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J-S59021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES WATSON
Appellant No. 185 EDA 2015
Appeal from the Judgment of Sentence June 30, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006119-2013
BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: Filed January 20, 2017
Appellant, Charles Watson, appeals from the judgment of sentence
entered on June 30, 2014, following his jury trial convictions for first-degree
murder, carrying a firearm without a license, and possessing an instrument
of crime.1 Upon careful consideration, we affirm.
The trial court briefly summarized the facts of this case as follows:
On May 2, 2010, [Appellant] shot and killed Linwood Bowser
(“Bowser”) while Bowser was standing with a group of
people, including Charna Aruviereh (“Aruviereh”), near the
corner of 28th Street and Jefferson Street in North
Philadelphia. Immediately after [the shooting], Bowser ran
with Aruviereh inside 2735 Jefferson Street, whereupon
Bowser collapsed on the floor inside. Police officers quickly
arrived on scene. One of the witnesses on scene, Edward
Nelson, told police that two people who had witnessed the
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a), 6106, and 907, respectively.
*Former Justice specially assigned to the Superior Court.
J-S59021-16
shooting had run away. The two males were apprehended
and identified as Jamil Jackson (“Jackson”) and James
Holley (“Holley”). Immediately after the shooting,
[Appellant] was not positively identified as the shooter;
however, in the days and weeks following the shooting, the
detectives’ investigation led them to [Appellant]. In the
months following the homicide, Detective [John] Verrecchio
led his team in conducting a lengthy investigation in which
he and the other detectives interviewed witnesses to the
events and details surrounding the shooting, including
Aruviereh, Jackson, Holley, Kevin Cropper (“Cropper”),
Demetrius McClennan (“McClennan”), and Estelita Maria
Robinson (“Robinson”) and several witnesses[] made a
positive identification of [Appellant].
Trial Court Opinion, 8/25/2015, at 3-4.
Procedurally, the case progressed as follows:
On June 30, 2014, the jury found [Appellant] guilty of [the
aforementioned crimes. The trial court] sentenced
[Appellant] to the mandatory term of life imprisonment
without parole on the murder charge. [Appellant] received
no further penalty on the remaining charges. On July 2,
2014, [Appellant] file post sentence motions, which were
denied on October 30, 2014.
On October 30, 2014, [the trial] court received a [n]otice of
[a]ppeal and on May 12, 2015, upon completion of the
notes of testimony, [Appellant] was served an [o]rder
directing him to file a concise statement of the appeal issues
pursuant to Pa.R.A.P. 1925(b). On June 1, 2015, [the trial]
court received [Appellant’s] 1925(b) [statement. The trial
court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
August 25, 2015.]
Id. at 1-2.
On appeal, Appellant presents the following issues for our review:
I. Where the Commonwealth failed to file a reciprocal
alibi notice, did the trial court abuse its discretion by
permitting the Commonwealth to present the
testimony of Detective Verrecchio and Brad Mitchell
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King in rebuttal to Appellant’s alibi witnesses, to
question said witnesses in such a manner as to
circumvent the restrictions placed on such testimony
by the court, and to suggest to the jury that it should
speculate on the content of the evidence excluded by
the court?
II. Should a new trial be granted because of misconduct
during the prosecutor’s closing to the jury, which so
affected the proceedings as to have deprived
Appellant of his right to a fair trial and due process?
III. Did the trial court commit prejudicial error in
overruling defense objection[s] to repeated testimony
by Detective Verrecchio to the effect he had
knowledge after unspecified investigation that other
suspects were not guilty?
IV. Did the court abuse its discretion in permitting the
prolonged display, over repeated defense objection, of
slides of the prior statements of the Commonwealth’s
three identification witnesses, thus unduly highlighting
the former statements as opposed to the witnesses’
testimony in court?
V. Did the trial court err by refusing Appellant’s
requested jury instruction with respect to the
Commonwealth’s failure to investigate his notice of
alibi?
VI. Did the trial court err by refusing Appellant’s
requested jury instruction with respect to
identification?
VII. Was the evidence so conflicting and unreliable as to
have been insufficient to support Appellant’s
conviction as a matter of constitutional law?
VIII. Was the verdict against the weight of the evidence,
given the solid and consistent alibi evidence as
compared with conflicting and unreliable evidence
concerning identification?
Appellant’s Brief at 3-4.
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In his first issue presented, Appellant claims the trial court erred by
permitting the Commonwealth “to introduce rebuttal alibi testimony through
Detective Verrecchio and witness Brad Michael King [(King)]” because “the
Commonwealth defaulted on its reciprocal disclosure requirements under
Pa.R.Crim.P. 567[.]” Id. at 17. On November 6, 2013, Appellant filed a
notice of alibi defense pursuant to Pa.R.Crim.P. 567(A) and listed King as a
potential alibi witness for the defense. Id. at 24. At trial, Appellant called
six alibi witnesses, who claimed he was at a party watching a boxing match
across town at the time of the murder; the defense, however, did not call
King. Id. at 13, 24. When the Commonwealth then sought to call King,
Appellant asserted the Commonwealth did not reciprocate disclosure of the
witnesses it intended to call to disprove or discredit his alibi claims as
required under Pa.R.Crim.P. 567(C). Id. at 24. Thus, Appellant maintains
the Commonwealth was precluded from calling King to rebut Appellant’s
alibi. Id. Appellant further claims it was trial court error to allow Detective
Verrecchio to testify and confirm that he interviewed King after someone
identified him at the murder scene. Id. Furthermore, Appellant maintains,
“the reciprocal disclosure responsibilities placed on the Commonwealth are
not mere local procedural requirements, but reflect the United States
Supreme Court’s judgment in Wardius v. Oregon,
412 U.S. 470
(1973)
that such a reciprocal requirement is required as a matter of constitutional
due process.” Id. at 30.
In sum, Appellant argues:
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[T]he court did fashion an intermediate sanction which (1)
forbade Detective Verrecchio from testifying in rebuttal to
the alibi, and (2) permitted limited evidence from [] King,
with strong admonitions to the prosecutor not to imply to
the jury, while attempting impeachment, that statements
were being hidden from their view. Yet when the chips
were down and the examinations were in progress, the
court, by its rulings, permitted exactly what it purported to
forbid. Detective Verrecchio was examined in such a way
that it was plain to anyone that King had allegedly given
him information about Appellant’s alibi. And King, in turn,
was examined in such a way that it was plain that the
content of that alleged information was that Appellant was
not with King at the fight party. The fact that questions
were couched in terms of “did you ever tell anyone” was
completely ineffective given the surrounding questions
focusing upon other matters that King told to Detective
Verrecchio specifically. Finally, of course, any shreds
remaining of the trial court’s tattered initial rulings were
definitively removed by its failure to intervene following
defense counsel’s objection to the prosecutor, during her
closing, baldly and openly inviting the jury to speculate on
what King must have told the detective.
Id. at 31-32 (citation omitted).
The standard of review for challenges to the admissibility of evidence
is well-settled:
The admission of evidence is solely within the discretion of
the trial court, and a trial court's evidentiary rulings will be
reversed on appeal only upon an abuse of that discretion.
An abuse of discretion will not be found based on a mere
error of judgment, but rather occurs where the court has
reached a conclusion that overrides or misapplies the law,
or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or
ill-will.
Commonwealth v. Witmayer,
144 A.3d 939, 949
(Pa. Super. 2016).
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J-S59021-16
“Generally, an alibi is a defense that places the defendant at the
relevant time in a different place than the scene involved and so removed
therefrom as to render it impossible for him to be the guilty party.”
Commonwealth v. Ali,
10 A.3d 282, 316
(Pa. 2010) (internal citation
omitted). “At the core of an alibi defense is, of course, consistency between
the date and time of the crime and that of the defendant's alibi.”
Id.
Pennsylvania Rule of Criminal Procedure 5672 provides, in pertinent part:
(A) Notice by Defendant. A defendant who intends to
offer the defense of alibi at trial shall file with the
clerk of courts not later than the time required for
filing the omnibus pretrial motion provided in Rule
579 a notice specifying an intention to offer an alibi
defense, and shall serve a copy of the notice and a
certificate of service on the attorney for the
Commonwealth.
(1) The notice and a certificate of service shall be
signed by the attorney for the defendant, or the
defendant if unrepresented.
(2) The notice shall contain specific information as to
the place or places where the defendant claims to
have been at the time of the alleged offense and
the names and addresses of the witnesses whom
the defendant intends to call in support of the
claim.
(B) Failure to File Notice.
(1) If the defendant fails to file and serve the notice of
alibi as required by this rule, the court may
____________________________________________
2
Adopted January 27, 2006, effective August 1, 2006, Pa.R.Crim.P. 567
replaced and amended prior Rules of Criminal Procedure 305 and 573.
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exclude entirely any evidence offered by the
defendant for the purpose of proving the defense,
except testimony by the defendant, may grant a
continuance to enable the Commonwealth to
investigate such evidence, or may make such
other order as the interests of justice require.
(2) If the defendant omits any witness from the notice
of alibi, the court at trial may exclude the
testimony of the omitted witness, may grant a
continuance to enable the Commonwealth to
investigate the witness, or may make such other
order as the interests of justice require.
(C) Reciprocal Notice of Witnesses. Within 10 days
after receipt of the defendant's notice of defense of
alibi, or within such other time as allowed by the court
upon cause shown, the attorney for the
Commonwealth shall file and serve upon defendant's
attorney, or the defendant if unrepresented, written
notice of the names and addresses of all witnesses the
attorney for the Commonwealth intends to call to
disprove or discredit the defendant's claim of alibi.
(D) Failure to File Reciprocal Notice.
(1) If the attorney for the Commonwealth fails to file
and serve a list of its witnesses required by this
rule, the court may exclude any evidence offered
by the Commonwealth for the purpose of
disproving the alibi defense, may grant a
continuance to enable the defense to investigate
such evidence, or may make such other order as
the interests of justice require.
(2) If the attorney for the Commonwealth omits a
witness from the list of its witnesses required by
paragraph (C), the court at trial may exclude the
testimony of the omitted witness, may grant a
continuance to enable the defense to investigate
the witness, or may make such other order as the
interests of justice require.
Pa.R.Crim.P. 567.
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The United States Supreme Court has provided guidance regarding
alibi reciprocity in Wardius v. Oregon,
412 U.S. 470
(1973), a case cited
by Appellant and referenced specifically in Rule 567. The Wardius Court
determined:
Notice-of-alibi rules, now in use in a large and growing
number of States, are based on the proposition that the
ends of justice will best be served by a system of liberal
discovery which gives both parties the maximum possible
amount of information with which to prepare their cases and
thereby reduces the possibility of surprise at trial. The
growth of such discovery devices is a salutary development
which, by increasing the evidence available to both parties,
enhances the fairness of the adversary system. As we
[have] recognized [], nothing in the Due Process Clause
precludes States from experimenting with systems of broad
discovery designed to achieve these goals. The adversary
system of trial is hardly an end in itself; it is not yet a poker
game in which players enjoy an absolute right always to
conceal their cards until played. We find ample room in that
system, at least as far as due process is concerned, for (a
rule) which is designed to enhance the search for truth in
the criminal trial by insuring both the defendant and the
State ample opportunity to investigate certain facts crucial
to the determination of guilt or innocence.
Although the Due Process Clause has little to say regarding
the amount of discovery which the parties must be afforded,
it does speak to the balance of forces between the accused
and his accuser.
* * *
[W]e do hold that in the absence of a strong showing of
state interests to the contrary, discovery must be a two-way
street. The State may not insist that trials be run as a
search for truth so far as defense witnesses are concerned,
while maintaining poker game secrecy for its own
witnesses. It is fundamentally unfair to require a defendant
to divulge the details of his own case while at the same time
-8-
J-S59021-16
subjecting him to the hazard of surprise concerning
refutation of the very pieces of evidence which he disclosed
to the State.
Wardius, 412 U.S. at 473–476 (internal citations, quotations, and footnotes
omitted).
Bearing in mind the salient principle stressed in Wardius, that alibi
discovery must be a two-way street, this Court previously determined that
courts should not read the reciprocal alibi notice rule in overly technical
terms. For example, in Commonwealth v. Nieves,
582 A.2d 341
(Pa.
Super. 1990),
[t]he trial court found that [Nieves] was well aware of the
evidence to be presented to rebut his alibi claim, and that
the technical error of the Commonwealth in not submitting a
list with the complainant’s name and the name of the police
officer to whom prior inconsistent statements had been
made by [Nieves] was harmless. [Nieves] was aware that
the victim would contradict his alibi claim, and he was
provided with copies of the police reports which recorded his
prior inconsistent statements during informal discovery.
[…] The trial court found the purpose of the [reciprocal
notice of alibi rule] to have been fulfilled despite a technical
violation of its letter, and concluded that no relief was
appropriate. [This Court] agree[d].
Nieves,
582 A.2d at 349
(emphasis in original).
In this case, the trial court concluded:
King had been present at the trial, under subpoena [by
Appellant], and had been interviewed by both the
Commonwealth and defense. Under these circumstances,
[the trial court] allowed the Commonwealth to call King,
with limitations on the Commonwealth’s inquiry. [The trial
court] did not allow the Commonwealth to again call
Detective Verrecchio to present King’s statement as
substantive evidence.
-9-
J-S59021-16
* * *
During the rebuttal examinations of both Detective
Verrecchio and King, [the trial] court limited the scope of
the Commonwealth’s direct examination to exclude any
extrinsic evidence of the conversation between Detective
Verrecchio and King regarding [Appellant’s] alibi. Moreover,
[the trial] court excluded impeachment testimony of
Detective Verrecchio regarding King’s statements. Further,
[the trial] court permitted defense counsel to interview King
prior to rebuttal testimony on two occasions, one of which
was declined. No information that the Commonwealth
should have provided [Appellant] in reciprocal prevented
[Appellant] from mounting his alibi defense. As such, [the
trial] court [determined it] acted according to the letter and
spirit of Rule 567 regarding the Commonwealth’s failure to
disclose.
Trial Court Opinion, 8/25/2015, at 6-7 (record citations omitted).
Upon review, we discern no abuse of discretion or error of law.
Appellant listed King as a defense alibi witness prior to trial. N.T.,
6/25/2014, at 71; N.T., 6/26/2014, at 17. Early in the murder investigation,
police received photographs of King and Appellant and, when asked about
the photographs, King made oral statements to police about the incident in
question. N.T., 6/25/2014, at 44-47. Appellant does not dispute that he
was aware of King’s alleged statements to police prior to trial. Moreover,
the trial court permitted defense counsel two opportunities to interview King
regarding the substance of his testimony prior to taking the stand. N.T.,
6/26/2014, at 17-24, 29-30.
Based upon all of the foregoing, we discern no abuse of discretion or
error of law. Rule 567 was designed to enhance the search for truth by
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J-S59021-16
insuring both Appellant and the Commonwealth ample opportunities to
investigate certain facts crucial to the determination of guilt or innocence.
Wardius,
412 U.S. at 474
. To accomplish this task, Rule 567 affords
discretion to the trial court in confronting the various situations presented at
trial. For example, Rule 567 repeatedly authorizes the trial court to impose
sanctions for recalcitrant behavior, but does not compel any particular
course of action in such instances. See Pa.R.Crim.P. 567(B)(1) and (2).
Appellant was well aware of the evidence the Commonwealth sought to
present because he listed King himself. Nieves,
582 A.2d at 349
. The
Commonwealth’s technical error in not submitting King’s name on a
reciprocal alibi notice list was harmless, because the purpose of Rule 567
was fulfilled.
Id.
As such, Appellant is not entitled to relief on his first
claims.
Next, Appellant argues he is entitled to a new trial because the
Commonwealth engaged in prosecutorial misconduct during closing
argument. Appellant’s Brief at 33-38. More specifically, Appellant contends
that the Commonwealth’s closing argument: (1) suggested Detective
Verrecchio was testifying as a rebuttal witness despite the trial court’s prior
limitations on his testimony; (2) personally vouched for Detective
Verrecchio’s truthfulness and called upon the authority of the court to vouch
for the unreliability of recanting witnesses; and (3) “invited speculation as to
- 11 -
J-S59021-16
the contents of statements by [] King which had been specifically excluded
from evidence.” Id. at 34.
This Court previously determined:
It is well[-]settled that a prosecutor has considerable
latitude during closing arguments and his arguments are
fair if they are supported by the evidence or use inferences
that can reasonably be derived from the evidence. Further,
prosecutorial misconduct does not take place unless the
unavoidable effect of the comments at issue was to
prejudice the jurors by forming in their minds a fixed bias
and hostility toward the defendant, thus impeding their
ability to weigh the evidence objectively and render a true
verdict.
In determining whether the prosecutor engaged in
misconduct, we must keep in mind that comments made by
a prosecutor must be examined within the context of
defense counsel's conduct. It is well[-]settled that the
prosecutor may fairly respond to points made in the defense
closing. Moreover, prosecutorial misconduct will not be
found where comments were based on the evidence or
proper inferences therefrom or were only oratorical flair.
* * *
It is settled that it is improper for a prosecutor to express a
personal belief as to the credibility of the defendant or other
witnesses. However, the prosecutor may comment on the
credibility of witnesses. Further, a prosecutor is allowed to
respond to defense arguments with logical force and vigor.
If defense counsel has attacked the credibility of witnesses
in closing, the prosecutor may present argument addressing
the witnesses' credibility.
Commonwealth v. Judy,
978 A.2d 1015, 1020
(Pa. Super. 2009) (internal
citations and quotations omitted).
“[T]he trial court is vested with discretion to grant a mistrial whenever
the alleged prejudicial event may reasonably be said to deprive the
- 12 -
J-S59021-16
defendant of a fair and impartial trial.”
Id. at 1019
. The trial “court must
discern whether misconduct or prejudicial error actually occurred, and if so,
... assess the degree of any resulting prejudice.”
Id.
“Our review [] is
[then] constrained to determining whether the court abused its discretion.”
Id.
Here, the trial court determined:
The remarks were made in fair response to the defense set
forth by [Appellant] in his cross-examination of
identification witnesses and direct examination of alibi
witnesses. The prosecutor discussed the development of
the investigation taken by Detective Verrecchio, which led
to identifying [Appellant] as the shooter. Moreover, defense
counsel opened the door to the Commonwealth’s remarks
by describing the examination of [] King as “some last ditch
effort somehow reaching the bottom of the barrel.” As
such, the prosecutor’s remarks were proper argument which
did not constitute reversible error. Further, [the trial] court
found that the remarks were not a deliberate attempt to
destroy the jury’s objectivity, but rather a synopsis of
Detective Verrecchio’s testimony. As such, the
Commonwealth’s argument was proper[.]
Trial Court Opinion, 8/25/2015, at 11-12 (record citation omitted).
Upon review, we agree. The credibility of identification testimony and
the thoroughness of the ongoing police investigation were fundamental to
the instant case and both parties argued that they were searching for the
truth. Here, the Commonwealth’s isolated closing comments were fair
response to Appellant’s suggestion that certain witnesses, who initially
identified Appellant as the shooter to police, later recanted. Appellant also
suggested during closing that calling King was a last ditch effort in the
- 13 -
J-S59021-16
Commonwealth’s investigation and the Commonwealth was permitted
latitude to respond. The Commonwealth’s passing references to the search
for truth was not deliberately made to destroy the jury’s objectivity. Hence,
we discern no abuse of discretion or trial court error.
Next, Appellant contends that Detective Verrecchio “was permitted,
over defense objection, to testify obliquely to the contents of other
witnesses’ statements and to the fact that other suspects had supposedly
been cleared of involvement.” Appellant’s Brief at 39. More specifically,
Appellant claims it was trial court error to allow Detective Verrecchio to
testify that the police investigated two suspects, Jamil Jackson and Shawn
Hamilton, and concluded that they were not involved in the instant crime.
Id. at 39-42. Appellant claims the testimony “went far beyond what was
necessary to explain the course of investigation by police, and indeed, was
clearly offered for the truth of [Detective Verrecchio’s] conclusion that
certain suspects were in fact innocent.” Id. at 42-43.
“[I]t is well established that certain out-of-court statements offered to
explain the course of police conduct are admissible because they are offered
not for the truth of the matters asserted but rather to show the information
upon which police acted.” Commonwealth v. Chmiel,
889 A.2d 501, 532
(Pa. 2005), citing Commonwealth v. Jones,
658 A.2d 746, 751
(Pa.
1995). “The trial court, in exercising discretion over the admission of such
statements, must balance the prosecution's need for the statements against
- 14 -
J-S59021-16
any prejudice arising therefrom.” Id. at 533. When a defendant challenges
the competency of a police investigation, it opens the door for the
prosecution to provide extensive testimony explaining the course of the
investigation. Id. Moreover, our Supreme Court has found police
investigation testimony proper when it merely repeats matters covered by
another testifying witness. Id.
In this case, there is no question that Appellant, at trial, attacked the
adequacy of the lengthy police investigation. The trial court found that
police testimony regarding the course of the investigation “was necessary to
explain why [Appellant] was not immediately identified as the shooter and
why his arrest did not come until October 2012[,]” over two years after the
murder. Trial Court Opinion, 8/25/2015, at 18-19. We agree. Initially we
note that Jamil Jackson testified in his own right at trial; therefore, we
discern no abuse of discretion, or prejudice to Appellant, in allowing police to
testify regarding their interview with Jackson. With regard to Detective
Verrecchio’s interview of Shawn Hamilton, upon review of the trial
transcripts, the Commonwealth specifically tailored its line of questioning to
avoid the actual content of Hamilton’s statement. N.T., 6/24/2014, at 149-
150. It was only upon defense counsel’s cross-examination that Detective
Verrecchio revealed the substance of the Hamilton interview. Hamilton,
imprisoned on other murder charges, told police that he shot the victim in
this case, but he could not provide specifics or details about the murder and
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“then admitted he was fabricating the story […] to help out a friend.” Id. at
226. Because Appellant, not the Commonwealth, elicited the now-
challenged testimony explaining the course of the police investigation, we
discern no trial court error or abuse of discretion.
In his fourth issue presented, Appellant argues the trial court abused
its discretion in permitting the prolonged display of prior statements to
police made by three identification witnesses, Cropper, Aruviereh, and
Jackson. Appellant’s Brief at 43. Appellant posits it was an abuse of
discretion to permit “the Commonwealth to display the projected images of
these out of court statements at length during the Commonwealth’s
examination of these witnesses as on cross[-examination] and again,
redundantly, during the examinations of [the investigating detectives] who
were called upon to testify to the taking of the statements.” Id. at 44.
Appellant claims, “[t]he prominent and prolonged visual display of the prior
statements unduly emphasized [them] in contrast to the in-court testimony
of the witnesses, intruded on the fact-finding function of the jury, and
deprived [Appellant] of his right to a fair trial under the due process clause.”
Id.
As previously stated, “the admission of evidence is solely within the
discretion of the trial court, and a trial court's evidentiary rulings will be
reversed on appeal only upon an abuse of that discretion.” Witmayer,
144
A.3d at 949
. Our Supreme Court has determined:
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There are three basic types of evidence that are admitted
into court: (1) testimonial evidence; (2) documentary
evidence; and (3) demonstrative evidence. Presently, at
issue is demonstrative evidence, which is tendered for the
purpose of rendering other evidence more comprehensible
to the trier of fact. As in the admission of any other
evidence, a trial court may admit demonstrative evidence
whose relevance outweighs any potential prejudicial effect.
The offering party must authenticate such evidence. The
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its
proponent claims. Demonstrative evidence may be
authenticated by testimony from a witness who has
knowledge that a matter is what it is claimed to be.
Demonstrative evidence such as photographs, motion
pictures, diagrams, and models have long been permitted to
be entered into evidence provided that the demonstrative
evidence fairly and accurately represents that which it
purports to depict.
The overriding principle in determining if any evidence,
including demonstrative, should be admitted involves a
weighing of the probative value versus prejudicial effect. We
have held that the trial court must decide first if the
evidence is relevant and, if so, whether its probative value
outweighs its prejudicial effect. This Commonwealth defines
relevant evidence as having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence. Relevant evidence
may nevertheless be excluded if its probative value is
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.
Commonwealth v. Serge,
896 A.2d 1170, 1177
(Pa. 2006) (internal
citations and quotations omitted).
Here, the trial court concluded:
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Witnesses Aruviereh, Jackson and Cropper were permitted
to reference their prior statements to police during the
course of their testimony. The witnesses subsequently
explained in whole and denied in part these statements,
after which defense counsel was permitted to question each
witness. The display of the witnesses’ prior inconsistent
statements served as a piece of demonstrative evidence to
aid the fact finder in determining the truthfulness and
veracity of the witnesses’ testimony. [The trial] court
determined that the probative value of the displaying the
prior inconsistent statements was not outweighed by any
unfair prejudice to [Appellant], as the documents on display
were exact replicas of the witnesses’ statements. Further,
all three witnesses were able to authenticate the prior
statements as original copies. Thus, the witnesses’ prior
inconsistent statements were properly presented at trial.
Trial Court Opinion, 8/25/2015, at 16.
Appellant admits that he “does not challenge the admissibility of these
statements, but rather the emphasis with which they were displayed.”
Appellant’s Brief at 44. Thus, Appellant only claims that the unfair prejudice
of visually displaying the statements outweighed the probative value of
those statements. We disagree. Both parties used the projected statements
in questioning the witnesses. Appellant was able to highlight the
inconsistencies in the witnesses’ written statements, just the same as the
Commonwealth. Accordingly, we conclude that there was no prejudice to
Appellant. As such, Appellant’s fourth issue lacks merit.
Appellant’s fifth and sixth issues assert the trial court erred by refusing
Appellant’s requested jury instructions. “[O]ur standard of review when
considering the denial of jury instructions is one of deference—an appellate
court will reverse a court's decision only when it abused its discretion or
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committed an error of law.” Commonwealth v. Galvin,
985 A.2d 783
,
798–799 (Pa. 2009). When reviewing a challenge to instructions given to
the jury,
the reviewing court must consider the charge as a whole to
determine if the charge was inadequate, erroneous, or
prejudicial. The trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as
the law is clearly, adequately, and accurately presented to
the jury for its consideration. A new trial is required on
account of an erroneous jury instruction only if the
instruction under review contained fundamental error,
misled, or confused the jury.
Commonwealth v. Fletcher,
986 A.2d 759, 792
(Pa. 2009) (internal
citations and quotations omitted).
In his fifth issue presented, Appellant contends that despite filing his
notice of alibi defense seven months before trial, “the Commonwealth failed
to investigate the alibi witnesses named, six of whom testified at trial for
[Appellant].” Appellant’s Brief at 46. As such, Appellant requested an
instruction that the jury could consider the foregoing in determining whether
the Commonwealth proved their case beyond a reasonable doubt. Id. at 47.
In this case, the trial court concluded it “provided standard instructions
regarding [Appellant’s] alibi defense that clearly and accurately presented
the legal concepts to the jury, including reasonable doubt.” Trial Court
Opinion, 8/25/2015, at 21. The trial court further stated that “[t]he
Commonwealth’s investigation, or lack thereof, with regard to [] alibi, was
for the argument of counsel and not for a charge from the court.” Id. Upon
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review, we agree with the trial court’s analysis. Appellant requested that the
trial court instruct the jury that the Commonwealth’s failure to investigate
Appellant’s alibi witnesses could be considered by the jury in determining
reasonable doubt. Instead, the trial court included standard jury instructions
regarding alibi witnesses and reasonable doubt. N.T., 6/26/2014, at 150-
152, 171-172. The trial court clearly, adequately, and accurately presented
the law regarding alibis to the jury. We discern no error.
In his sixth issue presented, Appellant, citing our Supreme Court’s
2014 decision in Commonwealth v. Walker,
92 A.3d 766
(Pa. 2014),
argues the trial court failed to modify the standard jury instruction regarding
identification as set forth in Commonwealth v. Kloiber,
106 A.2d 820
(Pa.
1954), “to take into account the potential effects of weapons focus, stress or
the suggestiveness inherent in being presented with a photo array without
first being cautioned the perpetrator may or may not be included in the
display.” Appellant’s Brief at 50-51. Thus, Appellant maintains the trial
court erred when it refused to charge the jury with his written, proposed
instruction on identification “taken from Connecticut and New Jersey
practice, as the analysis of these jurisdictions’ case law figured prominently
in the Walker opinion.” Id. at 51. Accordingly, Appellant posits that
“[s]ince identification was the core issue in the case, [the trial court’s refusal
to issue Appellant’s suggested charge,] was [] highly prejudicial and should
warrant a new trial.” Id. at 53.
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“A defendant is entitled to a Kloiber instruction where a witness: (1)
was not in a position to clearly observe the defendant, or is not positive as
to identity; (2) equivocated on the identification; or (3) failed to identify the
defendant on prior occasions.” Commonwealth v. Johnson,
139 A.3d
1257, 1281
(Pa. 2016) (internal citation omitted). In Walker, our Supreme
Court granted allocatur to determine “whether a trial court may, in its
discretion, permit expert testimony in the area of eyewitness identification,
and [to] reconsider [Pennsylvania’s] current decisional law which absolutely
bans such expert testimony.” Walker,
92 A.3d 766, 769
(Pa. 2014). The
majority in Walker, “reject[ed] reliance upon cross-examination and closing
arguments as sufficient to convey to the jury the possible factors impacting
eyewitness identification and as justification for an absolute bar of such
expert testimony, and recognize[d] the potential advantages of expert
testimony as a means to assist the jury where mistaken identity is a
possibility.”
Id. at 786
. The Walker majority further stated “a Kloiber
instruction would not serve as a sufficient reason to deny categorically the
use of expert testimony” because “factors such as cross-racial identification,
weapons focus, stress, or correlation between confidence and accuracy of
identification are divorced from the compromised position of the witness, his
or her lack of positive identification, or any expressed qualification of
statements regarding identification.” The Walker majority also responded
to Chief Justice Castille’s dissent in that case, wherein he “suggest[ed]
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unspecified revision to the existing Kloiber instruction[,]” which the Walker
majority rejected, because “such revisions would entail a complete
remaking, rather than a mere reworking, of the instruction.”
Id.
Based upon all of the foregoing, we initially reject Appellant’s
suggestion that the Walker decision required the trial court to modify the
Kloiber jury instruction. Instead, Walker permitted Appellant to utilize
expert testimony regarding identification. Moreover, upon review, the trial
court did give a modified jury instruction on identification, utilizing the
standard Kloiber charge, but also incorporating the factors from the Walker
decision. The trial court asked the jury to consider whether identification
witnesses were in a position to observe the crimes, aware of the commission
of crime, distracted by a weapon, under stress, personally biased, or
influenced by the way in which police used a photo-array. N.T., 6/27/2014,
at 164-168. We discern no abuse of discretion or error of law.
In his seventh allegation of error, Appellant claims the Commonwealth
failed to present sufficient evidence to support his first-degree murder
conviction.3 Appellant argues that, “all three identifications [of Appellant]
were repudiated at trial.” Appellant’s Brief at 55. Thus, Appellant posits,
“the jury’s choice among the various in- and out-of-court statements of the
____________________________________________
3
Appellant did not challenge his weapon convictions in his Rule 1925(b)
statement or specifically in his appellate brief. Therefore, we will constrain
our sufficiency review to Appellant’s murder conviction.
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witnesses could not be made without resorting to conjecture.” Id. at 56-57.
In turn, Appellant avers the Commonwealth did not prove his conviction
beyond a reasonable doubt. Id. at 57.
We apply the following standard of review when considering a
challenge to the sufficiency of the evidence:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
finder of fact[,] while passing upon the credibility of
witnesses and the weight of the evidence produced is free
to believe all, part or none of the evidence.
In order for a jury to find a defendant guilty of murder of
the first degree, the Commonwealth must prove, beyond a
reasonable doubt, that a human being was lawfully killed,
that the accused was responsible for the killing, and that
the accused acted with a specific intent to kill.
Commonwealth v. Talbert,
129 A.3d 536
, 542–543 (Pa. Super. 2015)
(internal citations and quotations omitted).
We previously determined:
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Evidence of identification need not be positive and certain to
sustain a conviction. Although common items of clothing
and general physical characteristics are usually insufficient
to support a conviction, such evidence can be used as other
circumstances to establish the identity of a perpetrator.
Out-of-court identifications are relevant to our review of
sufficiency of the evidence claims, particularly when they
are given without hesitation shortly after the crime while
memories were fresh. Given additional evidentiary
circumstances, any indefiniteness and uncertainty in the
identification testimony goes to its weight.
Commonwealth v. Orr,
38 A.3d 868, 874
(Pa. Super. 2011) (en banc).
Moreover, our Supreme Court has concluded that
criminal convictions which rest only on prior inconsistent
statements of witnesses who testify at trial do not constitute
a deprivation of a defendant's right to due process of law,
as long as the prior inconsistent statements, taken as a
whole, establish every element of the offense charged
beyond a reasonable doubt, and the finder-of-fact could
reasonably have relied upon them in arriving at its decision.
Prior inconsistent statements, which meet the requirements
for admissibility under Pennsylvania law, must, therefore,
be considered by a reviewing court in the same manner as
any other type of validly admitted evidence when
determining if sufficient evidence exists to sustain a criminal
conviction.
Commonwealth v. Brown,
52 A.3d 1139, 1171
(Pa. 2012).
Here, the trial court determined there was sufficient evidence to
support Appellant’s murder conviction, stating:
At trial, the jury heard testimony from witnesses []
Aruviereh, [] Jackson, and [] Cropper, numerous police
officers and detectives, as well as medical examiner Dr.
[Edwin] Lieberman. The testimony of eyewitnesses
Aruviereh and Jackson established that, on the evening of
May 2, 2010, Bowser and a group of people were outside
[of] 2735 Jefferson Street, near the intersection with 28 th
Street. Both Aruviereh and Jackson saw [Appellant]
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approach the corner of 28th Street and Jefferson Street
carrying a plastic shopping bag and moments later saw him
shooting a gun towards Bowser. Aruviereh identified
[Appellant] as the shooter in her February 7, 2011
statement to police. [] Jackson identified [Appellant] as the
shooter in his February 22, 2012 statement to police.
The testimony of [] Cropper corroborated that of Aruviereh
and Jackson with regard to the date, time, and location of
the shooting as well as [Appellant’s] possession of a plastic
shopping bag at the time of the shooting. Cropper’s
testimony further established that [Appellant] fled the scene
via 28th Street and that [Appellant] placed a firearm inside
the plastic shopping bag after the shooting. Although
Aruviereh, Jackson, and Cropper disavowed ma[n]y of the
averments made in their statements to police, their signed
statements were properly admitted as evidence at trial
through the respective testimony of Detective Verrecchio
and Detective Lucke. These statements were admissible for
their truth as prior inconsistent statements that were signed
and adopted by the declarants.
The testimony of [a responding police officer] and the
firearms examiner Officer [Jesus] Cruz confirmed that four
fired cartridge were recovered from Jefferson Street near its
intersection with 28th Street and that all four casings were
.390/.9 millimeter caliber and fired from the same firearm.
Additionally, Dr. Lieberman’s testimony established that the
victim sustained a single gunshot wound to his left chest
which subsequently penetrated his left lung, pulmonary
artery, aorta, and right lung. Dr. Lieberman further
testified that the victim’s death was caused by the fatal
gunshot wound.
In consideration of the evidence presented at trial, as
discussed above, [the trial court] found that the evidence
supported the jury’s finding that [Appellant] killed Bowser
with the specific intent to kill and with malice. As such, [the
trial court], in view of all the evidence admitted at trial in
the light most favorable to the Commonwealth, []
determined that the evidence was sufficient to enable the
jury to find, beyond a reasonable doubt, that [Appellant]
was guilty of [m]urder of the [f]irst[-]degree.
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Trial Court Opinion, 8/25/2015, at 25-26 (internal citation omitted).
Upon review, we agree with the trial court’s assessment. The
Commonwealth presented written and signed eyewitness statements made
to police identifying Appellant as the shooter. While their recorded
statements may have differed from their trial testimony, the jury was free to
believe all, part or some of the evidence presented. Moreover, any
uncertainty in the witnesses identifications goes to the weight of the
evidence presented, not the sufficiency. The eyewitnesses told police that
Appellant pulled a firearm out of a plastic shopping bag, stepped toward the
victim and fired, and then put the firearm back in the bag and fled. Police
recovered four fired bullet casings at the scene. The medical testimony
confirmed that the victim died as the result of a gunshot to the chest. Our
Supreme Court previously concluded that the deliberate and repeated use of
a firearm to shoot a victim in the chest or abdomen establishes his specific
intent to kill. See Commonwealth v. Padilla,
80 A.3d 1238, 1244
(Pa.
2013). When the evidence is viewed in the light most favorable to the
Commonwealth, as our standard requires, we discern sufficient evidence to
support Appellant’s first-degree murder conviction.
Finally, in his last issue presented, Appellant claims the verdict was
against the weight of the evidence presented at trial. Appellant’s Brief at
57-58. Appellant argues that between the speculative eyewitnesses and his
six alibi witnesses, the “alibi testimony was so clearly of greater weight that
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to ignore it or give it merely equal weight constituted a denial of justice.”
Id. at 58.
We review this claim under the following standard:
An appellate court's standard of review when presented with
a weight of the evidence claim is distinct from the standard
of review applied by the trial court. Appellate review of a
weight claim is a review of the exercise of discretion, not of
the underlying question of whether the verdict is against the
weight of the evidence. In order for an appellant 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.
Commonwealth v. Smith,
146 A.3d 257
, 264–265 (Pa. Super. 2016)
(internal citations omitted).
We discern no abuse of discretion. The verdict does not shock one’s
conscience. The jury was permitted to make factual determinations
regarding any inconsistencies in testimony. We also agree with the trial
court that “the jury heard testimony from [police] and [the medical
examiner] that corroborated the eye-witnesses[’] collective account of the
shooting[.]”
Id.
The physical evidence recovered at the scene revealed that
a single shooter killed the victim. Moreover, the jury was free to wholly
reject the testimony of Appellant’s six proffered alibi witnesses. Thus, we
discern no abuse of discretion by the trial court in denying Appellant relief on
his weight of the evidence claim.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2017
- 28 -Case Information
- Court
- Pa. Super. Ct.
- Decision Date
- January 20, 2017
- Status
- Precedential