Com. v. Alford, R. (memorandum)

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J. S64010/15 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. RAYMARR DAQUAN ALFORD, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 475 MDA 2015 Appeal from the Judgment of Sentence, November 19, 2014, in the Court of Common Pleas of Lycoming County Criminal Division at No. CP-41-CR-0001969-2012 BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 16, 2015 Raymarr Daquan Alford appeals from the judgment of sentence of November 19, 2014, following his conviction of first-degree murder and related charges. We affirm. On July 9, 2012, Kevan Connelly was shot in Flanagan Park in Williamsport, Pennsylvania. He died later that same day. On April 30, 2014, a jury found [appellant] guilty of First Degree Murder, Conspiracy to Commit Murder, Possessing an Instrument of Crime, Recklessly Endangering Another Person, and Firearms not to be Carried without a License. For First Degree Murder, the Court used 18 Pa.C.S. § 1102.1 and sentenced [appellant] to incarceration for a minimum of 50 years and a maximum of life. For Conspiracy to Commit Murder, the Court sentenced [appellant] to incarceration for a minimum of 9.5 years and a maximum of 40 years. The sentence for conspiracy is consecutive to the sentence for murder. Opinion and order, 3/3/15 at 1 (footnotes omitted). * Former Justice specially assigned to the Superior Court. J. S64010/15 Post-sentence motions were denied on March 3, 2015, and this timely appeal followed. Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court filed an opinion. Appellant has raised the following issues for this court’s review: A. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR JUDGMENT OF ACQUITTAL ON FIRST DEGREE MURDER. B. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR JUDGMENT OF ACQUITTAL ON CONSPIRACY TO COMMIT MURDER. C. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS PHOTOGRAPHIC AND IN-COURT IDENTIFICATIONS BECAUSE BOTH WERE TAINTED BY PRIOR TELEPHONE CONTACT WITH A PERSON PRESENT AT THE CRIME SCENE WHO HEARD RUMORS ABOUT WHO COMMITTED THE MURDER. D. THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING COMMONWEALTH WITNESSES TO IDENTIFY PERSONS DEPICTED IN SURVEILLANCE VIDEO AND TO DESCRIBE THOSE PERSONS[’] ACTIONS WHEN NEITHER WITNESS WAS PRESENT TO OBSERVE THE EVENT. E. THE TRIAL COURT ERRED BY ADMITTING A RECORDED CALL AS SUBSTANTIVE EVIDENCE WHEN THE WITNESS NEVER ACKNOWLEDGED SHE MADE THE CALL AND WAS THUS NOT SUBJECT TO EFFECTIVE CROSS EXAMINATION CONCERNING ITS CONTENT. F. THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST TO RESENTENCE BECAUSE 18 Pa.C.S.A. § 1102.1(a)(1) -2- J. S64010/15 VIOLATES THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION. G. THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST TO RESENTENCE BECAUSE 18 Pa.C.S.A. § 1102.1(a)(1) VIOLATES THE EQUAL PROTECTION CLAUSE. H. THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST TO RESENTENCE BECAUSE 18 Pa.C.S.A. § 1102.1(a)(1) VIOLATES THE EX POST FACTO CLAUSE WHEN APPLIED TO APPELLANT. Appellant’s brief at 5. After careful review, we determine that the trial court ably and comprehensively, with appropriate citation to the record and without legal error, disposes of each of appellant’s issues on appeal, and adopt those opinions as our own. Specifically, appellant’s issues A and B, challenging the sufficiency of the evidence to support his convictions of first-degree murder and conspiracy to commit murder, are addressed in the trial court’s opinion of March 3, 2015, denying appellant’s post-sentence motion, at pages 16 through 18. Issue C, challenging Braheem Connelly’s identification, is addressed in the trial court’s May 1, 2013 opinion disposing of appellant’s pre-trial suppression motion. (Docket #21.) Issue D is addressed in the trial court’s opinion and order of March 6, 2014, granting in part, and denying in part, appellant’s pre-trial motion in limine, as well as its May 11, 2015 Rule 1925(a) opinion at pages 1 through 3. Issue E, regarding the admission into evidence of Anita Jackson’s telephone call in which she -3- J. S64010/15 implicates appellant, is addressed in the trial court’s May 11, 2015 opinion at pages 3 through 5. Finally, appellant’s issues F through H, challenging application of the mandatory minimum sentence in Section 1102.1(a)(1), are discussed in the trial court’s March 3, 2015 opinion at pages 18 through 25 (see Commonwealth v. Brooker, 103 A.3d 325 (Pa.Super. 2014), appeal denied, 118 A.3d 1107 (Pa. 2015); and Commonwealth v. Lawrence, 99 A.3d 116 (Pa.Super. 2014), appeal denied, 114 A.3d 416 (Pa. 2015), upholding the constitutionality of Section 1102.1). Judgment of sentence affirmed. Wecht, J. joins the memorandum. Fitzgerald, J. concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/16/2015 -4- Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 02:47 PM Circulat6i 1402-014-í2;(47RfOf-" . r r .. "il .. 4..1 IN THE COURT OF COMMON PLEAS'(fl LYCOMING COUNTY, PENNSYLVANIA COMMONWEALTH O P #114; Slegitl I ü CR- 1969 -2012 z, V. CRIMINAL DIVISION r RAYMARR DAQUAN Defendant : - 1925(a) Opinion OPINION IN SUPPORT OF ORDER IN COMPLIANCE WITH RULE 1925(a) OF THE RULES OF APPELLATE PROCEDURE For the Defendant's first and second issues, the Court will rely on its Opinion filed on March 3, 2015. For the Defendant's third issue, the Court will rely on its Opinion filed on May 1, 2013. For the Defendant's fourth and fifth issues, the Court will rely on this Opinion. For the Defendant's sixth, seventh, eighth, ninth, and tenth issues, the Court will rely on its Opinion filed on March 3, 2015. I. The Court did not Err in Allowing a Witness to Describe the Actions of Individuals in a Bus Surveillance Video and Allowing Another Witness to Identify the Individuals in the Video. In his fourth issue, the Defendant argues that the Court "erred by permitting Commonwealth witnesses Shareef Thompson and Agent Trent Peacock to identify for the jury persons they believed were depicted on a bus surveillance video and to describe those persons' actions." Agent Peacock did not identify the individuals in the bus video. See N.T., 4125114, at 89 -92. Peacock did, however, describe the actions of the individuals in the video. See id. For the issue of Peacock describing the actions, the Court will rely on its Opinion filed on March 6, 2014, Shareef Thompson did not describe the actions of the individuals in the bus video. He did, however, identify the individuals. See N.T., 4/23/14, at 176 -77. "Lay opinion identification PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 testimony is more likely to be admissible, for example, where the surveillance photograph is of poor or grainy quality, or where it shows only a partial view of the subject." United States v. Dixon, 413 F.3d 540, 545 (6th Cir. 2005). Under Pennsylvania Rule of Evidence 701, "[i]f a witness is not testifying as an expert. testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Pa.R.E. 701. Here, the video did not clearly show the individuals. However, the jury saw the video, so it was in a position to determine whether anybody could have recognized the individuals. See Commonwealth v. Harris, 884 A.2d 920, 933 (Pa. Super. 2005) (quoting trial court's opinion that Klaiber instruction was not needed in part because the jury was in an adequate position to determine whether the video image of [the defendant] was unrecognizable). The Commonwealth laid a foundation for how Thompson was able to identify the Defendant, Enty, and Cooley as being the individuals in the video. Thompson had known the Defendant for about 10 years before the video. N.T., 4/23/14, at 113. Cooley was a friend who Thompson knew from school. Id. Thompson had known Enty for two months before the video. Id. at 113 -14. The Commonwealth also established that the identifications were based on Thompson's perception. Thompson recognized the Defendant from "his shirt, his jeans, and how dark he is." N.T., 4/23/14, at 176. He recognized Enty because "he had on the saine white T -shirt and pants [as the Defendant], but [was] lighter than [the Defendant]." Id. 176 -77. Thompson also recognized Enty from the "twisties" in his hair. Id. at 177. Thompson recognized Cooley because "that day he had on a black T -shirt and shorts." Id. Thompson's identification testimony was helpful to determining the identities of the shooters since it put certain individuals near the location of the shooting shortly after the PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 shooting. Finally, Thompson did not present any scientific, technical, or other specialized knowledge of the type that is precluded under Rule 701. Because Thompson's identifications of the individuals in the video meet the criteria of Rule 701, the Court did not err in permitting the identification testimony. i H. The Court did not Err in Allowing the Commonwealth to Play a Recorded Phone Call Involving Anita Jackson and Her Brother. In his fifth issue, the Defendant argues that the Court "erred by permitting the Commonwealth to introduce recorded prison phone calls during the trial." The Commonwealth played a recorded phone call involving Anita Jackson and her brother, who was in prison at the time of the call. "In an effort to ensure that only those hearsay declarations that are demonstrably reliable and trustworthy are considered as substantive evidence, we now hold that a prior inconsistent statement may be used as substantive evidence only when the statement is given under oath at a forma! legal proceeding; or the statement had been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness's statements." Commonwealth v. Lively, 610 A.2d 7, 10 (Pa. ) 992). "[W]hen the prior inconsistent statement is a contemporaneous verbatim recording of a witness's statement, the recording of the statement must be an electronic, audiotaped or videotaped recording in order to be considered as substantive evidence. This will ensure that the requisite degree of reliability demonstrated will be similar to instances in which the statement was given under oath at a formal legal proceeding or the statement is reduced to a writing signed and adopted by the declarant." Commonwealth v. Wilson, 707 A.2d 1114, 1118 (Pa. 1998), Jackson made inconsistent statements because, during trial, she testified that she did not see who fired the gun, but, during the phone call, she said that she saw the Defendant shoot Kevan Connelly. See N.T., 4/22/14 (under a separate cover), at 13. Before the call was played 3 Circulated 11/24/2015 02:47 PM PM Circulated 11/24/2015 for the_ jury, Jackson testified that she did not recall telling lier brother about the shooting in a phone call on the day after the shooting. Id. at 14 -15. At sidebar, the Defendant's attorney did not dispute that Jackson was involved in the phone call: "The fact that she made a phone call is not at issue, but the content of the phone call think is." I N.T., 4/22/14 (under a separate cover), at 17. Because the Defendant's attorney did not dispute that Jackson was involved in the call and Jackson's statements were audiotaped contemporaneously with her making the statements, the Court properly admitted Jackson's statements as substantive evidence. Even if Jackson's statements are not inconsistent statements that can be considered substantive evidence, they were properly admitted under the excited utterance exception to the hearsay rule. An excited utterance is: [A] spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties. Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super. 2003) (quoting Allen v. Mack, 28 _A,2d 783, 784 (Pa. 1942))¡ The following is considered in determining whether a statement is an excited utterance: 1) whether the declarant, in fact, witnessed the startling event; 2) the time that elapsed between the startling event and the declaration; 3) whether the statement was in narrative form (inadmissible); and, 4) whether the declarant spoke to others before making the statement, or had the opportunity to do so. These considerations provide the guarantees of trustworthiness which permit the admission of a hearsay statement under the excited utterance exception. It is important to note that none of these factors, except the rement that the declarant have witnessed the startling event, is in itself_iispositive Rather, the factors are to be considered in all the surrounding circumstances to determine whether a statement is an excited utterance. 4 PM Circulated 11/24/2015 02:47 PM Circulated 11/24/2015 Id. (quotations and citations omitted). "The crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance." Id. Here, Jackson witnessed the shooting. She was in the park and saw the Defendant arguing with Kevan Connelly and Braheem Connelly. N.T., 4/22/14 (under a separate cover), at 8- l 0. She heard gun fire and saw that her son was in the crossfire. Id. at 12 -13. Finally, Jackson saw that Kevan Connelly had been shot. Id. at 13. Jackson had the phone conversation with her brother the day after the shooting. During the conversation, Jackson talks very quickly and has an excited tone. Her statement that she saw the Defendant shoot Kevan Connelly is not in response to a question. When listening to the call, it is apparent that Jackson's excitement continued to dominate while her reflective processes remained in abeyance. Therefore, the call was properly admitted under the excited utterance exception to the hearsay rule. Ill. Conclusion For the forgoing reasons, the Court respectfully requests that its Order of November 10, 2014 be affirmed. By the Court, Nancy L. Butts, Presi cc: -Donald F. Martino, Esq. DA 5

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