Commonwealth v. Whitaker

878 A.2d 914, 2005 Pa. Super. 241, 2005 Pa. Super. LEXIS 1592
CourtSuperior Court of Pennsylvania
DecidedJune 30, 2005
StatusPublished
Cited by25 cases

This text of 878 A.2d 914 (Commonwealth v. Whitaker) 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. Whitaker, 878 A.2d 914, 2005 Pa. Super. 241, 2005 Pa. Super. LEXIS 1592 (Pa. Ct. App. 2005).

Opinion

[917]*917OPINION BY

POPOVICH, J.:

¶ 1 Appellant Mark Whitaker appeals the judgment of sentence entered on October 29, 2003, in the Court of Common Pleas of Philadelphia County. Appellant was sentenced to life imprisonment following his conviction on charges of second-degree murder, robbery, criminal conspiracy, and related offenses. On appeal, Appellant asserts that the trial court abused its discretion in its admission of certain testimony and that trial counsel was ineffective. Upon review, we affirm.

¶ 2 The relevant facts and procedural history of this case are as follows: On the evening of January 26, 1999, Appellant, Abdul Lee Stewart (Stewart), and Stephen Shakuur (Shakuur) went into Happy Days Bar, located at the corner of Front Street and Girard Avenue in Philadelphia. After entering the bar, the three men ordered drinks and, according to eyewitnesses, appeared to be “casing” the bar. At approximately the same time, Donna Mestichelli, the daytime bartender, completed her shift and was replaced by Mario Lim. Both bartenders tallied the day’s cash receipts and placed the cash into a bag. The bag was then placed under the bar on a shelf. Ms. Mestichelli remained in the bar after her shift with her boyfriend, Thomas Ce-nevivia, and her brother, Thomas Zingani.

¶ 3 After the cash receipts were placed under the bar, Appellant exited the bar and, brandishing a firearm, entered through a different door. Appellant trained his firearm on Craig Brockington and Danny Clark, two bar patrons, and ordered the two men to lie on the floor. Stewart produced a firearm, went behind the bar, and struck Mr. Lim repeatedly. Thereafter, Stewart pressed the firearm to Mr. Lim’s head and fired. Stewart then took the cash in the cash register and the cash receipts from under the bar. Shak-uur held Ms. Mestichelli, Mr. Zingani, and Mr. Cenevivia at gunpoint during the robbery. Mr. Zingani attempted to walk toward Shakuur, and Shakuur shot him in the right side.

¶ 4 After retrieving the cash, Appellant, Stewart, and Shakuur fled the scene. The police were called after the three men left and arrived a few minutes after the incident. After being transported to Hahne-mann Hospital, Mr. Lim died of his wounds. Mr. Zingani was treated for his gunshot wounds and survived, although he was paralyzed permanently as a result of the shooting.

¶ 5 Stewart and Shakuur were identified by the eyewitnesses after they were shown photo arrays by the police. Based on this information, the police arrested Stewart and Shakuur. While in custody, Stewart gave the police both a written and videotaped confession.

¶ 6 Appellant was arrested on April 2, 2002, and was charged with second-degree murder, robbery, criminal conspiracy, and related offenses. Mr. Cenevivia, a resident of Florida, was in Pennsylvania for the purpose of testifying on behalf of the Commonwealth in Shakuur’s trial, and, on April 4, 2002, he identified Appellant from a photo array as the third participant in the robbery of the bar.

¶ 7 The case proceeded through pre-trial pleadings, and, on June 12, 2002, the Commonwealth sought to consolidate Appellant and Stewart’s cases for joint trial. The trial court granted the Commonwealth’s request on June 19, 2002. Thereafter, on January 3, 2003, Appellant, through his attorney, Kenneth Mirsky, Esquire, filed a motion in limine to preclude the Commonwealth from introducing Stewart’s confession (with Appellant’s name redacted from the confession) against Stewart at a joint trial. The motion also sought to preclude trial testimony from Mr. Cenevivia regard[918]*918ing the substance of a conversation between Appellant and Shakuur regarding the case that Mr. Cenevivia overheard while he was incarcerated in the Philadelphia County Prison with Appellant and Shakuur. On October 7, 2003, following a hearing, the trial court denied Appellant’s motion.

¶ 8 The case proceeded to a jury trial on October 16-29, 2003, and, at the conclusion of trial, the jury found Appellant guilty of second-degree murder, robbery, criminal conspiracy, and related offenses. Immediately after trial, the trial court sentenced Appellant to a mandatory sentence of life imprisonment. After trial, Appellant procured new counsel, Norris E. Gelman, Esquire. On November 7, 2003, Appellant, through Attorney Gelman, filed post-sentence motions. On February 18, 2004, Appellant, pursuant to Pa.R.Crim.P. 720(B)(3)(b), requested a 30-day extension for the time in which his post-sentence motions were to be decided because the transcripts of trial had not been prepared. The trial court granted Appellant’s motion. Thereafter, on March 3, 2004, Appellant requested permission to file a supplemental post-sentence motion that raised several claims of trial counsel’s ineffective assistance. Appellant included the supplemental post-sentence motion with his request. The trial court granted Appellant’s request and permitted Appellant to file the supplemental post-sentence motion. Thereafter, on March 18, 2004, following a hearing, the trial court denied Appellant’s post-sentence motions. The trial court did not author an opinion in support of its denial of Appellant’s post-sentence motions.

¶ 9 Appellant filed a timely notice of appeal to this Court on March 30, 2004. The trial court did not order Appellant to file a concise statement of matters. The trial court did not file an opinion in this case.1

¶ 10 Appellant presents the following issues for our review:

1. Did the trial court err in redacting [Stewart’s] confession so that Appellant’s name was replaced with “the other guy?”
2. Did the [trial court] err in admitting the videotape of [Stewart’s confession] as it was apparent that this tape was edited, and the jury could infer that, where edited, the tape referred to Appellant[?]
3. Did the [trial court] err in admitting the conversation between Shakuur and Appellant, which was overheard by [Mr. Cenevivia] in a Philadelphia prison?
4. Did the prosecutor vitiate the [redacted confession] by expressly naming Appellant as “the other guy” twice in his summation, thereby allowing the jury to replace “the other guy” with Appellant throughout the confession, and was trial counsel ineffective for failing to object to this [tactic]?
5. Was trial counsel ineffective for failing to request a limiting instruction as to the use the jury [could make] of Shak-uur’s statements made during the above conversation?

Appellant’s brief, at 3.2

¶ 11 First Appellant contends that his rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution were violated due to the entry of Stewart’s redacted confession into evidence at the joint trial. Appellant’s name was redacted from Stewart’s confes[919]*919sion and replaced with “the other guy.” However, the third conspirator, Shakuur, was identified by name in the confession. Therefore, Appellant argues that the confession implicated him by context and, as such, violated his Sixth Amendment rights.

¶ 12 In the seminal case of Bruton v. United States, 391 U.S. 123, 88 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
878 A.2d 914, 2005 Pa. Super. 241, 2005 Pa. Super. LEXIS 1592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-whitaker-pasuperct-2005.