Opinion
J-S52031-16 No. 1667 EDA 2015
08-16-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. CLAVOND GALLOP, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Judgment of Sentence July 24, 2014, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No: CP-51-CR-0004246-2010 BEFORE: FORD ELLIOTT, P.J.E., STABILE and STRASSBURGER, JJ. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Clavond Gallop (Appellant) appeals from the judgment of sentence imposed following his convictions for, inter alia, first-degree murder. We affirm.
The trial court summarized the evidence offered at trial as follows.
At the time of his death, eleven[-]month[-]old [J.G.] lived at 2219 Sedgley Street, Apartment E, Philadelphia, PA, with his three year old sister, [D.G.]; father, [Appellant]; and mother, Karen Brown. He was born [in December] 2008.
On November 21, 2009, the day of the incident, Officer Luke Lesko received a radio call that took him to 2219 Sedgley Street, Apartment E. The call was for "a person screaming and a child not breathing at that location." The officer arrived at the scene between 6:44 am and 6:45 am. When the officer arrived the paramedics and ambulance were already on the location. The officer observed a medic carrying an infant across the yard to the ambulance. [Appellant], his deceased son and his three year old daughter were the only ones present at the apartment. The female child was found shivering inside the dirty apartment that was insufficiently heated. Officer Lesko asked [Appellant] what happened, and [Appellant] responded saying that he
arrived at the apartment around 6:40 am and found his son unresponsive. He never stated that he tried to render aid to the child. Officer Lesko also stated that [Appellant] said there were other adults present in the apartment. When asked who and where they were, [Appellant] was unable to provide a name, phone number or description. [Appellant] stated that before returning to the apartment he had been in the vicinity of Erie Avenue. The officer testified that [Appellant] spoke in coherent sentences without slurred speech and that he did not appear to be under the influence of alcohol or any controlled substances. Nor did [Appellant] display any erratic or irrational behavior. However, [Appellant] was reluctant to answer questions such as his name and address, the decedent's name and address, the decedent's mother's name and address or any of her contact information. The officer testified that the apartment was dirty, in disarray, and with trash all over the place including papers and diapers. Officer Lesko further testified that at one point another officer was speaking with [Appellant's] neighbor and [Appellant] approached, and interrupted the conversation before being instructed to back away. While approaching the neighbor [Appellant] stated something to the effect of "it's ok, it's cool, you know me, you know me." Finally, [Appellant] told Officer Lesko that the children's mother was not home, and he last saw her on Tuesday, four days prior to the incident.
Officer Talmudge Scruggs arrived at the scene after Officer Lesko. He testified that [Appellant] did not exhibit erratic or irrational behavior, but that he appeared nervous. [Appellant] asked "[h]ow is my son?" and "[w]here are you going with my son?" [Appellant] tried to accompany the decedent in the emergency rescue vehicle but was not permitted to do so. Officer Scruggs transported [Appellant] to the homicide unit to be interviewed.
Officer Joseph Manero was also one of the first responding officers on the scene and [Appellant] gave him a different version of events. [Appellant] told this officer that he had a babysitter over for the night, and when he returned the child was lifeless. [Appellant] stated he then ran to a pay phone and called police. However, [Appellant] could not tell him the name or address of the babysitter. He stated that he met the babysitter through the nephew of a neighbor, and [Appellant]
directed the officer to the neighbor who seemed confused when asked about the babysitter. As the officer was talking with the neighbor [Appellant] became agitated, and tried to correct the neighbor's account of what he told police. Finally, Officer Manero testified that [Appellant] asked about the child, and when told that he was not doing well, [Appellant] chuckled and said, "stop playing."
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On November 20, 20091, prior to the homicide, Kahisha Fowler, along with her friend Victoria, visited 2219 Sedgley St. around dinnertime, and saw [Appellant] outside playing with his daughter. Ms. Fowler entered [Appellant's] home to charge her cell phone. While inside the apartment, [Appellant] asked Ms. Fowler to braid his son and daughter's hair. Ms. Fowler observed that [Appellant] was acting normal, and he did not appear to be under the influence of drugs or alcohol. He was, however, drinking a 211, which is also known as a Steel Reserve beer. A Steel Reserve has a higher alcohol content than average beer, and it has a reputation of having a "big alcohol effect." Ms. Fowler was at the residence for about two hours during this first visit. During this time, [Appellant] drank about four to five beers. [Appellant] was acting "tipsy" but was not drunk. He was able to speak and hold a conversation. On this evening, [Appellant] made a peanut butter and jelly sandwich for his daughter and started a movie for her. [Appellant] sat on the couch and had a conversation with Ms. Fowler between 9:00 pm and midnight. He also used Ms. Fowler's cell phone and was able to dial the number himself. Ms. Fowler testified that [Appellant] used her cell phone and spoke to someone about how the children's mother had left him with the children for a long time. Ms. Fowler testified that [Appellant's] tone of voice was regular and conversational, although he was a little upset but not angry. Ms. Fowler left the residence but returned later. [Upon Ms. Fowler's return Appellant] told Ms. Fowler that he did not remember her first visit to his home. Ms. Fowler responded, "you're so drunk, you don't remember letting me in." This was early in the morning after midnight. During her second visit, Ms. Fowler asked to use the bathroom and went upstairs where the bedrooms were located. Once upstairs, she checked on the child because she had not heard or seen him during this visit to the
residence. Neither did she see [Appellant] check on the child. [Appellant] said the child was in the bedroom sleeping. Ms. Fowler entered a bedroom with a closed door [sic] and she saw the child lying on his stomach on top of some clothes on the bed. The child had on shorts and no shirt, and his diaper looked soiled. She observed blue marks that looked like bruises on the child's back, arm, and legs. She did not see the child move, and did not get close enough to tell if he was breathing. When Ms. Fowler started to touch the child, [Appellant] yelled upstairs and told her to get out of the room because the child was sleeping. [Appellant] did not mention that the child was injured while Ms. Fowler was at the apartment. Ms. Fowler testified that she did not hear any crying or other noise from the child the entire time she was there.
1 The [t]rial [n]otes states the date of November 21, 2009, but Ms. Fowler testified to visiting [Appellant] the night before the police were called. It is documented that the police were called on November 21, 2009.
Ms. Fowler left the apartment but came back later that morning between 9:00 am or 10:00 am and saw a police officer outside the residence. She was notified that a little boy was killed inside the apartment. She was later taken to the homicide unit where she gave a statement. Ms. Fowler testified that although she was on medication the night she visited [Appellant's] home, the medication did not interfere with her ability to observe or remember the incident.
Karen Brown, the mother of [D.G. and J.G.], testified at the trial. Ms. Brown had been out of the home for two weeks when her son was killed. She left their apartment after an argument with [Appellant] about a man Ms. Brown spoke with in the grocery store. [Appellant] was suspicious that Ms. Brown was having a relationship with the man, and [Appellant] slapped her. [Appellant] told Ms. Brown to leave, but that she could not take the children. She testified that [Appellant] had a contentious relationship with their son. Ms. Brown testified that [Appellant] would grab the child and throw him down into the bassinet because the child was crying and not going to sleep. [Appellant] would push the child into his bed when he cried. [Appellant] would say to the child "lay right there, you're not
coming up here." [Appellant] said of the eleven month old child, "he's not going to be a pussy." According to Ms. Brown, [Appellant] favored his daughter [D.G.] and would "rough up" his son [J.G.].
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Detective Derrick Venson took a statement from [Appellant] on November 21, 2009. The interrogation commenced at 4:10 pm, after [Appellant] was given his Miranda warnings. [Appellant] admitted to killing his son. [Appellant] stated that he had been drinking, and when his son started crying he shook him and beat him. [Appellant] said that he shook and hit his son in the living room of the residence. He stated that he struck the child numerous times with his open hand and closed fist. The child had been "going on" about missing his mother. After beating his son, the child appeared limp and fell when [Appellant] tried to stand him up. According to [Appellant], his son fell and hit his head, and he then called the ambulance. [Appellant] testified that the incident occurred after Kahisha Fowler left for the second time.
Dr. Gary Collins, Deputy Chief Medical Examiner, testified as the Commonwealth's expert in the field of forensic pathology. Dr. Collins performed the autopsy on decedent's body and prepared a report. Dr. Collins concluded to a reasonable degree of medical certainty that the manner of death was homicide, caused by multiple blunt impact injuries. His findings included the following. The child had bruising to his face and scalp. Fifty to sixty percent of his forehead was covered with bruises, and there was bruising on his left and right cheek. The child had skull fractures and bleeding of the brain on the right side of his head. Additionally, there was bleeding in the nerves of the eye. The child sustained at least three to four strikes about the face. The fracture[s] sustained by decedent were caused by a significant and severe force. There was swelling of the brain as well as bruising to the surface of the brain. Decedent had a subdural hematoma on the brain, which denotes some sort of acceleration or deceleration force similar to shaking. When there is bleeding within the optic nerves of the eye, that can be attributable to some degree of shaking. This type of injury could also be caused by being thrown across the room or by repeated
punches to the face or head. The child also had multiple bruises or contusions to the chest and abdomen. Thirty to forty percent of the skin of decedent's abdomen was covered with small circular pink bruises. The child also had bruising to his adrenal gland, which lies very close to the kidney. There were also fractures to the eighth, ninth, and tenth ribs. Significant force is needed for rib fractures. The child had abrasions on his back and bruises on his leg and thigh. He also had healing blisters on his feet. The soles of the child's feet had approximately one inch blisters that were not of recent origin. Dr. Collins testified that none of the injuries [was] self-inflicted. Finally, Dr. Collins testified that there were at least fourteen blunt impact injuries to the child, although the injuries were consistent with up to thirty blows. Dr. Collins opined that the child's death was imminent base[d] on his injuries, and medical intervention would not have saved him because the skull fracture alone would have been fatal.Trial Court Opinion (TCO), 12/22/2015, at 1-8 (citations and some footnotes omitted).
Appellant presented his own evidence, and elicited testimony from Beth Kahill and Dr. William Russell, both of whom testified to Appellant's background, history of chronic substance abuse, and mental health. Id. at 9-10. Specifically, Dr. Russell, the director of forensic services at Assessment and Treatment Alternative, testified that Appellant's actions were not planned or premediated, and that Appellant lacked the specific intent to kill. N.T., 7/23/2014, at 60-62. This was contrary to the opinion of Commonwealth expert, Dr. John Sebastian O'Brien, who concluded that Appellant had the capability to "formulat[e] and carry[] out intentional behaviors." Id. at 241-242.
On July 24, 2014, following a bench trial, Appellant was convicted of first-degree murder and endangering the welfare of a child. That same day Appellant was sentenced to life imprisonment with a concurrent term of three and one half to seven years' incarceration. Appellant timely filed a post-sentence motion, which was denied by operation of law on May 11, 2015. Appellant timely filed his notice of appeal, and thereafter a court-ordered concise statement of errors complained of on appeal.
On appeal, Appellant challenges the sufficiency and the weight of the evidence to sustain his murder conviction. Appellant's Brief at 3.
Both issues were raised in Appellant's post-sentence motion.
We begin with Appellant's sufficiency challenge, mindful of our standard of review.
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the
[finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Harden , 103 A.3d 107, 111 (Pa. Super. 2014) (internal quotation marks and citations omitted). "Evidence is sufficient to sustain a conviction of first-degree murder where the Commonwealth establishes that the defendant acted with the specific intent to kill, that a human being was unlawfully killed, that the person accused did the killing, and that the killing was done with premeditation or deliberation." Commonwealth v. Spotz , 759 A.2d 1280, 1283 (Pa. 2000).
Further, in viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, the court must give the prosecution the benefit of all reasonable inferences to be drawn from the evidence.
Appellant claims that the evidence in this case was insufficient to sustain a verdict of first-degree murder because the Commonwealth "failed to disprove that [A]ppellant could not form the specific intent to kill because of the use of mind altering substances that made it impossible for him to have acted with the specific intent to kill." Appellant's Brief at 20.
Citing Commonwealth v. Beasley , 678 A.2d 773, 782 (Pa. 1996), Appellant correctly noted that "[t]he general rule [regarding voluntary intoxication] is subject to qualifications when the criminal charge is first degree murder. The defendant is permitted to claim as a defense that he was so intoxicated at the time of the killing that he did not have the specific intent to kill required for first degree murder." Appellant's Brief at 21-22.
The trial court disagreed:
Here, there was sufficient evidence for a reasonable fact-finder to conclude beyond a reasonable doubt that [Appellant] killed decedent with the specific intent to cause his death. Nonetheless, [Appellant] claims that the Commonwealth's evidence failed to rebut the claim that he was "under the combined effects of drugs and alcohol to such a degree that he was rendered incapable of forming the specific intent to kill." Dr. John Sebastian O'Brien, the Commonwealth's expert in forensic psychiatry, concluded to a reasonable degree of medical certainty that at the time of the offense, [Appellant] was able to carry out intentional behaviors and formulate the intent to kill. Dr. O'Brien interviewed [Appellant], and [Appellant] gave a very detailed account of what took place during the incident. [Appellant] reported to Dr. O'Brien and Detective Venson a consistent version of the events surrounding the death of his son. Dr. O'Brien explained that detailed recall indicates that [Appellant] was not suffering from a degree of intoxication so significant that he had difficulty recalling what was happening. Moreover, although [Appellant] was an alcohol and drug abuser, he functioned and made decisions daily about how to take care of his children including preparing food for them and entertaining his daughter. This is evidence of [Appellant's] ability to carry out intentional behaviors including an intentional killing.
Additionally, multiple officers testified that [Appellant] did not appear to be under the influence of drugs or alcohol at the scene of the crime. Despite evidence that [Appellant] was drinking alcohol on the night decedent was killed, the officers at the scene described [Appellant] as coherent and able to formulate sentences. Officer Lesko testified that he did not notice any odor of alcohol, glossy eyes, unbalanced gait, or any other signs of intoxication or being under the influence of alcohol. This evidence clearly shows that [Appellant] was able to formulate the specific intent to kill necessary to support the verdict of first[-]degree murder.
Further, evidence to support the verdict of murder in the first degree must include the [Appellant's] deception and different versions of events he provided to explain decedent's injuries. To account for the infant's severe injuries at the scene of the crime, [Appellant] told Officer Lesko that he arrived at the apartment at 6:40 am and found the child unresponsive.
[Appellant] stated that other adults were present at the apartment, but he was unable to provide the name or addresses of the other adults. [Appellant] described a different version of events when he spoke to Officer Joseph Marrero at the crime scene. [Appellant] stated that he had a babysitter over for the night, and when he returned the decedent was lifeless. [Appellant] explained that he met the babysitter through the nephew of his neighbor, but could not provide the name or address of the babysitter. When the officer attempted to question the neighbor, [Appellant] yelled at the neighbor, and the neighbor seemed confused about the female babysitter. Finally, [Appellant] gave a statement to Detective Derrick Venson admitting to killing his son. [Appellant] stated that he had been drinking and his son started to cry. In response, the [Appellant] shook, beat, and hit his son with his open hand and closed fist. Additionally, [Appellant] attempted to cover up his actions and prevent Ms. Fowler from seeing the child's injuries. When Ms. Fowler went upstairs to use the bathroom, she saw blue marks on the child that looked like bruises on his back, arm, and legs. [Appellant] told Ms. Fowler to get out of the child's room because the child was sleeping.TCO, 7/17/2014, at 14-16 (citations omitted).
We agree with the trial court that Appellant's sufficiency challenge lacks merit. The Commonwealth presented copious evidence, as detailed above, to rebut Appellant's argument that he was too intoxicated to form the specific intent to kill. See Commonwealth v. Rose , 344 A.2d 824, 826 (Pa. 1975) (finding sufficient evidence existed when the Commonwealth "introduced evidence to establish that appellant, despite his intoxicated state, had the intent to kill at the time of the shooting"). Furthermore, while Appellant attempts to dispute the testimony of the Commonwealth's witnesses, and specifically points to the different opinions reached by the experts, such a position merely attacks the credibility determinations of the fact-finder, not the sufficiency of the evidence, and urges us to consider the evidence in the light most favorable to him, rather than the verdict winner. Accordingly, his sufficiency challenge fails. See Commonwealth v. Stoyko , 475 A.2d 714, 720 (Pa. 1984) (citations omitted):
Appellant's intoxication evidence, offered in an attempt to negate the intent necessary for a conviction for murder of the first degree, imposes no new burden on the Commonwealth and creates no new presumption for defendant which the Commonwealth must labor to overcome. The jury was free to believe any, all, or none of appellant's testimony as to his intoxication. Obviously, the jury rejected appellant's intoxication defense and concluded, upon abundant and sufficient evidence, that there was no reasonable doubt as to appellant's ability to form the specific intent to kill required to support a conviction for murder of the first degree and that he had, in fact, formed such an intent.
Appellant next claims that the verdict was against the weight of the evidence.
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
However, the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is not unfettered. The propriety of the exercise of discretion in such an instance may be assessed by the appellate process when it is apparent that there was an abuse of that discretion.Commonwealth v. Widmer , 560 Pa. 308, 321-22, 744 A.2d 745, 753 (Pa. 2000) (internal citations omitted). Appellant's argument that the verdict is against the weight of the evidence is based upon "the myriad inconsistencies in the testimony" among those who testified. Appellant's Brief at 29.
Among the myriad inconsistencies in the testimony was the fact that while the three police officer[s] who encountered [A]ppellant the morning of the incident did not detect any sign of intoxication, one of the officers admitted that he was not looking for it and, in addition, the officers came in contact with [A]ppellant some hours after the incident occurred, thereby minimizing the importance of their testimony. In addition, the evidence presented by [A]ppellant, including his life history and the expert testimony, along with the evidence showing [A]ppellant consumed drugs and numerous beers the night of the incident easily outweighed the evidence presented by the Commonwealth indicating that [A]ppellant was capable of forming the specific intent to kill. One witness testified that despite twice admonishing [Appellant] about drinking the beer so fast, he ignored the warning and continued to "slam them down." This evidence, coupled with the powerful and overwhelming testimony of his addiction to drugs, anxiety disorder, lack of a history of violence, and the expert testimony cogently setting forth why [A]ppellant was incapable of forming the specific intent to kill undermine[s] the trial court's conclusion that the verdict does not shock the conscience. Moreover, Dr. O'Brien's testimony was simply not believable. As noted, he failed to even ask [A]ppellant about whether he took PCP the day of the incident, could not decipher how the incident occurred, and ignored the unrefuted testimony that [A]ppellant drank numerous beers the night of the incident.Id. at 29-31.
Appellant's attack on the inconsistencies in the evidence is meritless. His attempt to persuade this Court that the verdict was against the weight of the evidence based on the differing expert opinions regarding Appellant's ability to form specific intent and the conflicting testimony of witnesses regarding his level of intoxication is unavailing. Reconciling inconsistencies in the testimony was within the province of the fact-finder. See Commonwealth v. Chamberlain , 30 A.3d 381, 396 (Pa. 2011) ("A motion alleging the verdict was against the weight of the evidence should not be granted where it merely identifies contradictory evidence presented by the Commonwealth and the defendant."). Appellant has failed to convince us that the trial court abused its discretion in holding that the verdict was not against the weight of the evidence.
As the fact-finder, the trial court
credited the testimony of the Commonwealth witnesses over the testimony of [Appellant's] witnesses. [Appellant's] expert, Dr. Russell testified that [Appellant's] actions were not premeditated and lacked specific intent to kill. Dr. Russell argued that [Appellant's] multigenerational history of substance abuse and current drug and alcohol abuse problem resulted in some neurological impact on [Appellant]. In contrast, the Commonwealth presented extensive evidence that [Appellant] was able to formulate and carry out intentional behaviors at the time of the offense. Additionally, [Appellant] exhibited consciousness of guilt by attempting to conceal his crime and fabricating details of the incident. In light of the foregoing, no reasonable person could conclude that said verdict was so contrary to the weight of the evidence as to shock one's sense of justice.TCO, 12/22/2015, at 19 (citations omitted).
Thus, after a thorough review of the record and briefs in this case, we are unconvinced that any of Appellant's arguments entitles him to relief.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/16/2016