Opinion
J-A11013-18 No. 1296 MDA 2017
09-24-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. RICHARD W. KINNARD, II Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered March 22, 2017
In the Court of Common Pleas of Lebanon County
Criminal Division at No: CP-38-CR-0000443-2016 BEFORE: STABILE, NICHOLS, and PLATT, JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Richard W. Kinnard, II, appeals from the March 22, 2017 judgment of sentence imposing life in prison without parole for first-degree murder. We affirm.
The trial court summarized the pertinent facts:
This case arises from events that occurred on September 19, 2015 at Vinny's Good Time Night Club (hereafter "Vinny's") in the city of Lebanon. About ten minutes before the club was scheduled to close, a dispute erupted between [Appellant], Jared Donovan Jones (hereafter "Jones") and a security officer employed by Vinny's. The defendants were ejected from the premises. After a short hiatus, [Appellant] returned to the nightclub. Shots were fired. Corey Bryan (hereafter "Bryan") was struck and killed. Despite the fact that Vinny's was crowded when the shooting occurred, most patrons left the premises at or before the arrival of police. No one professed to have seen the shooting.
An investigation ensued. Eventually, that investigation was chronicled in a jury trial that took place in February of 2017.
The centerpiece of the Commonwealth's case in chief was footage from a videotape surveillance system at Vinny's. The videotape showed [Appellant] and Jones engaged in an argument with security officer Bryan. The tape also depicted [Appellant] and Jones leaving Vinny's and entering the parking lot. Shortly thereafter, the video depicted [Appellant] returning to the bar entrance. Another camera showed Bryan at the door toward which [Appellant] had been walking. The video depicted Bryan clutching his stomach and falling to the ground. Thereafter, most patrons scurried away. [Appellant] was caught on video running to a car. None of the camera views depicted the shooter or anyone else in possession of a firearm.
Vinny's surveillance system showed [Appellant] enter[ing] a car in the parking lot. The car then departed the parking area and turned north on Route 343. Shortly thereafter, North Lebanon Township Police were called to the scene of a one-vehicle accident north of the City of Lebanon. Sergeant Timothy Knight of the North Lebanon Township Police Department arrived at the scene of the crash, which was approximately two miles from Vinny's. When he arrived, no one was present in the vehicle. Upon additional investigation, Sergeant Knight learned that the vehicle was registered to [Appellant]. Blood was located throughout the vehicle. Wedged in behind the right rear headrest was a gun. Sergeant Knight checked the serial number of the firearm and learned that it had been stolen. When the vehicle was subsequently processed more completely, police also found a payment receipt for a loan registered to [Appellant], a medical paper pertaining to [Appellant], a letter from the Harrisburg Area Community College addressed to Jones, an LA Fitness paper in the name of [Appellant], a MoneyGram with [Appellant's] name on it, health documents from Memorial Hospital pertaining to [Appellant], and insurance paperwork in the name of [Appellant].
The gun found inside the BMW vehicle was sent for ballistics testing. In addition, bullets were found inside Vinny's and a projectile was recovered from the body of Bryan. Trooper Todd Neumyer, a firearms expert with the Pennsylvania State Police, testified that the bullets recovered from the body of Bryan and Vinny's were fired from the gun that had been located in the BMW vehicle that crashed.
The parties reached a stipulation that the blood recovered from the BMW vehicle was transmitted to the Pennsylvania State Police Crimes Laboratory for serology and DNA testing. There, a forensic DNA scientist by the name of Sabrine Panzer-Kaelin completed testing that revealed the existence of blood from [Appellant] and Jones inside the crashed BMW vehicle.Trial Court Opinion, 7/17/17, at 5-8 (record citations and some capitalization omitted).
Following the crash of their BMW vehicle, both Jones and [Appellant] left the area. With respect to [Appellant], police learned that he purchased a bus ticket to travel from York, Pennsylvania, to Tucson, Arizona. The United States Marshals were contacted for assistance. Eventually, the Marshalls located [Appellant] in Tucson on January 26, 2016. [...]
Following his apprehension, Jones provided a recorded statement to police. This statement became the focus of extensive pre-trial litigation[.] Eventually, the court crafted a statement that could be read to the jury. This statement incorporated some of [Appellant's] own words and some paraphrasing. The statement of Jones read to the jury focused upon the conduct of Jones and not the conduct of [Appellant]. Specifically, Jones admitted that he was at Vinny's on the night of the murder. He admitted that he had an argument with Bryan. He admitted that he drove the BMW vehicle belonging to William [Appellant] away from Vinny's. He acknowledged that he crashed the vehicle. After regaining consciousness following the crash, Jones acknowledged that he left the scene of the accident and that he left Lebanon County. In the statement, Jones denied having any knowledge or connection to the shooting death of Bryan.
At the conclusion of a lengthy joint trial, the jury found Appellant guilty of first-degree murder, third-degree murder, two counts of aggravated assault, receiving stolen property, discharge of a firearm into an occupied structure, flight to avoid apprehension, recklessly endangering another person, and six counts of conspiracy. Appellant filed a timely post-sentence motion, which the trial court denied on July 17, 2017. This timely appeal followed. Appellant raises eight assertions of error:
18 Pa.C.S.A. § 2502(a) and (c), 2702, 3925, 2701.1, 5126, 2705, and 903, respectively.
1. Did the Commonwealth fail to present sufficient evidence at trial to prove beyond a reasonable doubt Appellant was the person who shot and killed the victim[?]
2. Did the trial court err by denying [Appellant's] pretrial motion to sever his case from [Jones]?
3. Did the trial court err by deferring decisions regarding [Appellant's] motion in limine until the time of trial where the deferment denying defense counsel's ability to effectively prepare for trial and Appellant's right to a fair trial? [sic]
4. Did the trial court err by admitting prison recorded phone calls between Charles Williams? [sic]
5. Did the collection of the prison recorded telephone calls and visitation recordings violated [sic] the Pennsylvania Wiretap Act and the Pennsylvania Supreme Court's decision in Commonwealth v. Fant [, 146 A.3d 1254 (Pa. 2016)]?
6. Did the trial court err by admitting [Appellant's] recorded phone calls and visitation recordings at the Lebanon County Correctional Facility where the contents of those recorded phone calls and visits provided the jury no relevant evidence regarding [Appellant's] consciousness of guilt and were extremely prejudicial in that his conversations exposed the jury to what sentence [Appellant] could receive if convicted, referenced privileged plea conversations between [Appellant] and defense counsel, and the admission of those phone calls placed defense counsel in the impossible position of explaining these conversations to the jury without simultaneously divulging privileged communications between himself and [Appellant]?
7. Did the trial court err by admitting a letter allegedly written by Appellant stating that [Jones] was not involved in the shooting where Jones' handwriting expert's report was not based on a valid and widely accepted scientific means of identifying a person's handwriting and Jared Jones' handwriting expert's conclusion stated that there was only a strong possibility that [Appellant] authored the text of the letter[?]Appellant's Brief at 4-5 (reordered and some capitalization omitted).
8. Did the trial court err by denying [Appellant's] motion in limine to exclude Detective Keith Uhrich's statement that he identified [Appellant] from the use of a JNET photograph and the surveillance video from the night of the shootings?
Appellant first challenges the sufficiency of the evidence. Our standard of review is well settled. We must determine "whether the evidence, viewed in the light most favorable to the Commonwealth as the verdict winner, supports the jury's finding that every element of the offense was proven beyond a reasonable doubt." Commonwealth v. Hicks , 156 A.3d 1114, 1123 (Pa. 2017). "The Commonwealth may sustain this burden by wholly circumstantial evidence and the jury is free to believe all, part, or none of the evidence." Id. "To obtain a first-degree murder conviction, the Commonwealth must demonstrate that a human being was unlawfully killed, the defendant did the killing, and the defendant acted with a specific intent to kill." Commonwealth v. Markman , 916 A.2d 586, 597 (Pa. 2007). Moreover, the jury may convict the defendant as an accomplice so long as the facts adequately support the conclusion that he or she aided, agreed to aid, or attempted to aid the principal in planning or committing the offense, and acted with the intention to promote or facilitate the offense." Id.
In his two-paragraph argument addressing this point, Appellant notes that no eyewitness observed him shoot Bryan, no eyewitness observed Appellant in possession of a gun, and the surveillance footage did not capture the shooting. Appellant does not acknowledge that the Commonwealth may prove its case with circumstantial evidence. Commonwealth v. Brown , 23 A.3d 544, 559 (Pa. Super. 2011). The evidence summarized in the trial court's opinion demonstrates that the Commonwealth produced an overwhelming body of circumstantial evidence implicating Appellant as the shooter. Appellant's sufficiency of the evidence argument fails.
Next, Appellant argues that the trial court erred in denying his pretrial motion to sever his case from that of Jones.
The decision of whether to sever trials of co-defendants is within the sound discretion of the trial court. Both this Court and the United States Supreme Court have recognized that joint trials of co-defendants play a crucial role in the criminal justice system.Commonwealth v. Travers , 768 A.2d 845, 846-47 (Pa. 2001). Normally, an appropriate jury instruction will suffice to address any evidence that is admissible against one defendant and not another. Id. at 847. However, in Bruton v. United States , 391 U.S. 123 (1968), the United States Supreme Court held that the confession of a non-testifying defendant is inadmissible, regardless of any jury instruction, if it facially incriminates a co-defendant. Subsequently, courts have admitted such confessions if they are edited to omit direct references to a co-defendant. For example, in Commonwealth v. Travers , 768 A.2d 845 (Pa. 2001), the Pennsylvania Supreme Court held that a confession edited to refer to a co-defendant as "the other man," accompanied by a limiting instruction, was appropriate under Bruton.
It would impair both the efficiency and the fairness of the criminal justice system to require ... that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last tried defendants who have the advantage of knowing the prosecution's case beforehand. Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability.
Appellant's argument addresses the following portions of the trial court's summary of Jones' statement: "Jared Jones traveled with two other guys to Lebanon to celebrate [Jones'] birthday," and "[d]uring the evening of September 19, the three gentlemen ended up at Vinny's Goodtimes club." Appellant's Brief at 22 (emphasis added by Appellant). Appellant bolded the portions that the trial court redacted to omit Appellant's name.
We discern several fatal flaws in Appellant's argument. First, the statement is not facially incriminating. The fact that Jones went out Vinny's to celebrate his birthday with "two other guys" is not incriminating to any of the three men. Those facts become incriminating, if at all, only when linked with evidence that Jones was implicated in a murder that occurred at Vinny's that evening. Second, the redaction does not invite the jury to conclude that Appellant was one of the "two other guys."
By way of contrast, are the facts of Gray v. Maryland , 523 U.S. 185 (1998):
The witness who read the confession told the jury the confession (among other things) said,
'Question: Who was in the group that beat [the victim]?
'Answer: Me, deleted, deleted, and a few other guys.' [we will refer to this exchange as the first question and answer]
Why could the witness not, instead, have said:
Id. at 196 (record citation omitted). The United States Supreme Court held the first question and answer (from the trial record) inadmissible under Bruton. According to Gray , the use of the word "deleted" invites the jury to conclude that a co-defendant's name was deleted, and to rely on that fact as evidence of the co-defendant's guilt regardless of any jury instruction to the contrary. The Supreme Court wrote, "Consider a simplified but typical example, a confession that reads, 'I, Bob Smith, along with Sam Jones, robbed the bank.' To replace the words 'Sam Jones' with an obvious blank will not likely fool anyone." Id. at 193. The Gray Court, however, reasoned that the second question and answer (the Court's own hypothetical), would not violate Bruton , because "statements that did not refer directly to the defendant himself and which became incriminating 'only when linked with evidence introduced later at trial'" are admissible under Bruton and its progeny. Id. (quoting Richardson v. Marsh , 481 U.S. 200, 208 (1987)).'Question: Who was in the group that beat [the victim]?
'Answer: Me and a few other guys.' [we will refer to this exchange as the second question and answer]
Following Gray's example, the Pennsylvania Supreme Court in Travers found no Bruton violation where a redacted confession referred to a co-defendant as "the other man." Id. at 851-52. "The redacted statement here neither referred to appellant by name (the Bruton proscription) nor did it contain an obvious indication of a deletion or an alteration that was the functional equivalent of naming him (the Gray proscription)." Id. at 851. "Since the statement was not powerfully incriminating on its face, the general rule to which Bruton and Gray are a limited exception, i.e., the almost invariable assumption of the law that jurors follow their instructions [...] applies and controls." Id. (internal citations and quotation marks omitted).
The co-defendant told police he drove Travers to the scene with the intent of looking for a person with whom Travers had an argument earlier that day. Id. at 846. The co-defendant also admitted that he knew Travers was in possession of the gun used in the killing, and that he punched the victim and directed Travers to shoot him. Id. References to Travers were replaced with the "other man." Id.
Here, unlike Gray , the redacted portion of the confession did not answer an incriminating question (who beat the victim?) but an innocuous one (where and with whom did Jones go out to celebrate his birthday?). The redacted confession became potentially incriminating only when linked to other evidence, i.e., facts implicating Jones in a murder that occurred at Vinny's that night. In light of all of the foregoing, we discern no Bruton violation in the redacted confession, and we discern no abuse of discretion in the trial court's denial of Appellant's severance motion.
Next, Appellant argues the trial court erred in deferring decision on various pre-trial motions seeking exclusion or admission of certain evidence, because the deferral hampered the effectiveness of Appellant's opening statement. Appellant claims the trial court deprived him of due process, but he cites no law pertaining to this specific issue.
A motion in limine is a pre-trial application before a trial court made outside the presence of a jury, requesting a ruling or order from the trial court prohibiting the opposing counsel from referring to or offering into evidence matters so highly prejudicial to the moving party that curative instructions cannot alleviate an adverse effect on the jury. The purpose of a motion in limine is twofold: 1) to provide the trial court with a pre-trial opportunity to weigh carefully and consider potentially prejudicial and harmful evidence; and 2) to preclude evidence from ever reaching a jury that may prove to be so prejudicial that no instruction could cure the harm to the defendant, thus reducing the possibility that prejudicial error could occur at trial which would force the trial court to either declare a mistrial in the middle of the case or grant a new trial at its conclusion. Further, a ruling on a pre-trial motion in limine provides counsel with a basis upon which to structure trial strategy.Commonwealth v. Noll , 662 A.2d 1123, 1125 (Pa. Super. 1995), appeal denied , 673 A.2d 333 (Pa. 1996).
Nonetheless, trial courts are permitted to defer rulings. Commonwealth v. Metier , 634 A.2d 228, 232 n.3 (Pa. Super. 1993). As our Supreme Court has explained, in certain circumstances, a deferred ruling is preferable:
Here, the trial court excluded proffered testimony pre-trial pursuant to Rule 403, a rule that, as explained infra, is generally not susceptible to accurate pre-trial evaluation. Unlike other rules of evidence, Rule 403 requires a trial court to weigh probative value and prejudice—the costs and benefits of relevant evidence—viewing it as part of a whole and not in isolation. Inherent in the rule is the assumption that the court has an adequate record, one that will mirror or provide great insight into what will develop at trial. In the majority of cases, and particularly manifested in this one, the trial court has no way of knowing beforehand exactly what evidence will be presented at trial. Depending on the case and the inevitable vagaries of litigation, the pre-trial record may be entirely different than the record that eventuates as matters unfold. Even if the evidence the parties intend to present is set, a trial rarely follows the anticipated script. The actual value of evidence may differ substantially from pre-trial expectations, depending on all manner of factors, such as the availability, appearance, memory, or demeanor of a witness, admissions on cross-examination, the defense theory, or the defendant's decision whether or not to testify. Even a relatively developed pre-trial record will be of limited utility in predicting the probative value or prejudice a particular piece of evidence will ultimately have.Commonwealth v. Hicks , 91 A.3d 47, 52-53 (Pa. 2014).
Therefore, the ruling is better deferred until the situation is clear, not speculative.
Appellant argues the trial court erred in deferring judgment on his motion to exclude Jones' handwriting expert, his motion to exclude testimony regarding his gang affiliation and his motion to exclude the use of recorded phone calls. The trial court explained that it was unable to conduct a sufficient analysis prior to trial. Having reviewed the law, the parties' briefs, and the record, we reject Appellant's argument for the reasons explained on pages 26-32 of the trial court's July 7, 2017 opinion.
Next, Appellant argues the trial court erred in denying Appellant's pre-trial motion to exclude recorded phone calls Appellant made from prison. Detective Keith Uhrich, the Commonwealth witness who identified Appellant's voice in the recorded telephone call, testified that he never spoke with Appellant. Rather, he identified the voice in the recording as consistent with the voice in all of Appellant's phone calls recorded while he was in prison.
In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. If so, we are bound by those findings. Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Moreover, if the evidence supports the factual findings of the suppression court, this Court will reverse only if there is an error in the legal conclusion drawn from those findings.Commonwealth v. Fant , 146 A.3d 1254, 1259 (Pa. 2016). We review the trial court's evidentiary rulings for abuse of discretion. Commonwealth v. Serrano , 61 A.3d 279, 290 (Pa. Super. 2013).
Rule 901 of the Pennsylvania Rules of Evidence governs the authentication of evidence, including voice identification:
(5) Opinion About a Voice. An opinion identifying a person's voice—whether heard firsthand or through a mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.Pa.R.E. 901(b)(5). "[W]hen seeking to introduce testimony as to the content of a telephone conversation, the identity of the caller may be established by circumstantial evidence." Commonwealth v. Stewart , 450 A.2d 732, 733 (Pa. Super. 1982). Thus, a person familiar with the alleged speaker's voice may testify as to the identity of the speaker. Commonwealth v. Carpenter , 450 A.2d 732, 733 (Pa. Super. 1982).
Nothing in Rule 901(b)(5) or our jurisprudence requires a face-to-face conversation between the identifying witness and the alleged speaker. The law simply requires familiarity with the alleged speaker's voice. The trial court explained:
Detective Uhrich testified that during the course of his investigation, he listened to 150 telephone calls that were intercepted from [Appellant] while he was an inmate at the Lebanon County Prison. Detective Uhrich stated that some of these telephone calls were twenty minutes in length[,] and that he listened to [Appellant] telephone calls 'for a long period of time' extending up to one week before the date of trial. Detective Uhrich also stated that [Appellant] repeatedly prefaced many of his remarks with the phrase 'Do you understand what I'm sayin'?' Detective [Appellant] stated that during the conversation the Commonwealth sought to admit, [Appellant's] voice sounded identical with the voice he heard 150 times previously[,] and [Appellant] used the phrase 'Do you understand what I'm sayin'?'Trial Court Opinion, 7/7/17, at 39.
Thus, Detective Uhrich was familiar with Appellant's voice from having listened to 150 recordings—some of those lengthy—of a voice that he knew to be Appellant's. He was also familiar with Appellant's speech patterns, particularly a phrase that he used frequently, "do you understand what I'm sayin?" The record supports the trial court's findings of fact, and we discern no legal error in its ruling.
Next, Appellant argues that the Lebanon County prison violated the Wiretap Act, 18 Pa.C.S.A. § 5701, et. seq., when it recorded his telephone calls. The Wiretap Act provides in relevant part:
It shall not be unlawful and no prior court approval shall be required under this chapter for:18 Pa.C.S.A. § 5704(14)(B), subsequently amended, 2017 P.L. 304, No. 22, § 2.
[...]
(14) An investigative officer, a law enforcement officer or employees of a county correctional facility to intercept, record, monitor or divulge any telephone calls[] from or to an inmate in a facility under the following conditions:
[...]
(B) Unless otherwise provided for in this paragraph, after intercepting or recording an oral communication, electronic communication or wire communication, only the superintendent, warden or a designee of the superintendent or warden or other chief administrative official or his or her designee, or law enforcement officers shall have access to that recording.
The General Assembly subsequently deleted the phrase "telephone calls" and inserted "oral communications, electronic communications, or wire communications." 18 Pa.C.S.A. § 5704(14)(B), as amended.
Appellant argues, without citation to authority, that Detective Uhrich did not qualify as a "designee" under § 5704(14)(B). Appellant quotes § 5704(14)(B) in his brief, but he omits the portion stating that law enforcement officers may have access to a recording of a prison phone call. Appellant's Brief at 26.
Appellant also cites Commonwealth v. Fant , 146 A.3d 1254 (Pa. 2016), for the proposition that in-person conversations between an inmate and visitor, separated by a glass screen using and speaking to each other using a telephone-like handset, are not subject to interception under the Wiretap Act because they are not telephone conversations. Fant shortly predated Appellant's trial, and he filed a pre-trial motion to exclude the recordings of his conversations in prison. However, Appellant fails to cite any evidence that the recorded conversations took place in person, rather than over a telephone line to a person outside of the prison. Indeed, his brief specifies that the calls were to an "outside number." Appellant's Brief at 16. Appellant therefore cannot obtain relief under Fant. For the foregoing reasons, we reject Appellant's arguments under the Wiretap Act.
In his final three arguments, Appellant claims that the recorded telephone conversations were irrelevant and therefore inadmissible; that the trial court erred in admitting a letter allegedly written by Appellant because Jones' expert could not state that the signature was Appellant's; and that the trial court should not have permitted Detective Uhrich to identify Appellant by comparing a JNET photo to video surveillance footage. Appellant's Brief, at 27-28. Appellant fails to cite any pertinent legal authority or any record evidence in support of any of these arguments, and the final two arguments consist of a single sentence. Appellant has waived his final three arguments. Pa.R.A.P. 2119(b) and (c); Commonwealth v. Williams , 959 A.2d 1252, 1258 (Pa. Super. 2008).
Because we have found no merit in any of the arguments Appellant preserved for Appellate review, we affirm the judgment of sentence. We direct that a copy of the trial court's July 7, 2017 opinion be filed along with this memorandum.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/24/2018
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