Opinion
J-S40034-16 No. 1408 EDA 2015
07-22-2016
COMMONWEALTH OF PENNSYLVANIA v. DAIVON HEYWARD, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 8, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0012398-2013 BEFORE: BOWES, MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Daivon Heyward ("Heyward") appeals from the judgment of sentence entered following his conviction of first-degree murder, carrying a firearm without a license, carrying a firearm on public streets, and possessing an instrument of crime ("PIC"). We affirm.
In its November 4, 2015 Opinion, the trial court provided a comprehensive summary of the factual and procedural history underlying the instant appeal, and the evidence presented at trial, which we adopt for the purpose of this appeal. See Trial Court Opinion, 11/4/15, at 1-20.
On appeal, Heyward presents the following claims for our review:
I. Is [Heyward] entitled to an arrest of judgment with regard to his convictions for first[-]degree murder, carrying a firearm without a license, carrying a firearm on public streets and [PIC,] since the evidence is insufficient to sustain the verdicts of guilt as the Commonwealth failed to sustain its burden of proving [Heyward's] guilt beyond a reasonable doubt?
II. Is [Heyward] entitled to a new trial with regard to his convictions for first[-]degree murder, carrying a firearm without a license, carrying a firearm on public streets and [PIC,] since the verdicts of guilt are against the weight of the evidence?Brief for Appellant at 6-7.
III. Is [Heyward] entitled to a new trial as a result of the trial court's error in allowing the Commonwealth to present testimony with regard to [Heyward's] and others['] alleged extortion of money from Commonwealth witness Kyron Shorter ["Shorter"]?
IV. Is [Heyward] entitled to a new trial as a result of the trial court's ruling that limited the defense cross-examination of Commonwealth witness [Shorter] with regard to his preliminary hearing testimony and his statements to detectives?
V. Is [Heyward] entitled to a new trial as a result of the trial court's ruling that denied a [M]otion for a mistrial made as the result of the trial court's permitting the Commonwealth to present out[-]of[-]court statements made by [Shorter] to [Philadelphia] Police Officer Anthony Comitalo ["Officer Comitalo"]?
VI. Is [Heyward] entitled to a new trial as a result of the trial court's ruling that allowed the Commonwealth to present the testimony of Commonwealth witness[,] Detective Frank Mullen [("Detective Mullen"),] to narrate a videotape recording?
VII. Is [Heyward] entitled to a new trial as a result of the trial court's ruling that denied [Heyward's] request for a jury instruction on voluntary manslaughter?
Heyward first challenges the sufficiency of the evidence underlying his convictions. Id. at 37. Heyward contends that the Commonwealth's case was primarily based upon the testimony of Shorter, Shahere Jackson-McDonald ("Jackson-McDonald") and cell phone records. Id. Heyward asserts that the Commonwealth's evidence failed to identify him as the shooter or as a participant in the incident. Id. Heyward further asserts that the Commonwealth's evidence was speculative, as the Commonwealth's witnesses were not in a position to see the perpetrator of the shooting, the clothing worn by the shooter, or the shooter's facial features and physical characteristics. Id. at 37-38. As a result, Heyward argues, the witnesses' descriptions were "inadequate, incomplete or inapplicable." Id.
Regarding the physical evidence, Heyward contends that the Commonwealth's ballistics evidence was contradicted by the identifying witnesses, and that Heyward is not depicted in the videotaped evidence. Id. Even if the Commonwealth had presented evidence that he was involved in the incident, Heyward argues, the Commonwealth failed to establish the intent necessary to sustain his convictions. Id.
In its Opinion, the trial court set forth the appropriate standard of review, addressed the sufficiency of the evidence underlying Heyward's conviction of first-degree murder, and concluded that the claim lacks merit. See Trial Court Opinion, 11/4/15, at 21-23. We agree with the sound reasoning of the trial court, as set forth in its Opinion, and affirm on the basis of its Opinion with regard to Heyward's first claim. See id.
As to Heyward's convictions for carrying a firearm without a license, carrying a firearm on public streets, and PIC, Heyward identified no element, other than the identification of him as the assailant, that the Commonwealth failed to establish. Based upon our rejection of his challenge to the identification evidence, we conclude that any challenge to the sufficiency of the evidence underlying Heyward's remaining convictions lacks merit.
Heyward next claims that the verdict is against the weight of the evidence. Brief for Appellant at 47. Heyward argues that the Commonwealth failed to prove the essential elements of the crimes charged beyond a reasonable doubt. Id. at 49. Again, Heyward asserts that the identifying witnesses were not in a position to identify the perpetrator; the descriptions given by the witnesses were inadequate; and surveillance video did not show Heyward to be present at the crime scene. Id. Heyward challenges the Commonwealth's presentation of cellular telephone records, as the records show only that he was using the phone at the time of the shooting, and no witness testified that the shooter was using a phone. Id. Heyward additionally contends that the Commonwealth presented no physical or scientific evidence connecting him to the shooting, except for inconsequential DNA evidence. Id. at 50. Further, Heyward states that the location of ballistics evidence contradicted the testimony of the eyewitnesses. Id. Finally, Heyward argues that the Commonwealth failed to prove that he had the requisite specific intent to kill the victim. Id. at 49, 51.
Heyward properly preserved his claim in his post-sentence Motion. See Pa.R.Crim.P. 607(a)(1)-(3) (providing that a challenge to the weight of the evidence must be raised "(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 decision to grant or deny a motion for a new trial based upon a claim that the verdict is against the weight of the evidence is within the sound discretion of the trial court." Commonwealth v. Cash , 2016 Pa. LEXIS 1081, *13-14 (Pa. May 25, 2016).
Thus, the function of an appellate court on appeal is to review the trial court's exercise of discretion based upon a review of the record, rather than to consider de novo the underlying question of the weight of the evidence. An appellate court may not overturn the trial court's decision unless the trial court palpably abused its discretion in ruling on the weight claim. Further, in reviewing a challenge to the weight of the evidence, a verdict will be overturned only if it is so contrary to the evidence as to shock one's sense of justice.Id. at *14 (internal citations and quotation marks omitted).
In its Opinion, the trial court set forth a comprehensive analysis of Heyward's claim, and ultimately concluded that it lacks merit. See Trial Court Opinion, 11/4/15, at 26-28. We discern no abuse of discretion in the trial court's denial of Heyward's claim. Accordingly, we affirm on the basis of the trial court's Opinion with regard to Heyward's second claim. See id.
In his third claim, Heyward argues that the trial court improperly permitted the Commonwealth to present testimony that after the shooting, he and others had attempted to extort money from Shorter, a Commonwealth witness. Brief for Appellant at 53. According to Heyward, the trial court previously had ruled that testimony concerning the extortion attempts was not admissible, unless Heyward "opened the door" for such testimony. Id. at 54. At trial, however, the trial court permitted Shorter to testify that his two-month delay in reporting the murder was caused by the extortion attempts. Id. Heyward disagrees that such testimony was necessary to explain Shorter's delay in reporting his observations to the police. Id. Heyward contends that any connection is pure speculation, and, in any event, would constitute "reverse extortion," because "the individual who allegedly [had] witnessed a crime is the one paying the money, rather than the individual who was involved in the shooting." Id. at 55.
Heyward's claim implicates the admissibility of evidence. The admissibility of evidence rests within the sound discretion of the trial court, and therefore, we "will reverse [the] trial court's decision ... only if the appellant sustains the 'heavy burden' to show that the trial court has abused its discretion." Commonwealth v. Christine , 125 A.3d 394, 398 (Pa. 2015) (citation omitted).
It is not sufficient to persuade the appellate court that it might have reached a different conclusion[;] it is necessary to show an actual abuse of the discretionary power. An abuse of discretion will not be found based on a mere error of judgment, but rather exists where the court has reached a conclusion [that] overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.Id. (citation omitted).
In its Opinion, the trial court addressed Heyward's challenge to the admissibility of evidence related to the attempted extortion, and concluded that the claim lacks merit. See Trial Court Opinion, 10/4/15, at 28-30. We agree with the sound reasoning and conclusion reached by the trial court, and affirm on this basis, with the following addendum. See id.
In his brief, Heyward avers that the evidence related to the attempted extortion of Shorter "is akin to permitting the Commonwealth to present testimony concerning unrelated criminal activity." Brief for Appellant at 55.
Only relevant evidence is admissible at trial. Pa.R.E. 402. Evidence is relevant if it tends to make a material fact more or less probable than it would be without the evidence. Pa.R.E. 401. Relevant evidence may be excluded, however, if its probative value is outweighed by unfair prejudice. Pa.R.E. 403.
Pennsylvania Rule of Evidence 404(b)(1) provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Pa.R.E. 404(b)(1). However, such evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice." Pa.R.E. 404(b)(2). "In addition, the Pennsylvania Supreme Court has recognized a res gestae exception to Rule 404(b)[,] which allows admission of other crimes evidence when relevant to furnish the context or complete story of the events surrounding a crime." Commonwealth v. Dillon , 925 A.2d 131, 136-37 (Pa. 2007); see also Commonwealth v. Lark , 543 A.2d 491, 497 (Pa. 1988) (recognizing that evidence of other crimes, while generally not admissible solely to show criminal propensity, may be admissible in special circumstances, where it is relevant for some other legitimate purpose; one special circumstance is the "res gestae" exception, where such evidence became part of the history of case and formed a part of the natural development of the facts).
Shorter testified at trial that, upon witnessing the shooting, he ran to the home of his girlfriend. N.T., 10/28/14, at 134. Shorter stated that he did not call 911, because he was scared. Id. According to Shorter, he next encountered Heyward at a "Chinese store," at which time Heyward told Shorter that he "had to give up some money in order to stay around there." Id. at 137, 141. Shorter understood Heyward's comment to mean that "I had to give up some money to stay around there 'cause I was the only one going around the neighborhood saying what I saw." Id. at 141. During his testimony, Shorter acknowledged that he was trying to sell marijuana in the area, and that Heyward's comment pertained to Shorter's statements regarding the shooting, and his intention to sell marijuana. Id. at 142-43.
Shorter testified that a man named Keith, who knew both Shorter and Heyward, subsequently approached Shorter. Id. at 143-45. After that encounter, Shorter stated, he told his girlfriend and then the police about the shooting. Id. at 145.
During cross-examination, defense counsel questioned Shorter about his preliminary hearing testimony regarding the money sought by Keith and Heyward:
Q. [The Commonwealth:] Next question [from the preliminary hearing transcript].
Was there a dollar amount?
Do you remember that?
A. [Shorter:] Yes.
Q. And what was the dollar amount?
A. Initially they said 12 hundred.
Q. Initially they said 12 hundred.
You were asked on page 29, ... was there any dollar amount ever talked about? Five hundred or two thousand? Was there a dollar amount talked about in terms of what you had to give this man?
Your answer. Four hundred and fifty dollars.
Question. Four hundred fifty?
Answer. Four hundred and fifty.
Question. I'm sorry. Did you tell that to the detective when you gave the statement on the 11th?
Your answer. I believe so.
You [re]call being asked that question and giving those answers, sir?
A. Yes.
Q. Did you tell the detective that the amount of money was four hundred and fifty dollars?
A. No. Not initially.Id. at 183-85.
Q. At any time did you tell the detective that the amount of money was four hundred and fifty dollars?
A. Yes.
Q. And he wrote it down in your statement?
A. Yes.
Q. You have your statement in front of you?
A. (No response).
Q. [The Commonwealth:] Could we direct the witness to page three, first full question and answer?
Q. [Defense counsel:] ... First question. You see that first question, how much money did Keith tell you he wanted?
A. Yes.
Q. All right. And what did you tell the detective?
A. 12 hundred.
Q. Is there any mention of four hundred fifty dollars in that statement?
A. No.
The testimony now challenged by Heyward was elicited during redirect examination, when the Commonwealth asked Shorter to clarify his testimony regarding the amount of money requested by Keith and Heyward:
Q. [The Commonwealth:] ... [Defense c]ounsel asked you the question about the amount of money that you were asked to give up.
You said initially your testimony to us and what we heard in the preliminary hearing was 12 hundred dollars. That's what you told the detectives; right?Id. at 197-98.
A. [Shorter:] Yes.
Q. Did you also go on in September to describe to the detective when you were talking about Keith, that Keith said he wanted five hundred on Friday, and the rest another time?
A. Yes.
Q. This was on September 11th, 2013.
After September 11th, 2013[,] did you have contact with Keith prior to coming to the preliminary hearing?
A. I had a phone call.
Q. And was money discussed on the phone call by Keith?
[Defense counsel:] Objection, Your Honor.
THE COURT: Overruled.
A. [Shorter:] Yes.
...
Q. [The Commonwealth:] And what did he say?
A. I told him I didn't have the money, I had to do something with my kids, and he said knock the fifty dollars off and that's where the four fifty came in at.
Contrary to the assertions of Heyward, this testimony was relevant to explain the discrepancies in Shorter's testimony, pointed out during cross-examination, and to describe the chain of events. Under these circumstances, we discern no abuse of discretion by the trial court in admitting this testimony. See Dillon , 985 A.2d at 136-37.
In his fourth claim, Heyward argues that the trial court improperly limited the cross-examination of Shorter with regard to his preliminary hearing testimony and his statements to the detectives. Brief for Appellant at 56. Heyward argues that he was entitled to cross-examine Shorter about the extortion attempts, and that the trial court's restriction infringed on his confrontation rights under the Sixth Amendment to the United States Constitution. Id.
The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const., amend. VI.
Pennsylvania Rule of Evidence 611(b) addresses the scope of cross-examination, providing as follows: "Cross-examination of a witness other than a party in a civil case should be limited to the subject matter of the direct examination and matters affecting credibility; however, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination." Pa.R.E. 611(b). "The scope of cross-examination is a matter within the discretion of the trial court and will not be reversed absent an abuse of that discretion." Commonwealth v. Ballard , 80 A.3d 380, 394 (Pa. 2013) (citation omitted).
In its Opinion, the trial court addressed Heyward's claim, and concluded that it lacks merit. See Trial Court Opinion, 11/4/15, at 30-32. We agree with the sound reasoning of the trial court regarding this claim, as set forth in its Opinion, and affirm on this basis. See id.
In his fifth claim, Heyward argues that the trial court improperly denied his Motion for a mistrial, based upon the admission of out-of-court statements made by Shorter to Officer Comitalo. Brief for Appellant at 59. Heyward contends that the statements constituted inadmissible hearsay, subject to no exception. Id. Further, Heyward argues, the trial court's cautionary instruction did not cure the prejudice resulting from the admission of Shorter's out-of-court statements. Id. at 60.
A motion for a mistrial is within the discretion of the trial court. Commonwealth v. Stafford , 749 A.2d 489, 500 (Pa. Super. 2000). "[A] mistrial is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial." Commonwealth v. Lease , 703 A.2d 506, 508 (Pa. Super. 1997). However, a mistrial "is not necessary where cautionary instructions are adequate to overcome prejudice." Commonwealth v. Chamberlain , 30 A.3d 381, 422 (Pa. 2011). On appeal, our standard of review is whether the trial court abused its discretion in denying a mistrial. Stafford , 749 A.2d at 500.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa.R.E. 801(c); Commonwealth v. McCrae , 832 A.2d 1026, 1034 (Pa. 2003). Rule of Evidence 802 provides that, "[h]earsay is not admissible except as provided by these rules [the Rules of Evidence], other rules prescribed by the Pennsylvania Supreme Court, or by statute." Pa.R.E. 802; accord Commonwealth v. Johnson , 107 A.3d 52, 82 (Pa. 2014) (citation omitted).
Our review of the record discloses that at trial, the Commonwealth questioned Officer Comitalo about the events that transpired on September 11, 2013, the day Shorter informed the police that he had witnessed the shooting. N.T., 10/29/14, at 115. Officer Comitalo testified that he had been called to the area of Ogontz and Olney Avenues, where he and other officers met with Shorter. Id. At that time, Officer Comitalo asked Shorter for the identity of the person who had been threatening him with a gun. Id. at 115-16. According to Officer Comitalo, Shorter replied that there were at least two males in a newer model Jeep Cherokee. Id. at 116. Officer Comitalo indicated that Shorter then voluntarily accompanied police back to their station. Id. At issue is the following testimony by Officer Comitalo:
Q. [The Commonwealth:] And do you remember—[w]hat did [Shorter] tell you? Did he tell you about anything in particular when you went back to the district?
A. [Officer Comitalo:] Yeah. He had—[h]e mentioned he had details about a murder that occurred in the 14th District.
The male that was in the Cherokee was—
[Defense counsel:] Objection.
THE COURT: Let me see counsel at sidebar.
(A sidebar discussion was held off the record.)Id. at 116-18.
THE COURT: The objection is overruled and you may resume.
By [The Commonwealth]
Q. ... [F]irst, I want to direct your attention to why [] Shorter called the police and had asked for help that day in terms of the Cherokee.
Did he tell you who was in the Cherokee and what that person had either said to him or did to him?
A. Initially at location, no, but eventually, yes.
Q. And what did he say about that individual?
[Defense counsel:] I would object.
THE COURT: Overruled.
THE WITNESS: He said that it was a male that he knew by the name of Dai and he was—
[Defense counsel:] Objection.
[The Commonwealth:] If I can, I will give the officer his interview.
Did he tell you basically—Let me clarify.
[Defense Counsel:] I move for a mistrial.
The trial court denied the Motion for a mistrial, but offered to issue a cautionary instruction:
THE COURT: Well, I'm prepared to deny your [M]otion for mistrial.
What I would do is give the following cautionary instruction.Id. at 127-28. When court resumed, the trial court gave the following cautionary instruction to the jury:
There's no evidence that anyone in the Jeep Cherokee had or showed a gun on September 11th when [] Shorter spoke with Officer Comitalo.
[Defense counsel]: Reflecting back on [] Shorter's testimony, he said there were two incidents. First as to [Heyward], my client, at the Chinese store. Second incident involved Keith, that was my understanding, alone.
THE COURT: That's what I understood.
...
[Defense counsel]: And now you have this incident of [Heyward], Keith and a third male inside the vehicle with an inference that, you know, there might be a weapon involved.
And my request would be that in addition to that that there is no evidence that [Heyward] was present in that vehicle.
It needs to be clear, Judge.
THE COURT: Okay.
...
THE COURT: I'll complete the cautionary instruction with also there is no evidence that [Heyward] was present in the Jeep Cherokee.
Before we proceed further, ladies and gentlemen, I just need to tell you there is no evidence that anyone in the Jeep Cherokee had or showed a gun on September 11th[,] when [] Shorter spoke with Officer Comitalo.Id. at 128-29. Defense counsel did not object to the cautionary instruction.
Also[,] there is no evidence that [Heyward] was present in the Jeep Cherokee.
Upon review, we cannot conclude that the trial court abused its discretion by denying Heyward's Motion for a mistrial. The trial court's cautionary instruction alleviated any prejudice caused by Officer Comitalo's testimony. See Commonwealth v. Lopez , 57 A.3d 74, 85 (Pa. Super. 2012) (stating that a jury is presumed to follow the instructions of the trial court). Accordingly, we cannot grant Heyward relief on this claim.
In his sixth claim, Heyward argues that the trial court improperly permitted Detective Mullen, a Commonwealth witness, to narrate a video recording shown to the jury. Brief for Appellant at 62. Heyward contends that Detective Mullen's narration invaded the fact-finding province of the jury. Id. at 63. According to Heyward, Detective Mullen narrated the actions of "key Commonwealth witness [] Jackson-McDonald, who claimed to be an eyewitness to the shooting." Id. at 64. Heyward asserts that as an eyewitness, Jackson-McDonald's position and her ability to observe were key facts. Id. Heyward contends that the jury could easily determine for itself the actions and position of Jackson-McDonald, and Detective Mullen's narration invaded the jury's fact-finding function. Id. Finally, Heyward points out that Detective Mullen was not qualified as an expert witness, nor did he possess any special knowledge or training upon which he could rely in rendering an opinion. Id.
In its Opinion, the trial court addressed this claim and concluded that it lacks merit. See Trial Court Opinion, 11/4/15, at 34-35. We agree with the sound reasoning of the trial court, and discern no abuse of discretion or error in the admission of Detective Mullen's testimony. See id. We therefore affirm on the basis of the trial court's Opinion with regard to Heyward's sixth claim. See id.
In his seventh claim, Heyward argues that the trial court improperly failed to instruct the jury on voluntary manslaughter. Brief for Appellant at 66. Heyward directs our attention to the testimony of Ditavious Smith ("Ditavious"), who stated that the victim, his nephew, was in a relationship with Heyward's mother. Id. at 67. Ditavious further testified that he had heard of problems between the victim and Heyward's mother, and that the victim previously had assaulted Heyward. Id.
Heyward also directs our attention to the testimony of Joann Smith ("Joann"), who provided a statement to police that the victim had beaten Heyward's mother. Id. Joann additionally testified that she had heard of the beating in the neighborhood. Id. Heyward contends that "[t]he jury could have concluded that this relationship had an impact on [Heyward] that drove him to seek out the victim and shoot him, thereby supporting a voluntary manslaughter instruction. Id. at 68.
In its Opinion, the trial court addressed this claim and concluded that it lacks merit. See Trial Court Opinion, 11/4/14, at 23-26. We agree with and affirm the trial court's resolution of this claim based upon the reasoning set forth in its Opinion. See id.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/22/2016
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