvement .n the homicide, and it was admitted to demonstrate the natural progression of the investigation and explain how the detectives' interview with the Defendant conciuded. (Pretrial Motion Haarinq, 4/15/14, pp. 5-6); (TT2, pp. 92-94). Had 1t not been adrnitted, the Jury would have been left with even more questions about what had transp1,eci between the detecrives arid the Defendant during the interview. There would tie viriuaily no context to explain why the mrorvrew ended after the Defendant denied guilt by saying "That's not me. Check me out" after he was told that he was charqed with a homicide Significantly, the Commonwealth did not refer to or otherwise attempt to exploit the Defendant's statement in its opening or closing arguments (Trial Transcript, Vol 3 ("TT 3"), 11 /25/14, pp. 3"1-40, 45-68). The court notes that "the mere revelation of silence coos not establish innate prejudice," and the admission of the Detend.c:;nt's statement was not unf airly prejudicial in this case because it simply showed

1?

that the Defendant changed his mind about wanting to speak with the detectives after he re1nitiated the conversation. Cornmonw~alth v. Di~,J:cola, 8GG A.2d 329, 3:JG 37 (Pa.

2005).

I However. even assurninq for the sake of argument that admission of tr,is

statement constituted error, any error was harmless under these facts. This court is aware of the law regarding the general impropriety of referring to a defendant's post-

arrest silence See e.g., Comrnonwe alth v. Mitchel!, 839 A.2d 202, 212-13 (Pa. 2003);

Commonwealth v. Costa, 742 A.2d 1076, 10T7-78 (Pa. 1999); Commonwealth --- ... ----------·--·-·"----~··---------- ------·-----------·---v.

J)111:1e[, 454 .ti.?d 537, 540 (Pa. 1982). The concern that forms the basis for not

diLJwu·,g reference to pcst-anes1 silence direct!y re!ates to thf.', potential danger that a

However: any concern that the jury in this case wou!d construe the Dclencant's statement as a tacit admission of guilt was substantially, if not entirely, diminished by

~1 /8 \FJa. 1998) (''E.ven an explicit refereru:e to silence is not re'..·'Grsib!r~ error where it occurs in a conte:d not i:ke:y to suggest to the ;ury that siience rs the equivalent of a tacit admission of guilt")

Indeed. defense counsel engaged in a lengtt1y and ihorough explanation to the jU0J that the Def endaru's decision to stop talking to the police was not at all a product of a ouiilv mind, but rather an intelligent and commendable deers.on to refrain from speaking any further without an attorney. (TT 3, pp. 38-43). Counsel took a moment to

offer the iWY '·'f rec I ega: ' acv.

l c' e 11

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sih oui'd never spea,< t o lh, ,e

I

police without representation, especially if they are innocent. because the police may "intentionally or unintentionally misconstrue" their statements. (TI 3, pp. 39-41 ).

Counsel made clear that the Defendant was asserting his innocence and that the only reason he stopped talking was because he decided to simply let the process play out. (TI 3. pp. 39-43). Because counsel's closing argument eHectively removed any impression that the Defendant fell silent because he was guilty, and because the prosecution never made reference to the Defendant's statement in its arguments to the jury, any error in allowing the statement is harmless because it is unlikely that the jury equatf.')ci the-; Defendant's silence with an admission of guifl. See ~_QQl_f:rlQ!:lY.Vealth_v. i:S.~.LQ:l£'. 6:·'. A.3d 1038. 1052 (Pa. Super 2013) (explainin•J that harmless ~?rror analysis arJ~)!ies to context of pc:,st-arrest silence).

Additionally, it is unlikely that tr1e Defendant's statement, when viewed aqainst tt~e eviccnce as a whole , contrit•uled to the verdict. The overan case against the Defendant was strong. The jury was presented with testimony from a witness who saw the victirn and the Defendant together minutes before the shooting and who saw the Df::fendant running away from the scene of the shooting, moments after it occurred, with a gun in his hand. This witness identified the Defendant to the police on the same day as the shooting by retcrencino his nickname, and she was adamant and unwaverino in her positive identification of the Defendant n1mugh a photo as the perpetrator. She was also adamant and urwvavering of her identification of the Defendanl as the perpetrator

20

during trial. Addltionally, the jury viewed a videotape of the perpetrator fleeing the

·

shooting scene. an d a t ric.!1 iend •t..l ofI tn' t:::

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videotape looked iike the Defendant. 11 is certainly possible that the jury was also able to identify the Defendant from the video.

Accordingly, for all the aforementioned reasons, the Defendant's t11ird contention is without merit.

B. The Pretrial Identification Procedure was not unduly suggestive under these facts, and Tayla \Nright's pretrial ident!Ylcatkm and her in-court identification did not vioi~te NH:. Detend.anrs due process rbahts because the Identification was made under circumstances that were suf"ficientfy- reliable,

The Defendant's tourth allegation of error, that this court erred by not s1..1ppr-?.ssing ~~11s V\liighfs pretrial and in-court identification of the [)efendant 1 is \JVithout

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tri:,i court's de nial of a suppression motion ts l!rr1ited to deterrnining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." O~J&2U$, supra, at 112. "Where the record supports the tactual findings of the trial court, [the revimving court is] bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error." We_U~. supra, at 1194-95.

Wi:h respect to identification evidence, our apoellate courts have explained that:

[iJn raviewinq the propriety of identification evidence, the central inquiry is whether, under the totanry ot tile circumstances, the identification was reliable .... Suggestiveness in the identification process is but one factor to be considered in determining the admissibility of such evidence and will not warrant exclusion absent other factors .... [T]he following factors are to be considered in determining tile propriety of admitting identification evidence: the ooportuntry of the witness to view the perpetrator at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the perpetrator, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. The corrupting effect of the suggestive identification, if any, must be weighed

I '.

Commonwealth against these factors.

v. _Moye, 836 A.2d 973, 976 (Pa. Super. 2003), appeal denied, 851

A.2d 1 <12 (Pa. 2004) (citations omitted) (emphasis aodeo).

Notv,ithstandmg the fact that Ms. Wright knew who the Defendant was and knew what he looked like prior to the day of the shooting, the Defendant takes issue with the fact the! she picked out his picture in a "gang book" which was organized by neighborhood and had the names of the individuals displayed underneath thr~ pictures.

Thr: C)i~fer:r1r1nt1s contention arguably woulo have had merit if the facts involved a

c'··,.,~·""l, -.)i.l<".,1,11~t,,-;..... 1... :,. .Jri...,!i;i"--:,+-iori I\.J\,:."IIICIVU\I 11....; scenario h:1t l._l1~1"-"1L.I.._.., under 11.....,....,,1 !'-11-'.'.)50 ,f,.._. '- ra ,,t~ .......tl-)c issue ~>Jl\/1'-"'1...,,•~ ...... c- '""'/'H,QU!

it~r•\tl merit \11·11i.,

At the suppression hearing held on June 8, 20i 4, it was established that Ms.

Vvright spoke with Oeiective Lutton at the hospital and agreed to accompany Detective Luttc,n and h.s partner to the homicide office This occurred less than two (2) hours after her boyfriend was murdered. (Suppression Hearing Transcript ("ST"), 6/8/14, pp.

4·5). As far as the police . .vere concerned, the shooter was still armed and on the loose. and the officers were attempting to locate a suspect (ST, pp. 8, 42). vVhen they arrived at the homicide office, Ms. Wri9ht told the detectives that the shooter was someone whom she only knew as "Ray Ray." (ST, pp. 7, 17, 19, 29, 41-42). She did not know nay Ray's first or last name, but she told the detectives that she had known him for a "couple [of) years" and knew that he was from the Homewood area where she was from (ST, pp. 7-8, 17, 19, 42). Ms. Wright said that she would "definitely" be able to identify the person she knew as "Ray Ray" if she saw his face again, and she never qave any inclication that sno did not know who the shooter was. (ST, pp. 17, 41 ).

since Ms. \/fright atre ady knew the Oefen,jant, tr,e detectives provided her witr1 a b!l,chor that containecl 132 photographs. (ST, p. 14). The spine of the binder was captioned "Zone 5 Gang Book." and each page in the book contained eight (8) pictures

ont n~r,·i ...:_...(.l\,.,11 "'!·,.,,.., •.)I..~'._., re:-,

\'._J nn

>r''f-'' "0 1-· ,q.g I Ii •,•·~ ?4\I" The oicture s ·-~···•• ,._.._..t._. lPPJ-f'.l_. orcaniz ed bi· neionborno ~~j._...,14-·v,._.. .'t 1-..,.l~-J~\_,,jj1•._1UL.i ..-..d

a11ci susp•::}c!ed \}-:lfl0 affiliations Di.splayed underneath each of the r.•ictures was the 11;:une of the incliv1ciua1 shown. (ST, pp. 13. 24-28, .37) Since the \Jetectives Jid not know who ··Hay Hay" was at that time, they hao no idea if the Defendant's picture would even be contained in the book (ST, p. 38).

Detective Lutton instructed ~v1s. Wright to take her time and look through every single picture in the book. (ST, pp. 7-8, 25, 31 ). Although Ms. Wright indicated that the Defendant was from Hornewoco, Detective Lutton told her not to focus 011 particu'ar

23

areas because it was possible that the Defendant could have rnoved. (ST. pp. 8, 25).

Detective Lutton was present the entire time that Ms. Wright locked through the pictures in the binder. He was confident, based on his observations of her as she looked through the binder. that Ms. Wright was only looking at the faces of the individuals and not rei'!ding their names. (ST. pp. 9, 13, 18, 3 f-34). He saw Ms. Wright scrolling her finger across the faces of the individuals, and he saw that she did not rush through the photographs. (ST, pp. 9, 12, 18-19, 31 · 33).

Before identifying the Oefenclant, Ms. Wright came across the photo of a man whom she idcint1t1od as Tay Tay, one of the individuals that was present in tile

acartmcnt I • '·~:..

(_;. ~ {,L I • h•1il>-•j'

j

.·l"

I LJ I • ~ ...... _Y

h~sfuro

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tr,: :>--

l •• c;hnnhng

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I I"•' ~ •• I I ••

Q('Ct •(rPd

..... ..... • -..~- • 1\1S-f ,

oo

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the Defendant's face in a photo and identified him as the shooter. (ST, pp. 10- 12, 29). ,1·1e book containecl only one ( 1) photograph of the Defendant, and Ms. Wright identified the Ot"'!f(~nclant from that photo without any hesitation or uncertainty. (ST, pp. 11-13). The Defendant's photograph was located approximately two-thirds (2/3) of the way th1ou9i1 the book, on the t)acksid£~ of the pagf1 that contained Tay Tay's picture (ST, p

i 11· lt should be noted that Det,=;ctive Lutton instrucled Ms. VVriaht ~ to continue lookmo~

through tne rest of the book, even after Ms Wright identified the Defendant from his photo (ST. p 12)

Under the totality of the circumstances, the fact that the pictures were organized by gang affiliation and had the names displayed underneath them did not render the identification process unduiy suggestive in this case because Ms. Wiight already knew that u·ie Defendant was the shooter. Further, the procedure employed was not

de sioned '-"

to "empl1asize" or single out" any particutar suspect. See ---··---·---··-····-··· Commonwealth-··----··v .

Q.~'L!.;:;, ·1 7 A .3d 390, 394 (Pa. Super. 20 t I) ("Suggestiveness arises whan the police employ an identification procedure tha: emphasizes or singles-out a suspect.").

Moreover, the fact that the names were displayed underneath tr1e pictures was not problematic in this scenario because Ms. Wright did not know the Defendant's real name.

i+ovve ver. even assuming for the sake of arqurncnt that tr1e procedure was unduly suggestive. the totality of the circumstances show that it was not "so

2009) (noting that "suggestiveness alone does no! warrant excrus.on"). Courts routinely hove explained that "tile central inquiry is whether. under the totality of the circumstances, the identification was reliable." ~!?J!..L~. supra, at 394 (quoting fl,1.9v2. suoie, at 976); f!'..1ar!_§Or_1__yJ1rathwaiL~. 432 U.S. 98, 1 ·14 (1977) ("reliability is the linchpin 111 clf3teimining the admissibility of identification testimony")

25

As noted, this is not a situation where Ms. Wright only caught a brief glimpse of a stranqer with whom she had no prior familiarity. Ms. \/I/right S3'N tho Dotendant approaching her apartment building through her front window; she saw him and had a conversation with him as he stood in front of her door; she passed him in the hallway as she left t11e bui!ding with her daughter; she saw him running away from the building after the shooting, holding a gun. Ms. Wright had ample opportunity to observe the Defendant. Wr1en she first saw him, Ms. Wright immediately recognized the Defendant as someone she knew from the Homewood area where she had grown up. Although Ms. Wriaht knew that the Defendant was from a particular area, she looked at ever;

~;1nq!e pictuu-? in the book anci di(J not specificalty focus ht?r attention on any particular

t)elit~\..,eCJ ··r:?ay r~ay11 beiongcd to any particular gang, so the tact that tho book was orqaniz ed by ganrJ affiliations is also of no consequence.

F urt/tf;rinorc ~ Octective Lutton was present the entire time rv1s Wright was ~JC)in9 u1rcugr1 the binder. and it '/'10.s clear to him that she 'l/3S fook:ng at tr·;e faces of tr1e ind1viduais, and not t1·1eil' names. Common sense supports the detective's obsorvations since Ms. Wright did not know the Defendant's real name. Significantly, Ms. \Vright told the cJ(~tectives that she would "definitely" be able to identify the Defendant if she sa 11 his 1

fc1cr? acpin, and sh£-1 imrncdiatcly picked out the Defendant's pit.;ture upon seeing it. Ms.

\,'\'right 1dcnt:f1cd the Defendant as the shooter just hours after the incident occurred.

and she was confident in her identification.

·-··-·-: L_.,

Accordingfy, Ms. Wright's identification was reliable under the circumstances.

In this court's estimation, the ider.tificatior. procedure uti!i2od in this case is similar to lhG use of a yo.1rboo!\, which contains photos, names and categorizing information such as grade in school. Courts have upheld the use of yearbooks in identifying perpetrators. See e.g., Haun v. State, 451 Ne.2d 1072, 1075-76 (Ind. 1983); State_1Lll:!.f!s.Y, 453 So.2d 1234, 1;237-39 (La. App. 1. Cir. 1984); !,lnit~~L~~?.l~.$_y_,_rj_§D.!9?.Q,681 F.2d 1127, 1132-33 (9th Cir. 1982); Lit1L~LY.:. . .9l?le, 475 Ne.2d 677, 681-82 (Ind. 1985); Lo__.rg Matthews., 23 A3d 250, 259 (Md. App. 2011 ).

Because the pretrial identification was reliable, its admission a! trial did not violate the Defendant's due process rights. P:,dditionally, because Ms. Wright's pretrial

v10!::ito 1110 Defondant's due process rights. To that end, the court notes that, before Ms. VVnght officia!ly ide11!disd the Df?fendant as "Ray nay" al !rial, she tt,s!if:cd that she irnrnediate!y recognized him when she opened her door. and that the Defendant also ,-ecogni?ed har and looked shocked to see her. (TT 1, pp. 146-48, 156) Ms. 'vVright t-iacJ

opcnco her door ·-· asking him why he was banging on her door and wnv he was there, questions to which ho responded, and then observ1r\J hirn a9ain as she walked past him in the hal:way on ner way out of the buiicJing. (TT 1, pp. 146-48, 152-53)

On a final note, the Defendant's contention that the Commonwealth failed to present the testimony of Ms. Wright at the suppression hearing to demonstrate the reliability of the identification should be rejected outright and deemed waived. (Concise Statement, p. 4). During the suppression hearing, defense counsel dismissed the need to have f1,,1s. Wright testify and stated that the "suppression motion is regarding the procedural aspects of the identification" and that he was "not so much concerned about the fact that she identified my ctient" (ST, p. 16) (emphasis added). Counsel explained that his motion was only challenging the procedural aspects of the identification procedure that was employed, and he stated that "regarding facts such as how long this witness had the opportunity to observe the Defendant, tba: goes beyond the procedural

aspects. That goes to the weight and credibility of her identification," which lie 11as no!

1

ch£iiienging (ST, p 16). Accordingly, the Defendant's contentions that this court erred in nor having testimony by the witness a! the suppression hearing are meritle ss. and this court did not err 11, df?nying the motion to suppress her pretrial and in-court i(jentification.

c: . . I'his court did not abuse its discretion by afiov:.dng Detecti\le Hal ::3(:dirt tc} impeach Natwauna Lane with statements she made to him days before trial because the probative value 01 her prior inccnsistent statement w;.;.s not outweighed by the danger of unfair prejudice under Pa. R. E. 403.

The Defendant argues that this court abused its discretion by admitting Natwauna i.anes prior inconsistent statement because the statement was unfairly prejudicial under Pa. R.E. 403. (Concise Statement, p. 5). As noted earlier, a trial court's evidentiary rulings "will not be disturbed absent an abuse of discretion." Einhorn,

....., ·7

.C: I

28

supra, at 967. "The trial court abuses its discretion if it misapplies !he law or [rules) in a

manner lacking reason." Id. at 967 (internal quotations omilled). Pursuant Io Pa. R. E 403. "[o]thervvise relevant evidence may be excluded if its probative value is outweighed

by its potential for prejudice." Antidormi, supra, at 750. However, "[e lvidence .'Vill not be

1

prohibited merely because it is harmlul to the defendant." Let at 750. Indeed, the court is not "required to sanitize the trial to eliminate all unpleasant facts from the jury's consideration where those facts are relevant to the issues at hand . . " "[E]xclusion is limited to evidence so prejudicial that it would inflame the jury to make a decision based

upon something other than the legal propositions relevant to tile case." ld at 750

0

(quoting Cornmonwealth v. Owens, 929 A2d 1187, 1191 (Pa. Super. 2007)).

1\s the Dd..=inc!ant acxnu.,;ledges, the centra, issue at trial concemco the identity of the shooter Two (:::') cl,"lys rwfore Natv.;auna ("Nay Nay") Lane testified at trial. she rnet wi!h Detective Bolin and toid him that she saw the Defendant on the clay of trie shooting talking to the victim in the hallway of the apartment building. (TT 2, p. 260).

Trus st::1te!neni. was made verbally to the detective and was not recorded in any iashion.

(TT 2, pp. 260, 269· 70). In lig1"1t of the inforrnafon that ,v'\s. Lane provided to th:.-J detective trnrneoiately before trial, the Commonwealth chose to call ht"?r as a witness.

The Commonwealth had ever; right to expect that Ms. Lane would testify consistently

with the statement she had made just days earlier. (TI 2, pp. 144, 203, 208-09, 215, 1.::; G~ 221 ). However. when Ms. Lane took the stand and testified, she- insisted that she did

not see the Def end ant in the apartment building on the day of the shooting. (TT 2, pp.

170-72, 1s,1.1i35, ~'40, 242, 247). ivls. Lane was then confronted with the prior ; . .;= statement made to Detective Bolin during her testimony, and she denied making it. (Tf 2, pp. 202, 237-242).

"The general rule is that a prior inconsistent statement of a declarant is aomissible to impeach the dsclarant." Commonweal!h v_,_'2_rad~. 507 A.2d 66, 68 (Pa.

I .. ,;< 1986). Consistent with the rules of evidence, Ms. Lane's statement was admitted for

the sole purpose of impeachment because it did not meet the criteria for admission as substantive evidence under Pa. R.E. 803. 1. The court a!!owed Detective Bolin to testify about the conversation he had with Ms. Lane mere days before she testifiecJ because her statement was materially inconsistent with her triai testimony. (TT 2, pp 260, 269-

Contrary . to the Defendant's argument, the probative value of Ms. Lane's ori '

or

incnns;stent statement was not ourwciohec by the dancer of unfair pre Judice The mconsistcncv related to a key issue at trial, namely identification. Ms. Lane's testimony at trial directlv contradicted the testimony of 1\--1s. \t./right, who testified that the Defendant was present in the tlalh,vay, as was Ms. Lane. It was vital for the jury to assess the crE'C1itJi!ity of the two (2) women in order to resolve the issue of identification. Ms.

Lane's statement to Detective Bolin provided the jury with a proper context in which to 11-1eigh her testimony and determine whether she testified credibly at trial. Althouqh the

0, ereru i d ant argues fh il .a \ "t'nere was a qrcat t risk . I ·•.

mar,l ' '!

cespue ·

a cautionary ·

instruction, the

;,,r-,.1 jl...JIJ would.I.._.. consider 1\;]S J.AI .v,\,...1 ,., · ans's I1..-1..,.,,..,, 8i'P 1'J':,r-J · •-....:::,"-"' st::J....T.0. fn'"('IS V ...._.. !, •,, :cir..;

,. .......,, substant.vc evidence or' n.l, .._ ' . Ill'~ ... VIV J\_,(; i\/1!, . ! . .

Williams' guilt," this argument relies on notl1ing but mere speculation. (Concise

Statement, p. 5). The Cornn1onweailh never attempted lo suggest that this statement should be considcr"~d as the truth, and the Jury was instructed multiple times that it must not consider her statement for anylhing other than credibility purposes. Such cautionary instructions are routinely given, and there is no indication that jurors ignore them.

Indeed, at the time that the prior inconsistent statement was admitted, this court strongly cautioned the jury that it may only consider the statement to assess the credibility of the witness. (TT 2, p. 260). Specifically, the court provided the following instruction:

Ladies anci gentlemen of the Jury, you should be aware tha: this evidence is not to be ccn~:;ic.iered t)y you for nh':: truth of the matter. fl So it's not fur n-je trutn of wr.etner or not f\Jay r"Juy actually saw the defendant in the hcii:wdy ltiis testimony can only be considered by you as to th,1 c(edibi!ity r,f Ms I ;c>()C, ft'J That is the only '1''3· '1' Ihat .._,, •-· ·--.,· ~· . !,u .. vo: I can consider ._., ~ ._, ;I [] C:o '''"U ,. , J~

'I' j ,,_,. •;;)

.. ~...._ , . ..J, ,.-1 I . ...._,,

must fo!lDV/ these instructions. 1\s J rcld you eartior, I am the judge <Jf tt1f::

.avv. S() you must totlow that instruction It's only to b':: considered ior credibility. not to be considered for tile truth of what has just been stated.

Thank you. (TT 2, p. 260).

The cautionary instruction was repeated a second time du;;ng the court's ciosing chfirge

t-'-...t.... •h,:, lilG ;, .rv (Tr 1.:.,..

JU}'·\ t

ia] T,·3. nscriot

11 1..)\..,111-.1 .. , Vol I• ...~.,\ ("1.T 3") I 1 ·1 i2c:...JI. 11

f

c1-r , p ...... go,,/. ,,;-fihe l JI.,, 1'•uty

,~_, i e-

I.:,, nr~ s . - -· -./ •.l()

,...J d ... tJnlt:(J

fo!iow n·1e trial court's instructions," and there is no articulable reason to believe that the

Jury disregarded the court's instruction as to this matter Commonwealth v . Baez 720 ·---·-·-----.·~-·· · ·------·-···--------------'

A.2d 711, 727 (Pa 1998).

Additionally, the inquiry here is whether the statement was "so prejudicial that it would inflame the jury to make a decision based upon som,Jthing other than the !oga!

propositions relevant to the case." Antlg_qrmi, supra, at 750. The statement at issue was not so prejudicial so as to be inflammatory because Ms. Lane's statement did not place a gun in the Defendant's hand, and it did not otherwise suggest that she saw the Defendant participate in the shooting. In fact, the statement did not even suggest that Ms. Lane was present when the shooting took place.

In fight of the cautionary instructions that were provided. the presumption that the JUf\/ adhered to these instructions, the importance of a!!owing tr1e jury to make proper credibility determinations, ano the lack of unfair prejucke, the acmisslon oi Ms. Lane's orior inconsistent statement as impeachment evidence did not violate Pa. R E. 40~l.

D. This court did not abuse its discretion in denying the Defendant's post--

sentence motion because the verdict did not shock the conscience

In his sixth aiicgation of error, the Defenciani contends that this court abused its discretion in denying his post-sentence motion because tt1e verdict was againsi the 'NCi~Jht of the evidence. It is ,.vell-estat)!ishecl that:

the weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none ot the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of ihe finder of fact. Thus, [the appellate court] may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim

.... ,

,_j I

below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether this trial court palpably abused its discretion in ruling on the weight claim.

Cornmomvea!tt1 v. Lewis, 911 ,-\.21j 558, 565 (Pa. Super. 2006); See also ---------••·•--•-•-n••-· .. M•o•••-.•••••••~•··-••••--

Commonwealth v_SmitlJ, 861 ft.. 2d 892, 895-96 (Pa. 2004). "A true 1.veigh! of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but questions which evidence is to be believed." Comrn.onwealth_v. __ Hunzer. 868 A.2d 498. 506-507 (Pa. Super. 2005). However, "[qjuestlons concerning inconsi.stent testimony ... go to the credibility of witnesses" and ti,e court "cannot substitute its judgment for that or the jury on issues of credibility." Q§)_~-~..h!S, supra, at 107; See also Commonwealth .'f:...Y-{lU.~1m~. 854 A.2d 440, 445 (Pa. 2004) ("ln criminal proceedings, the credibility of witnesses and weight of evidenc0 are determinations that lie solely with the trier of tact, [which) is frne to

bel f..• ieve .J I ,_, 'I 0 c,l1'

t,_j., , cart or none of !)1,, evidence ")

• "~-" 1 • '..._., • • 1 • .., ~ V-' • -' ., · •

ln determining whether a trial court abused its discretion in deny·ing a weight claim, our Suprerne Court has noted that

a new trial should not be qrantad because of a mere conflict in the testimony or because tht: judge on the same facts would have arrived at a different conciusion. Bather. the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that lo ignore !hem or to give them equal weigt1t with atl the facts is to deny justice. It has often been stated that a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperntive so that right may be given another opportunity to prevail.

33

Comrnomveaith v. Clay. 64 A.3d 1049, 1054-55 (Pa. 2013) (internal quotations

I . :< and citations omitted) (emphasis added). "[Tlhe trial court's deni2I of a motion for

a new trial based on a weight of the evidence claim is the least assailable of its rulings." Commonwearth v._ Cousar, 928 A.2d 1025, 1036 (Pa. 2007).

The Defendant's challenge to this court's denial of his weighi claim is

without merit as it is based entirely on issues of witness credibility and conflicts in I the testimony. The Defendant claims that the testimony of Tayla Wri9ht, the

Commonwealth's central witness, was unworthy of beiief. However. the law is clear that the fact-finder is free to be!ieve "all, part, or none of the evidence."

V\/d1i;,irns, supra, at 445. This court sat through the trial and had the opportunity to observe the witnesses and their demeanor. In this court's opinion. Tayla VVrigl:t was a credible witness who never wavered in her identification of the Defendant as u-,e shooter. It should be noted that this court also sat as a trier-of-

fact, ,3n1i its dac.sion to convict the Def encant of Person Not to Possess was

witness.

As recounted above, Ms. Wright was present during the time of the shootinq, and she saw the Defendant running away from the building ir11rnediate1y after the shooting with a gun in his hand. (Tlt. pp. 157-GO, 185).

Ms Wright testified consistently and credibly that she knew of the Defendant

prior to the incident. (TT 1, pp. i 46-47, 209, 251-52). Although she knew him

and came face to face witil him. (TT 1, pp. 147, 252, 267). The fact that the I Defendant was banging on her door, dF:manding "answers" and questioning

(j whether Ricky had a problem with his "people" made her so uncomfortabie that 11 she removed her daughter from the apartment and made sure that she was away I .

.

from the Defendant's vicinity. (TT 1, pp. 146-50, 153-54, 209, 240-41, 243, 267) .

I ~

Althougll she saw two (2) other men in the hallway with the Defendant and Ricky before she left the budding, she saw those men exit the building, get

,.nt,.:.J

. . Cd(..

d. , ....!U, !t,<'.

of ':,·-:,·'IV re:..-; before t--:1t.)1-t.,.

-,-,!'/.

d.: .ch-,.-"'::,--

,1 !'.}(,.., VI/~:.,/~

1:--·d

Ill:::::-~ ..•.

(-,-··;-

, I I

,I ,~r·

t-J:_L 1 .:.)'-2.~-~)._;, ~,:, 1, :,::,:-

~~ 5...,,/ )-

1 I

trt fill f\!iOmcnts r1t1er she got out of her car, Ms. Wright heard her mother scream Irorn

ti across the street that a shooting had just occurred, and she irnrnediately turned ~~ $'. .......u to ~,ee the Defendant running away from the building with a gun in his hand. (TT

1, pp 1 SB-60, 184-85, 18 7). The Defendant looked so intimidating running away from tr;e apartment that he nae to reassure two gi;ls in t,is vicinity that he was nut

go;~g to shoot them alter they screamed at the sight of him. (TT 1. pp. 157-59, p1~rn @ 185, 256).

,~, tfil Furthermore. Ms Wright did not hesitate to teli the police that tho

G D>::!ii"n(i;1nt ,,vas the shooter She irnrnedialeiy told n1e detf:c!ives that Ricky was Li 1,iHed by a man that she only knew as "Ray Ray", and she voluntarily agreed to

34

, ..... !'•,·:

f ,,.)

·:J

35

go to the police station so that she could assist in the investigation. (TI 1, pp.

165, 170, 172. 269. 295). Ms. Wright immediately picked out !he Defendant's face after vievving ovet a hundred pictures, all within a fm,v hours after the shooting occurred. (TT 1, pp. 164-67, 170-71, 218, 226, 269, 295, 301).

The court notes that Ms. VVrigr1t's testimony was not weakened by Ms.

Lane's testimony at trial. Ms. Lane testified that she was friends 1,vith Tay Tay and Judd, and she corroborated Ms. Wright's account that there had been an incident in the hallway around 4:00 p.m. on the day of the shooting that involved Tay Tay, Judd, Zombie, and Ricky. (TT 2. pp. 155-68). The incident involved

?or<d,ie :F1d his suso.c.cn that one of the men robbed his brother. (TT 2, pp.

~~ w !tl 159-60, 164· 6.S) Ms. Lane also couoborated Ms. \Nright's testimony that she

.. saw Zombie leave the builciing after Hli:'.: 4 p.m. incident and that Tay Tay and 11 ",.;..,;,:

Judd !eft the 1·1ai!way and building area before the shooting occurred. (TT 2, p

Ms. Lane tesUied that she knew the Detendant, and she knew that he was friends with Tay Tay and .Judcl. (TT2, pp. 17 t. 184, 251-52). When confronted ·Nit11 the bui!ding's surveillance video. Ms. Lane immecJiately, and without hesitation. agreecl that the person on the video "looked like Flay Flay." (TT 2, pp.

1 7 t , 245 ). The Detoncant suggests that this statement is insignificant because Ms. Lane's overall testimony at trial was that she did not sec the Defendant in the

36

apartment building on the day of the shooting. (TT 2, pp. 170-71, 185, 198, 240, 242, 247, 252, 30i ). However. as previously discussed, Ms. Lane's credibility at trial was direcily at issue in light of the prior inconsistent statement that she had made to Detective Bolin two (2) days before she took the stand, 1,vhere she admitted that she did sec the Defendant in the apartment building on the day of the shooting. (TT 2, pp. 259-60). I/Vi1ile Ms. lane's prior inconsistent statement could not be considered as substantive evidence, the statement served to cast doubt on her testimony that she did not see the Defendant on the day of the shooting, particularly when considered against the fact that Ms. Wright testified numerous times that Ms. Lane was present in the hallway during the encounter l>E•twesn n-,Ei Defendant, F1icky. Tay Tay, and Judd. (TT 1, pp. i S2-53, 17B. 181, 229-30, ?:35, 24:3, 261 ).

The court also notes that another Commonwealth witness, Stf.?phen o,o,ver. Jent CiE:d:t:11l;ty to Ms. Wiight's te stirnony that tho Defendant ran out of the t)uilciinD \,\lith rus shirt pulled over his head. Mr. Brewer was in the parking lot at

me time of the shooting, and he testified lha1 he sav-: someone ffeeing from the r~ tGi building with "something white pulled over their head." (TI 1, p. 287). As

f;~~ rccounteo above, Ms. W;ight testified that she was able to recognize the person C.~ who was running with the gun in his hand as tho Defendant because the hoodie

U1at he had pu!li,·d over his face kept sliding down. (TT 1, pp. 158-59, 184-85).

ivL;. Wright's testimony was further bolstered by the video from the surveillance

37

camera, from which it is possible lo identify the Defendanl. and which supports Ms. i.;Vrighl's teslirnony of the aftermath cf the shooting,

While the murder weapon was never recovered and no forensic evidence connected th-i:: Defend,:1nt to tho crime. these facts were not, and arc not, I required to establish guilt beyond a reasonable doubt. (Trial Transcript, Vol. 2,

("TT 2") pp. 43-47, 51, 66, 68). Hie court also notes that, although the I Defendant presented an alibi defense at trial and claimed that he was at Chuck

E. Cheese celebrating his son's first birthday party al the time of the crime, the alibi was presented by the Oef,2.ndant's family members only. Aside from their

the parr/.. (-rr2 1 _ J }JP ..'71'

) ''')15

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3')')~3c.)

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;\qai:lst ihis backdrop, the verdict did not, and does not, shock the conscience o! this court. \. vhich had tho opportumry to listen to the witnesses and

facts were "so clearly of greater weiqht that to ignore them or to give them equal weight with all the facts is to deny justice." £2@:..'t.'., supra, at 1054-55. Although fV1s. Wright did not see the Defendant actually puli the trigger, the circumstances surrounding the incident. and the reasonable inferences drawn therefrom, estat!list1ed beyond a reasonatile doubt that the Defendant i<iile(J Derrick l.yrnan.

38

ffl I It was solely the function of the jury to weigh the evidence and make credibility

determinations.

The verdict ot the jurors indicates that they rejected the Defendant's alibi, credited Ms. Wright's testimony that the Defendant was the triggerman and rejected Ms. Lane's trial testimony that she did not see the Defendant on the scene. While there may have been a few instances in Ms. Wright's testimony that were unclear or inconsistent, the jury could have ver; well concluded that any inconsistencies in her testimony were not necessarily a product of dishonesty, bu! raPwr a result or time, trauma, faulty memory, etc. In any event,

!he iaw is clear that a court "cannot substitute its judament _, for that of the 'iurv on /

issues of credibiliry." Q.eJg_~~s. supra, at 107. Accordinqty, this court did not abuse its discretion in denying the Defendant's post-sentence motion, and this

E. This court did not abuse its discretion by allowing Detective Lutton to testify to Tayla Wright's statements made shortly after the shooting.

Finally, the Defenclant contends that it was error for this court to allow Detective Lutton to testify as to statements that Tayta Wrigi'1t made to him on the same day as the shooting. (Concise Statement, pp. 5-G). This argurnent is witnout merit. A.s noted above, the "[a]dmission of evidence is a matter within the sound discretion of the trial court, and will not be reversed absent a showing that the trial court dearly abused its discretion." ConJmg_mvca!H1..Y.c..Handfreld, 34 A3d 187; 207-08 {Pa. Super.2011). "Not merely an error In judgment, an abuse of discretion occurs when the law is overridden or rnisappued, or the judgment exercised is man.fe stly unreasonable, or the result of partiality, prejudice, bias, or HI-will, as shown by tile evidence on record." L<;L

The Defendant asserts that Ms. Wright's statements were inadmissible because detense counsel "was not given an opportunity to cross-examine the witne ss about the statements." and no exceptions to the hearsay rule applied.

(_'I~~----:

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,., ·r·,.'10 pric1

. ior consistent

L,.,.:,,~1.. ~c;'., .statement o~l-;, it. ~a·t ;ec,,,c, ,,.J ...H.n.~. concerns ....,\) \.,..c,1 ~. Mio

... . 11 "·,·~1-,• ,:,. .

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staternc~nt to Detective Lutton at the hospital. (TT t , pp. 291-95). Detective Lutton testified th.Jt. when he arrived a! the hospital to check on the condition cf

inrorrnation about what had happened to Flic:{y. (TT 1, p. 290). Ms. Wright beQan pxr/aining to the detective that there had been an argument outside of her apartment eartier that day and that her boyfriend Ricky had been present for the argument. (TT 1, pp. 291, 294). At that point, Detective Lutton stopped her from saying anything further ano asked if she would be amenable to speaking with them at U1e hornicide office (TT 1, pp. 294·95). Detective Lutton testified that Ms. Wright agreecl to go to the oHice with them, and when they arrived there, Ms. Wright told them that a guy named "Ray nay" was tile individual who was responsible Ior shooting Ricky. (TT 1, p. 295).

]9

'11. 1 ..

Oetecnve Lutton testified as to Ms. Wright's prior consistent statements

after Ms. \/'Jright had already completed her testimony. During her direct examination, M:;:;. Wright recounted the argument that had taken place around 4 I p.m. that afternoon outside of her apartment. (Tr 1, pp. 139-141, 143-45, 149).

She also testified that she spoke with Detective Lutton at tho hospital and that she started to tell him what had happened. {TI 1, pp. 164-65}. Ms. Wright was then subjected to a lengtl,y cross-examination, during which her credibility was directly attacked and put at issue. (TT 1, pp. 188-262). The defense was heavily focused on challenging Ms. Wright's statements and the perceived inconsistencies in her testimony. (TT 1, pp. 193-94, 206-08, 210-212, 217-220, 222-232. 234, 243-46). The Defendant had ample opportunity to question her as to the statements she made to Detective Lutton at the hospital, and his counsel certainly took advantage of the opportunity to ask her about the earlier aroument that occurred outside of her apartment on tr·1e day of the shooting. (TT 1, pp.

J 88·203).

Huie 613(c) of the Pennsylvania Rules of Evidence provides as follows:

Evidence of a prior consistent statement by a witness is admissible for r~:lkit;iiitation purposes if ttie opposing party is given an opoortonity to cross-exarnine the witness about the statement, and the statement is offered to rebut an express or implied charge of:

(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or

rlO

(2) having made a prior inconsistent statement, which the witness has denied or explained, and !11e consistent statement supports the witness' denial or

I = < oxplanation. Pa.R.E. 613(c} (bold in original).

The Defendant's cross-examination of Ms. Wrighi directly put her credibility at issue and highlighted questions regarding faulty memory and/or bias The Defendant had ample opportunity to cross-examine ~. .fa. Wright as to the statements she made to Detective Lutton, and he conducted a lengthy and exhaustive cross-examination of Ms. Wright. Based on these facts and circumstances, this court did not abuse its discretion in allowing Detective Lutton to recount what Ms. Wright told him at the hospital. (TT1, pp. 291-295); See

consrstcnt sratcmerus may be proved by the person to whom they were made in order to support the credibility of Hv?- witness whose testimony has been attacked).

L.~0-'"{.1\IP(

I, ,., .. J~·,~, j'.>l!f"!'.l .......... ,.o._. '1ir)(1 Ior the '.><:;SLJf'1···::,•'- sake of aro:

,.._._i...... -::,......, irnent ·- ~ 1i·,:,1 Ms•..J·V• Vvrioht's f1,,..... ~-;14..._:i

statement at the hospital should not have been admitted as a prior consistent .• ~.''

-'·~..

.

statement, the statement was entirely relevant to show Detective Lutton's course ~d of conduct and to explain the steps that were undertaken in his investigation of

tl,e shootmo. See ~-Q_fI!J.TI_Qfl_,'.{~_?JtO __y_,_~_b_mj_Q.1, 889 A2d 501, 532 (Pa. 2005) ("[ljt is weli cst<.1blisr1ed that certain out-of-court statements offered to explain the course of police conduct are admissible because they are offered not for the truth

n 1 .. - ~ t) i.~,·:

,; !

of the matters asserted but rather to show the information upon which police

Wg acted."). I

SigniflcanHy, Ms. Wright's statements about there being an argument earlier that day did not refer to the Defendant or otherwise implicate the Defendant in any way. The statement also was not "highly incriminating" in nature since it did not involve "specltic assertions of criminal conduct on the part of tho accused." Cornpere Commonwealth. v. Palsa, 555 A.2d 808, 811 (Pa.

1989} (statement not admissible under course of conduct exception where it accused the defendant of being a drug purchaser and defendant was on trial tor drug ottense). Ms. Wright's statement about the earlier argument "provided only the information necessary for a reasonable understanding of the po!ice conduct"

and w2.s., therefore, admissible to show the detectives' course of conduct pcrtaininq to their investigation of the shootinq, and not to ,::.istablish H1e truth of the matter. Palsa, supra, at 811. To that end, the court specifically instructed the jury that Ms. 1/vright's prior consistent statement was not to be considered for the truth of the matter and was only relevant to help them assess her credibility. (TT 3, p. 9i).

Finally, the court notes that, with the exception of Ms, Wright's brief rEifeii3nce at the hospital to the argument that had occurred earlier that afternoon outside of her apartment, the statements that Detective Lutton recounted rnainty

43

concerned Ms. Wright's identification of the Defendant as the shooter.

Statements of identification are not considered to be hearsay. (TT 1, pp. 291 .

305); See ~om_rn()nwealth v..,_Wilson, 861 ,\.2(j 919, 929 (Pa. 2004) ("\.Yhere ..

the prior consistent statement rs one of identification, it is adrntss.ole as an exception to the hearsay rule .... "). Accordingly, for the aforementioned reasons, the court did not abuse its discretion in allowing Detective Lutton to testify as to Ms. Wright's statements.

l I I. CONCLUSiON

tiiu The Defendant's allegations of error are without merit. The Defendant waived his

~~ argurnent regarding the absence of testimony presented in support of the motion to FJ 1-->·) Le,

a(_irni~:sion cJid nor violate Pa n E: 40:3 The court did not err by d,?nying the motion to 5ur.1press f\/ls \,'\/righfs prctri2t or in-court identiticaucn because tt1e idcntilicat.on prot:edure was not unduly suggestive, and, even if it was, the identification was rniiab!e.

The court did not err by al!ovving Detective Bolin to imoeach Ms. Lane with her prior inconsistent statement because the probative value of this impeachment evidence was not outweighed by any unfair prejudice. The court did not err by denying the 0£:,fenJant's post-sentence motion because the verdict did not shock the conscience.

,, r -.·.'I The court did not abuse its discretion by aliov1ing Detective Lutton to testify to Ms. l]

Wright's prior consistent statements because Ms. Wright's credibility was directly Fl. Li attacked. and the statements of idf:ntification were not considered hearsay.

p:1 j ·~ Li f···! L.,:)

For the foregoing reasons, the verdicts and sentences in these cases shou!d bo upheld.

BY THE COURT: