Com. v. Simmons, J. (memorandum)
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J-S37031-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JAMAAL SIMMONS Appellant No. 2257 EDA 2012 Appeal from the Judgment of Sentence May 9, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007218-2010 BEFORE: GANTMAN, J., MUNDY, J., and COLVILLE, J.* MEMORANDUM BY GANTMAN, J.: FILED DECEMBER 05, 2013 Appellant, Jamaal Simmons, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for third degree murder, conspiracy to commit third degree murder, aggravated assault, and recklessly endangering another person ( REAP ).1 We affirm. In its opinion, the trial court fully and correctly sets forth the relevant facts of this case as follows: On July 25, 2009 at approximately 2 [o clock] in the afternoon, [Appellant] was driving a black van down Norris Street between 23rd and 24th Streets. When the van reached Judson Street, a person clothed in black exited the ____________________________________________ 1 18 Pa.C.S.A. ยงยง 2502(c), 903(a), 2702(a), 2705, respectively. ___________________________ *Retired Senior Judge assigned to the Superior Court. J-S37031-13 van and fired one shot down Norris Street in the direction of 24th Street. At that time, Rodney Barnes ( Barnes ) and his co-worker, Curtis Johns ( Johns ) were standing at the rear of Barnes van parked on Norris Street between 23rd and 24th. They were both union carpenters who had been working for the Philadelphia Housing Authority at the Raymond Rosen Manor. The shot hit Barnes in the head killing him instantly and shattered the lift gate of Barnes' truck, showering Johns with glass. [Appellant] then returned with the van, picked up the unknown gunman and drove off. Barnes remained on life support for 12 days and died when it was removed on August 5, 2009. The medical examiner testified that Barnes died from a single gunshot to the head. Barnes was not the intended victim; the intended victim was one Richard Taylor who at the time had been walking down Norris Street near to where the victim was standing. There was bad blood between [Appellant] and Taylor over an incident that had occurred sometime prior to the shooting. A warrant was issued for [Appellant] and he was arrested in New York. A van registered to his brother and containing [Appellant s] fingerprint, was recovered in Vermont. The shooting was recorded by security cameras located on a building across the street from where the victim was standing. The tape shows the van approaching and shows the person getting out of the van firing the shot and then getting back in the van. The jury was shown pictures of the van they recovered in Vermont compared to the van shown on the videotape. The vans were very similar. (Trial Court Opinion, dated December 27, 2012, at 1-2). The procedural history includes: [Appellant], was tried before this [c]ourt and a jury on January 4-11, 2012, and was convicted of third degree murder, conspiracy to commit third degree murder, aggravated assault, and [REAP]. This [c]ourt deferred sentencing to have the benefit of a presentence -2- J-S37031-13 investigation and a mental health report. On May 9, 2012, this [c]ourt sentenced [Appellant] to 15 to 30 years incarceration for third degree murder, 15 to 30 years incarceration for conspiracy to commit third degree murder, [5] to 10 years incarceration for aggravated assault, all sentences to be served concurrently, and no further penalty for REAP. On May 21, 2012, post sentence motions were filed and were denied on May 30, 2012. (Id. at 1). Appellant filed his notice of appeal on June 14, 2012. On June 18, 2012, the court ordered Appellant to file a concise statement of errors complained of on appeal. Appellant timely complied on June 25, 2012. Appellant raises the following issues for our review: IS APPELLANT ENTITLED TO AN ARREST OF JUDGMENT WITH RESPECT TO HIS CONVICTIONS FOR THIRD DEGREE MURDER, CRIMINAL CONSPIRACY, AGGRAVATED ASSAULT AND RECKLESSLY ENDANGERING ANOTHER PERSON SINCE THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THESE CONVICTIONS AS THE COMMONWEALTH FAILED TO PROVE APPELLANT S GUILT OR THE ESSENTIAL ELEMENTS OF THESE CRIMES BEYOND A REASONABLE DOUBT? IS APPELLANT ENTITLED TO A NEW TRIAL SINCE THE VERDICTS OF GUILT ARE AGAINST THE WEIGHT OF THE EVIDENCE? IS APPELLANT ENTITLED TO A NEW TRIAL AS A RESULT OF THE TRIAL COURT S RULING THAT ALLOWED THE COMMONWEALTH TO PRESENT THE TESTIMONY OF RICHARD TAYLOR THAT HE WAS UNDER THE IMPRESSION THAT HE WAS THE INTENDED TARGET OF THE SHOOTER BECAUSE THERE WAS BAD BLOOD BETWEEN HIM AND APPELLANT? IS APPELLANT ENTITLED TO A NEW TRIAL AS A RESULT OF THE TRIAL COURT S RULING THAT ALLOWED COMMONWEALTH WITNESS DETECTIVE JOHN LEWIS TO TESTIFY TO HIS OPINION REGARDING THE SIMILARITIES BETWEEN A VAN DEPICTED IN A SURVEILLANCE VIDEO -3- J-S37031-13 AND A VAN OWNED BY APPELLANT S BROTHER WHICH WAS CONFISCATED BY POLICE IN VERMONT? IS APPELLANT ENTITLED TO A NEW TRIAL AS A RESULT OF THE TRIAL COURT S RULING THAT GRANTED THE COMMONWEALTH S MOTION TO CROSS EXAMINE APPELLANT S CHARACTER WITNESSES ON THEIR KNOWLEDGE OF APPELLANT S RAP LYRICS AS DEPICTED IN VARIOUS DVD S AND VIDEOS? IS APPELLANT ENTITLED TO A REMAND FOR RESENTENCING SINCE THE AGGREGATE SENTENCE OF 15 TO 30 YEARS INCARCERATION IS EXCESSIVE AND NOT REFLECTIVE OF HIS CHARACTER, HISTORY OR CONDITION? IS APPELLANT ENTITLED TO THE GRANT OF A NEW TRIAL BASED UPON AFTER-DISCOVERED EVIDENCE? (Appellant s Brief at 5-6). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Carolyn Engel Temin, we conclude Appellant s issues one through six merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion at 3-18) (finding: (1) evidence was sufficient to establish Appellant drove shooter to scene, shooter fired shot in direction of Richard Taylor, but instead killed Mr. Barnes, and Appellant returned to scene, picked up shooter and drove away; hence evidence was sufficient to support guilty verdicts; (2) verdict is not against weight of evidence on ground alleged, where jury chose to believe witnesses prior statements to police rather than their trial testimony; (3) admission of testimony regarding bad blood between him and Appellant -4- J-S37031-13 was within discretion of trial court, to establish motive and intent; (4) admission of lay opinion testimony regarding similarities of Appellant s vehicle and vehicle depicted on surveillance video was within discretion of trial court and did not serve to confuse or prejudice jury; (5) court s decision to grant prosecution s motion in limine to use rap lyrics in rebuttal to proposed defense character evidence was proper; (6) sentence was within sentencing guidelines and not excessive). As to these issues, we affirm on the basis of the trial court s opinion. In his final issue, Appellant contends he is in possession of afterdiscovered evidence in the form of a statement by Mr. Tyrell Samuels-Bey, which Appellant claims he could not have obtained through the exercise of reasonable diligence before trial. Sometime after the judgment of sentence was entered, Mr. Samuels-Bey made a statement that he had sold bad drugs to the driver of the van just before the shooting; and the driver was not Appellant. Mr. Samuels-Bey says this drug exchange prompted the shooter to fire a shot at Mr. Samuels-Bey. Mr. Samuels-Bey did not come forward with this pertinent information previously, because he was afraid of criminal prosecution for the drug transaction. Appellant concludes he is entitled to remand for an evidentiary hearing concerning this claim of after-discovered evidence. We cannot agree. To secure a new trial based on after-discovered evidence: [Defendant] must demonstrate that the evidence: (1) could not have been obtained prior to the conclusion of the -5- J-S37031-13 trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted. Commonwealth v. Pagan, 597 Pa. 69, 106, 950 A.2d 270, 292 (2008), cert. denied, 555 U.S. 1198, 129 S.Ct. 1378, 173 L.Ed.2d 633 (2009) (emphasis added). The test is conjunctive; the defendant must satisfy by a preponderance of the evidence all of these factors to warrant a new trial. See id.; Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa.Super. 2007), appeal denied, 598 Pa. 774, 958 A.2d 1047 (2008). To obtain a new trial based on after-discovered evidence, the petitioner must explain why he could not have produced the evidence in question at or before trial with the exercise of reasonable diligence. Commonwealth v. Jones, 402 A.2d 1065, 1066 (Pa.Super. 1979). A defendant may unearth information that the party with the burden of proof is not required to uncover, so long as such diligence in investigation does not exceed what is reasonably expected. Commonwealth v. Brosnick, 530 Pa. 158, 166, 607 A.2d 725, 729 (1992). A defendant has a duty to bring forth any relevant evidence in his behalf. 323 A.2d 295, 296 (Pa.Super. 1974). Commonwealth v. Johnson, Likewise, a defendant who fails to question or investigate an obvious, available source of information, cannot later claim evidence from that source constitutes newly discovered evidence. Commonwealth v. Chambers, 528 Pa. 558, 583, 599 A.2d 630, 642 -6- J-S37031-13 (1991), cert. denied, 504 U.S. 946, 112 S.Ct. 2290, 119 L.Ed.2d 214 (1992). Unless there has been a clear abuse of discretion, an appellate court will not disturb the trial court s denial of an appellant s motion for a new trial based on after-discovered evidence. In order for after-discovered evidence to be exculpatory, it must be material to a determination of guilt or innocence. Commonwealth v. Chamberlain, 612 Pa. 107, 166, 30 A.3d 381, 416 (2011), cert. denied, ___ U.S. ___, 132 S.Ct. 2377, 182 L.Ed.2d 1017 (2012) (internal citations omitted). Further, the proposed new evidence must be producible and admissible. Id. at 164, 30 A.3d at 414. Instantly, the trial court reasoned as follows: In support of his claim, [Appellant] attached to his postverdict motion, the statement of one [Tyrell] Samuels-Bey. According to the statement, Bey admits that in July 2009 in the Raymond Rosen Projects, he sold drugs to the occupants of a black van with tinted windows on Judson Street between Norris and Diamond Streets. He says the driver of the van was a black male named Brandon. Bey claims that he knew he had sold bad drugs and took off on his bike after the sale. He noticed the van behind him as he pedaled away on his bike. He saw the passenger exit the van and fire one shot. Bey s statement says that he did not come forward with information because he was afraid of getting in trouble. Although he knows [Appellant] as a rapper he does not know him personally but he is 100% certain that [Appellant] was not the driver of the van. Contrary to [Appellant s] claim that he is only now discovering the name of the person on the bike, the person on the bike was identified both in the statement of Khalil Bradley and Richard Taylor. In Richard Taylor s statement, on page 3, it indicates that he was shown a picture taken from a My Space photo of Jeffrey Pickens and identified the person in the picture as, that s who was on the bike -7- J-S37031-13 talking to Steel and the boy who shot the maintenance man. In the statement of Khalil Bradley, the following occurred: Q. Can you tell me what you saw? A. The boy Jeff was coming up the street on his bike fast. When he was next to the housing guy the mini-van came up Judson and was going towards the Comcast building. It stopped on my side of Norris Street at the end of the block. Then the boy opened the side door of a dark colored tinted out mini-van and I heard a boom then I saw the housing guy turn and then his head moved and the glass shattered. Q. Who is Jeff? A. He s from over the bridge, he be with LZAY, Tahir, Old dog and BTF. He be around Dover and Diamond and Newkirk and Diamond and 31st and Berks, like from the area they call the land of the lost. I heard he had burned the guy in the van. And then a little later on: Q. What do you mean by burn? A. Sold him some fake wet. Drugs. He diluted it with starter fluid or cooking oil. The defense had this material in discovery long before the date of the trial and could have investigated to see who that person was and whether [he] had information about the driver of the van that differed from the evidence supplied by the Commonwealth. [Appellant] is not entitled to a new trial based on a claim of after-discovered evidence. (Trial Court Opinion at 19-21). The record confirms the court s analysis. From discovery and before his trial, Appellant had several leads to investigate the identity of the person on the bike, whom he now claims is Mr. Samuels-Bey. See Brosnick, supra; Chambers, supra; Jones, -8- J-S37031-13 supra; Johnson, supra. Appellant failed to show when and how he first learned the identity of the person on the bike and obtained the statement of Mr. Samuels-Bey. We further observe that Mr. Samuels-Bey s statement does not carry the weight of an affidavit. Although he reduced his statement to writing and signed it, the statement was not duly sworn before someone other than Mr. Samuels-Bey. Thus, the statement is mere narration. Therefore, we see no reason to disturb the court s decision to reject the statement as presented. Accordingly, we affirm the judgment of sentence. Judgment of sentence affirmed. *JUDGE COLVILLE CONCURS IN THE RESULT. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/5/2013 -9-
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