Opinion
J-S68031-18 No. 477 WDA 2018
12-18-2018
COMMONWEALTH OF PENNSYLVANIA v. ERIK LAMONT REED, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 9, 2017
In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0000087-2016 BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant Erik Lamont Reed, Jr. appeals from the judgment of sentence entered in the Court of Common Pleas of Westmoreland County following his conviction by a jury on the charges of first-degree murder and firearms not to be carried without a license. After a careful review, we affirm.
18 Pa.C.S.A. §§ 2502 and 6106, respectively.
The relevant facts and procedural history are as follows: Appellant shot and killed Donald Williams, and represented by counsel, he proceeded to a jury trial on August 14, 2017. The trial court has summarized in exhaustive and accurate detail the testimony and evidence presented at Appellant's jury trial, and we rely on the trial court's summarization for purposes of this appeal. See Trial Court Opinion, filed 3/1/18, at 2-20.
Following the jury's guilty verdict for the crimes indicated supra, on November 9, 2017, the trial court sentenced Appellant to an aggregate of life in prison, and Appellant filed a timely, counseled post-sentence motion. The trial court denied Appellant's post-sentence motion on March 1, 2018, and this timely appeal followed. All Pa.R.A.P. 1925 requirements have been met.
On appeal, Appellant presents the following issues in his "Statement of Questions Involved":
I. Whether there was sufficient evidence to disprove justification for the verdict of guilty of murder in the first degree?Appellant's Brief at 4-5.
II. Whether the verdict was against the weight of the evidence?
III. Did the trial court err in limiting the defense's closing argument regarding the failure of the Commonwealth to call the children of the deceased as witnesses?
IV. Did the trial court err in not allowing testimony from a witness who advised [Appellant's] family to "be careful" around the victim?
V. Did the [trial] court err by precluding testimony regarding threats made by members of the victim's family to members of [Appellant's] family?
We have renumbered Appellant's issues for the sake of effective appellate review.
Appellant challenges the sufficiency of the evidence as to his conviction for first-degree murder. Specifically, Appellant contends the Commonwealth failed to disprove Appellant's justification defense, i.e., defense of others. In this regard, Appellant notes that both he and his stepfather, Kahil Dandridge, testified they feared that Mr. Williams was going to kill Appellant's stepfather, and, in fact, Mr. Williams had threatened to "fucking kill" him. Appellant's Brief at 27.
Appellant does not challenge the sufficiency of the evidence as to his conviction for firearms not to be carried without a license.
At trial, Appellant referred to Mr. Dandridge as his "father;" however, in his brief, Appellant refers to him as his "stepfather."
Our standard of review is well-settled.
[W]e evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. [T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence. Any doubt about the defendant's guilt is to be resolved by the fact-finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.Commonwealth v. Franklin , 69 A.3d 719, 722 (Pa.Super. 2013) (citations and quotation marks omitted). Importantly, "the jury, which passes upon the weight and credibility of each witness's testimony, is free to believe all, part, or none of the evidence." Commonwealth v. Ramtahal , 613 Pa. 316, 33 A.3d 602, 607 (2011).
Appellant was convicted of first-degree murder, for which the Commonwealth was required to prove beyond a reasonable doubt that: a human being was unlawfully killed, Appellant was responsible for the killing, and Appellant acted with malice and specific intent to kill. See Commonwealth v. Houser , 610 Pa. 264, 18 A.3d 1128 (2011).
With regard to Appellant's claim that he acted in defense of others, Pennsylvania law permits the use of force against another person in limited circumstances, such as defense of others. See 18 Pa.C.S.A. § 506. The defense of another relies substantially on the justification of self-defense:
Use of force justifiable for protection of the person.--The use of force upon or toward 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.18 Pa.C.S.A. § 505 (bold in original).
As for defense of others, the relevant statute provides as follows:
§ 506. Use of force for the protection of other persons
(a) General rule.--The use of force upon or toward the person of another is justifiable to protect a third person when:
(1) the actor would be justified under section 505 (relating to use of force in self-protection) in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect;
(2) under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
(3) the actor believes that his intervention is necessary for the protection of such other person.
(b) Exception.--Notwithstanding subsection (a), the actor is not obliged to retreat to any greater extent than the person whom he seeks to protect.18 Pa.C.S. § 506(a) (bold in original).
Further,
[A]s provided by statute and as interpreted through our case law, to establish the defense of self-defense or defense of others it must be shown that: a) the slayer or the other he seeks to protect was free from fault in provoking or continuing the difficulty which resulted in the slaying; b) that the slayer must have reasonably believed that he or the other he seeks to protect was in imminent danger of death or great bodily harm, and that there was a necessity to use such force in order to save himself or the other therefrom; and c) the slayer or the other he seeks to protect did not violate any duty to retreat or to avoid the danger.Commonwealth v. Hornberger , 74 A.3d 279, 284-85 (Pa.Super. 2013) (citation, emphasis, and brackets omitted). See Commonwealth v. La , 640 A.2d 1336, 1346 (Pa.Super. 1994) (stating that the claims of self-defense and defense of others are generally addressed in the same manner).
"In cases where [defense of others is] an issue, the Commonwealth is required to prove beyond a reasonable doubt that the defense does not apply to the situation in order to sustain the conviction." Commonwealth v. Torres , 564 Pa. 219, 766 A.2d 342, 345 (2001).
The Commonwealth sustains its burden [of disproving a claim of defense of others] if it proves any of the following: that the slayer was not free from fault in provoking or continuing the difficulty which resulted in the slaying; that the slayer did not reasonably believe that [another] was in imminent danger of death or great bodily harm, and that it was necessary to kill in order to save [another] therefrom; or that the slayer violated a duty to retreat or avoid the danger.Commonwealth v. Sepulveda , 618 Pa. 262, 55 A.3d 1108, 1124 (2012) (citation omitted).
Here, in analyzing Appellant's sufficiency claim, and concluding the Commonwealth disproved beyond a reasonable doubt Appellant's claim of defense of others, the trial court relevantly indicated the following:
The Commonwealth introduced sufficient evidence to disprove the defense of others beyond a reasonable doubt. While Kahil Dandridge stated that he was being choked [by Donald Williams] to such an extent that he nearly lost consciousness, there were no injuries to his neck. Moreover, Detective Gardner and Officer Schubert testified that when [Mr. Dandridge] gave them his story of what had happened during the fight, he did not inform either of them that he was being choked, or that he was in fear for his life. Officer Schubert testified that [Mr. Dandridge] informed him that "I got in a fight with him. He missed me. I hit him and nobody got shot." Moreover, Erika Johnson testified that after Donald Williams was shot, Kahil Dandridge, who testified that he nearly lost consciousness and was afraid he would lose his life after Donald Williams choked him, tried to pick Donald Williams off the ground, and asked, "Hey bro, are you okay?"
While [Appellant] stated that he shot Donald Williams so that he would stop choking [Mr. Dandridge], [Appellant] testified that he did not warn Donald Williams that he had a gun, nor did he attempt to shoot him in a non-lethal location. When asked why he did not shoot him in the hand or foot instead of the chest, which [Appellant] knew contained vital organs, [Appellant] simply stated that he did not think he had time, and that he was "not thinking about where I'm going to shoot him."
Jennifer Blackwell, the only non-law enforcement witness presented who was not part of [Appellant's] or [Donald Williams'] family, testified that immediately prior to hearing a gunshot, she heard a woman yell, "Erik, Erik, what is that. No, put that away. Put that down. Put that back. No, Erik." This testimony directly conflicted with much of [Appellant's] and his family's testimony. While [Appellant] testified that he did not have time to think of using non-lethal force against Donald Williams, [Ms.] Blackwell's testimony supports the notion that [Appellant] was urged by someone on the scene not to shoot Donald Williams at all, and
there was time and opportunity available to not kill him. [Appellant] also fled from the scene immediately upon the police arriving. While this evidence alone would not be sufficient to convict [Appellant], such evidence does raise an inference of guilt.Trial Court Opinion, filed 3/1/18, at 23-24 (citations to record omitted).
Thus, the jury's verdict, and rejection of the defense of others justification, was not based solely on disbelief of [Appellant's] testimony, and was supported by sufficient evidence. [Appellant] testified that he was aware that Donald Williams' vital organs were contained within his chest where he was shot, and that [Appellant] put a revolver against [Donald] Williams' body near the armpit and pulled the trigger.
Applying our standard of review, we agree with the trial court's analysis. Specifically, viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, the Commonwealth disproved that Appellant reasonably believed that another (Mr. Dandridge) was in imminent danger of death or great bodily harm and that it was necessary to kill Donald Williams in order to save Mr. Dandridge therefrom. See Sepulveda , supra. Accordingly, the evidence was sufficient to sustain Appellant's conviction for first-degree murder. See Houser , supra.
Appellant next contends the jury's verdict as to first-degree murder is against the weight of the evidence. Specifically, he avers the credible evidence offered by Appellant and Mr. Dandridge establishes that Appellant reasonably believed that Mr. Dandridge was in imminent danger of being choked such that it was necessary to kill Donald Williams in order to save Mr. Dandridge. He contends "the [j]ury gave such little weight to the obvious testimony of justification as to shock one's sense of justice." Appellant's Brief at 26.
Appellant raised this issue in his post-sentence motion. He does not contend on appeal that the jury's verdict as to firearms not to be carried without a license is against the weight of the evidence.
When considering challenges to the weight of the evidence, we apply the following precepts. "The weight of the evidence is exclusively for the finder of fact, who is free to believe all, none[,] or some of the evidence and to determine the credibility of the witnesses." Commonwealth v. Talbert , 129 A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation omitted). Resolving contradictory testimony and questions of credibility are matters for the finder of fact. Commonwealth v. Hopkins , 747 A.2d 910, 917 (Pa.Super. 2000). It is well-settled that we cannot substitute our judgment for that of the trier of fact. Talbert , supra.
Moreover, appellate review of a weight claim is a review of the trial court's exercise of discretion in denying the weight challenge raised in the post-sentence motion; this Court does not review the underlying question of whether the verdict is against the weight of the evidence. See id.
Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.Id. at 546 (quotation omitted). Furthermore, "[i]n order for a defendant to prevail on a challenge to the weight of the evidence, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court." Id. (quotation marks and quotation omitted).
Appellant requests that we re-weigh the evidence and assess the credibility of the witnesses presented at trial, a task that is beyond our scope of review. The jury, as finder of fact, had the duty to determine the credibility of the testimony and evidence presented at trial. See Commonwealth v. Collins , 70 A.3d 1245, 1251 (Pa.Super. 2013) (stating that "[a]n appellate court cannot substitute its judgment for that of the finder of fact"). As the trial court relevantly indicated:
[T]here was conflicting testimony from both families in this case. Although [Appellant] testified that Donald Williams had threatened him both days prior to and during the family melee, the jury did not believe that he was in actual fear for [Mr. Dandridge's] life when he shot him. Because the jury disbelieved [Appellant's] testimony regarding his justification defense, [believed the evidence disputing the defense,] and [Appellant] admitted that he did shoot and kill Donald Williams, [the jury] found [Appellant] guilty of murder of the first degree. The verdict in this case is not so contrary to the evidence as to shock one's sense of justice. Thus, the verdict in this case was not against the weight of the evidence.Trial Court Opinion, filed 3/1/18, at 25.
We agree with the trial court's analysis and conclude Appellant is not entitled to relief on his weight of the evidence claim. See Talbert , supra.
In his next claim, Appellant contends the trial court abused its discretion in limiting defense counsel's closing argument regarding the failure of the Commonwealth to call the children of the deceased as witnesses. Specifically, Appellant contends that defense counsel should have been permitted to argue during closing argument that the Commonwealth's failure to call Donald Williams' two daughters, who were present during the murder, created an inference that the daughters' testimony would have been favorable to Appellant's claim of justification.
At trial, Appellant requested a missing witness instruction as to Donald Williams' daughters, and the trial court denied the instruction. Further, in response to defense counsel's inquiry, the trial court ruled that defense counsel could not argue during his closing argument that the witnesses' failure to testify created an inference/presumption in favor of Appellant. N.T., 8/14-18/2018, 1111-13.
Initially, we note that we review the trial court's limitation upon defense counsel's closing argument for an abuse of discretion. Commonwealth v. Baez , 554 Pa. 66, 720 A.2d 711, 729 (1998). It is well-settled that an attorney's closing argument is not evidence. Id. "Just as a prosecutor is permitted in his. . .closing argument to comment on the evidence and any reasonable inference therefrom, so may defense counsel. Additionally, defense counsel is entitled, like the prosecution, to question in closing argument, the motives and credibility of any witness." La , 640 A.2d at 1349.
The missing witness adverse inference rule has been summarized as follows:
When a potential witness is available to only one of the parties at trial, and it appears this witness has special information material to the issue, and this person's testimony would not merely be cumulative, then if such party does not produce the testimony of
this witness, the jury may draw an inference that it would have been unfavorable.Commonwealth v. Manigault , 501 Pa. 506, 462 A.2d 239, 241 (1983).
This Court has clarified at least six circumstances where a party is not entitled to the missing witness inference:
1. The witness is so hostile or prejudiced against the party expected to call him that there is a small possibility of obtaining unbiased truth;Commonwealth v. Boyle , 733 A.2d 633, 638 (Pa.Super. 1999) (citation omitted).
2. The testimony of such a witness is comparatively unimportant, cumulative, or inferior to that already presented;
3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the party failed to call such a witness;
5. The witness is not available or not within the control of the party against whom the negative inference is desired; and
6. The testimony of the uncalled witness is not within the scope of the natural interest of the party failing to produce him.
Here, the trial court concluded that Appellant was not entitled to any missing witness/favorable inference as to the absence of Donald Williams' two daughters because the witnesses were equally available to both parties. See Trial Court Opinion, filed 5/2/18, at 2. In fact, the trial court noted that defense counsel listed the two daughters as potential witnesses, but then did not call them. Id. Accordingly, the trial court ruled Appellant was not entitled to a missing witness inference. More specifically, the trial court ruled defense counsel could not argue during closing arguments that the Commonwealth's failure to call Donald Williams' two daughters created an inference that the daughters' testimony would have been favorable to Appellant's claim of justification. We find no abuse of discretion. See Baez , supra.
In his next claim, Appellant contends the trial court erred in not allowing testimony from a proffered witness, Police Chief Eric Doutt, who would have testified that he advised Appellant's family to "be careful" around Donald Williams. Specifically, Appellant avers that he should have been permitted to introduce testimony from Chief Doutt that Mr. Williams had a history of violent actions so that he warned Appellant and his family to "be careful" of confrontations involving Mr. Williams. Appellant suggests Chief Doutt's testimony was relevant to establish Appellant reasonably believed that Mr. Dandridge was in danger such that Appellant's killing of Mr. Williams was justified. See Appellant's brief at 17.
Admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. See Commonwealth v. Arrington , 624 Pa. 506, 86 A.3d 831, 842 (2014). Relevance is the threshold for admissibility of evidence. See Commonwealth v. Cook , 597 Pa. 572, 952 A.2d 594, 612 (2008). "Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact." Commonwealth v. Drumheller , 570 Pa. 117, 808 A.2d 893, 904 (2002) (citation omitted). "All relevant evidence is admissible, except as otherwise provided by law." Pa.R.E. 402. "Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Pa.R.E. 403.
Here, in explaining the basis for its ruling, the trial court relevantly indicated the following:
The [trial court] initially notes that both defense counsel and the Commonwealth agreed that none of [Mr. Williams'] prior criminal convictions were admissible at trial. In a case in which self-defense is asserted, only those past crimes of the victim that are similar in nature and not too distant in time will be deemed probative, with the determination as to similar nature and remoteness resting within the sound discretion of the trial judge. Commonwealth v. Mouzon , [617 Pa. 527,] 53 A.3d 738, 741 (2012).
***
[Here, Mr. Williams'] only violent offenses were a simple assault charge in 2009, for which [he] was found not guilty, a 2000 charge for intimidation of a witness and terroristic threats, both of which were withdrawn, and a robbery conviction in 1988 for which [he] served six months probation. As all parties agreed that a 1988 robbery was not so similar in nature and too distant in time to be probative, no evidence of [Mr. Williams'] conviction was introduced.
In attempting to admit Chief Doutt's testimony, the defense simultaneously agreed that [Mr. Williams'] prior convictions were not probative, while also raising the specter of a violent criminal past for the jury. Certainly, as the statement would have been elicited from a law enforcement officer, it would have raised the inference that Chief Doutt was referring to [Mr. Williams'] criminal past. The fact that Chief Doutt would have testified that he informed [Appellant's] family members to "be careful" of Donald Williams would also have raised the inference that he had a violent criminal history. The Pennsylvania Rules of Evidence properly delineate and limit the use of a victim's prior criminal history in
jury trials, so as not to improperly influence a jury. All parties agreed that [Mr. Williams'] criminal history was not admissible. Thus, even if the testimony was relevant, [the trial court] properly determined that the probative value of Chief Doutt's nebulous statement was substantially outweighed by the confusion it would have caused for the jury, and its tendency to draw the jury's attention away [from] its duty of weighing the evidence impartially.Trial Court Opinion, filed 5/2/18, at 4-6.
We agree with the trial court's sound rationale and find no abuse of discretion. See Arrington , supra.
In his final claim, Appellant asserts the trial court erred in precluding testimony regarding threats made by members of Mr. Williams' family to members of Appellant's family. However, in the argument portion of his brief, Appellant simply indicates: "After careful review of the [trial court's] opinion and [t]rial [t]estimony[,] the [d]efense withdraws the [a]rgument to the question presented above." Appellant's Brief at 21. Accordingly, we decline to address this issue further.
For all of the foregoing reasons, we affirm the judgment of sentence. We direct the parties to attach a copy of the trial court's March 1, 2018, opinion, upon which we rely for the summary of the jury trial testimony and evidence, in the event of further proceedings.
Affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/18/2018
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