Commonwealth v. Brewington

740 A.2d 247, 1999 Pa. Super. 243, 1999 Pa. Super. LEXIS 2880
CourtSuperior Court of Pennsylvania
DecidedSeptember 23, 1999
StatusPublished
Cited by25 cases

This text of 740 A.2d 247 (Commonwealth v. Brewington) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Brewington, 740 A.2d 247, 1999 Pa. Super. 243, 1999 Pa. Super. LEXIS 2880 (Pa. Ct. App. 1999).

Opinion

HUDOCK, J.:

¶ 1 Appellant appeals from the judgment of sentence imposed on June 7, 1991, after a jury found him guilty of murder in the first degree and criminal conspiracy. 1 Appellant was arrested on March 26, 1989 and a preliminary hearing was held on May 3, 1989. Over the next two years, Appellant’s trial was delayed by a total of ten continuances granted to Appellant’s court-appointed counsel. On May 16, 1991, the court finally called the case to trial and the trial was completed on June 10, 1991. A penalty phase hearing was conducted, which concluded with the jury setting the penalty at life imprisonment. After the trial, Appellant’s trial counsel left the practice of .law. On September 28, 1993, new counsel was appointed for the purpose of filing post-sentence motions. Post-sentence motions were filed on March 21,1996, and were heard and denied. The sentence of life imprisonment on the murder bill was reimposed and a concurrent term of five to ten years’ incarceration was imposed on the conspiracy bill. This direct appeal followed. We affirm.

¶ 2 Appellant asserts that he is entitled to a new trial because of prosecutorial misconduct and various incidents of alleged ineffectiveness of counsel. Appellant further maintains that the trial court erred when it refused to permit him to change counsel prior to trial.

¶ 3 The relevant facts may be summarized as follows: On the night of March 11, 1989, Appellant was instructed by Melvin Troy Williams (Williams), his “employer,” to call Melvin “Daddyo” Williams (the victim) at his home and inform him that Appellant would drive to his house and *251 pick him up. Williams believed that the victim had helped a rival gang kill “Taboo”, who was a member of Williams’ gang. N.T., 5/29/91, at 14. Evidence presented by the Commonwealth established that Appellant and Williams were allegedly involved in an illegal drug business where a hierarchy is in place and orders get handed down from the top. In accordance with this chain of command, Appellant asked Christopher Brown (Brown) to place the call. N.T., 5/28/91, at 99-100; 5/29/91, at 8-10. Appellant and Brown then picked up the victim and took him to a predetermined spot where Michael Black, Keith Washington, and Elliot Moore (the co-defendants) awaited his arrival. Id. At this spot, the victim was killed in the front seat of the car by the co-defendants’ shower of gunfire.

¶ 4 Appellant first claims he is entitled to a new trial due to the allegedly intentional misconduct of the prosecutor during both the questioning of the witnesses and the prosecutor’s summation to the jury regarding reference to gang signs, gang activity, guns, and illegal drugs. “The manner of cross-examination rests within the discretion of the trial judge and improper comments by a prosecutor require reversal only when the comments create a ‘fixed bias or hostility’ toward the defendant.” Commonwealth v. Edmiston, 535 Pa. 210, 232, 634 A.2d 1078, 1089 (1993). The trial court must make the initial ruling on the prejudicial nature of a prosecutor’s comments; this Court “is limited in its review to whether the trial court abused its discretion.” Commonwealth v. D’Amato, 514 Pa. 471, 491, 526 A.2d 300, 310 (1987) (citation omitted). Accord Commonwealth v. Rios, 546 Pa. 271, 287, 684 A.2d 1025, 1033 (1996).

¶ 5 With this in mind, we address Appellant’s contention that the Commonwealth improperly questioned Brown about photographs that depicted Brown holding a gun and making a sign with his hand in the company of the co-defendants. N.T., 5/29/91, at 52. The prosecutor questioned Brown as follows:

Q. Now on the picture, on one of the pictures or on two of the pictures, you are making a sign. What is that sign? What is that sign, Mr. Brown?
A. It doesn’t mean anything.
Q. Not a gang sign?
All Counsel: Objection.
The Court: Sustained. What is the sign?

N.T., 5/29/91, at 36. First, we note that defense counsel’s objection was sustained, the witness did not answer and Appellant did not request relief at trial. Appellant did not claim that the trial court abused its discretion when it sustained Appellant’s objection to the question. Moreover, he did not ask for a curative instruction or move for a mistrial; therefore, counsel must have been satisfied with the trial court’s ruling. Appellant has thus failed to preserve this issue on appeal and has waived this claim. Pa. R.A.P. 302(a).

¶ 6 Second, even if Appellant had not waived this issue, the courts have recognized that evidence of gangs and gang membership is admissible. The Commonwealth may properly introduce the fact that the accused is a member of a gang to explain the conduct of a Commonwealth witness. Commonwealth v. Whitfield, 275 Pa.Super. 530, 419 A.2d 27 (1980). Evidence relating to gang membership may also be probative of the credibility of the prosecution’s chief witness. Id. In Whitfield, the appellant, who was a member of a gang, and several other men were involved in a murder. An eyewitness immediately reported the crime to police but did not identify the appellant until some time later. The Commonwealth introduced evidence of appellant’s gang membership to explain the witness’s delay in reporting the crime. The witness feared that if he identified the appellant to the police, the gang would retaliate against him. Id. at 28-29. This Court held that the Commonwealth properly presented the evidence of gang *252 membership because it was probative of the credibility of the witness in explaining his reluctance to implicate appellant. Id. at 29.

¶ 7 In the present case, we conclude that the Commonwealth properly introduced evidence of Brown’s affiliation with a gang. Despite Brown’s earlier signed statements and testimony under oath on three previous occasions, where he implicated Appellant’s involvement in the murder, he took the stand in this trial and recanted his testimony, testifying that Appellant played no part in the murder. N.T., 5/29/91, at'67. In fact, Brown stated that his entire testimony at the preliminary hearings was a lie. N.T., 5/29/91, at 125. The Commonwealth then impeached him with his earlier statements. To do so, however, the Commonwealth needed to explain to the jury Brown’s asserted reason for changing his testimony at trial, i.e. fear of gang retaliation. To establish his fear, the Commonwealth presented evidence that Appellant and the other co-defendants were members of a gang, and that the gang had already killed one of their own members. This type of questioning and evidence is clearly permissible. Whitfield, supra.

¶ 8 Appellant also argues that the prosecutor acted improperly when he asked him about the Junior Black Mafia (JBM) and if he sold drugs. Specifically, Appellant objects to the following exchange:

Q.

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Bluebook (online)
740 A.2d 247, 1999 Pa. Super. 243, 1999 Pa. Super. LEXIS 2880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-brewington-pasuperct-1999.