Opinion
J-A17010-16 No. 2442 EDA 2015
08-11-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ALI MARSH, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 13, 2015 in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0005820-2012 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Ali Marsh, a/k/a Jabbar Rice, appeals from the judgment of sentence imposed following his jury conviction of murder of the first degree, attempted murder, robbery, burglary, conspiracy, possessing instruments of crime, and violations of the Uniform Firearms Act (VUFA). The trial court imposed a sentence of life imprisonment, plus a consecutive term of not less than fifty-six years nor more than one-hundred-twelve years of incarceration. Appellant challenges the denial of a motion to suppress, the denial of a mistrial, evidentiary rulings, and the weight and sufficiency of the evidence. We affirm, in part on the basis of the trial court opinion.
In addition to Jabbar Rice, Appellant has also used the names Hakeem Marsh, John Moore, and Richard Marshall. ( See N.T. Trial, 9/26/14, at 130).
18 Pa.C.S.A. § 6106 (firearms not to be carried without a license); 18 Pa.C.S.A. § 6108 (firearms not to be carried on the streets of Philadelphia).
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. ( See Trial Court Opinion, 10/21/15, at 1-7). Therefore, we have no reason to restate them at length here.
However, for context and the convenience of the reader, we note briefly that Appellant's judgment of sentence stemmed from his jury conviction of first degree murder and the other charges already noted, based on his participation in an unsuccessful home invasion robbery.
On March 5, 2012, shortly after 3:00 a.m., Appellant and his co-conspirator Charles Davis broke into the home of John Paul Sr., and his wife, Sherrel, and demanded money. When told there was none, they fatally shot Mr. Paul. They also shot his wife, Sherrel, about a dozen times, but she survived, although she required multiple surgeries and still carries bullets and bullet fragments within her.
Davis also went by the names Charles Williams, and Charles White. ( See N.T. Trial, 9/24/14, at 55, 91; N.T. Trial, 9/25/14, at 16). Appellant testified that Davis is his longtime friend and cousin. ( See N.T. Trial, 9/26/14, at 128-29).
Appellant was also shot in the leg during the melee. The bullet moved down his left leg to his ankle. He was bleeding profusely. The co-conspirators fled by car. A neighbor of the Pauls heard the gunfire and saw the conspirators depart. Davis and Appellant rendezvoused with Davis' wife, Nicole Walton. Sometime during this trip Appellant called his then-girlfriend, Nija Pasture. At trial, Pasture testified that Appellant told her that "shit went bad" and he got shot. (N.T. Trial, 9/25/14, at 68).
Appellant needed medical attention for the bullet wound in his ankle, but did not want to risk apprehension in a Philadelphia hospital, so Walton drove him (and Davis) to Union Hospital in Elkton, Maryland. Appellant checked in using the name Jabbar Rice. However, he was soon transferred to a hospital in Christiana, Delaware for treatment.
Still using the name Jabbar Rice, Appellant told Delaware hospital personnel that he had been robbed, and shot, in Delaware. Maryland state trooper Alan Flaugher was dispatched to investigate the shooting. He soon realized that Appellant had given him a false name. Nevertheless, he identified Appellant through FBI fingerprint records, and linked him to the murder in Philadelphia. Delaware police, now assisted by Philadelphia homicide detective John Harkins, obtained a search warrant to have blood drawn from Appellant. DNA testing later confirmed that blood on the Paul's porch and on the street outside belonged to Appellant. Appellant checked out of the hospital before the scheduled removal of the bullet, apparently against medical advice.
A day or two later he appeared at Ms. Pasture's residence. She took him to buy some clothes and they began moving from one hotel to another until a few days later when they were apprehended.
The trial court denied Appellant's motion to suppress the results of the blood test, as well as the motion to exclude, as inflammatory, photographs of Mr. Paul and the crime scene. Over Appellant's objection, the trial court allowed Walton's testimony that when she picked up her husband, Davis, he told her, "We got into some shit and Jabbar ( Appellant) got shot," under the co-conspirator exception. (N.T. Trial, 9/24/14, at 59).
Also during trial, after his counsel finished cross-examining Appellant's girlfriend, Nija Pasture, a lawyer sitting in the courtroom as a spectator, said to Appellant's counsel, "Why did you cross examine her? She didn't hurt you." (N.T. Trial, 9/25/14, at 137). Appellant's counsel made a motion for a mistrial which the trial court denied. After Appellant's conviction, his counsel filed a post-sentence motion (including a challenge to the weight of the evidence) which was denied by operation of law. ( See Order, 7/14/15). This timely appeal followed.
Appellant filed a statement of errors complained of on appeal, and a court-ordered supplement. The trial court filed an opinion on October 21, 2015. See Pa.R.A.P. 1925.
Appellant presents six questions on appeal.
1. Did the [t]rial [c]ourt err when it denied Appellant's motion to suppress the seizure of Appellant's blood and the fruits of that search based on the fact that the search warrant utilized therein was based upon material misstatements made by law enforcement?(Appellant's Brief, at 7-8).
2. Did the [t]rial [c]ourt abuse its discretion when it denied Appellant's request to preclude certain inflammatory photographs of the decedent and crime scene herein from being shown to the jury?
3. Did the [t]rial [c]ourt abuse its discretion when it overruled the Appellant's objection to witness Nicole Walton's testimony containing a hearsay statement from Appellant's co-defendant under the co-conspirator exception to the rule against hearsay?
4. Did the [t]rial [c]ourt abuse its discretion in refusing to grant Appellant a mistrial when spectating attorney made prejudicial and inflammatory comments to Appellant's counsel in the presence of the jury?
5. Did the [t]rial [c]ourt err when it denied Appellant's [p]ost-[s]entence [m]otion and found that the evidence presented at trial was legally sufficient to sustain a verdict of guilty on all charges against the Appellant?
6. Did the [t]rial [c]ourt abuse its discretion when it denied Appellant's [p]ost-[s]entence [m]otion and found that the jury's verdict was not against the clear weight of the evidence?
In his first claim, Appellant argues that the search warrant used to authorize collection of his blood samples was invalid. ( See Appellant's Brief, at 29-39). He asserts the warrant was based on a deliberate and material misstatement in the affidavit from police, namely, that he received the wound in his ankle "because the injured suspect was reportedly shot by another one of the suspects while both were on a staircase within the [victims'] residence." ( Id. at 37 (quoting N.T. Trial, 9/23/14, at 8)).
Appellant focuses on the single word "reportedly." He posits that: "Given that this 'report' did not exist and was a factual fabrication, the statements Detective Harkins gave to Delaware detectives to be used in their affidavit of probable cause were misstatements of fact." ( Id. at 37) (internal quotation marks in original ). We disagree.
Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Commonwealth v. Bomar , 573 Pa. 426, 826 A.2d 831, 842 (2003). Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, "whose duty it is to determine if the suppression court properly applied the law to the facts." Commonwealth v. Mistler , 590 Pa. 390, 912 A.2d 1265, 1269 (2006) (quoting
Commonwealth v. Nester , 551 Pa. 157, 709 A.2d 879, 881 (1998)). Thus, the conclusions of law of the courts below are subject to our plenary review. Mistler , supra ; Commonwealth v. Morley , 545 Pa. 420, 681 A.2d 1254, 1256 n. 2 (1996).Commonwealth v. Jones , 988 A.2d 649, 654 (Pa. 2010).
Our scope of review of a suppression court's ruling is confined primarily to questions of law. We are bound by findings of fact which are supported by the record; we may reverse only if the court's legal conclusions are in error. As the parties herein agree on the facts, we are asked to determine only the legal implications of those facts.Commonwealth v. Sharp , 683 A.2d 1219, 1221-22 (Pa. Super. 1996).
In determining whether probable cause exists to issue a search warrant, Pennsylvania applies the "totality of the circumstances" test as set out in Illinois v. Gates , 462 U.S. 213 [ ] (1983) and adopted in Commonwealth v. Gray , [ ] 503 A.2d 921 (Pa. 1985). The duty of an appellate court is to ensure that the magistrate had a substantial basis for concluding that probable cause existed. We are guided by these standards:
Id. at 1223 (some citations and internal quotation marks omitted).An affidavit for a search warrant is to be tested by this court with common sense and a realistic manner, and not subjected to overly technical interpretations; the magistrate's determination of probable cause is to be accorded great deference on review. The law is clear that before a search warrant may issue, facts supported by oath or affirmation must be presented to the issuing officer which will justify a finding of probable cause. For the warrant to be constitutionally valid, the issuing officer must conclude that probable cause exists at the time the warrant is issued. Such a conclusion may not be made arbitrarily and must be based on facts which are closely related in time to the date the warrant is issued.
Here, we observe that the Commonwealth argues Appellant's first claim is waived. ( See Commonwealth Brief, at 12). On independent review, we agree.
Although he calls into question the sufficiency of the affidavit of probable cause, Appellant failed to ensure that the certified record included the actual affidavit, precluding us from meaningful review of the totality of the circumstances under which the search warrant was issued. Accordingly, we agree with the Commonwealth that the first claim is waived. See Commonwealth v. Preston , 904 A.2d 1, 6 (Pa. Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007) (appellate court is limited to considering only materials in certified record when resolving an issue; any document which is not part of the officially certified record is deemed non-existent).
Moreover, on the available record, the claim would not merit relief. ( See N.T. (Motion), 9/23/14, at 7-8). There is no dispute that the affidavit was not based on a formal, written report, but on the oral reports of the police officers investigating the crime scene. ( See id. at 11-12).
Therefore, the legal question we are asked to resolve is whether the affidavit in support of the search warrant is invalid as a matter of law. However, as already noted, Appellant has not provided us with the affidavit, presenting only an abbreviated quotation which contains the allegedly inadequate word "reportedly." ( Id. at 8). The notion that use of the adverb "reportedly" imports an assertion that a formal written report exists finds no support in controlling authority or ordinary English usage, and Appellant offers none. ( See Appellant's Brief, at 37-39).
We review the issue of a search warrant in a "common sense and a realistic manner, and not subject[ ] to overly technical interpretations." Sharp , supra at 1223. Appellant's argument ignores all of these requirements. His claim of a material misstatement in the supporting affidavit based on the insertion of the word "reportedly" lacks foundation in law or fact. It is, accordingly, frivolous. Even if not waived, Appellant's first issue would lack merit.
We decline to review Appellant's subordinate claim (not included as a separate question), that the evidence should have been suppressed without a separate hearing or that he was entitled to a hearing under Franks v. Delaware , 438 U.S. 154 (1978). ( See Appellant's Brief, at 29-39). We agree with the trial court that Appellant failed to meet his burden. ( See Trial Ct. Op., at 10). Citing the omitted affidavit, Appellant claims Detective Harkins gave a false statement that "someone had reported" Appellant was shot. (Appellant's Brief, at 36). We conclude this claim falls far short of "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Franks , supra at 155-56. No Franks hearing was required or necessary.
In his second claim, Appellant asserts that the photographs of Mr. Paul and the crime scene should not have been shown to the jury. He argues their probative value was outweighed by their prejudicial effect. ( See Appellant's Brief, at 40-43). We disagree.
"[Q]uestions concerning the admissibility of evidence are committed to the sound discretion of the trial judge, whose rulings will not be disturbed on appeal absent an abuse of that discretion." Commonwealth v. Reed , 990 A.2d 1158, 1167 (Pa. 2010), cert. denied, 562 U.S. 1020 (2010) (citations omitted).
The trial court explained its reasoning, and the precautions it took to avoid prejudice, in its opinion. ( See Trial Ct. Op., at 12). We discern no basis on which to disturb the trial court's proper exercise of its discretion. Appellant's second claim lacks merit.
In his third claim, Appellant disputes the admissibility of the statement by Charles Davis, "We got into some shit and Jabbar (Appellant) got shot," as testified to by Nicole Walton, under the co-conspirator exception. (Appellant's Brief, at 51; see also id. at 44-51; N.T. Trial, 9/24/14, at 59). We disagree.
The trial court explains that the statement was admissible under the exception to the hearsay rule provided at Pennsylvania Rule of Evidence 803(25)(E) ("made by the party's coconspirator during and in furtherance of the conspiracy"). ( See Trial Ct. Op., at 13). The trial court notes further that, under controlling authority, statements made during flight or the concealment of evidence are in furtherance of the conspiracy. ( See id. at 13-14) (citing cases).
A statement dealing with flight from the crime scene falls within the co-conspirator's exception. See Commonwealth v. Lambert , 603 A.2d 568, 575 (Pa. 1992) (co-conspirator's statement in car during flight after murder admissible under co-conspirator exception); see also Commonwealth v. Chester , 587 A.2d 1367, 1375 (Pa. 1991) (holding statement made after murder properly admitted under co-conspirator's exception to hearsay rule; concealment integral part of crime); Commonwealth v. Smith , 513 A.2d 1371, 1375 (Pa. 1986), cert. denied, 480 U.S. 951 (1987) (statements made in course of flight from scene of crime and dividing proceeds of robbery "certainly" part of common design to carry out robbery; statements in question properly admitted as having been made in course of carrying out design of conspiracy). Appellant's third claim lacks merit.
Appellant's fourth claim challenges the denial of a mistrial after an attorney who was observing the trial questioned defense counsel about why he cross-examined Appellant's girlfriend, Nija Pasture, who testified for the Commonwealth. The observing attorney said, "Why did you cross examine her? She didn't hurt you." (Appellant's Brief, at 53 (citing N.T. Trial, 9/25/14, at 139)). Counsel asked for a mistrial, which the trial court denied. Appellant argues the comment created a reasonable likelihood of prejudice. ( See Appellant's Brief, at 52-55). We disagree.
"The decision to grant a mistrial is within the sound discretion of the trial court. This remedy is an extreme one, and 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. Johnson , 719 A.2d 778, 787 (Pa. Super. 1998) (en banc ) (citations and internal quotation marks omitted), appeal denied, 739 A.2d 1056 (Pa. 1999).
In this case, Appellant maintains that the spectator "opined that the chances of the jury finding Appellant to be innocent were somehow lessened after Nija Pasture had been cross-examined." (Appellant's Brief, at 53). In an overlapping second argument, Appellant also asserts that the attorney's comment provided an opinion that his case had been damaged by his counsel's cross-examination. ( See id.). We find no support for these speculations in law or in fact.
Notably, Appellant offers no authority in support of either of his claims, aside from cases cited for general principles. ( See id. at 52-53). The trial court confirms that counsel for Appellant never requested a colloquy of each of the jurors to determine what, if anything, a juror may have heard. ( See Trial Ct. Op. at 17). Without corroboration or controlling caselaw, Appellant's assessment about what the jury may have heard, amounts to no more than unsupported speculation about what the jury might have thought.
The trial court concludes that "it is unlikely that the jury [heard the comment] because it was made while the jury was being escorted out of the court room." (Trial Ct. Op., at 17).
In any event, Appellant concedes that the observing attorney made no comment on any particular fact of the case. ( See Appellant's Brief, at 53). Even assuming for the sake of argument that the jury (or some members of the jury) may have heard the comment, all they would have heard was the observing lawyer's personal opinion that Ms. Pasture's testimony did not hurt Appellant. Appellant was not "deprived of a fair and impartial trial." Johnson , supra at 787. The trial court denied a mistrial, deciding that Appellant failed to demonstrate a reasonable likelihood of prejudice. ( See Trial Ct. Op., at 17). We agree. Appellant's fourth claim does not merit relief.
In his fifth claim, Appellant challenges the sufficiency of the evidence on all charges. ( See Appellant's Brief, at 8). He argues, inter alia, that Mrs. Paul could not make an identification, and he notes that his DNA, while located in blood outside of the victims' residence, was not found inside. ( See id. at 56-59). However, none of these arguments were included in his statement of errors complained of on appeal, which consisted solely of a generic, boilerplate claim of insufficiency. ( See Supplemental Concise Statement of Matters Complained of on Appeal," 10/02/15, at 2 ¶ 5). The trial court suggests that we deem Appellant's sufficiency claim waived. We agree.
In reviewing the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt. Commonwealth v. Clark , 746 A.2d 1128 (Pa. Super. 2000) (en banc). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of
the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Sanders , 426 Pa.Super. 362, 627 A.2d 183, 185 (1993) (citation omitted). Although a conviction must be based on "more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty." Commonwealth v. Badman , 398 Pa. Super. 315, 580 A.2d 1367, 1372 (1990) (citation omitted). "Finally, the trier 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. Wright , 846 A.2d 730, 736 (Pa. Super. 2004).Commonwealth v. Gainer , 7 A.3d 291, 292 (Pa. Super. 2010), appeal denied, 23 A.3d 1055 (Pa. 2011).
In a recent decision, Commonwealth v. Williams , 959 A.2d 1252 (Pa. Super. 2008), this Court reiterated that when challenging the sufficiency of the evidence on appeal, the Appellant's 1925 statement must "specify the element or elements upon which the evidence was insufficient" in order to preserve the issue for appeal. Williams , 959 A.2d at 1257 (quoting Commonwealth v. Flores , 921 A.2d 517, 522-23(Pa. Super. 2007)). Such specificity is of particular importance in cases where, as here, the Appellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt. Id., at 1258 n.9. Here, Appellant not only failed to specify which elements he was challenging in his 1925 statement, he also failed to specify which convictions he was challenging.Commonwealth v. Gibbs , 981 A.2d 274, 281 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010) (concluding sufficiency claim waived).
* * *
Further, Appellant's sufficiency of the evidence argument is underdeveloped. Appellant does not state in his brief, which of the convictions he is challenging. He does not set forth the elements of the crimes he was convicted of and does not argue which specific elements were not met.
As in Gibbs , Appellant's claim is waived. Moreover, we note on independent review that even though Appellant in his brief challenges all the elements of all the charges of which the jury convicted him, his argument consists of little more than a cursory reference to Mrs. Paul's lack of identification, a categorical denial of flight to avoid apprehension, and the purported lack of evidence of a conspiracy. ( See Appellant's Brief, at 56-59). The arguments are undeveloped and bereft of citations to pertinent supporting case authority. Even if not waived, his challenge to sufficiency would not merit relief.
Similarly, in his final claim, Appellant challenges the weight of the evidence. ( See Appellant's Brief, at 60).
Our standard of review for a challenge to the weight of the evidence is well-settled: The finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses. As an appellate court, we cannot substitute our judgment for that of the finder of fact. Therefore, we will reverse a jury's verdict and grant a new trial only where the verdict is so contrary to the evidence as to shock one's sense of justice. A verdict is said to be contrary to the evidence such that it shocks one's sense of justice when "the figure of Justice totters on her pedestal," or when "the jury's verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience." Furthermore, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.Commonwealth v. Cruz , 919 A.2d 279, 281-82 (Pa. Super. 2007), appeal denied, 928 A.2d 1289 (Pa. 2007) (citations omitted).
Here, in a one page argument, under the guise of avoiding unnecessary repetition, Appellant purports to incorporate his insufficiency argument into his weight claim. ( See Appellant's Brief, at 60).
Leaving aside the technical deficiencies and lack of merit of Appellant's sufficiency argument, the attempt to adopt sufficiency claims in a challenge to the weight of the evidence is procedurally inappropriate. See Commonwealth v. Birdseye , 637 A.2d 1036, 1039-40 (Pa. Super. 1994), affirmed, 670 A.2d 1124 (Pa. 1996) (noting sufficiency claims distinct from weight claims; deeming weight claim waived for failure to present separate argument regarding weight). Here, Appellant's weight claim is waived.
Moreover, it would not merit relief. The trial court declined to upset the verdict of the jury, noting the blood containing Appellant's DNA on the porch and the street at the crime scene, his flight from Philadelphia to seek medical treatment for his gunshot wound at a remote location out-of-state, his inculpatory statement to his then-girlfriend, and the inculpatory statement of his co-conspirator. The trial court found that Appellant's explanation for his presence at the crime scene was "simply ludicrous." (Trial Ct. Op., at 23). We discern no abuse of discretion in the trial court's rejection of Appellant's weight claim. Appellant's sixth claim does not merit relief. In addition to the reasons explained in this memorandum, we affirm on the basis of the trial court opinion, which we attach for reference.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/11/2016
Image materials not available for display.