Com. v. Woodall, T. (memorandum)

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J-S11028-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. THEODORE WOODALL Appellant No. 549 EDA 2013 Appeal from the Judgment of Sentence of November 22, 2004 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-1208311-2003 BEFORE: BENDER, P.J.E., WECHT, J., and STRASSBURGER, J.* MEMORANDUM BY WECHT, J.: FILED JULY 02, 2014 Theodore Woodall appeals his November 22, 2004 judgment of sentence. We affirm. On September 23, 2004, Woodall was convicted by a jury of two counts of aggravated assault, one count of carrying a firearm in a public street or place, and one count of possessing an instrument of crime. 1 The follows: On October 23, 2003, Philadelphia Police Officers Keenan and Wenger were on duty, in plainclothes, and driving an unmarked ____________________________________________ * 1 Retired Senior Judge assigned to the Superior Court. See 18 Pa.C.S. §§ 2702, 6108, and 907(a), respectively. The jury found Woodall not guilty of criminal attempt homicide, 18 Pa.C.S. §§ 901, 2501, and receiving stolen property, 18 Pa.C.S. § 3925. J-S11028-14 minivan when they went to investigate a complaint of drug dealing on the corner of 12th and Reno Streets in Philadelphia. The officers arrived at the scene at approximately 11:00 [p.m.] and observed a group of people gathered on the corner, including [Woodall,] who was standing outside of a deli with his acquaintance Mr. Kalonji Jones. Officers Keenan and Wenger got out of the minivan and ordered the group to disperse. The group complied and left the corner, but shortly thereafter, Kalonji Jones and [Woodall] returned to the location after getting a few drinks at a bar down the street. The officers pulled up in their minivan again and Officer Keenan got out and approached [Woodall]. his pocket and he ordered [Woodall] to place his hands on the window of the [] corner deli. Instead of complying with Officer Keenan attempted to get control of [Woodall], [Woodall] drew a gun and shot Officer Keenan in the neck. Officer Keenan heard the gunfire and immediately felt the heat of the gunshot in his chin and lower jaw. Immediately after the shot was fired, Officer Wenger saw Officer Keenan jerk his head back and then slump against [Woodall]. [Woodall] took off running with the gun [in] his hand and Officer Wenger chased him. During this brief pursuit, [Woodall] turned back towards Officer Wenger and fired his gun at Officer Wenger. Officer Wenger was not hit. Having drawn his own weapon, Officer Wenger returned fire and shot [Woodall], who stumbled and fell. As [Woodall] collapsed, Officer Wenger saw [Woodall] throw his gun across the street into a nearby field. Officer Wenger then stood over [Woodall] with his gun drawn and called for backup. for assistance and arrived on the scene to see Officer Wenger standing over [Woodall] in the middle of the street with his gun drawn. Officer Scollon and his partner then handcuffed [Woodall]. As soon as Officer Scollon secured [Woodall], Officer Wenger went to the location where he saw [Woodall] thrown the gun and recovered it. Officer Wenger identified the recovered gun as the same one that [Woodall] used to shoot at both police officers. Philadelphia Police Sgt. James Gilrain arrived on the scene within minutes of the shooting and observed Officer Wenger, with blood -2- J-S11028-14 on him, holding a gun in his hand. Sgt. Gilrain asked, Gilrain took the gun from Officer Wenger and secured it in a paper bag in the trunk of a marked police vehicle. Officer John Taggart of the PPD Crime Scene Unit testified that he recovered the gun from Sgt. Gilrain and identified it as a 9millimeter Kel-Tec semi-automatic handgun with serial number 103531. Its legally registered owner Jamie Henley had reported this gun stolen in January 2003. Officer Taggart also testified that he recovered both 9-millimeter Luger F.C. and 9-millimeter Luger R.P. fired cartridge casings at the scene. According to Officer Taggart, Philadelphia police officers only used R.P. bullets, evidence that a non-police gun was fired at the scene. Officer Taggart clarified that the only difference between Luger F.C. and Luger R.P. bullets is the brand name. Officer Taggart also found blood evidence in the alley next to the deli, where Officer Keenan testified he ran after being shot. During the trial, the Commonwealth called Officer Leonard Johnson from the PPD Firearms Identification Unit to testify as an expert in the fields of firearms identification, firearms operation, and microscopic matching of ballistic evidence. Officer Johnson examined the KelTech nine millimeter that was casings that had been recovered from the scene of the shooting. Officer Johnson provided an expert opinion that some of the weapon. On the night of the shooting, Kolanji Jones gave a signed statement in the homicide unit of the PPD wherein he admitted that he knew that the gun belonged to [Woodall] because [Woodall] had shown it to him earlier and told him it was a 9millimeter. Mr. Jones affirmed this statement at trial. Mr. Jones also stated that both he and [Woodall] knew Officers Wenger and Keenan from the neighborhood and that these [officers] had community. Officer Keenan was taken to Jefferson Hospital and underwent surgery on his chin and lower jaw. Officer Keenan was released from the hospital the following day. While it took over a month -3- J-S11028-14 for the injuries to heal, the only permanent bodily injury he sustained was a more limited range of motion turning his neck. Officer Evelyn Rodriguez and her partner drove [Woodall] to Hahnemann Hospital. [Woodall] was admitted and treated for a single gunshot wound to his left arm and back of his neck. [Woodall] did not sustain life-threatening injuries and was able to leave the hospital the following day to give a statement to Philadelphia Police Detective Kenneth Rossiter at 2:45 [p.m.] reproduced in full below: Q: Theodore, do you read, write, and understand the English language? A: Yes. Q: Are you presently under the influence of any alcohol or drug? A: No. Q: Do you understand that you are under arrest and are being charged with Attempted Murder, Aggravated Assault, and Weapons Offenses for the shooting of Police Officer Keenan on October 22, 2003 at about 11:05 p.m. at 12th and Parrish Streets? A: Yes. Q: Tell me what you know about the shooting of Police Officer Keenan. A: A big mistake. Q: What happened? A: We walked up 12th and Green. I went into alley to take a pee. I found a gun up under air conditioner that comes out the side of building. I asked Kalonji whose gun was it. the the the He cause I need money. I was out of the alley when the cops pulled up. He said come here. I knew I just picked up the gun and decided I was going to -4- J-S11028-14 push off and run. started going off. That is when all the shots Q: When you came out of the alley where did you have the gun? A: In my pants pocket (right front). Q: When you started pushing the police officer to try and get away were you pushing with your hands? A: Yes, both hands. Q: Where was the gun? A: In my right hand. Q: Are you right or left handed? A: Left. Q: Were the police plainclothes? A: Plainclothes. Q: At what point did you drop the gun? A: On 12th street between Parrish and Reno. Q: What was happening? A: He was saying to run when the police pulled up. Q: While you were running with the gun in your hand, did the gun go off? A: Yea. Q: What kind of vehicle were the police officers driving? A: A minivan. Q: What color was it? A: Blue Q: How many officers got out of [the] van? officers Kalonji -5- saying in uniform while this or was J-S11028-14 A: Two (2). Q: Is there anything you want to add to your statement at this time? A: No. and Wenger were police officers and he ran to avoid getting caught possessing an illegal gun. During the trial, the parties stipulated that [Woodall] was not licensed to carry a firearm. During trial, [Woodall] testified that his statement was coerced and taken under duress. [Woodall] also testified that Det. Rossiter refused to write down many of the things he said. Det. Rossiter refuted these assertions, testifying that the statement was given knowingly, intentionally, and voluntarily. [Woodall] also [alleged] that Det. Rossiter forced him to sign this statement against his will and that the prosecutor responded by Both the trial prosecutor and defense counsel deny that this occurred. [Woodall] offered a second version of events in his handwritten letter dated 8/21/04 that he sent to Lieutenant Nolan of the PPD Internal Affairs Bureau. Lt. Nolan read the contents of the letter to the jury, which is presented in full below: himself with the gun. He never did I.D.ed himself as a[n] officer. He got out a miniI thought about was when I was robbed earlier in the year. When I did not move fast enough for him, he pulled out a gun. I froze. He patted my back pockets with the point at me. Then he looked back at the van. That is when I saw my chance. I grabbed his gun. We wrestled for the gun. It went off, he let it go. I ran with it and threw the pistol under a car and that [was] when I was shot in the back of In this second version of events, [Woodall] indicates that he did not know that Officers Keenan and Wenger were police. This claim is contradicted by evidence from Kalonji Jones, Officer Evelyn Rodriguez, and Officer Wenger establishing that [] Officers Wenger and Keenen were known in the neighborhood by and that, in fact, [Woodall] knew who they were. Furthermore, on the recorded police radio -6- J-S11028-14 call for back up which was offered as evidence at trial, [Woodall] And finally, Officer Rodriguez testified that [Woodall] kept [Woodall] was calling them Beavis and Butthead. He just kept now the officers were police but rather is proof that [Woodall] knew exactly who Officers Kennan and Wenger were and that any action taken by him was not for fear of being robbed. letter, he denies possessing his own gun, but rather asserts that However, testimony by Officer Scollon, who took possession of un was never fired that night. Officer Wenger fired. In his third and final version of events, [Woodall] testified at trial that he thought he was being robbed by people he did not know were police. As stated earlier, the evidence presented by the Commonwealth, particularly the recorded call by Officer Wenger requestin events. On rebuttal, the Commonwealth introduced two stipulations: First, that [Woodall] had a crimen falsi conviction for robbery as a felony of the second degree; and second, that [Woodall] was on probation for a conviction that did not allow him to have a taxes at his place of employment. The trial prosecutor stated that the context was that [Woodall] testified that he was coming from work. The prosecutor was trying to determine where [Woodall] was coming from and if it could be verified, and then brought out [the] fact that it is tax evasion. -7- J-S11028-14 -9 (references to notes of testimony omitted; emphasis in original). On November 22, 2004, Woodall was sentenced to an aggregate term of twenty-one to forty- ation. On December 29, 2004, Woodall filed an untimely pro se notice of appeal. Court quashed that appeal. On July 18, 2005, this The trial court summarized the procedural On October 24, 2005, [Woodall] filed his first Post Conviction of trial counsel for not filing a timely notice of appeal and seeking reinstatement of his direct appeal rights nunc pro tunc. [Woodall] filed this PCRA petition pro se, because [Court of Common Pleas Judge John Chiovero] did not appoint him as untimely on September 22, 2006. [Woodall] timely filed a pro se notice 2006. [Woodall] was not required to file a concise statement of [errors] complained of on appeal pursuant to Pa.R.A.P. 1925(b). The court ultimately appointed Mr. John Belli[, Esquire,] to represent [Woodall] in his PCRA appeal. On April 1, 2010, Mr. On November 16, 2010, [this Court] vacated the order the trial court having determin was timely and that [Woodall] had been improperly denied claims, but rather, remanded the matter for counsel to consult with [Woodall] and file either an am Judge Ellen Ceisler] on November 10, 2011 because trial Judge Chiovero had retired. On April 19, 2012, appointed counsel, Mr. Belli, filed an amended PCRA petition requesting that [Woodall] direct appeal rights be reinstated nunc pro tunc. -8- Mr. Belli J-S11028-14 withdrew from the case and present PCRA counsel, Mr. Stephen On July 9, 2012, Mr. two days of the four-day trial were lost. The full jury [trial] took place from 9/20/2004 through 9/23/2004. The two missing dates of notes include 9/22/2004 & 9/23/2001. These two dates of the missing trial transcripts included the firearms expert instructions. [Woodall] requested a new trial arguing that the unavailability of the full record of the jury trial was insufficient to Vigorous attempts were made by [the trial court], and PCRA counsel for both the Commonwealth and [Woodall] to locate the missing notes of testimony. These attempts proved unsuccessful. Thus, pursuant to Pa.R.A.P. 1923, [the trial court] instructed both parties to attempt to reconstruct the case record for the missing days. On February 12, 2013, [Woodall] and the Commonwealth filed a joint proposed reconstruction of the record. On February 20, 2013, after a hearing, [the trial court] found the reconstructed record to be sufficient under the law, denied [Woodall] the request for a new trial, but reinstated [Wo rights nunc pro tunc.1 Appointed counsel filed a notice of appeal on February 21, 2013. 1 In preparing [its opinion, the trial court] realized that the Commonwealth referred several times to ballistics evidence and testimony of the Philadelphia Police evident in the trial transcripts or the reconstructed record. In August 2013, [the trial court] requested that the Commonwealth provide a supplemental reconstructed record to address this oversight, if testimony/evidence was omitted from the original record. [The trial court] instructed the Commonwealth to submit any additional submission. The Commonwealth submitted and filed a There has been no objection raised by the defense. -9- J-S11028-14 T.C.O. at 1-3 (minor grammatical and capitalization modifications made for clarity and consistency). On March 28, 2013, Woodall filed with the trial court a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On September 3, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a). Woodall raises the following issues for our review: 1. Did the [trial] court err in certifying a joint proposed reconstruction of the record because large parts of the trial transcript were not reproduced , the certifying judge differed from the trial judge and, as such, could not certify the record pursuant to Pa.R.A.P. 1923, crucial components of the joint proposed reconstruction of the record were subject of assumption, presumption, and unresolved dispute between parties, and [Woodall], an untrained legal layman, was incapable of recreating issues associated with the jury charge? 2. Did the prosecutor deprive [Woodall] of a fair trial and commit prosecutorial misconduct when he yelled at [Woodall] that [Woodall] was lying when he testified that Detective Kenneth Rossiter grabbed his injured arm and made him sign a statement? 3. Did the prosecutor engage in improper impeachment of worked in a job in which he did not pay taxes? 4. Did the prosecutor commit prosecutorial misconduct by man believes that the white men came to rob him and if you Philadelphia and you have no respect for the panel of jur Brief for Woodall at 4. - 10 - J-S11028-14 In his first issue, Woodall contends that the trial court erred by certifying the joint proposed reconstructed record submitted by the s present counsel. See Joint Court for consideration of his PCRA petition. At that time, the trial judge had retired, and, for whatever reason, the notes of testimony could not be instructed the parties to collaborate with each other and attempt to recreate the record with regard to the events that occurred on the two days that no longer were represented in the notes of testimony pursuant to Pa.R.A.P. provides as follows: If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal. present counsel, and an attorney for the Commonwealth met with the trial prosecutor and the trial defense attorney and created the JPRR. The JPRR - 11 - J-S11028-14 was submitted to the trial court for approval. However, Woodall noted his objection to the JPRR in a footnote and at a subsequent hearing. See JPRR at 1 n.1; Notes of T -12. Presently, Woodall echoes the objections that he raised before the trial court, arguing that the JPRR should not have been certified because: (1) the trial judge had retired and was unavailable for consultation; (2) trial counsel had an incomplete memory of the proceedings; (3) Woodall is a layperson who was unable to meaningfully contribute to the attempted reconstruction, and (3) the trial took place over eight years before the JPRR was created. Due to these purported defects, Woodall maintains that the JPRR does not depict an equivalent representation of what occurred on the two days in question, and should not have been certified pursuant to Rule 1923. We Commonwealth v. Harvey, 32 A.3d 717, 723 (Pa. Super. 2011). For the reasons that follow, we disagree with Woodall, and conclude that the trial court did not abuse its discretion by certifying the JPRR. Generally, the burden of obtaining the necessary transcripts for an appeal lies with the appellant. See Pa.R.A.P. 1911(a). Although unusual, circumstances sometimes arise that prevent an appellant from executing this obligation, when such circumstances are beyond the control of the appellant. Harvey, 32 A.3d - 12 - J-S11028-14 at 721 (citing Commonwealth v. Burrows, 550 A.2d 787 (Pa. Super. per se, a complete trial Burrows, 550 A.2d at 789; see also Commonwealth v. Lesko, 15 A.3d 345, 410genera appellant is afforded the opportunity to complete the record with a Rule 1923 statement. See Pa.R.A.P. 1923, supra. Rule 1923 permits an appellant to satisfy his obligation of presenting a complete record to an appellate court with a statement that depicts, to the best of his ability, an equivalent depiction of the missing transcripts. In Harvey, we elaborated on the purposes behind Rule 1923, and the extent to which appellants must go to recreate the missing portions of the transcripts as follows: singleBurrows, 550 A.2d at 789. The theory that underlies Rule 1923 is that a verbatim transcript of proceedings is not necessarily a condition precedent to meaningful appellate review, so long as the appellate court Commonwealth v. Anderson, 272 A.2d 877 (Pa. 1971). Further, no relief is due because counsel on appeal was not counsel at trial. Burrows, supra (the rules of appellate procedure do not require appellate counsel to have first-hand direct knowledge of what transpired at trial to prepare a statement of evidence). Rather, appellate counsel is required to prepare a statement of the missing evidence from the best available means. See id. . . . However, the information necessary to prepare a statement in absence of transcript can come from any of the parties who were present, including the attorney, and defendant. Burrows, supra. - 13 - J-S11028-14 Harvey, 32 A.3d at 721-22 (citations modified). counsel and the trial prosecutor. What transpired from these consultations regarding her transportation of Woodall to the hospital, including her n and Wenger See JPRR at 2. The JPRR also detailed Detective Woodall. The parties that contributed to the JPPR were able to recall that Detective Rossiter testified that Woodall, being in good mental and physical condition, voluntarily provided a statement to him. Detective Rossiter read that statement to the jury, a copy of which was attached to the JPRR. Id. cross-examination of Detective directly from the hospital to an interrogation room, which defense counsel elicited was more like a prison cell than an office. Id. at 3. Lieutenant Nolan read a letter to the jury that Woodall had authored and sent to Sergeant John Prendergast. In that letter, Woodall alleged that Id. Woodall also claimed in the letter that Officer Keenan did not identify himself as a police officer and that caused Woodall to believe that he was being robbed. The - 14 - J-S11028-14 parties agreed that defense counsel did not elicit any meaningful information on cross-examination. Id. Next, the JPRR noted that the parties had entered into, and offered to the jury, two stipulations. The first was that Woodall was not licensed to carry a firearm. The second was that Officer Keenan was admitted to the hospital for injuries that required surgery to repair. At that point, the Commonwealth rested, and defense counsel moved the trial court for a judgment of acquittal. Id. The JPRR then summar consistently with the letter that Lieutenant Nolan read to the jury. That is, Woodall testified that Officer Keenan did not identify himself as a police officer, causing Woodall to believe that he was being robbed. He also claimed that Detective Rossiter did not write down everything that Woodall told him during his interview. Id. at 4. The JPRR summarized the -examination of Woodall regarding the inconsistencies in each of the statements that Woodall made to the police and at trial. During cross-examination, the Commonwealth played a 911 recording, did not know that Officer Keenan and Officer Wenger were police officers by that he knew who the officers were. Id. - 15 - J-S11028-14 ex was coming home from a job, and that he got paid under the table for that job. Id. The JPRR reports that, during the meeting to reconstruct the closing arguments, Woodall claimed that the prosecutor, during his closing argument, job as a citizen of Philadelphia and you have no respect for the panel of the Id. at 5. The JPRR notes tha trial attorney deny that this statement was made to the jury. Finally, the JPRR summarized the instructions that were requested by Woodall and the prosecutor. Although the parties had no specific recollection, the JPRR reports that they assumed the trial judge gave all of the requested instructions in addition to the standard trial instructions. Id. at 6-7. The JPRR notes that the jury asked one question (pertaining to the pictures of the crime scene) before rendering its verdict. Id. at 7-8. There is no doubt that, as time passes, memories fade. Over eight Nonetheless, the parties worked together and created a detailed, and from - 16 - J-S11028-14 what we can discern, substantially accurate depiction of the events that occurred on the two days for which no notes of testimony currently exist. to enlist the aid of the trial judge, who had since retired. Rather, the parties were required to elicit aid from whatever sources available. supra. See Harvey, When recreating a record after so many years have passed, there are bound to be disputes and objections to the final product. However, such objections do not render a Rule 1923 statement automatically invalid nor do they automatically require a new trial. See Burrows; Lesko, supra. happened on the missing days of transcripts. All Having reviewed the procedural history in this case, the hearing notes of testimony on the the JPRR, we conclude that the parties have done just that. We discern no abuse of discretion by the trial court in certifying the JPRR for the purposes of this appeal. issue. Therein, Woodall argues that the trial prosecutor committed prosecutorial misconduct for allegedly stating to the jury during his closing Philadelphia and you have no respec Woodall at 26. As noted earlier, both the trial prosecutor and defense - 17 - J-S11028-14 counsel denied during the creation of the JPRR that this statement was made. Because we have concluded that the trial court did not err in certifying the JPRR, the JPRR now constitutes the certified record for what his claim necessarily fails. We In his second issue, Woodall contends that the prosecutor committed him sign a written statement.2 See Brief for Woodall at 18; JPRR at 2. In his third issue, Woodall argues that the prosecutor committed misconduct by engaging in improper impeachment of Woodall by accusing him of ____________________________________________ 2 As in issue four, it is not entirely clear that the prosecutor actually uttered the contested statement during trial. Indeed, during the recreation of the record, the prosecutor denied making the statement. However, unlike the statement made in issue four, there is no indication in the JPRR that defense counsel agreed that the statement was not made. Hence, we are were in disposing of issue four. Thus, for purposes of this argument, we will assume, arguendo statement was made. Nonetheless, for the reasons set forth herein, Woodall is not entitled to relief. - 18 - J-S11028-14 examination. See Brief for Woodall at 22.3 Based upon these allegations, Woodall maintains that he was entitled to a mistrial, and that the proper remedy is a new trial. We disagree. when an incident is of such a nature that its unavoidable effect is to deprive Commonwealth v. Johnson, 719 A.2d 778, 787 (Pa. Super. 1998) (en banc) (quoting Commonwealth v. Montgomery, 626 A.2d 109, 112reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in Commonwealth v. Sampson, 900 of prosecutorial remarks and an allegation of prosecutorial misconduct requires Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa Super. 2009) (citing ____________________________________________ 3 Because of the unique circumstances in this case, and more specifically the circumstances in which the certified record was created in this case, we are unable to ascertain whether Woodall timely objected to these contested statements. The failure to do so normally would result in waiver. However, under these exceptional circumstances, and knowing that the parties put forth a commendable effort to recreate the record, it would be inequitable to find waiver solely because the JPRR lacks such information. Hence, we proceed under the assumption that Woodall timely objected to the statements that he argues constitutes misconduct. - 19 - J-S11028-14 Commonwealth v. Rios, 721 A.2d 1049, 1054 (Pa. 1998)). Moreover, we are mindful of the following precepts: [P]rosecutorial 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. Prosecutorial misconduct is evaluated under a harmless error standard. Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008) (internal citations and quotations omitted). We need not delve into the more complicated inquiries of whether the contested statements constituted misconduct pursuant to the preceding principles. Indeed, assuming, arguendo, that the comments amounted to misconduct, we nonetheless must subject the misconduct to the harmless error standard. Id. overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict, then the error is harmless beyond a Commonwealth v. Miles, 681 A.2d 1295, 1302 (Pa. 1996) (internal citation omitted) (discussing prosecutorial misconduct in closing argument). Instantly, a fair review of the evidence convincingly demonstrates that the alleged misconduct was harmless. On the date in question, Officers Keenan and Wenger went to the corner of 12th and Reno streets to investigate a complaint that drug dealing was occurring on the corner. While there, they noticed Woodall standing - 20 - J-S11028-14 with Kalonji Jones and a few others. The officers ordered the group to disperse, but Woodall and Jones returned to the corner shortly thereafter. After Woodall and Jones returned, so too did Officers Keenan and Wenger. Officer Keenan ordered Woodall to place his hands on the window of the corner deli. However, instead of doing so, Woodall shoved Officer Keenan, drew a weapon, and shot the officer in the neck. Woodall then took off running. Officer Wenger followed Woodall on foot. During the pursuit, Woodall fired his weapon at Officer Wenger, but did not hit him. Officer Wenger returned fire and hit Woodall. As Woodall fell to the ground, he threw his weapon into a nearby field. Woodall was detained in the middle of the street until backweapon later was recovered by Officer Wenger, who identified the weapon as the weapon that Woodall used to shoot Officer Keenan and to shoot at Officer Wenger. A firearms expert testified at trial that some of the shell casings found at the scene were fired from the weapon that was identified as the weapon used by Woodall. Kolanji Jones, who was with Woodall on the night in question, testified that he knew that the gun wielded by Woodall indeed belonged to Woodall, because Woodall had shown it to him earlier in the day. Jones also testified that both he and Woodall knew Officers Keenan and Wenger from the neighb - 21 - J-S11028-14 Woodall admitted his involvement in the shooting in his initial statement that he gave to Detective Rossiter. In that statement, Woodall claimed that he found the gun under an air conditioner. Nonetheless, Woodall admitted that he knew that Officers Keenan and Wenger were police officers. Woodall further admitted that, because he had just picked up a gun, his intention was to push off of one of the officers and flee from the scene. However, he claimed that, during his attempt to flee, the gun went off. At trial, Woodall claimed that this statement was coerced by Detective Rossiter, and untruthful. The truth, according to a letter written by Woodall and his trial testimony, was that he believed that he was being robbed by someone that he did not know. However, this defense entirely was refuted by the remainder of the trial evidence. The trial court explained how the claim was definitively contradicted as follows: This claim is contradicted by evidence from Kalonji Jones, Officer Evelyn Rodriguez, and Officer Wenger establishing that [] Officers Wenger and Keenen were known in the neighborhood by knew who they were. Furthermore, on the recorded police radio call for back up which was offered as evidence at trial, [Woodall] And finally, Officer Rodriguez testified that [Woodall] kept saying, [Woodall] was calling them Beavis and Butthead. He just kept were police but rather is proof that [Woodall] knew exactly who Officers Kennan and Wenger were and that any action taken by him was not for fear of being robbed. - 22 - J-S11028-14 T.C.O. at 8. Thus, the evidence overwhelmingly established that Woodall, when asked to place his hands on a window, pushed Officer Keenan, drew a weapon, and shot Officer Keenan in the neck. These events were was defeated not only by the testimony of Jones, but also by his own words contradicting his claim that he did not know that they were police officers. This evidence constitutes overwhelming evidence of guilt, such that any prejudice that resulted from the purported prosecutorial misconduct See Miles, supra. As sconduct, the misconduct was harmless. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/2/2014 - 23 - J-S11028-14 - 24 -

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