Opinion
J-S10039-17 No. 1123 EDA 2016
06-27-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. KWAME MOORE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence dated March 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003800-2015 BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J. MEMORANDUM BY SOLANO, J.:
Appellant Kwame Moore appeals from the judgment of sentence entered following his conviction for first degree murder and possession of an instrument of crime. We affirm.
18 Pa.C.S. §§ 2502(a), 907(a).
The underlying facts of the case were recounted by the trial court in its Pa.R.A.P. 1925(a) opinion, and we need not restate them in detail here. As a brief summary, on December 22, 2013, four young men (Devon Johnson, Larry Smith, Quaron Highsmith, and Ryan Brown) drove together to a house on the 3800 block of Reno Street in Philadelphia to buy drugs. Smith gave Brown a gun and told him to knock on the front door of the house, in exchange for Smith's paying for Brown's drugs.
When Brown knocked on the door, Appellant answered, shouted at Brown, and shot him. Brown was shot five times: twice in his right shoulder (with one of those bullets hitting his right lung, aorta, and heart), once in his right thigh (this bullet struck his femoral artery and exited the back of his leg), and twice in his knees (one bullet in each knee). In response to the shooting, Johnson exited his vehicle and briefly shot back at Appellant. Johnson, Smith, and Highsmith all fled on foot, but quickly returned to the scene of the shooting and waved down the police, who arrived minutes later. Brown, who was on the ground bleeding when the police arrived, was taken by the police to a hospital and later pronounced dead. A silver 9 mm. handgun was found on the ground next to Brown's body. Seven fired cartridge casings were found at the scene, all of which had been fired from the same firearm; three were found inside the building, three on the porch, and one at the bottom of the front steps. The cartridges had not been fired from the gun found next to Brown's body. Appellant was arrested on March 10, 2015, and charged with murder and related offenses. See Trial Ct. Op., 6/13/16, at 1-3.
Johnson, Smith, and Highsmith all left the scene once Brown was taken to the hospital.
The gun found next to Brown had no chambered cartridges. See N.T., 3/2/16, at 4-5.
Appellant's jury trial began on March 1, 2016, and concluded on March 4, 2016. In addition to law enforcement officers, medical and firearms experts, and other witnesses, Smith, Highsmith, and Johnson all testified for the Commonwealth.
At trial, Smith denied any knowledge of who killed Brown. He stated that did not know from whom Brown was going to buy drugs, and that because he was inside of the car and looking at his phone, he did not see the shooting. He stated that he knew Appellant, but did not see him at the scene. Smith denied making any statements to the police or testifying before the grand jury. See N.T., 3/1/16, at 195-298. The Commonwealth introduced a statement Smith gave to the police on January 8, 2014, just over two weeks after the murder, and which he re-signed before testifying before a grand jury on January 22, 2015. In the statement and grand jury testimony, Smith identified a photograph of Appellant, stated that he has known Appellant for five years, named Appellant as the killer, and described the events of the killing consistently with those set forth above. The Commonwealth also introduced the detective who had taken Smith's statement on January 8, 2014, and a former assistant District Attorney who testified that he reviewed that statement with Smith on January 21, 2015, and that Smith testified consistently with that statement in front of the grand jury the next day. See N.T., 3/2/16, at 36-43, 56-73; Commonwealth's Ex. 30 (Larry Smith Interview, dated 1/8/14), 31 (Larry Smith Interview, dated 1/8/14, re-signed 1/21/15), 32 (Grand Jury Transcript, 1/22/15).
Highsmith testified that he observed the shooting, and that it occurred consistently with the description set forth above. He testified that he knew Appellant, and identified him as the shooter. Highsmith had given prior statements to police on March 10, 2014, and January 5, 2015. In the first statement, he told the police that he had not seen the person who shot Brown, but in the second statement, and at a grand jury proceeding on January 22, 2015, he identified Appellant. See N.T., 3/2/16, at 109-73; Commonwealth's Ex. 33 (Quaron Highsmith Interview, dated 3/10/14), 34 (Quaron Highsmith Interview, dated 1/5/15), 35 (Grand Jury Transcript, 1/22/15).
Johnson also testified that Appellant killed Brown. Johnson gave a statement to the police on November 18, 2014, and testified in the grand jury proceedings on October 31, 2014 and December 11, 2014. At the hearing on October 31, 2014, Johnson invoked his Fifth Amendment right against self-incrimination and did not answer most of the Commonwealth's questions. In the November 18, 2014 statement and before the December 11, 2014 grand jury, however, Johnson testified as to the events of the evening, and identified Appellant as the shooter. See N.T., 3/2/16, at 214-56; Commonwealth's Ex. 36 (Devon Johnson Interview, dated 11/18/14), 37 (Grand Jury Transcript, 10/31/14), 38 (Grand Jury Transcript, 12/11/14).
During the direct testimony of Detective Laura Hammond, the lead detective on Appellant's case, the following exchange occurred:
[Appellant's counsel]: I do have an objection to the next question.N.T., 3/3/16, at 15-16 (emphasis added).
The court: That objection is overruled. Let's go.
[Commonwealth]: Detective, when [Appellant] was arrested in this case, did you do a search of various databases to see if he was associated with any particular addresses?
[Detective Hammond]: Prior to his arrest, yes.
[Commonwealth]: And do you remember off the top of your head an address on Brown Street?
[Appellant's counsel]: Objection.
The court: That's leading. Sustained.
During the charging conference, Appellant elaborated upon his objection:
[Appellant's counsel]: I did make an objection during the detective's testimony.N.T., 3/3/16, at 131-32 (emphasis added).
The court: Yes, about the database, whether or not [Appellant] had any connection to the --- turns out it was the 3900 block of Brown Street.
[Appellant's counsel]: Right. I wanted to, for the record. . . There was a question referring to whether my client, and we all know it was an arrest database, it was presented to the jury as another database. It wasn't relevant because it was from 2007 and it's prejudicial because as we heard from the testimony from the . . . detective, she went up there and found it was an empty lot.
The court: At the time I did not know it was an empty lot, but the [c]ourt did overrule your objection, concluding it was a question of the weight of the evidence and not that it was not completely irrelevant. So it was relevant in the sense to establish that [Appellant] had some familiarity with the neighborhood. But your objection is on the record.
Appellant presented no witnesses and did not request that the jury be instructed on either self-defense or voluntary manslaughter.
A successful claim of self-defense is a complete defense to criminal liability. See 18 Pa.C.S. § 502. Section 505 of the Crimes Code explains that the use of force upon another person "is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion," but not unless "the actor believes that such force is necessary to protect himself against death [or] serious bodily injury," and not if "the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter" or where "the actor knows that he can avoid the necessity of using such force with complete safety by retreating." 18 Pa.C.S. § 505.
A person commits voluntary manslaughter, rather than murder, when a person kills while acting in "imperfect self-defense," by holding an actual, but unreasonable, belief that deadly force is necessary to prevent his own death or serious bodily injury. See Commonwealth v. Rivera , 108 A.3d 779, 787 n.2 (Pa. 2014) (citing 18 Pa.C.S. § 2503(b)). During the charging conference, Appellant's attorney stated "Given the circumstances, I don't think - I don't know if there is a voluntary [manslaughter charge] to be added in this case." N.T., 3/3/16, at 122.
Following his conviction, Appellant received a mandatory sentence of life imprisonment without parole for the murder conviction, and a concurrent sentence of one to two years' incarceration for possession of an instrument of crime. See Trial Ct. Op. at 1. Appellant filed a timely post-sentence motion and notice of appeal.
Appellant presents the following issues for our review:
1. Is Appellant's conviction for first-degree murder against the weight of the evidence and should a new trial be ordered?Appellant's Brief at 4. For ease of disposition, we address Appellant's second and third issues first.
2. Is the evidence insufficient as a matter of law to convict Appellant of murder in the first degree?
3. Is the evidence [] insufficient as a matter of law to convict Appellant of murder in the first degree because self-defense was not disproven beyond a reasonable doubt?
4. Did the trial court err and cause irreparable harm to Appellant by overruling Appellant's objection with regard to Detective Laura Hammond's testimony wherein she testified to a search for Appellant in databases which clearly indicated police databases and, thereby, further indicated that Appellant had prior arrests and/or convictions?
Sufficiency of the Evidence
Appellant argues that there was insufficient evidence presented at trial to support his conviction for first degree murder. We review this issue in accordance with the following:
A claim challenging the sufficiency of the evidence presents a question of law. We must determine whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. We must view evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict.Commonwealth v. McFadden , 156 A.3d 299, 303 (Pa. Super. 2017).
In support of his claim, Appellant highlights the following facts exposed by the evidence at trial: there was a shouting argument between Appellant and Brown; Brown was armed with a nine millimeter handgun, and his weapon was not concealed; there was a bullet mark on the exterior of the house; and there was a nine millimeter bullet casing found inside the house. Appellant's Brief at 13-16. Therefore, according to Appellant, the evidence is insufficient to prove he possessed the specific intent to kill Brown, and insufficient to disprove that he killed Brown while acting in his self-defense. Id. at 15-16. Appellant states:
A first-degree murder conviction requires a finding of specific intent to kill:
Section 2502(a) of the Crimes Code states, "a criminal homicide constitutes murder of the first degree when it is committed by an intentional killing." Intentional killing is "killing by means of . . . willful, deliberate and premeditated killing." § 2502(d). A "willful, deliberate and premeditated killing" occurs where the actor has manifested the specific intent to end the life of the victim. The use of a deadly weapon on a vital part of the human body is sufficient to establish the specific intent to kill.
It is the Commonwealth's burden to disprove any claim of self-defense beyond a reasonable doubt. Commonwealth v. Smith , 97 A.3d 782, 788 (Pa. Super. 2014).
It is reasonable to believe that one is in danger of serious bodily injury if an individual approaches one with a firearm. Appellant did not provoke anything and it is doubtful he had an opportunity to retreat. Appellant objectively feared for his life
and even if his response was excessive, he is at most guilty of voluntary manslaughter.Id. at 16.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Barbara A. McDermott, we conclude that there was sufficient evidence presented to establish beyond a reasonable doubt that Appellant acted with a specific intent to kill, and not out of self-defense. See Trial Ct. Op. at 6-8 (finding three eye-witnesses identified Appellant as the shooter and two testified at trial that Appellant came out from the doorway firing his gun without Brown ever firing; seven shots were fired at Brown at close range, and Brown was hit five times; Brown was shot in vital body parts (including the right lung, the aorta, the heart, and the femoral artery); and the evidence did not indicate that Appellant had a reasonable belief that he was in imminent danger of death or serious bodily harm).
Regarding Appellant's passing remark that "Appellant objectively feared for his life and even if his response was excessive, he is at most guilty of voluntary manslaughter," Appellant made no argument to the trial court regarding voluntary manslaughter, did not request a jury charge on that issue, and did not raise a claim of imperfect self-defense in his Rule 1925(b) statement. We therefore hold that Appellant waived that aspect of his claim. See Pa.R.A.P. 302 (claims may not be raised for the first time on appeal); Pa.R.A.P. 1925(b)(4)(vii) (issues not raised in the 1925(b) statement are waived); accord Commonwealth v. Johnson , 771 A.2d 751, 755 (Pa. 2001).
Weight of the Evidence
Appellant also argues that his conviction for first-degree murder was against the weight of the evidence presented on that charge. Our standard of review of a challenge to the weight of the evidence is as follows:
Where the trial court has ruled on a weight claim, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, our review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.Commonwealth v. Thompson , 106 A.3d 742, 758 (Pa. Super. 2014) (brackets, quotation marks, and internal citations omitted), appeal denied , 134 A.3d 56 (Pa.), cert. denied , 132 S. Ct. 106 (2016). "An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous." Commonwealth v. Hairston , 84 A.3d 657, 664-65 (Pa.), cert. denied , 135 S. Ct. 164 (2014).
Appellant claims that the verdict in this case was against the weight of the evidence because Brown only had $4.27 in his possession; there was a nine millimeter bullet found inside the house, and a bullet strike on the exterior of the house; Johnson and Brown had been in possession of handguns during the shooting; Brown had a nine millimeter handgun; and there were no injuries to Brown's head or chest. Appellant's Brief at 12. Appellant therefore asserts that the evidence more strongly indicates that Brown, Johnson, Smith, and Highsmith "went armed to a house to buy drugs with not enough money to do so," and adds: "If an armed individual approaches a drug[] house and there are shots fired at same, there is an inevitable and objective sense of panic. That panic belies the mens rea required for first-degree murder." Id. at 12-13.
A new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. In this regard, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the [trial] court.Thompson , 106 A.3d at 758-59 (citation and internal brackets omitted).
In ruling on Appellant's weight claim, the trial court found:
[Appellant]'s weight of the evidence claim for First-Degree Murder is . . . without merit as the verdict was consistent with the evidence and a far cry from shocking one's sense of justice. The Commonwealth presented extensive eyewitness testimony as well as ample scientific and physical evidence that [Appellant]—with the specific intent to kill—shot and killed Ryan Brown. The jury's verdict indicates that they chose to credit this evidence rather than [Appellant]'s theory of the case.Trial Ct. Op. at 8.
We find that the trial court correctly considered whether the evidence presented at trial supporting a guilty verdict was so tenuous, vague, and uncertain that the verdict shocked the conscience of the trial court, and found that it did not. We therefore hold that the court did not abuse its discretion in the trial court's disposition of Appellant's weight claim.
Admission of Detective Hammond's Testimony
"The admission of evidence is committed to the sound discretion of the trial court and an appellate court may reverse only upon a showing that the trial court clearly abused its discretion." McFadden , 156 A.3d at 309.
In his final issue, Appellant claims that the trial court abused its discretion by admitting a portion of Detective Hammond's testimony in which she states that she searched for Appellant's address in "various databases." Appellant's Brief at 17. According to Appellant, the jury could reasonably infer from this reference to "databases" that Appellant was involved in prior criminal activity. Id. (citing Commonwealth v. Allen , 292 A.2d 373, 375 (Pa. 1972)).
Evidence of a defendant's prior criminal history is typically inadmissible because "[t]he presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence." Allen , 292 A.2d at 375. For this reason, "[o]nce it is determined that a jury could reasonably conclude from the [evidence] prior criminal activity on the part of the defendant[,] prejudicial error has been committed." Id.
Certain exceptions exist. See Pa.R.E. 404(b); Allen , 292 A.2d at 375 n.2. Those exceptions are not at issue here.
However, "references to prior police contact do not amount to reversible error." Commonwealth v. Young , 849 A.2d 1152, 1156 (Pa. 2004) (emphasis added). "Instead, it is only those references that expressly or by reasonable implication also indicate some involvement in prior criminal activity that rise to the level of prejudicial error." Id. For example, an officer's single statement that he knew where the defendant lived did not constitute reversible error, because the jury would have had to "indulge in gross speculation" in order to conclude from the statement that the defendant had a prior criminal history. Young , 849 A.2d at 1155 (citing Commonwealth v. Riggins , 386 A.2d 520 (Pa. 1978)). Similarly, "a jury could not reasonably infer from police possession of the defendant's photograph that the defendant had previously been convicted of a crime." Commonwealth v. Parker , 104 A.3d 17, 28 (Pa. Super. 2014), appeal denied , 117 A.3d 296 (Pa. 2015). "The prior contact with the police could have occurred under a variety of circumstances that were not criminal in nature including involvement in a motor vehicle accident or violation, as a witness to a crime, or as a victim of a crime." Id. (citation omitted).
The trial court assessed the impact of the testimony challenged here as follows:
Because the Commonwealth asked the detective about a search of "various databases," nothing in the record indicates that the information came from a specific database. Even if the information were from a police database, the detective's testimony, at best, would have only indicated prior contact with police; not a prior arrest or conviction.Trial Ct. Op. at 9. We agree, and we hold that the trial court did not abuse its discretion in admitting the testimony related to the search for Appellant in "various databases." First, the detective's testimony did not indicate that the search was of law enforcement databases. We note that in this digital age there are numerous databases listing addresses. Second, even if the jury were to infer that the search was of a law enforcement database, a jury could not reasonably conclude that Appellant's presence in the database was only as a result of a conviction, rather than as, for example, a witness, a victim, or for some other purpose. Young , 849 A.2d at 1156; Parker , 104 A.3d at 28. The court therefore did not abuse its discretion in admitting the detective's testimony, and Appellant's third issue affords him no relief.
Indeed, prior to the remark about address "databases," Detective Hammond testified that she identified the owner of Johnson's car by conducting a search based on the registration found for the vehicle — indicating that she searched a vehicle registration database. --------
As we affirm in part on the basis of the trial court's opinion, the parties are instructed to attach a copy of the trial court's opinion of June 13, 2016, to any future filing that references this Court's decision.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/27/2017
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Commonwealth v. Randolph , 873 A.2d 1277, 1281 (Pa. 2005) (brackets and some citations omitted; emphasis added), cert. denied , 547 U.S. 1058 (2006).