Opinion
J-A35036-12 No. 1693 WDA 2010
07-12-2013
COMMONWEALTH OF PENNSYLVANIA Appellee v. FREEDOM BEY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 29, 2010
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010884-2008
BEFORE: PANELLA, J., ALLEN, J., and STRASSBURGER, J. MEMORANDUM BY PANELLA, J.
Retired Senior Judge assigned to the Superior Court.
Appellant, Freedom Bey, appeals from the judgment of sentence entered on September 29, 2010, by the Honorable Joseph K. Williams III, in the Court of Common Pleas of Allegheny County. After careful review, we affirm.
On June 28, 2008, between 3:00 a.m. and 4:00 a.m., Bey, Randall Bentley, Jordan Doctor and Brenda Escedy were out to eat at Eat'n Park at the Waterfront shopping complex in Homestead, Pennsylvania. See N.T. Jury Trial, 7/13-14/10, at 35, 47-46, 177. Brendan Brooks, the victim, and Daniel Wallar entered the restaurant and sat down. See id., at 67. Bey was slamming his plate and fork down, "like normal intoxicated people would be." Id., at 49.
Bey got up from his table, walked out of the restaurant, went to the window where Brooks and Wallar were seated, and started banging his hands on his chest and called Brooks out of the restaurant. See id., at 49-50. Kristi Lynn Emery was waiting on Brooks and Wallar and testified that Brooks remained calm. See id., at 51. Angela Casale, the manager of Eat'n Park, testified that she saw Brooks start walking toward the door. See id., at 89. Casale attempted to dissuade Brooks from leaving because she did not want there to be a fight. See id. She said that Bey was irate, jumping up and down, screaming at the top of his lungs. See id., at 90. Unfortunately, Brooks did not heed Casale's advice and left the restaurant. Once Brooks was outside on the sidewalk, Emery and Casale observed Bey "pull his right hand out, extend his arm and shoot [Brooks] three times." Id., at 54.
Following a jury trial, which began on July 13, 2010, the jury convicted Bey of Murder of the First Degree and Firearms Not to be Carried Without License. On September 29, 2010, the trial court sentenced Bey to life imprisonment on the murder conviction and to a concurrent two (2) to four (4) year term of incarceration on the firearms conviction. This timely appeal followed.
18 PA.CONS.STAT.ANN. § 2502(a).
18 PA.CONS.STAT.ANN. § 6106(a)(1).
On appeal, Bey raises the following issues for our review:
I. Whether [Bey's] rights were violated by the Commonwealth's failure to preserve exculpatory evidence?Appellant's Brief, at 6-7 (underlining omitted).
II. Whether [Bey] was denied a trial by jury of his peers by:
A. The trial court denying [Bey] his right to a jury composed of a fair cross-section of the Allegheny County populationIII. Whether the trial court erred in denying [Bey's] motion for a mistrial by:
B. Denying defense counsel's request to modify the jury pool to include a reasonable number of African American candidates
A. Abusing its discretion by denying [Bey's] motion for a mistrial where surprise testimony undermined defense counsel's credibility and sincerityIV. Whether the trial court erred in ruling that the Commonwealth produced sufficient evidence to support a conviction of first degree murder and to disprove self-defense?
B. Violating [Bey's] constitutional rights by dictating the defense trial strategy
C. Depriving [Bey] of his right against self-incrimination
V. Whether the trial court abused its discretion in ruling that [Bey's] challenge that the jury's verdict was not against the weight of the evidence was waived, and that the jury's verdict was against the weight of the evidence?
In his first issue raised on appeal, Bey contends that his "rights were violated by the Commonwealth's failure to preserve exculpatory evidence." Appellant's Brief, at 22. Before we reach the merits of this issue, we must determine if it is properly before us.
In order to preserve a claim for Appellate review,
appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.1925. Any issues not raised in a Pa.R.A.P.1925(b) statement will be deemed waived.Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005). Bey's claim that his rights were violated by the failure to preserve exculpatory evidence was not included in his Concise Statement of Matters Complained of on Appeal. In light of Bey's failure to include his first claim in his Rule 1925(b) statement, we deem this issue waived.
In his second issue, Bey contends that he "was denied his right to a trial by a jury composed of a fair cross-section of the community of Allegheny County, Pennsylvania, in violation of the Constitutions of the United States and the Commonwealth of Pennsylvania because the methods used by Allegheny County systematically exclude non-Caucasian individuals." Appellant's Brief, at 28. Specifically, Bey argues, "Twenty-one individuals were selected to be prospective jurors, one of which was African-American; however, the only prospective African-American juror was seated at No. 19 or No. 20, and, therefore, had no chance of being questioned to sit on the jury." Id., at 32. According to Bey, this caused African-Americans to be systemically excluded from the jury pool, resulting in Bey being tried by a jury containing no African Americans. Id.
Bey's challenge pursuant to the Constitution of the Commonwealth of Pennsylvania is contained in only one sentence of his brief and remains undeveloped pursuant to Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). We will focus our analysis on his challenge pursuant to the United States Constitution.
In Allegheny County's criminal division, juries are empanelled using an individual voir dire and challenge system where the voir dire is conducted individually beyond the hearing of the other members of the panel. Challenges, both peremptory and for cause, are exercised alternately, beginning with the attorney for the Commonwealth, until all jurors are chosen. Challenges are exercised immediately after the prospective juror is examined. See 234 PA ADC § 631(E)(1)(a), (b).
"[T]he Sixth Amendment to the United States Constitution provides for a trial by a jury of one's peers drawn from a source fairly representative of the community." Commonwealth v. Estes, 851 A.2d 933, 934 (Pa. Super. 2004). To establish a prima facie case that a jury pool selection system violates the Sixth Amendment's fair cross-section requirement, a defendant must show:
1) the group allegedly excluded is a distinctive group in the community; 2) representation of this group in the pool from which juries are selected is unfair and unreasonable in relation to the number of such persons in the community; and 3) the under-representation is due to the systematic exclusion of the group in the jury selection process. Systematic means caused by or inherent in the system by which juries were selected.Commonwealth v. Johnson, 572 Pa. 283, 304, 815 A.2d 563, 575 (2002) (citations omitted). "Underrepresentation alone does not show an actual discriminatory practice in the jury selection process." Estes, 851 A.2d at 936. This Court has rejected various attacks on the basis that African-Americans were underrepresented in the racial composition of a jury panel drawn from voter registrations lists. See id., at 935.
While Bey has demonstrated an underrepresentation of African-Americans in Allegheny County jury pools, "he fails to address requirements set forth in Pennsylvania Supreme Court cases which mandate showing more than evidence that certain groups are underrepresented prior to finding discriminatory jury pooling practices." Id., at 934. Bey offered no evidence of a calculated discriminatory practice. He further failed to make an argument as to what discriminatory practice may be causing the systematic exclusion. See id., at 936. "The mere showing of underrepresentation, absent an actual discriminatory practice in the jury selection process," is insufficient to merit relief on appeal. Id.
The record indicates that African-Americans constitute approximately 14% of Allegheny County's population. See N.T., 7/13/10, at 5. According to the 2000 census, among Allegheny County residents over the age of 18, the ratio of Caucasians to African-Americans was 6.75-to-1. See Appellant's Brief, at 31.
Bey also claims that the trial court "abused its discretion by refusing to alter the jury pool to more adequately reflect the population of Allegheny County where [d]efense [c]ounsel made a motion for the pool to be adjusted, and the [t]rial [c]ourt relied on a misunderstanding of the law in denying [d]efense [c]ounsel's request." Appellant's Brief, at 33. Bey contends that "[d]espite acknowledging the unjust underrepresentation of African-Americans in the jury pool, the trial court wrongly believed that it was without remedy when in fact it would have been within the court's discretion to order that all persons of a particular race present for jury service be interviewed." Id., at 35.
Bey fails to cite any case law that requires the trial court to modify a jury pool to include a reasonable number of minority candidates. The record reflects that the trial court denied Bey's request on the record, stating as follows:
I'm hard-pressed to find a systemic exclusion in the selection of the jury. I mean, I regret that the jury pool that Mr. Bey has is not reflective of the composition of Allegheny County which would be 13 or 14 percent African-American, but on the other hand, if I would attempt to alter the composition of the jury, it would be interpreted as tampering because I would systematically be altering the composition of the jury which could be an issue Commonwealth to appeal. So I'm sort of between two worlds. All I can do is let the system that we have in place move forward.N.T. Jury Trial, 7/13-14/10, at 10-11. Absent contrary precedent, we find the trial court's reasoning to be rational. This issue on appeal merits no relief.
In his next issue, Bey claims that "the trial court abused its discretion by denying [Bey's] motion for a mistrial following surprise testimony that undermined the jury's confidence in [d]efense [c]ounsel's honesty and sincerity." Appellant's Brief, at 37. Specifically, Bey argues, "Mr. Wallar's testimony undermined defense counsel's credibility and sincerity by contradicting the opening statement." Appellant's Brief, at 38.
"The trial court is in the best position to assess the effect of a prejudicial statement on the jury." Commonwealth v. Begley, 566 Pa. 239, 271, 780 A.2d 605, 624 (2001). "[T]he decision to declare a mistrial is within the sound discretion of the trial court and will not be reversed absent a flagrant abuse of discretion." Commonwealth v. Szakal, 50 A.3d 210, 218 (Pa. Super. 2012) (citations omitted). "The remedy of a mistrial is an extreme one that is required only when an incident is of such a nature that its unavoidable effect is to deprive the defendant of a fair and impartial trial by preventing the jury from weighing and rendering a true verdict." Begley, 566 Pa. at 271-272, 780 A.2d at 624. "Furthermore, a mistrial is not necessary if a court's cautionary instructions adequately cure any prejudice." Id., at 272, 624-625.
At trial, Daniel Wallar testified that he met Brendan Brooks through playing softball and the organized group of motorcyclists called the Sin City Disciples. See N.T. 7/13-14/10, at 126, 128. On the night of the shooting, Wallar and Brooks entered the Eat'n Park at the Waterfront, were taken to a table and ordered. See id., at 132. Wallar went to the restroom and on his way back to the table he observed Brooks going toward the door of the restaurant, so he followed because earlier he had seen people outside the window. See id., 132-133. After Brooks went outside, Wallar observed him arguing back and forth with someone and was startled because shots were fired. See id., at 134-137.
At this point during the trial, the prosecutor asked for a side bar conference because Wallar was about to testify he could identify the shooter, when he had previously stated he could not. See id., at 137. Bey's counsel requested a mistrial, which the judge denied. See id., at 145. Wallar then acknowledged his prior convictions for burglary, theft, receiving stolen property and criminal trespass. See id., at 149-150. He then testified that Bey was the shooter, that Brooks did not possess a weapon, and acknowledged that his testimony at trial was the first time he ever told anyone he could identify Bey as the shooter. See id., at 150, 152, 154.
The trial court did not abuse its discretion in refusing to declare a mistrial. The jury was fully informed of the surprise nature of this testimony so it should not have affected the jury's view of defense counsel. Thus, this claim does not afford Bey relief.
Bey next contends that his "constitutional due process rights were violated when the [t]rial [c]ourt intervened in the case, directed [d]efense [c]ounsel to abandon his current trial strategy, adopt a strategy of self-defense, and used the [t]rial [c]ourt's belief that the theory of self-defense was the appropriate theory as a premise for its ruling on [Bey's] motion for a mistrial." Appellant's Brief, at 43. Furthermore, Bey claims "the [t]rial [c]ourt deprived [him] of his constitutional rights against self-incrimination by forcing him to adopt a trial strategy, self-defense, that required him to admit killing Mr. Brooks and thereby admit one of the elements of murder." Id., at 46.
"Any issues not raised in a Pa.R.A.P.1925(b) statement will be deemed waived." Castillo, 585 Pa. at 403, 888 A.2d at 780. Once again, Bey failed to raise this issue in his Rule 1925(b) statement. Accordingly, we find them waived.
In his fourth issue, Bey contends that "the Commonwealth failed to produce sufficient evidence to prove beyond a reasonable doubt that [he] did not commit the slaying of Mr. Brooks in self-defense." Appellant's Brief, at 48. Specifically, Bey argues that this Court must vacate his conviction of murder, and remand his case for resentencing. Id.
Our standard of review is well-settled:
A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.Commonwealth v. Kendricks, 30 A.3d 499, 508 (Pa. Super. 2011) (citation omitted).
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as aCommonwealth v. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011) (quoting Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa. Super. 2011)). "The entire record must be evaluated and all evidence actually received must be considered." Stokes, 38 A.3d at 854.
matter of law, no probability of fact can be drawn from the combined circumstances.
When a defendant raises the issue of self-defense, the Commonwealth bears the burden to disprove such a defense beyond a reasonable doubt. See Commonwealth v. Rivera, 603 Pa. 340, 355, 983 A.2d 1211, 1221 (2009) (quoting Commonwealth v. Torres, 564 Pa. 219, 224, 766 A.2d 342, 345 (2001)). "To elucidate the Commonwealth's specific burden in disproving Appellant's claim of self-defense, we look to Section 505 of our Crimes Code, 18 Pa.C.S.A. § 505. ... [S]ubsection (a) of that provision addresses when force is justifiable, while subsection (b) sets forth limits on the justifiable use of force." Rivera, 603 Pa. at 356, 983 A.2d at 1221. Section 505 states:
§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the person.-The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.18 Pa.C.S.A. § 505(a), (b)(2)(i), (ii).
(b) Limitations on justifying necessity for use of force.-
(2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take....
Viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, we conclude that the Commonwealth produced sufficient evidence to disprove Bey's claim of self-defense beyond a reasonable doubt. Under the Commonwealth's version of the facts, which the jury accepted, Brooks exited the restaurant upon Bey's request. See N.T. Jury Trial, 7/13-14/10, at 67-68. Specifically, the Commonwealth presented testimony from Casale and Emery that Brooks was "calm" when he exited Eat'n Park, and that Bey pulled his right hand out, extend his arm and shoot Brooks three times. Id., at 51, 54. When Brooks got outside, Bey was "irate, jumping up and down, screaming at the top of his lungs." Id. Bey then shot Brooks, who did not "possess...anything in his hands." Id., at 93.
The jury was free to disbelieve Bey's testimony that he experienced various past encounters involving violence from Brooks. The jury was thus free to conclude that Bey's use of force was not justified nor immediately necessary pursuant to Section 505(a). Accordingly, we have little difficulty concluding that the evidence was sufficient to disprove self-defense.
In his final issue, Bey claims, "the trial court abused its discretion in ruling that [his] challenge that the jury's verdict was not against the weight of the evidence was waived, and that the jury's verdict was against the weight of the evidence." Appellant's Brief, at 54. Bey contends "the jury's verdict shocks the conscience because it does not embrace the undisputed facts in evidence at [his] trial." Id.
Pennsylvania Rule of Criminal Procedure 607 provides, in pertinent part, that a claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence motion. The purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived.Commonwealth v. Barnhart, 933 A.2d 1061, 1066 (Pa. Super. 2007) (citations omitted); Pa.R.Crim.P. 607(A).
Here, a review of the record reveals there was no oral motion made about the weight of the evidence. The docket entries show no written motion being filed between the jury's decision and the sentencing hearing some 2½ months later. Also, there was no post-sentence motion filed. None of the options authorized under Pa.R.Crim.P. 607(A) has been followed. Therefore, we find that Bey's weight of the evidence claim is waived.
The sentencing hearing transcript was filed on December 1, 2010.
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As we conclude that none of Bey's issues on appeal merit relief, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Strassburger, J., files a dissenting opinion. Judgment Entered. ____________________________
Deputy Prothonotary