Com. v. Cole, T. , 135 A.3d 191 ( 2016 )

J-A04031-16
2016 Pa. Super. 74
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERSAUN COLE,
Appellant No. 1710 WDA 2014
Appeal from the Judgment of Sentence June 19, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002470-2011
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.
OPINION BY SHOGAN, J.: FILED MARCH 28, 2016
Tersaun Cole (“Appellant”) appeals the judgment of sentence imposed
after a jury convicted him of first degree murder, robbery, conspiracy, and
carrying a firearm without a license. Appellant challenges, inter alia, the
admission of a member of the district attorney’s staff to the jury room
during deliberations and the sentence on his robbery conviction. We affirm
Appellant’s convictions, but vacate the judgment of sentence and remand for
resentencing.
We summarize the evidence presented at trial as follows: On
December 30, 2010, Appellant visited Shadena Kennedy (“Ms. Kennedy”) at
her apartment in Pittsburgh’s Elmore Square housing project. At some point
during the day, Appellant left the apartment to buy cigarettes for Ms.
Kennedy. He delivered the cigarettes to Ms. Kennedy and left again,
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accompanied by three men. Shortly thereafter, Ms. Kennedy heard
gunshots and learned that Teante Hill (“the victim”) had been shot. N.T.,
3/19/13, at 34–39.
Denise Hayden (“Ms. Hayden”) was returning to her Elmore Square
apartment in a private cab on December 30, 2010. As the cab approached
Elmore Square, Ms. Hayden observed a young man she knew as “P Murph”
run across the street and up to Appellant and two other young men, all of
whom were dressed in black and standing in a doorway. Ms. Hayden saw a
handgun in Appellant’s hand. After entering her street-level apartment, Ms.
Hayden heard gunshots and ran to the courtyard. There, she saw the victim
come out of a hallway and fall to his knees. She also saw Appellant with the
gun in his hand run out of the hallway. N.T., 3/19/13, at 44–50. Two or
three days before the shooting, Ms. Hayden observed Appellant, “P Murph,”
and two men she did not recognize near the fence, looking toward the
courtyard at the victim. She overheard one of them say, “We didn’t get him
today. We’ll get him tomorrow.” Id. at 53–58, 62.
The victim’s stepbrother, Edwin Peoples, and the victim’s cousin,
Deron Townsend, were eye-witnesses to the shooting. They both described
the events leading up to and including when Appellant and a lighter-skinned
man shot the victim, while a third man stood watch. N.T., 3/19/13, at 103–
111, 121–130. They both identified Appellant from a photographic array as
one of the shooters. Id. at 111, 129.
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Pittsburgh Homicide Detective George Satler reviewed video footage
captured from security cameras around Elmore Square between 3:17 p.m.
and 3:19 p.m. on December 30, 2010. The videos showed three individuals
exiting an apartment and walking out of sight, the victim staggering and
falling to the ground, and the same three individuals running away and
fleeing in a vehicle. The cameras did not capture the actual shooting. N.T.,
3/19/13, at 74–87, Commonwealth Exhibits 6 and 7 (videos).
On January 3, 2011, the Allegheny County District Attorney filed a
criminal information, charging Appellant with the above-stated crimes.
During the early morning hours of January 23, 2011, Pittsburgh Police
Officer Jeffrey Tomer initiated a traffic stop on Pittsburgh’s North Side.
Appellant was a passenger in the back seat of the vehicle. Once the vehicle
stopped, Appellant fled on foot. Officer Tomer apprehended Appellant,
arrested him, and found two identification cards on him, one with Appellant’s
name and one for a “Jaison Houser.” Appellant informed the officer that he
was Jason Houser and that Cole was his cousin. N.T., 3/19/13, at 143–148,
Commonwealth Exhibits 20 and 21.
Appellant proceeded to trial on March 19, 2013. During its
deliberations, the jury asked to view the surveillance video. N.T., 3/20/13,
at 88. The trial court allowed Corey Day, a technical analyst from the
district attorney’s office, accompanied by a tipstaff, access to the jury room
to play the video. The analyst and tipstaff then left without saying anything
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to the jury. Id. at 96–97; N.T. Status Hearing, 3/27/15, at 10–15. The jury
convicted Appellant of the above-stated crimes on March 20, 2013. N.T.,
3/20/13, at 98. On June 19, 2013, the trial court sentenced Appellant to
incarceration for life without the possibility of parole on the murder
conviction, a consecutive sentence of incarceration for five to ten years on
the robbery conviction pursuant to 42 Pa.C.S. § 9712, ten to twenty years of
incarceration on the conspiracy-to-commit-homicide conviction, and no
further penalty on the conviction for carrying a firearm without a license.
N.T., 6/19/13, at 6–7.
After a change of counsel, Appellant filed post-sentence motions on
July 1, 2013, which were denied by operation of law. This appeal followed.
Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our consideration:
I. Whether Appellant’s Pennsylvania and United States
constitutional rights were violated by the allowance of an
employee of the prosecutor’s office in the jury room to
display video footage during deliberations?
II. Whether trial court erred by allowing Detective [Satler] to
narrate a video played during the Commonwealth’s case,
and entered in evidence in this trial?
III. Whether the trial court erred by applying a mandatory
sentence when sentencing Appellant at count two (2), 18
Pa.C.S. 3701 (A)(1)(I), robbery?
Appellant’s Brief at 5 (full capitalization omitted; reordered for disposition).
Appellant first contends that his constitutional rights to a fair trial and
to counsel were violated when the trial court allowed an employee of the
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district attorney’s office to enter the jury room during deliberations to
display video evidence. Appellant’s Brief at 23. Appellant submits, “The
Pennsylvania Supreme Court has held that if [a] juror has contact with a
party, a lawyer, court officer, or a judge, then, upon a showing that the
contact created a reasonable likelihood of prejudice, a new trial is
warranted.” Id. (citing Commonwealth v. Bradley, 459 A.2d 733 (Pa.
1983)).
The trial court disposed of this issue as follows:
This [c]ourt heard testimony on this matter on March 27, 2015,
and incorporated the transcript into the record. From the
testimony, it is clear that Corey Day, at that time a paralegal
and communications coordinator in the Office of the District
Attorney, with the consent of counsel for Appellant, entered the
jury room with this [c]ourt’s tipstaff, and played the relevant
section of video several times without making any substantive
comments to the jury about it or the case. Under these
circumstances, Appellant suffered no prejudice and his claim for
relief is without merit.
Trial Court Opinion, 5/15/15, at 10 (internal citations omitted).
Initially, we note that Appellant has waived this issue for failure to
properly object during trial. N.T., 3/20/15, at 88. See Commonwealth v.
Baumhammers, 960 A.2d 59, 84 (Pa. 2008) (“[T]he absence of a specific
contemporaneous objection renders the appellant’s claim waived.”).
However, even if this issue were not waived, Bradley, upon which Appellant
relies, is distinguishable.
Therein, the trial court recorded its ex parte communication to the
jury:
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Let the record show that the court officer received the following
inquiry from the jury during their deliberations, “May we see or
hear the hospital report on Nina Rothschild.” Upon being advised
of this memorandum, the court advised the court officer to
instruct the jury that the hospital report had been put in by
stipulation, and to continue their deliberations.
Bradley, 459 A.2d at 734 (citing Record at 271a). After the trial court
denied Bradley’s post-verdict motions, he appealed his convictions for rape,
robbery, and involuntary deviate sexual intercourse.
Relying on Pennsylvania civil cases, the Superior Court vacated the
judgment of sentence and granted a new trial, having concluded that all ex
parte communications between the court and jury require a new trial.
Commonwealth v. Bradley, 415 A.2d 1243, 1245 (Pa. Super. 1979). The
Commonwealth petitioned for allowance of appeal. The Supreme Court
reversed the Superior Court, “disapproving of the broad language in our civil
cases requiring reversal without prejudice, and [held] that only those ex
parte communications between a court and jury which are likely to prejudice
a party will require reversal.” Bradley, 459 A.2d at 734.
In contrast, the case before us does not involve an ex parte
communication between the judge and the jury but a procedure for showing
video evidence to the jury during deliberations.1 Moreover, defense counsel
consented to allowing the analyst to enter the jury room during
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1
Arguably, a preferable procedure would be to bring the jury back into the
courtroom to view the video.
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deliberations. N.T. Trial, 3/20/13, at 88–90; N.T. Hearing Status, 3/27/15,
at 5, 14–15, 20–21. Furthermore, Appellant’s claim is speculative.
Appellant made no proffer as to a reasonable likelihood of prejudice, nor
could he in light of the uncontested testimony by the analyst that he did not
communicate with the jury. N.T., Hearing Status, 3/27/15, at 13–21.
Accord Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa. 2012) (“An
extraneous influence may compromise the impartiality and integrity of the
jury, raising the specter of prejudice. The relevant inquiry is whether the
extraneous influence caused ‘a reasonable likelihood of prejudice.’”). Thus,
Appellant would not be entitled to relief on this issue.
Next, Appellant argues that the trial court erred by permitting
Detective Satler to narrate while the security camera video was played for
the jury. Appellant’s Brief at 32. The admission of videotaped evidence is
always within the sound discretion of the trial court and will not be reversed
absent an abuse of that discretion. Commonwealth v. Stark, 526 A.2d 383
(Pa. Super. 1987). “Admissibility depends on relevance and probative value.
Evidence is relevant if it logically tends to establish a material fact in the
case, tends to make a fact at issue more or less probable, or supports a
reasonable inference or presumption regarding a material fact.”
Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002) (quoting
Commonwealth v. Stallworth, 781 A.2d 110, 117–118 (Pa. 2001)).
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Appellant argues that Detective Satler’s narration of the video was
inadmissible on three grounds: it was based on speculation rather than
personal knowledge, Appellant’s Brief at 32 (citing Pa.R.E. 602); 2 it
contained improper lay opinion, Appellant’s Brief at 34 (citing Pa.R.E. 701); 3
and the danger of unfair prejudice to Appellant outweighed the probative
value of the narration. Appellant’s Brief at 36 (citing Pa.R.E. 403).4
The trial court rejected Appellant’s assertions as follows:
At TT [trial transcript] 79, Appellant’s counsel objected,
stating “I’m going to object. My understanding is the
Commonwealth is going to enter the video into evidence. So it
would be the jury’s interpretation and not the detective’s.” (TT
79) This [c]ourt overruled, and permitted the detective to
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2
Pa.R.E. 602 provides, “A witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the witness has personal
knowledge of the matter. Evidence to prove personal knowledge may consist
of the witness’s own testimony.”
3
Pa.R.E. 701 provides:
If 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.
4
Pa.R.E. 403 provides, “The court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
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describe his observations. The witness testified that he saw a
vehicle drive around and back into a parking space. This
statement, describing what the video portrays, is not
speculative, or unfairly prejudicial, and does not contain
improper lay opinion. The statement merely puts into words
what the video portrays. As such, its admission was not
improper.
* * *
At TT 84, counsel objected to narration. This [c]ourt
overruled, stating that the witness was familiar with the area as
he has been physically present in the area and was able to
describe for the jury where items were in relationship to the
events which occurred. The witness testified that he saw one
individual running along a fence and another individual on the
ground in a kneeling position. He did not speculate or provide
opinion regarding his observations. His testimony is also not
unduly prejudicial, as the jury was watching the same events
unfold as the witness testified.
Finally, as it pertains to this issue, counsel objects at TT 86
to the witness describing what he observed at a certain point in
the video. This [c]ourt again overruled, stating that the witness
wasn’t explaining to the jury everything he takes from the video.
He was merely pointing out, based on his knowledge of the area
and of the incident, where the jury should focus its attention. As
the video had been admitted into evidence and the jurors had
the opportunity to review it for themselves, it was not error for
this Court to admit the testimony of the witness.
Trial Court Opinion, 5/15/15, at 9–10. We agree with the trial court.
The record reveals that Detective Satler had been a Pittsburgh
homicide detective for fourteen years and that he was assigned on
December 31, 2010, to recover “video that might have been captured for
this incident.” N.T., 3/19/13, at 75. He was at Elmore Square reviewing
video footage for six hours. Id. at 77. Detective Satler recovered video
footage from two camera angles that captured where the shooting occurred.
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Id. at 78. During the course of his narration, Detective Satler pointed out
the time stamp at various points in the video; he described the location of
the cameras to the scene, the physical relationships between people and
buildings, and the movements of a vehicle; he identified three men leaving
an apartment and running along the fence line and the victim staggering and
falling down. Id. at 80–90. Using measurements he and his colleague took,
the video footage, and the time stamps, Detective Satler calculated the
direction, distance, and time covered by the three individuals. Id. at 90–91.
Upon review, we conclude that admission of Detective Satler’s
narration did not violate our rules of evidence. Detective Satler’s testimony
was based on his experience, his perceptions, and his personal knowledge of
Elmore Square. His testimony was relevant to the jury’s understanding of
the timing, the actors, and the location of events depicted in the video.
Moreover, his testimony did not cause unfair prejudice or undue delay,
confuse the issues, mislead the jury, or needlessly present cumulative
evidence. Thus, we discern no abuse of the trial court’s discretion in
admitting Detective Satler’s testimony. Appellant’s contrary claim lacks
merit.
Lastly, Appellant challenges his sentence as illegal, alleging the trial
court imposed an unconstitutional mandatory minimum sentence on the
robbery conviction. Appellant’s Brief at 21. The trial court and the
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Commonwealth concede that Appellant is entitled to resentencing. Trial
Court Opinion, 5/15/15, at 10–11; Commonwealth’s Brief at 8.
This Court recently held in Commonwealth v. Valentine, 101 A.3d
801 (Pa. Super. 2014), that 42 Pa.C.S. § 9712 is unconstitutional under
Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151 (2013).
Appellant’s June 19, 2013 sentence was imposed two days after Alleyne
was decided. Therefore, we are constrained to vacate the judgment of
sentence and remand for resentencing on the robbery conviction.
Valentine, 101 A.3d at 812.
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2016
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