Opinion
1581 MDA 2021 J-A20012-23
01-11-2024
COMMONWEALTH OF PENNSYLVANIA v. CRAIG RYAN HINES, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered July 27, 2021 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0002567-2018
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.[*]
MEMORANDUM
PANELLA, P.J.
Craig Ryan Hines, Jr. appeals from the judgment of sentence entered following his conviction for first-degree murder and related charges. He was sentenced to life in prison without the possibility of parole. On appeal, Hines challenges evidentiary rulings made by the trial court. After careful review, we affirm.
On June 21, 2018, Michael Burch, the decedent, and his friend Andrew Oberst were walking to a convenience store in the borough of Carlisle in Cumberland County when they were assailed with gunfire from a red sport utility vehicle. See N.T. 6/14/21 (AO), at 6-7. Approximately seven shots were fired from the driver's side of the vehicle. See id. at 10-11. Oberst took cover behind a parked car and was not injured, however, Burch immediately collapsed when the gunfire ceased. See id. at 13-15. A man nearby heard the gunshots and observed the license plate of the red sport utility vehicle as it sped away from the shooting. See N.T. 6/14/21, at 84. After the shooting, neighbors congregated at the scene, attempting to help revive Burch. See id. at 110.
The testimony of Andrew Oberst has been filed separately from the full transcript of testimony dated June 14, 2021. We have added Oberst's initials to the citation to differentiate between the transcripts.
Charles Cuff, a former partner of Hines' mother, testified that he rented the vehicle in question for Hines a few weeks before the shooting. See id. at 177-178. The police contacted Cuff after the shooting as he was the person responsible for the vehicle. See id. at 200-201. Cuff provided the police with two telephone numbers for Hines. See N.T. 6/15/21 at 8. Special Agent Wilde of the Federal Bureau of Investigation, an expert in historical call record detail analysis, testified that the two telephones associated with Hines were moving together at the time and in the vicinity of the shooting. See id. at 37-48. Police examined the vehicle and found three bullet casings as well as medical records and documentation from a transaction, both listing Hines' name and information. See id. at 99, 105-6.
While investigating the shooting, police reviewed surveillance cameras from the area of the incident. See N.T. 6/16/21 at 113. The videos showed the red sport utility vehicle traveling from the area of the shooting through the neighborhood until it stopped and parked in a parking lot. See id. at 114-7. One video clip showed the driver of the vehicle, and the police were able to identify the color and design of the shirt worn by the driver. See id. at 123- 4. The surveillance videos showed two people leave the area where the car parked and walk to the home of Kari Laughman, passing Betsy Acuna. See id. at 139-142. The two people entered the Laughman home and after some time they exited and walked to a convenience store. See id. at 142-146. Based on the video footage from inside the convenience store, Detective Dolan was able to positively identify Hines, based on his prior knowledge of Hines from Carlisle. See id. at 172.
On June 18, 2021, a jury found Hines guilty of first-degree murder, aggravated assault, persons not to possess firearms, carrying a firearm without a license and recklessly endangering another person. After a penalty phase, the jury determined Hines was to be sentenced to life in prison without the possibility of parole. Sentencing was deferred until the trial court imposed the sentence on July 27, 2021. Hines filed post-sentence motions which were denied on November 9, 2021. This timely appeal was filed on December 8, 2021. Hines and the trial court both complied with Pa.R.A.P. 1925.
Hines has raised several evidentiary issues on appeal. Hines questions whether the trial court properly admitted the recorded police interview of witness Betsy Acuna and whether the admission of that recording violated his rights under the confrontation clause. See Appellant's Brief at 1-2. Hines further questions whether the trial court's finding, that the admission of Acuna's interview amounted to harmless error, was supported by the record and free of legal error. See id. at 2. Finally, Hines questions whether the trial court erred in precluding him from questioning Detective Dolan regarding text messages found on Burch's mobile phone. See id.
First, Hines argues that the trial court erred by admitting a video recording depicting the police interview of Betsy Acuna under Pa.R.E. 803.1(3). See Appellant's Brief, at 29. Acuna was interviewed by police on June 22, 2018, and the interview was recorded on a body camera. See Transcript, 6/22/18. Acuna was physically present at a pretrial motions hearing on June 11, 2021, at which she testified to having a neurological condition which causes headaches and memory loss. See N.T., 6/11/21 at 8-9. Acuna testified that the medical condition began around two years prior to the June 2021 hearing. See id. at 8. Acuna recalled that she had an interview with a police officer in the past, but she did not recall the details or have any recollection of the day of the shooting. See id. at 11-13. Defense counsel had no questions for Acuna at the hearing. See id. at 17. However, counsel did argue that Acuna's statements on the recorded interview had not been subjected to cross examination and should not have been admitted. See id. at 19-20. The trial court disagreed with defense counsel's interpretation of the rule and determined that the video was admissible under Pa.R.E. 803.1(3). See id. at 20-21.
At trial, Acuna appeared through video conferencing technology from the hospital. See N.T., 6/17/21 at 12. Acuna recalled being present at the motions hearing and testifying regarding her medical condition; she stated she was hospitalized due to her neurological issues. See id. at 13-14. Acuna testified to having no memory of the events of June 2018, but she could recall living on her former street and having a neighbor named Kari. See id. at 15. Acuna did recall being shown her recorded interview prior to trial. See id. at 16. Defense counsel rejected the opportunity to cross-examine Acuna. See id. at 17. The recorded interview was then played for the jury. See id. at 20. During the recorded interview, Acuna told police that the day before she had seen a male and female who she did not know enter her neighbor's house. See Transcript, 6/22/18 at 2. Acuna indicated that she could not identify the man, but there were usually a lot of people around the house hanging out and she thought he was one of them. See id. at 3. Acuna told the police officer that when the people were outside her house there was a key on the ground and she asked the man if the key belonged to Kari, and he tried the key in Kari's door, and it did not fit and then he left. See id. Acuna further explained that Kari's door was unlocked and that she had told Acuna "that guy and that girl that hangs out here, … they're the only ones allowed in my house". Id. at 6. Defense counsel raised no objection following the viewing of the recording. See N.T. 6/17/21 at 20.
The rules of evidence provide that, if the declarant testifies and is subject to cross-examination, a recorded recollection is not to be excluded hearsay. See Pa.R.E. 803.1(3). To qualify, a recorded recollection must be:
A memorandum or record made or adopted by a declarant-witness
that:
(A)is on a matter the declarant-witness once knew about but now cannot recall well enough to testify fully and accurately; and
(B) was made or adopted by the declarant-witness when the matter was fresh in his or her memory; and
(C) the declarant-witness testifies accurately reflects his or her knowledge at the time when made.Pa.R.E. 803.1(3).
Hines argues that the requirement of subsection (C) was not met in this case as Acuna was not specifically asked if the recording reflected her knowledge at the time it was made. See Appellant's Brief at 29.
The trial court concedes that Hines' argument is supported by the plain language of the rule. See Trial Court Opinion, 6/22/22 at 4. However, the trial court notes that Acuna's testimony was in essence an adoption of her prior knowledge to the best of her ability with her memory loss. See id.
When reviewing a trial court's decision to admit evidence, we will reverse only for an abuse of discretion. See Hassel v. Franzi, 207 A.3d 939, 950 (Pa. Super. 2019). We will only find such an abuse where the trial court has acted in a way that is manifestly unreasonable, or failed to apply the law, or we can see through the record that the trial court has acted with partiality, prejudice, bias, or ill will. See id. Before reversing an evidentiary decision, we must view all the evidence presented in the light most favorable to the prevailing party and conclude that a new trial would result in a different verdict. See id.
We agree with the trial court's conclusion that Acuna did not specifically testify that the video accurately reflected her knowledge at the time of the interview. However, after viewing the evidence of record in the light most favorable to the Commonwealth, we are swayed by the Commonwealth's argument that we are empowered to infer satisfaction of the prongs of Pa.R.E. 803.1(3) from Acuna's testimony as a whole. See Appellee's Brief at 12-14. We have affirmed the admission of recorded recollections where the prongs of Pa.R.E. 803.1(3) were not testified to word-for-word. See Commonwealth v. Shelton, 170 A.3d 549, 552-553 (Pa. Super. 2017). Acuna's testimony clearly evinced her lack of memory. However, she specifically testified that her memory loss did not commence until sometime in 2019. Further, the recorded interview took place one day after the events in question. The record reflects no reason to dispute that Acuna's interview reflected her knowledge at the time it was recorded. Consequently, we find no abuse of discretion in the trial court's finding that the Commonwealth established the requirements for admitting the recorded interview pursuant to Pa.R.E. 803.1(3).
However, even if the video were admitted in error, we would agree with the trial court's conclusion that any error was harmless. The trial court reasons that the evidentiary value of the Acuna recording was "markedly limited" and only served to further confirm evidence which was separately videotaped on surveillance cameras. See Trial Court Opinion, 6/22/22 at 5. The trial court then details the voluminous evidence entered against Hines and concludes that the prejudicial effect of Acuna's recorded interview, if any, amounts to harmless error beyond a reasonable doubt. See id. at 5-8.
The doctrine of harmless error allows us to avoid the burden of a retrial when we are convinced beyond a reasonable doubt that an error that occurred at trial was harmless. See Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012). We can only hold an error to be harmless when we determine that the error could not have influenced the verdict. See Commonwealth v. Bieber, 283 A.3d 866, 881 (Pa. Super. 2022). The Commonwealth is required to show that the error either did not prejudice Hines or any prejudice was de minimis, or the evidence admitted was simply cumulative of other appropriately entered evidence, or the properly admitted evidence was so overwhelming compared to the insignificant prejudicial effect of any error. See id.
Here, the Commonwealth argues that the Acuna recording was both cumulative and insignificant compared to the overwhelming evidence supporting Hines' guilt. See Appellee's Brief at 20. The Commonwealth goes on to explain that the Acuna recording simply corroborates eyewitness and video testimony that placed Hines in the vicinity of the shooting. See id. at 20-21.
Hines rejects the trial court's conclusion that any error was harmless, instead arguing that the Acuna recording was a central point of the trial. See Appellant's Brief at 37-38. Hines claims that Acuna's interview was the only evidence placing him and his girlfriend in the same clothing that detectives used to identify them through surveillance. See id.
We find Hines' argument to be a mischaracterization of the recording. Acuna reported only her very brief interaction with the two people who approached her home. See Transcript 6/22/18. She did not identify Hines and did not positively identify any clothing. Her interview only served to corroborate the interaction that the jury viewed on the surveillance video where they watched the two people walk through town and then enter and exit Laughman's home. It was in fact Detective Dolan who identified Hines from the video footage inside the convenience store. See N.T. 6/16/21 at 172. We agree with the trial court's conclusion that the Acuna recording was a small piece of the overwhelmingly detailed presentation of the day of the shooting. Even if the Acuna recording had been admitted in error, that error would be harmless.
As an alternative reason for why Acuna's interview was improperly admitted, Hines argues that its admission violated his rights under the confrontation clause. See Appellant's Brief at 31. Hines admits that Acuna was available for cross-examination, twice, however he claims that the opportunity to question her was "illusory" due to her memory loss. See Appellant's Brief at 31-32. Hines argues that Acuna was "functionally unavailable" due to her memory loss and relies on Crawford v. Washington, 541 U.S. 36 (2004) for the principle that testimonial evidence of an unavailable witness may not be admitted unless it has been subjected to cross-examination. See Appellant's Brief at 31.
The trial court rejects this reasoning on the grounds that Acuna was in fact available in court for cross-examination both at a pretrial hearing and during trial. See Trial Court Opinion, 6/22/22 at 9. The trial court further notes that Hines had the opportunity to cross-examine Acuna in any manner he wished, specifically indicating that he could have examined her to expose her bad memory and then argued that the substance of her interview was unreliable. See id.
When we review a confrontation clause issue we are faced with a question of law and our standard of review is de novo. See Commonwealth v. Grush, 295 A.3d 247, 250 (Pa. Super. 2023). This Court has specifically held that witnesses who testify that their memory is lacking are considered available for purposes of cross-examination. See Commonwealth v. Mollett, 5 A.3d 291, 308 (Pa. Super. 2010). Acuna was available to testify and did appear at trial and answer questions, Hines simply chose not to ask her any questions. Therefore, Hines' right to confrontation was not violated.
Finally, Hines argues that his right to present a defense was violated when the trial court precluded him from questioning Detective Dolan regarding text messages found on Burch's mobile phone. See Appellant's Brief at 38. Hines argues that there were no authentication issues with the text messages and the trial court's preclusion of them was improper. See id. at 40.
During Hines' case-in-chief he sought to question Detective Dolan regarding text messages between Burch and a person named Kai-Chaun Washington. See N.T. 6/17/21 at 80. The Commonwealth argued that Hines could not prove, without other evidence, who was the user of the mobile phone at the time the text messages were sent. See id. at 81. The Commonwealth went on to argue that Hines would need to make a showing of authentication beyond the phone number for the text messages to be admitted as evidence. See id. The trial court ruled that Hines could question Detective Dolan about the existence of the text messages but not about the content. See id. at 82. When Hines questioned Detective Dolan about the text messages, he did ask whether there was discussion of drug activity in the messages to which Detective Dolan responded in the affirmative. See id. at 102-103. The Commonwealth objected and the trial court warned Hines to avoid the discussion of content of the messages. See id. at 103. However, Hines continued the line of questioning and elicited testimony from Detective Dolan that the text messages indicated a potential drug transaction between the two phones in question at the approximate time of the shooting. See id. On appeal, Hines now claims that he was unable to present a defense without presenting the content of these messages. See Appellant's Brief at 41.
The trial court reasons that it was constrained by our holding in Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011) when it made the decision to preclude the text messages. See Trial Court Opinion, 6/22/22 at 10. However, the trial court goes on to emphasize the fact that Detective Dolan did testify to the existence, apparent authorship, and content of the text messages insofar as they indicated a potential drug transaction between Burch and Kai-Chaun Washington at the time of the shooting. See id.
Again, we note that we review a trial court's decision whether to admit evidence for an abuse of discretion. See Hassel, 207 A.3d 939, 950. A party introducing digital evidence is required to authenticate it by providing direct or circumstantial evidence connecting the evidence to a person. See Pa.R.E. 901(b)(11). This Court has held that authentication requires more than simply the confirmation that the phone number belongs to a specific person. See Koch, 39 A.3d 996, 1005. Hines was required to introduced corroborating circumstantial evidence showing that Washington was indeed the sender. See id.
While we find no abuse of discretion in the trial court's initial preclusion of the text messages, we also find Hines' argument that he was unable to present a defense to be moot, as he did in fact present his theory that Burch was engaging in a drug transaction with Washington at the time of the shooting. Hines' defense was plainly before the jury when they found him guilty.
Judgment of sentence affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.