Com. v. Hughes (memorandum)
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J-A31038-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JEFFREY HUGHES, Appellant No. 2915 EDA 2011 Appeal from the Judgment of Sentence June 15, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008995-2010, CP-51-CR-00089962010 BEFORE: STEVENS, P.J., BOWES, and PLATT,* JJ. MEMORANDUM BY BOWES, J.: Filed: February 8, 2013 Jeffrey Hughes appeals from the judgment of sentence of life imprisonment as well as concurrent sentences imposed after a jury convicted him of first-degree murder, conspiracy to commit murder, robbery, conspiracy to commit robbery, possession of an instrument of crime ( PIC ), and carrying a firearm without a license. We affirm. The trial court detailed the facts as follow. On May 10, 2010, Rernard Mitchell (victim) was fatally shot in his vehicle while driving on the 4600 block of North 15th Street, in Philadelphia. The victim was also known by those close to him to sell marijuana. At approximately 4:10 p.m. on May 10, 2010, the victim sent a text message to the defendant, asking him, You still want the two jawns or no? to which the ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A31038-12 Defendant responded, Yeah, I still want them. A few hours later, after several other text messages were exchanged, the victim told his girlfriend, Jessica Gladden, that he was going to the Abbotsford Housing Project to meet the bull, Jeff, whom Jessica knew to be the defendant. He told his best friend, Husani Wilson, that he was going to sell some tree to someone he had done business with before, and asked Mr. Wilson if he wanted to take a ride with him. Taking a brown paper bag, which Mr. Wilson knew to contain marijuana, with him, the victim and Mr. Wilson drove the victim s mother s Ford Expedition from the victim s home on the 5000 block of North Marvine Street to the Abbotsford Housing Project. When the two arrived at the Abbotsford Housing Project, the defendant approached the victim s car almost immediately. The victim exited his car, taking the paper bag of marijuana with him and leaving Mr. Wilson in the car, and followed the defendant out of Mr. Wilson s sight. A few moments later, the victim came running back towards the car, followed by the defendant, who was shooting at him. Two of these shots hit the victim s vehicle. The victim got into his car and immediately drove off, telling Mr. Wilson that he had been robbed. Driving quickly back toward his house, the victim was stopped at a red light on North 15th Street, at the intersection of North 15th Street, Belfield Avenue, and Wyoming Avenue when a red truck with tinted windows came from behind the victim s car and pulled up along the driver s side of the victim s vehicle. Mr. Wilson and the victim both turned to look at the truck and saw a silhouette looking into their car. The rear passenger window of the truck rolled down, and a light hand holding a black gun came through the window. Three shots were fired at the victim s vehicle, one of which shattered the driver s window, and all of which hit the victim. Upon seeing the gun and seeing sparks, Mr. Wilson ducked and rolled out of the victim s vehicle. When the shooting stopped, he got back into the vehicle, which continued through the intersection. Soon after, the victim passed out. The vehicle came to a stop in front of 1429 West Wyoming Avenue, in the lane of oncoming traffic. The victim was transported to Temple University Hospital, where he was pronounced dead at 11:28 p.m. -2- J-A31038-12 Detective Carl Watkins, assigned to investigate the incident, was able to use the victim s cell phone to determine that the defendant had recently been in contact with the victim, and began focusing the investigation on him. Based on Mr. Wilson s description of the vehicle that had pulled alongside of the victim s car at the time of the shooting, Detective Watkins contacted the Bristol Township Police Department on May 11, 2010 and asked Detective Greg Beidler to look into the whereabouts of a red SUV-type vehicle and possibly the defendant. The following day, May 12, 2010, Detective Beidler observed a red Tahoe parked in front of 723 Church Street, in Croyden, Pennsylvania. While surveilling the red Tahoe, Detective Beidler saw four individuals, the defendant, Francis Lambert, Laura Lau, and Joe Kramer, exit 723 Church Street, enter the vehicle, and drive off, with the defendant driving. Detective Beidler and his partner, Detective Tim Perkins, followed the vehicle, ultimately pulling it over. As he was being taken out of the car, the defendant asked what he had done several times, and was told he was being detained for something that happened in Philadelphia. While being walked to the police car, the defendant leaned back to Detective Beidler and twice told him that the red Tahoe did not belong to him. Despite the defendant s insistence that the vehicle was not his, other testimony contradicted this. Francis Lambert, Junior, the owner of the house where the defendant was residing, testified that the defendant came home from college in May of 2010 in a red Tahoe. Caitlin Hughes, the defendant s sister, testified at trial that she had seen her brother driving a red Tahoe. Specifically, she explained that the vehicle belonged to John Goldwire, the defendant s best friend, who let the defendant drive the car when he was out of town, and that Mr. Goldwire had in fact been out of town for the two weeks preceding May 17, 2010. On May 13, 2010, Detective Beidler executed a search warrant at 723 Church Street. From a closet on the first floor, the detective recovered a purple drawstring bag, which contained a gallon-sized bag of marijuana, a brown paper bag containing 29 smaller blue packets of marijuana, and a pair of blue shorts, among other things. At trial, Joseph Kramer, the nephew of Francis Lambert, Jr., testified that the purple bag -3- J-A31038-12 belonged to him, that he had not seen the bag in approximately a week, and that nothing in it belonged to him. The defendant had been transported by Bristol Police to the Philadelphia Police Homicide Unit on May 12, 2010, where he was interviewed by Detective Watkins and released. The defendant was thereafter arrested at his mother s home on May 16, 2010. On May 20, 2011, while the defendant was incarcerated, he sent a letter to Frank Lambert, Jr., referencing what others in Frank Lambert, Jr. s family had said to the police and that he hoped they don t go all the way with this cause it could be damaging to all of the them. At trial, the Commonwealth introduced expert testimony from Detective James Dunlap, of the Philadelphia Police Department s Cellular Analysis Survey Team. Detective Dunlap presented data obtained from Verizon showing that, between 10:23 p.m. and 10:51 p.m. on May 10, 2010, the defendant s cell phone was in the cell tower sector that includes the Abbotsford Housing Project and made three calls to the victim s cell phone during that time. Detective Dunlap also presented date showing that the defendant s cell phone was in the range of the cell tower at the scene of the shooting at around the time the shooting occurred. Trial Court Opinion, 4/23/12, at 2-6 (citations to record and footnotes omitted). At the close of the evidence, the Commonwealth requested that the court instruct the jury regarding consciousness of guilt based on Appellant s statement that the red Tahoe did not belong to him as well as the letter he sent to Frank Lambert, Jr. The trial court agreed and, over Appellant s objection, instructed the jury accordingly. In addition, the court instructed the jury that it could infer specific intent to kill, if it chose to, based on the number of shots fired at the victim. The jury found Appellant -4- J-A31038-12 guilty of the aforementioned charges.1 The trial court then sentenced Appellant to life imprisonment based on the murder conviction. In addition, it imposed concurrent sentences of twenty to forty years incarceration for conspiracy to commit murder and five to twenty years for aggravated assault. The court also sentenced Appellant consecutively to ten to twenty years for robbery, five to ten years for conspiracy to commit robbery, and one to five years each for the PIC and carrying a firearm without a license charges. Appellant filed a post-sentence motion, which the court denied on October 20, 2011. This timely appeal ensued. The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the trial court authored its Pa.R.A.P. 1925(a) opinion. The matter is now ready for our review. Appellant presents four issues for our consideration. I. Is the Defendant entitled to an arrest of judgment on all charges including Murder in the First Degree, Criminal Conspiracy to Commit Murder, Robbery, Criminal Conspiracy to Commit Robbery and Weapons Offenses given that the verdict is not supported by sufficient evidence? II. Is the Defendant entitled to a new trial on all charges where the verdict is against the weight of the evidence? III. Is the Defendant entitled to a new trial as the result of Court error in charging a jury where the Court improperly ____________________________________________ 1 The jury did acquit Appellant of aggravated assault against Husani Wilson. -5- J-A31038-12 charged that the total number of shots fired by the Defendant could be viewed as circumstantial evidence of a specific intent to kill and where that charge is not supported by any rule or case law? IV. Is the Defendant entitled to a new trial as the result of Court error in charging the jury on consciousness of guilt with regard to an alleged statement made to police at a traffic stop and a letter sent to the Defendant s father which did not tend to establish consciousness of guilt? Appellant s brief at 3. Appellant s initial contention is that the Commonwealth did not introduce sufficient evidence to prove each of his convictions. However, Appellant only provides argument relative to first degree murder and conspiracy to commit murder. Therefore, we limit our discussion to those crimes. Our standard and scope of review in analyzing a sufficiency claim are settled. The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and 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. Mobley, 14 A.3d 887, 889 890 (Pa.Super. 2011). Additionally, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Commonwealth v. Coleman, 19 A.3d 1111, 1117 (Pa.Super. 2011). Commonwealth v. Brown, 52 A.3d 320, 323 (Pa.Super. 2012) (quoting Commonwealth v. Stokes, 38 A.3d 846, 853-854 (Pa.Super. 2011)). -6- J-A31038-12 Appellant argues that it is unclear from the record whether Appellant opened fire on the victim or merely returned fire at the housing project. In addition, he asserts that the evidence showed that he was the driver of the vehicle and that another person opened fire, killing the victim. He suggests that the jury determination was therefore based on speculation and conjecture. In support of this proposition, he relies on Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), Farquahrson, 354 A.2d 545 (Pa. 1976). and Commonwealth v. According to Appellant, the evidence did not demonstrate premeditation to kill or a plan to ambush the victim, but a drug deal gone bad in which anger ultimately led to the victim s death. The Commonwealth counters that Appellant reports the evidence in a light most favorable to him and that, when reviewed under the proper standard of review, Appellant s guilt of these crimes is inescapable. Commonwealth s brief at 6. It further relies on the trial court s discussion of the sufficiency claims and adds only that Appellant s reliance on Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), is improper. We find that the trial court cogently discussed the reasons for finding Appellant s sufficiency position meritless. Therefore, we rely on the reasoned disposition of this issue contained within the learned Judge M. Teresa Sarmina s opinion. See Trial Court Opinion, 4/23/12, at 7-11. We add that Karkaria is easily distinguishable and wholly inapposite from the -7- J-A31038-12 facts of this case. In Karkaria, the victim alleged that her step-brother raped her on a weekly basis for three years. Her additional testimony, however, was wholly inconsistent with these claims and no other evidence supported the conviction. The Karkaria conjecture holding is only applicable where the evidence supporting a conviction stems from one essential witness and that witness s testimony is not only inconsistent and contradictory with other evidence from that same witness, but unreliable and without any other indicia of support. See e.g. Lofton, supra (discussing Karkaria in the context of a weight-of-the evidence claim). Next, Appellant asserts that the verdict in this matter was against the weight of the evidence. We recently set forth our standard of review in examining a weight claim. [W]e may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted). Hence, a trial court's denial of a weight claim is the least assailable of its rulings. Commonwealth v. Diggs, 949 A.2d 873, 880 (Pa. 2008). Conflicts in the evidence and contradictions in the testimony of any witnesses are for the fact finder to resolve. Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa .2003). As our Supreme Court has further explained, -8- J-A31038-12 A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa.2000) (citations omitted). In addition, a weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa.Super. 2011). Failure to properly preserve the claim will result in waiver, even if the trial court addresses the issue in its opinion. Commonwealth v. Sherwood, 982 A.2d 48[3], 494 (Pa. 2009). Commonwealth v. Lofton, 2012 PA Super 267, at *2. Appellant maintains that the greater weight of the evidence supports that he and the victim arranged for the sale of marijuana, but does not suggest that [Appellant] planned an ambush of the victim at the Abbotsford Projects. Appellant s brief at 17. He also submits that the evidence suggests that the victim originally opened fire. The Commonwealth replies that Appellant s claim is waived because he failed to support his position with case law, aside from a citation applicable to our standard and scope of review. It also submits that the issue is waived based on the overly technical view that since Appellant does not specifically state that the trial court abused its discretion, and attempts to litigate the -9- J-A31038-12 weight claim itself[,] we Commonwealth s brief at 8. are precluded from reviewing the issue. Coming to the merits of Appellant s position, the Commonwealth asserts that the jury s exercise in making routine credibility determinations does not shock one s sense of justice; thus, the trial court did not abuse its discretion. We find that the claim is without merit. In the extraordinarily rare instance where a weight claim is successful, it is premised on more than mere conflicts in the evidence. Rather, certain facts must be clearly of greater weight than any conflicting facts. See Lofton, supra (citing Widmer, supra). This is simply not a case where the evidence necessary to meet the elements of the crime is so unreliable and without any additional support, that evidence in favor of the Appellant would outweigh it. Therefore, Appellant is not entitled to relief. Appellant s final two claims raise challenges to the trial court s jury instructions. Specifically, Appellant argues that the court erred in instructing the jury that it could consider the number of shots allegedly fired by Appellant as circumstantial evidence of specific intent to kill and in giving a consciousness of guilt instruction. We are guided by the following principles in analyzing a jury instruction. It is axiomatic that, in reviewing a challenged jury instruction, an appellate court must consider the entire charge as a whole, not merely isolated fragments, to ascertain whether the instruction fairly conveys the legal principles at issue. Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1187 (1999). An instruction will be upheld if it clearly, - 10 - J-A31038-12 adequately and accurately reflects the law. The trial court may use its own form of expression to explain difficult legal concepts to the jury, as long as the trial court's instruction accurately conveys the law. Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280, 1287 (2000) (citation omitted). Commonwealth v. Cook, 952 A.2d 594, 626-627 (Pa. 2008). The first instruction Appellant contends is erroneous is as follows. The number of shots fired at a victim can also be an item of circumstantial evidence on which you may, if you choose, infer that there was a specific intent to kill. N.T., 6/10/11, at 123-124. Appellant argues that this instruction could be seen to have directed a verdict towards [m]urder in the [f]irst [d]egree. Appellant s brief at 18. While recognizing that standard jury instructions are not required, Appellant points out that this specific instruction is not found in the standard jury instructions. The Commonwealth responds first that Appellant s challenge is waived because he does not supply any case law to support his view, other than the standard and scope of review. Further, it maintains that evidence of the number of shots fired at the victim was circumstantial evidence of a specific intent to kill. Thus, it submits the trial court s tailoring of the jury instructions to fit the facts presented to the jury was warranted. It adds that the trial court did not mandate that the jury find specific intent based on the number of projectiles fired at the victim, but only that it could choose to infer specific intent based on that evidence. We hold that the trial court s instruction was a proper articulation of the law. Despite no standard jury instruction expressly stating that the - 11 - J-A31038-12 number of shots fired at a murder victim may be viewed as circumstantial evidence of specific intent, the noted inference is simply common sense. Certainly, the jury was permitted to consider all of the evidence introduced and determine based on the number of shots fired that Appellant and his cohorts specifically intended to kill the victim. Pointedly, it is entirely reasonable to infer that an individual intends to kill a person if he continues to fire bullet after bullet at the person. Moreover, as the Commonwealth correctly highlights, the trial court did not direct the jury to find specific intent based on the number of shots fired. Instead, it quite properly stated that the jury could, if it chose to, infer that the number of shots fired was circumstantial evidence of a specific intent to kill. For these reasons, Appellant s issue is without merit. Next, Appellant argues that the trial court erred in providing the jury with the standard consciousness of guilt instruction. It points out that Appellant did not lie when he said the red Tahoe did not belong to him, since he was not the legal owner. Appellant submits that the trial court s consciousness of guilt instruction indicated that the court was calling Appellant a liar, and was demeaning to the Defendant and pejorative in nature. Appellant s brief at 22. Further, Appellant asserts that the letter sent to the Lambert family did not induce people to lie or to fail to show up in Court to testify. Id. It is Appellant s position that the letter accurately reflected that police could have blamed the Lambert s for the marijuana found in their home. He adds that the letter asked for the family to visit him - 12 - J-A31038-12 and passed along his love to his Aunt Chris, Frank Lambert, Jr. s wife, and the mother of Frank Lambert, III. The Commonwealth begins its response by contending that Appellant s final issue is waived. In this regard, it again maintains that Appellant did not provide any legal support for his issue aside from boilerplate citations. With respect to the merits, the Commonwealth posits that both Appellant s response that the car was not his and the letter were classic evidence of consciousness of guilt[.] Commonwealth s brief at 13. According to the Commonwealth, the only reason Appellant would deny ownership of the Tahoe was to avoid being identified as the murderer. Id. Further, it posits that the obvious inference from Appellant s letter was a dark and threatening message. The trial court s decision to give the instruction was not erroneous. Appellant s attempt to disassociate himself from the vehicle can be viewed as consciousness of guilt because that vehicle was used in the murder. With respect to the letter, even if it is not viewed as threatening, it still demonstrates consciousness of guilt, insofar as it recognizes that the presence of marijuana in the Lambert home was problematic to both him and the Lamberts. Further, it indicates a desire that the Lamberts not cooperate with police. For the foregoing reasons, we affirm. Judgment of sentence affirmed. - 13 -
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