Opinion
J-S55006-16 No. 3030 EDA 2014
11-01-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. BRIAN TOOTLE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014103-2012 BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY LAZARUS, J.:
Former Justice specially assigned to the Superior Court.
Brian Tootle appeals from the judgment of sentence, imposed in the Court of Common Pleas of Philadelphia County, after a jury found him guilty of first-degree murder and related charges. Upon review, we affirm on the basis of the July 2, 2015 supplemental opinion authored by the Honorable Glenn B. Bronson.
Tootle was also convicted of one count each of: criminal conspiracy, 18 Pa.C.S.A. § 903; carrying a firearm without a license, 18 Pa.C.S.A. § 6106; carrying a firearm on the public streets of Philadelphia, 18 Pa.C.S.A. § 6108; and possessing instruments of crime, 18 Pa.C.S.A. § 907.
The trial court set forth the facts of this case as follows:
On July 27, 2012, at approximately 8:37 p.m., Gerald Jones, Nafis Armstead, and several of their friends were outside on the 200 block of East Sharpnack Street in Philadelphia. Earlier, and throughout the day, [Tootle] and two individuals were in a green van driving around the block and parking several times before driving off again. As Jones and Armstead were talking, the van pulled up to the curb and parked. [Tootle] and at least one of the other passengers exited the vehible wearing hats and with bandanas over their faces. They brandished firearms and opened fire on Jones and Armstead. After the shooting stopped, [Tootle] and the other men fled the scene in the van, with [Tootle] driving. Neither Jones nor Armstead were armed at the time.
Police responded to the scene to find Armstead lying in the middle of the road. Armstead was declared dead at 8:58 p.m. Jones was shot a total of five times in the back, leg, arm, and hip. Police placed Jones in the back of a police cruiser and transported him to Einstein Hospital. Information that the shooters were driving a green van was broadcast over police radio as police continued to respond to the scene.
Officer [Tyrone] Boaddus, who was in his patrol car responding to the radio call regarding the shooting, observed a green van matching the description of the getaway vehicle. He followed the van to the parking lot of an apartment building, where it stopped. [Tootle] and another man then got out of the van and [Tootle] walked toward the back of the lot. Additional officers arrived, and [Tootle] was located and apprehended. No other individuals were apprehended at that time.
At the time of his arrest, [Tootle] gave police the false name of Brandon Harris. As [Tootle] was taken into custody, [he] asked the arresting officers: "Can I say my last good-byes to my cousin?" [Tootle] also asked how many people were shot and if anyone was killed. Michael Jordan, a witness to the shooting's aftermath and [Tootle's] flight in the van, was taken to where the van was located, where he identified the van as the vehicle he saw leaving the scene of the shooting.
. . .
Police recovered two firearms. A loaded .40 caliber Glock with an extended magazine was recovered inside of [Tootle's] vehicle. [Tootle's] fingerprints were recovered from that Glock. Additionally, police recovered a .357 caliber six shot revolver,
with six spent cartridge cases in the cylinder, approximately ten feet from where [Tootle] was apprehended. Police also recovered a cell phone from the vehicle which bore fingerprints from [Tootle's] thumb. Police recovered and identified eighteen .40 caliber fired cartridge cases. A bullet jacket and core recovered from Armstead's head by the medical examiner matched the revolver recovered near [Tootle]. Bullets recovered from Armstead's torso, chest, and leg were consistent with the .40 caliber Glock having [Tootle's] fingerprint. In addition, all of the recovered .40 caliber fired cartridge cases were fired from the Glock. The clothing [Tootle] was wearing at the time of his arrest was seized and tested for gunpowder residue. Gunpowder residue was found on [Tootle's] black T-shirt and sweatpants.Trial Court Opinion, 7/2/15, at 3-5.
Following a jury trial, on July 3, 2014, Tootle was convicted of the aforementioned offenses. On September 12, 2014, the trial court sentenced him to an aggregate sentence of life without parole plus 24½ to 52 years' incarceration. Tootle did not file post-sentence motions, but filed a notice of appeal to this Court on October 12, 2014. After he failed to file a court-ordered statement of issues complained of on appeal pursuant to Pa.R.A.P. 1925(b), the trial court issued a Rule 1925(a) opinion finding all appellate issues to have been waived.
By per curiam order filed February 19, 2015, this Court granted counsel's motion to withdraw and directed the trial court to determine whether Tootle was eligible for court-appointed counsel. Following a hearing, the trial court appointed Henry M. Sias, Esquire, to represent Tootle on appeal. Attorney Sias subsequently applied to this Court to remand the matter to the trial court for the filing of a Rule 1925(b) statement, nunc pro tunc, and the issuance of a supplemental Rule 1925(a) opinion by the trial court. This Court granted the application on May 18, 2015. Counsel subsequently filed a Rule 1925(b) statement and the trial court issued a supplemental Rule 1925(a) opinion.
On appeal, Tootle raises the following issues for our review:
1. Was the evidence insufficient to support a verdict of [f]irst[-d]egree [m]urder?Brief of Appellant, at 5.
2. Did the trial court err in excusing Juror 8, after individual questioning confirmed that she would be fair, in violation of the Sixth Amendment and Article I, Section 6 of the Pennsylvania Constitution; further, did excusing the juror having the effect of seeming to punish a member of the jury for criticizing the conduct of the representative of the Commonwealth, to the derogation of the jury's impartiality?
3. Did the trial court err in denying [Tootle's] motion[] for mistrial[?]
4. Was the weight of the evidence against the verdict, given the polluted and corrupt nature of the sole testimony placing [Tootle] at the scene of the crime?
5. Did the trial court err in allowing the Commonwealth to reopen its case after it had rested[?]
We have reviewed the record and the briefs submitted by the parties. In his supplemental Rule 1925(a) opinion, Judge Bronson properly concludes that: (1) the evidence was sufficient to convict Tootle of first-degree murder, see Trial Court Opinion, 7/2/15, at 5-8; (2) the court's decision to excuse Juror 8 was not an abuse of discretion, see id. at 9-10; (3) the court did not err in declining to grant Tootle's motion for mistrial, see id. at 11-12; (4) Tootle's weight of the evidence claim is waived for failure to preserve it through the filing of post-sentence motions, see id. at 8-9; and (5) the court did not err in permitting the Commonwealth to reopen its case after defense counsel disputed the scope of a stipulation regarding the testimony of latent fingerprint technician Patrick Raytik, see id. at 12-13.
In his supplemental opinion, Judge Bronson thoroughly and correctly disposes of all issues Tootle raises on appeal. Accordingly, we affirm on the basis of his well-reasoned opinion and instruct the parties to attach a copy in the event of further proceedings in this matter.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/1/2016
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