Com. v. Williams, J. ( 2016 )

J-A17037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMIR WILLIAMS
Appellant No. 1005 EDA 2015
Appeal from the Judgment of Sentence March 20, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002378-2012
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 07, 2016
Appellant, Jamir Williams, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his jury
trial convictions for one count each of first-degree murder, attempted
murder, aggravated assault, and possession of an instrument of crime
(“PIC”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On the night of October 29, 2010, and early morning of October 30, 2010,
Appellant was involved in an altercation with Robert Adams and Emerson
Price at Ess’s Bar in Chester, Pennsylvania. After Appellant left the bar on
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a), 901(a), 2702(a)(1), and 907(a), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-A17037-16
October 30, 2010, Appellant’s then-girlfriend, Sijourney Yokley, drove
Appellant back to the vicinity of the bar. Appellant exited the car and
approached Robert Adams and Emerson Price, who were outside near the
bar. Appellant shot both Robert Adams and Emerson Price, fatally wounding
Emerson Price. Allante Johnson witnessed both the earlier altercation and
the shooting of Robert Adams and Emerson Price.
The Commonwealth charged Appellant with several offenses arising
from the shooting, including first-degree murder, attempted murder,
aggravated assault, and PIC. Allante Johnson testified at Appellant’s
preliminary hearing on April 13, 2012. Mr. Johnson stated he had witnessed
the altercation among Appellant, Robert Adams, and Emerson Price at Ess’s
Bar late on October 29, 2010, and in the early morning of October 30, 2010.
Mr. Johnson explained how shortly after, he saw a woman drive Appellant to
the vicinity of Ess’s Bar, where Appellant exited the car and walked toward
Robert Adams and Emerson Price. Mr. Johnson testified he saw Appellant
shoot Robert Adams and Emerson Price.
After the preliminary hearing, Mr. Johnson provided Appellant’s trial
counsel with a written statement that recanted Mr. Johnson’s preliminary
hearing testimony. The statement said Mr. Johnson did not see Appellant
shoot Robert Adams and Emerson Price. Appellant proceeded to a jury trial
on December 16, 2014. Although the Commonwealth issued Mr. Johnson a
subpoena, Mr. Johnson failed to appear at trial to testify as a Commonwealth
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witness. For an unrelated reason, Appellant’s first trial ended in a mistrial
on December 17, 2014.
Appellant proceeded to a second jury trial on February 10, 2015. At
this trial, Mr. Johnson appeared and testified on behalf of the
Commonwealth. Mr. Johnson explained the written recantation statement
he had provided to Appellant’s counsel was false. Mr. Johnson said he
provided the statement and did not appear at Appellant’s initial trial because
he feared for his and his family’s safety if he gave incriminating testimony
against Appellant. Mr. Johnson testified he received several threats after the
preliminary hearing. Mr. Johnson indicated his car was damaged and the
words “die rat” were written on the back of his car. Mr. Johnson added his
telephone lines were cut and his home was burglarized. He also said he
received threats while in prison and in his neighborhood. In sum, Mr.
Johnson reaffirmed that his prior testimony at Appellant’s preliminary
hearing was true and his subsequent written statement was false. (See N.T.
Trial #2, 2/11/15, at 107-211.)
Sijourney Yokley also testified for the Commonwealth at Appellant’s
second trial. During her testimony, the prosecutor began to ask Ms. Yokley
about the statement she had provided police in February 2012, regarding
the shooting. Defense counsel suddenly objected to the anticipated
impeachment of Ms. Yokley, arguing how her testimony might be perjury if it
differed from her prior statement, and she could be incriminating herself.
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After sending the jury out, the court instructed Ms. Yokley she might commit
perjury through her testimony at trial, and she had the right to consult with
counsel before continuing to testify. Ms. Yokley responded that she did not
want to continue her testimony at that time and stepped off the stand. The
court instructed the Commonwealth to issue Ms. Yokley a material witness
warrant and placed Ms. Yokley under arrest until she had the opportunity to
speak with counsel the next morning. Within fifteen minutes, Ms. Yokley
returned to the stand to continue her testimony. Ms. Yokley stated that in
the early morning of October 30, 2010, Appellant told her about the
altercation at Ess’s Bar. Ms. Yokley stated she drove Appellant to the
vicinity of Ess’s Bar, where Appellant asked Ms. Yokley to stop the car
because he recognized at least one of the two males who were on the street.
Ms. Yokley explained Appellant reentered the car after Ms. Yokley heard
gunshots. Ms. Yokley also stated Appellant threatened her months later not
to speak about the shooting. (See N.T. Trial #2, 2/10/15, at 315-46.)
Following a three-day trial, the jury found Appellant guilty of one count
each of first-degree murder, attempted murder, aggravated assault, and
PIC. The court sentenced Appellant on March 20, 2015, to life imprisonment
for murder, a consecutive 140-280 months’ incarceration for attempted
murder, and a consecutive 30-60 months’ incarceration for PIC (aggravated
assault merged with attempted murder for sentencing). Appellant filed a
timely notice of appeal on April 6, 2015. On April 14, 2015, the court
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ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Rule 1925(b). After the court granted an extension,
Appellant timely complied on June 17, 2015.
Appellant raises two issues for our review:
COMMONWEALTH WITNESS ALLANTE JOHNSON TESTIFIED
THAT HE WITNESSED [APPELLANT] SHOOT THE TWO
VICTIMS. HE ALSO TESTIFIED THAT HE WROTE AND
SIGNED A STATEMENT TO COUNSEL FOR [APPELLANT]
ACKNOWLEDGING THAT HIS POLICE STATEMENT AND
PRELIMINARY HEARING TESTIMONY WAS FALSE AND HE
DID NOT WITNESS THE SHOOTING. THIS WITNESS
TESTIFIED AT TRIAL THAT HE DID NOT RESPOND TO A
COMMONWEALTH SUBPOENA TO APPEAR FOR TRIAL IN
DECEMBER 2014 THAT ENDED IN A MISTRIAL BECAUSE
HE WAS “SCARED.” OVER OBJECTION FROM COUNSEL,
THE COMMONWEALTH WAS PERMITTED TO EXAMINE THE
WITNESS ABOUT HIS CAR BEING VANDALIZED AND THE
WORDS “DIE RAT” WRITTEN ON HIS CAR. IN RESPONSE
TO THE COMMONWEALTH’S QUESTION, “WERE THERE ANY
OTHER INSTANCES?” THE WITNESS RESPONDED BY
DESCRIBING “MY PHONE LINES GOT CUT AND A COUPLE
OF WEEKS AGO SOMEBODY HAD [COME] IN THE CRIB….”
THE COMMONWEALTH PRE-EMPTIVELY STOPPED THE
WITNESS FROM FURTHER TESTIMONY. THE LEARNED
TRIAL COURT ERRED WHEN IT PERMITTED THE WITNESS
TO DESCRIBE INCIDENTS THAT HE FELT WERE DESIGNED
TO INTIMIDATE HIM AS A WITNESS AS THERE WAS NO
SHOWING THAT THE CONDUCT WAS CONNECTED
DIRECTLY OR INDIRECTLY TO [APPELLANT]. HE WAS
INCARCERATED WHEN ALL OF THE EVENTS OCCURRED.
THE ERROR IS AMPLIFIED WHEN THE WITNESS, IN
RESPONSE TO QUESTIONS FROM THE COMMONWEALTH,
TESTIFIED THAT HE WAS THREATENED AFTER HE
TESTIFIED AT THE PRELIMINARY HEARING. THE COUNSEL
OBJECTED AND THE COURT SUSTAINED THE OBJECTION
BUT THE COMMONWEALTH CONTINUED TO PURSUE THE
THEME OF WITNESS INTIMIDATION WITHOUT
CONNECTING IT TO [APPELLANT]. COUNSEL OBJECTS
AGAIN AND ASKS FOR AN INSTRUCTION. THE COURT
SUSTAINS THE OBJECTION AND TELLS THE ATTORNEY
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FOR THE COMMONWEALTH TO STRIKE THE LAST
RESPONSE BUT DOES NOT INFORM THE JURY TO
DISREGARD THE ANSWER. THE COURT ACKNOWLEDGES
THAT THE STATEMENTS OF THE WITNESS ARE HEARSAY
BUT ALLOWED THE JURY TO HEAR THE TESTIMONY
WITHOUT CLARIFYING INSTRUCTIONS.
SIJOURN[E]Y YOKLEY IS THE SISTER OF CARLOS COLON
AND THE FORMER GIRLFRIEND OF [APPELLANT] AND THE
MOTHER OF HIS CHILD. MS. YOKLEY’S TESTIMONY WAS
INTERRUPTED WHEN SHE HESITATED IN HER TESTIMONY
AND THE COMMONWEALTH ATTEMPTED TO REFRESH HER
RECOLLECTION WITH A PRIOR STATEMENT. AFTER AN
OBJECTION BY DEFENSE COUNSEL, THE COURT
DISMISSED THE JURY AND CONDUCTED AN INQUIRY OF
THE WITNESS AND ADVISED HER THAT SHE MAY BE
INCRIMINATING HERSELF AND SHE HAS THE RIGHT TO
CONSULT WITH AN ATTORNEY. THE WITNESS
RESPONDED TO THE COURT’S INQUIRY THAT SHE DID
NOT WISH TO CONTINUE HER TESTIMONY AND BY
IMPLICATION WISHED TO CONSULT WITH AN ATTORNEY.
THEREAFTER, THE WITNESS WAS DETAINED WHEN THE
COURT TOLD THE COMMONWEALTH TO ISSUE A
MATERIAL WITNESS WARRANT. THE WITNESS WAS
TAKEN INTO CUSTODY. THE WITNESS RETURNED TO THE
WITNESS STAND LATER THAT SAME AFTERNOON AND THE
COMMONWEALTH PROCEEDED TO EXAMINE THE WITNESS
ABOUT HER STATEMENT TO THE POLICE THAT WAS
INCRIMINATING TO [APPELLANT]. THE RECORD DOES
NOT REFLECT THAT THE WITNESS SPOKE TO AN
ATTORNEY ABOUT HER 5TH AMENDMENT PRIVILEGE TO
REFRAIN FROM GIVING INCRIMINATING TESTIMONY
AGAINST HERSELF. THE LEARNED TRIAL COURT ERRED
WHEN IT DID NOT AFFORD THE WITNESS AN
OPPORTUNITY TO SPEAK TO COUNSEL DESPITE
ASSURING HER THAT SHE WOULD HAVE THE
OPPORTUNITY TO DO SO BEFORE REAPPEARING AS A
WITNESS. THE LEARNED TRIAL COURT COMPOUNDED
THE ERROR WHEN IT TOLD THE WITNESS THAT SHE WAS
BEING PLACED IN THE CUSTODY OF THE SHERIFF AND
SUA SPONTE ASKING THE COMMONWEALTH TO PREPARE
A MATERIAL WITNESS WARRANT AND DETAIN THE
WITNESS WHEN THE COMMONWEALTH DID NOT ASK THE
COURT TO DO SO.
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(Appellant’s Brief at 3-4) (citations to record omitted).
In his first issue, Appellant avers Allante Johnson’s testimony that he
was threatened, his car was vandalized, and his telephone lines were cut,
unduly prejudiced Appellant. Appellant submits Mr. Johnson’s testimony
inappropriately suggested Appellant intimidated Mr. Johnson so Mr. Johnson
would not testify against Appellant. Appellant maintains the Commonwealth
did not demonstrate Appellant was responsible for the threats to Mr.
Johnson. Appellant alleges the court erred when it allowed Mr. Johnson to
testify that he received threats and when it did not instruct the jury to
disregard Mr. Johnson’s testimony about the threats. Appellant concludes
this Court should award Appellant a new trial. We disagree.
The standard of review for admission of evidence is as follows. “The
admissibility of evidence is at the discretion of the trial court and only a
showing of an abuse of that discretion, and resulting prejudice, constitutes
reversible error.” Commonwealth v. Ballard, 622 Pa. 177, 197-98, 80
A.3d 380, 392 (2013), cert. denied, ___ U.S. ___, 134 S.Ct. 2842, 189
L.Ed.2d 824 (2014).
The term discretion imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused when the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
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the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill will.
Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013),
appeal denied, 624 Pa. 672, 85 A.3d 482 (2014). “To constitute reversible
error, an evidentiary ruling must not only be erroneous, but also harmful or
prejudicial to the complaining party.” Commonwealth v. Lopez, 57 A.3d
74, 81 (Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).
“In general, ‘threats by third persons against…witnesses are not
relevant [and thus not admissible into evidence] unless…the defendant is
linked in some way to the making of the threats.’” Commonwealth v.
Bryant, 462 A.2d 785, 788 (Pa.Super. 1983) (quoting Commonwealth v.
Carr, 436 Pa. 124, 127, 259 A.2d 165, 167 (1969)) (brackets in original).
“Nevertheless, an exception to the rule exists where the evidence in
question was not offered to prove the accused’s guilt ‘but to explain a
[witness’s] prior inconsistent statement.’” Bryant, supra (quoting Carr,
supra) (brackets in original). Generally, this kind of evidence is used “to
rehabilitate the witness after the defense, in an effort to discredit the
witness, has questioned the witness about the previous testimony.”
Commonwealth v. Rickabaugh, 706 A.2d 826, 838 (Pa.Super. 1997),
appeal denied, 558 Pa. 607, 736 A.2d 603 (1999) (emphasis in original).
Nonetheless, “the order of proof is a matter within the realm of…judicial
discretion which will not be interfered with in the absence of an abuse
thereof.” Commonwealth v. Smallwood, 497 Pa. 476, 484, 442 A.2d
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222, 225 (1982) (citing Commonwealth v. Burns, 409 Pa. 619, 627, 187
A.2d 552, 561-62 (1963)) (internal quotation marks omitted). See also
Commonwealth v. Smith, 518 Pa. 15, 40, 540 A.2d 246, 258 (1988)
(explaining trial court did not abuse its discretion when it permitted
prosecution to admit prior consistent statements of witness in anticipation of
announced defense before defense counsel had impeached witness on cross-
examination); Commonwealth v. Mokluk, 444 A.2d 1214, 1217
(Pa.Super. 1982) (stating: “A trial court normally has discretion to admit out
of order evidence in rebuttal of an anticipated defense. This discretion is
abused only if it unduly prejudices one of the parties”).
Due to the potential that the jury could use the evidence for some
impermissible reason, a defendant is usually entitled to a cautionary
instruction when evidence is admitted for a limited purpose.
Commonwealth v. Billa, 521 Pa. 168, 180, 555 A.2d 835, 842 (1989). To
establish the defendant suffered undue prejudice from the absence of a
limiting instruction, he must demonstrate a reasonable probability that the
outcome of the trial would have been different if the trial court had issued
the instruction. Commonwealth v. Hutchinson, 611 Pa. 280, 306, 25
A.3d 777 (2011), cert. denied, ___ U.S. ___, 132 S.Ct. 2711, 183 L.Ed.2d
70 (2012). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Commonwealth v. Chambers, 570 Pa. 3, 21-
22, 807 A.2d 872, 883 (2002). In determining unjustifiable prejudice, a
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court “must consider the totality of the evidence before the judge or jury.”
Commonwealth v. Simmons, 569 Pa. 405, 430, 804 A.2d 625, 640
(2001).
Instantly, Allante Johnson testified at Appellant’s preliminary hearing
that he had witnessed Appellant shoot Robert Adams and Emerson Price.
After the preliminary hearing, Mr. Johnson executed a written statement
recanting his preliminary hearing testimony. Mr. Johnson also failed to
appear at the first trial to testify for the Commonwealth. At Appellant’s
second trial, Mr. Johnson testified as a Commonwealth witness. On direct
examination, Mr. Johnson explained he received several threats after the
preliminary hearing, which caused him to fear for his and his family’s safety
if he testified against Appellant. Due to his fear of retaliation, Mr. Johnson
stated he provided his written recantation statement and he did not appear
to testify at the first trial. Mr. Johnson testified his written recantation was
false and his preliminary hearing testimony was true. Defense counsel did
not object to the order of proof regarding the Commonwealth’s questioning
Mr. Johnson about his prior inconsistent statement and the threats he
received. Defense counsel also did not request a limiting instruction on Mr.
Johnson’s testimony about the threats.
Appellant does not establish the trial court acted with partiality, ill-will,
or lack of support when it admitted Allante Johnson’s testimony about the
threats he received. The court correctly determined Mr. Johnson’s testimony
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regarding the threats was admissible to explain his prior inconsistent
statement. See Goldman, supra; Bryant, supra. The court also did not
abuse its discretion when it permitted the Commonwealth to question Mr.
Johnson about his prior inconsistent statement before defense counsel had
attempted to impeach Mr. Johnson. See Smith supra; Mokluk supra.Moreover, Appellant failed to object to the Commonwealth’s examination of
Mr. Johnson as out of order. See Pa.R.A.P. 302 (stating issues not raised in
trial court are waived and cannot be raised for first time on appeal). See
also Commonwealth v. York, 465 A.2d 1028, 1032 (Pa.Super. 1983)
(stating new and different theory of relief may not be successfully advanced
for first time on appeal).
Additionally, Appellant cannot show he suffered unfair prejudice due to
the absence of a limiting instruction regarding Mr. Johnson’s testimony or a
reasonable probability that the instruction would have led to a different
outcome at trial. The Commonwealth presented testimony from other
witnesses, in addition to Allante Johnson, who identified Appellant as the
shooter. The absence of a limiting instruction as to Mr. Johnson’s testimony
had no bearing on portions of his or any other witness’ testimony that
identified Appellant as the shooter, so Appellant’s first issue merits no relief.
See Hutchinson, supra.
In his second issue, Appellant asserts Sijourney Yokley said she did
not want to continue to testify, and Appellant infers Ms. Yokley wished to
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consult with counsel before she resumed her trial testimony, after the court
advised her of her Fifth Amendment rights. Appellant submits Ms. Yokley
did not speak with an attorney before she stepped back onto the witness
stand. Appellant maintains the trial court erred when it permitted Ms.
Yokley to resume her testimony at trial without speaking with counsel.
Appellant avers the trial court also erred when it sua sponte ordered the
Commonwealth to issue Ms. Yokley a material witness warrant. Appellant
concludes this Court should award Appellant a new trial. We disagree.
Preliminarily, to preserve a claim of error for appellate review a party
must make a specific objection to an alleged error before the trial court in a
timely fashion and at the appropriate stage of the proceedings.
Commonwealth v. Charleston, 16 A.3d 505 (Pa.Super. 2011), appeal
denied, 612 Pa. 696, 30 A.3d 486 (2011); Pa.R.A.P. 302(a). Failure to raise
a proper objection results in a waiver of the underlying issue on appeal. See
Charleston, supra. Instantly, Appellant did not object at trial to Ms.
Yokley’s testimony on the basis that she had not spoken with counsel before
she resumed her testimony. Appellant also did not object to the court’s sua
sponte instruction to the Commonwealth to issue a material witness warrant
to Ms. Yokley. Accordingly, Appellant has waived his second issue for review
on appeal.
Even if Appellant had not waived his second issue, we would conclude
Appellant’s second issue merits no relief, as the trial court opinion properly
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disposed of the issue. (See Trial Court Opinion, filed on July 31, 2015, at
21-22) (finding: Appellant does not have standing to assert Fifth
Amendment rights on behalf of Sijourney Yokley because Fifth Amendment
rights are personal rights, which attach to testifying individual alone;
Sijourney Yokley voluntarily chose to re-take witness stand after she
stepped down; and Appellant did not object when Sijourney Yokley resumed
her testimony).2 Moreover, the trial court properly permitted Ms. Yokley to
testify at trial regarding her prior statement for the purposes of
impeachment and/or confirmation of her statement. Therefore, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2016
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2
We observe Appellant similarly lacks standing to assert the court erred
when it sua sponte instructed the Commonwealth to issue Sijourney Yokley a
material witness warrant.
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J ORlGit~L Circulated 09/28/2016 02:54 PM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA CP-23-CR-2378-2012
v.
Jamir Williams
A. Sheldon Kovach, Esquire, Deputy District Attorney, for the Commonwealth
Douglas L. Smith, Esquire, for the Appellant
OPINION
Capuzzi, L Filed: 7/31/2015
This is an appeal from Appellant's judgment of sentence entered on March 20, 2015. This case
arose as the culmination of another brutal, senseless murder in the City of Chester triggered by what has
been described as a minor altercation in a corner bar. Unfortunately for Emerson Price, III, Appellant, a
man with neither self-control nor respect for life, felt disrespected and vowed to retaliate. Within a short
period of time, Appellant retrieved a gun and returned to the same corner in order to administer "street
justice." Appellant was hell-bent on avenging those who challenged his "street cred." At the conclusion,
1
Emerson Price, III was dead and Robert Adams was seriously wounded.
Appellant raises five issues on appeal: (1) The evidence was insufficient as a matter of law to
sustain the conviction of Murder in the First Degree", Criminal Attempt to Commit Homicide',
Aggravated Assault 4, and Possession of an Instrument of Crime'; (2) This Court erred when it permitted
Commonwealth witness Carlos Colon to testify to threats Appellant made to him after the shooting that
Appellant would kill Colon and Sijourney Yokley, Appellant's then girlfriend, if she left him as this was
1
This was Appellant's second homicide trial within six months. He was convicted of first degree murder In October
of 2014 for the murder of Rahim Hicks.
2
18 Pa.C.S. §2502{a)
3
18 Pa.C.S. § 901(a)
418
Pa.C.S. §2702(a)(1)
5
18 Pa.C.S. §907{a)
Page 1 of23
evidence of other crimes; (3) This Court erred when it permitted Sijoumey Yokley to testify that
Appellant, subsequent to the shooting, threatened to kill her if she left him or mentioned the shooting to
anyone, as this was evidence of other criminal conduct; (4) This Court erred when it did not afford
Sijoumey Yokley the opportunity to speak to counsel in reference to her 5th Amendment rights; and (5)
This Court erred when it did not give a clarifying instruction after it permitted hearsay statements from
Commonwealth witness, Allante Johnson in reference to witness intimidation. For the forthcoming
reasons, Appellant's allegations are without merit and Appellant's judgment of sentence should be
affirmed.
FACTUAL BASIS
In October of 2010, Emerald Brown, (herein Emerald) 23, was living at 1003 Madison Street in
the City of Chester, Delaware County, Pennsylvania. [N.T., 2/10/2015 p. 41]. Emerald lived in the home
with her children and her mother, Sandra Brown (herein Ms. Brown); her two little brothers, Immanual
and Emerson Price III (herein Mr. Price); and cousins Bishop and Robert Adams (herein Mr. Adams).
[N.T., 2/10/2015 p. 42]. Mr. Price was commonly known by the nicknames his mother gave him, "Man-
Man" and "Memphis." [N.T., 2/10/2015 p. 42]. Mr. Price and his cousin, Mr. Adams, were very close.
[N.T., 2/10/2015 p. 44].
On Friday evening, October 29, 2010, into the morning hours of October 30, 2010, Emerald
Brown along with Sandra Brown, stepmother (unnamed), and Mr. Price's ex-girlfriend Keshana
Rochester (herein Ms. Rochester), attended a Halloween/birthday party at a rec center in Lamokin
Village. [N.T., 2/10/2014 p. 44-45]. Notwithstanding Mr. Price's breakup with Ms. Rochester, Emerald
remained friends as Ms. Rochester had a child with Mr. Price. [N.T., 2/10/2014 p. 45, 114]. Mr. Price and
Mr. Adams were not present at the party. [N.T., 2/10/2015 p.44]. The party ended around 1:00a.m., and
the group went back to 1003 Madison Street to get changed. [N.T., 2/10/2015 p. 46]. After they got
changed, Emerald and Ms. Rochester went to Ess's Bar located at Madison and Rose Street, two comers
down from Emerald's home. [N.T., 2/10/ 2015 p.47].
Page 2 of 23
The two arrived at the bar around 1:30a.m., and sat down on two stools in the front of the bar to
have a drink. There were a lot of people at the bar that evening, including Mr. Price, Mr. Adams and
Appellant. [N.T., 2/10/2015 p. 48]. Approximately fifteen-twenty minutes after they arrived, a fight broke
out between Appellant and another male named "Dub." [N.T., 2/10/2015 p.48]. Although Emerald isn't
friends with Appellant, she recognized him from prior occasions and knows him by the nickname
"Burgers." [N.T., 2/10/2015 p. 50].
The neighborhood of Rose and Madison is considered the East side of Chester, where Appellant
is not from. [N.T., 2/10/2015 p. 53]. A group of guys crowded around Appellant. Emerald saw and heard
Mr. Price telling Appellant: "you can't do this around here because we let you around here." [N.T.,
2/10/2015 p. 52-56]. When the altercation turned physical, the bartender told everyone to leave. Ms.
Rochester went over to the group to tell Mr. Price to leave and Appellant struck Ms. Rochester. [N.T.,
2/10/2015 p. 56]. In response, Mr. Price told Appellant: "no one discresepcts my baby mother or puts
their hands on them." [N.T., 2/10/2015 p. 56].
Shortly before 2:00a.m., the crowd moved outside ofEss's and Appellant stated: "no one better
not be out here when I come back." [N.T., 2/10/2015 p. 57]. Appellantthen drove off in a silver four door
car. [N.T., 2/10/2015 p.61]. At this point, Emerald noticed Mr. Price standing down from the bar on the
comer of Rose Street. [N.T., 2/10/2015 p. 62]. Emerald also saw "Bob" from their neighborhood begin
an argument with Mr. Price. [N.T., 2/10/2015 p. 62]. Emerald saw Bob shove Mr. Price, so she ran down
the street and told Bob to stop touching her little brother. [N.T., 2/10/2015 p. 63]. Bob had a gun in his
hand and claimed he was going to shoot Ms. Rochester but did not point the gun at anyone. [N.T.,
210/2015 p. 63]. The fight did not escalate, and he and Bob said they would talk about it later and Bob
walked away. [N.T., 2/10/2015 p. 65].
Emerald, accompanied by Ms. Rochester and Mr. Price's friends, Antwain [ph] and Nier, [ph]
walked back to 1003 Madison Street.. [N.T., 2/10/2015 p.70]. Mr. Price and Mr. Adams stayed on Rose
Street. [N.T., 2/10/2015 p.70]. Ten minutes later, Mr. Price and Mr. Adams also came back to 1003
Madison Street. [N.T., 2/10/2015 p. 71]. Mr. Price went upstairs with Emerald and asked Emerald to get
Page 3 of 23
Ms. Rochester out of the house so he could leave and head up the street to meet LaKiera, who lived on
Madison, a few doors down from Ess's Bar. [N.T., 2/10/2015 p. 74]. Mr. Price also told Emerald that he
and Bob shook hands and everything was cool. [N. T ., 2/ I 0/2015 p. 71-73]. After their discussion, Emerald
and Ms. Rochester left the house to walk to 7-Eleven. This was the last time Emerald would see her little
brother alive.
While Emerald and Ms. Rochester were at 7-Eleven, Ms. Brown was home at I 003 Madison
Street with Immanual and friend, Dory. [N.T., 2/10/2015 p. 120]. When the girls left, Mr. Price and Mr.
Adams told her they were going up the street to see LaKiera. [N.T., 2/10/2015 p. 121]. Around 3:IOa.m.,
Ms. Brown heard two, three gunshots in quick succession. [N.T., 2/10/2015 p. 121-123]. Seconds after,
Mr. Adams came crawling in the front door. Ms. Brown asked him what happened and he said: "we got
shot." [N.T., 2/10/2015 p. 121]. Ms. Brown asked where Man-Man was and Mr. Adams replied: "he's
outback." [N.T., 2/10/2015 p. 121]. Ms. Brown rushed to the back door, unlocked it, and Mr. Price fell
onto her. [N.T., 2/10/2015 p. 122-124]. Ms. Brown pulled Mr. Price fully inside, laid him down, and
locked the door in fear of who else may be outside. [N.T., 2/10/2015 p. 122]. Ms. Brown woke up Dory
and Immanuel and tried to keep Mr. Price and Mr. Adams awake by talking to them. [N.T., 2/10/2015 p.
122].
In the mist of the screaming and chaos, Ms. Brown called 911 and Immanuel instructed her to put
towels on the bleeding. [N.T., 2/10/2015 p. 126]. Mr. Price kept telling her that he loved her. [N.T.,
2/20/2015 p. 126]. When the police and ambulance arrived, Ms. Brown went with the officers to the
hospital where Mr. Price was pronounced dead.
Officer Jonathan Ross is a patrolman with the City of Chester Police Department and has been so
employed for the last nine years. [N.T., 2/10/2015 p. 135]. Officer Ross works particularly in the area of
Madison and Rose Streets. [N.T., 2/10/2015 p. 137]. In the early morning hours of October 30, 2010,
Officer Ross was on duty in full uniform in a marked patrol vehicle. [N.T., 2/10/2015 p. 140]. At
approximately 3:23a.m., Office Ross was dispatched to 1003 Madison Street, the nature of the call being
a frantic female on the line for a shooting. [N.T., 2/10/2015 p. 140]. Officer Ross, along with Officer
Page 4 of 23
Defrank [ph] and Officer Sabillian [ph], were the first to arrive on scene. [N.T., 2/10/2015 p. 140]. Ms.
Brown was at the door of the home, very emotional and upset, screaming for them to help her child.
When the officers got inside the scene was very chaotic. [N.T., 2/10/2015 p. 141]. Officer Ross
observed Mr. Price and Mr. Adams laying on the ground roughly a foot and a half from each other. [N. T .,
2/10/2015 p. 144]. Officer Ross observed that Mr. Price had a chest wound and Mr. Adams had wounds
in his upper chest, torso, and pelvic area. [N.T., 2/10/2015 p. 144]. Their first priority was treating the
victims but also trying to figure out what happened. [N.T., 2/10/2015 p. 144-147]. The victims were
giving the officers bits and pieces, while gasping for air and asking where the ambulance was. [N.T.,
2/10/2015 p. 145]. Mr. Price told Officer Ross that a black male wearing all black emerged from an
unknown location in the 300 block of Rose Street. [N.T., 2/10/2015 p. 149]. Officer Ross provided that
information to Captain Chubb, who was outside of the house attempting to secure a crime scene. [N.T.,
2/10/2015 p. 150]. Mr. Price and Mr. Adams were transported by ambulance to Chester Crozer Medical
Center. [N.T., 2/10/2015 p. 156]. Officer Ross took Ms. Brown to the hospital. [N.T., 2/10/2015 p. 159].
When Emerald approached 1003 Madison, there were cops outside and her little brother
Immanuel and her Aunt Dory immediately took Emerald to the hospital, where Mr. Price was pronounced
dead. [N.T., 2/10/2015 p. 77]. Later that day, Emerald gave a statement to police about the evening and
identified Appellant in a photo array as the man who was at the bar fighting that evening.6[N.T.,
2/10/2015 p.80-84].
Detective David McDonald is employed by the Delaware County Criminal Investigation
Division, herein "CID." Detective McDonald has been employed with CID as a Detective in the Forensic
Unit for the past seven years and worked as a police officer prior to that for twenty-five years. [N.T.,
2/11/2015 p. 57]. During the early morning hours of October 30, 2010, Detective McDonald was on call
and received a request to respond to the area of Rose and Madison in order to assist Chester Police
Department with a crime scene for a double shooting. [N. T ., 2/ 11/2015 p. 5 7].
6
See Commonwealth Exhibit C-3 Statement of Emerald Brown.
Pages of 23
Upon arrival, Detective McDonald was directed up towards Rose Street in the area of Ess's Bar.
There was a marked patrol vehicle on that comer as well as one at the opposite end of Rose Street to
protect the scene. [N.T., 2/11/2015 p. 58]. Detective McDonald was then directed to 316 Rose Street
where a 25 caliber fired cartridge casing had been located. [N.T., 2/11/2015 p. 59-60]. As the
investigation progressed, Detective McDonald became aware that the victims ran from Rose Street to
1003 Madison, approximately a block and a half away. [N.T., 2/10/2015 p. 61]. At that point, Detective
McDonald proceeded to 1003 Madison and, in the rear of the residence located several items of
evidentiary value including a wool hat, blue jacket, and a cell phone. [N.T., 2/11/2015 p. 63].
Detective McDonald was on scene for an hour. After departing, Detective McDonald received
information that he needed to return because the crime scene had shifted to the 1100 block of Madison.
[N.T., 2/11/2015 p. 64]. Detective McDonald, along with Lieutenant Byerly of CID, Detective Michael
Jay of CID, and Chester Detective Pat Mullen arrived back on scene.[N.T., 2/11/2015 p. 64]. Detective
McDonald located two fired projectiles, one in front of 1113 Madison and the other in front of 1103
Madison. [N.T., 2/11/2015 p.64-65]. Detective McDonald photographed all of the evidence in relation to
this case but the evidence was eventually turned over to Detective Mullen. [N.T., 2/11/2015 p. 70].
On July 12, 2011, Allante Johnson (herein Mr. Johnson) gave Chester Detective Randy Bothwell
and CID Detective Michael Jay, a statement in reference to the shooting of Mr. Price and Mr. Adams.7
[N.T., 2/11/2015 p. 119]. Mr. Johnson is a cousin of both victims. On October 30, 2010, Mr. Johnson was
at Ess's Bar on Madison and Rose Streets. He witnessed a fight in the bar but did not see it get physical.
Later on, as Ess's was clearing out, he was walking towards Madison Bar, a bar further up the street, and
saw his cousins walking up Madison Street towards Ess's. Mr. Johnson also noticed a silver four door car
with rims being driven by a female driver come up Madison Street. Mr. Johnson saw a guy jump out of
the passenger side of the car and walk up to his cousins while the car turned the comer onto Rose Street.
Mr. Johnson saw the man, he identified as "Burgers" and" Jamir," pull a gun out of his pocket and start
7
See Commonwealth Exhibit C-27 Statement of Allante Johnson.
Page 6 of 23
shooting at his cousins who started running down Madison Street. During the statement, Mr. Johnson
identified Appellant as the shooter from a photo array.
On February 16, 2012, Carlos Colon (herein Mr. Colon) gave a statement to Detective Randy
Bothwell and Detective Michael Jay in reference to the homicide of Emerson Price, III8• [N.T ., 2/10/2015
p. 256]. Back in October of 2010, Mr. Colon was living in Crosby Square Apartments in the City of
Chester with Appellant, his sister Sijourney Yokley, and her children. [N.T., 2/10/2015 p. 239]. Mr.
Colon knew Appellant because he had a child with his sister and considered Appellant "like a big
brother." [N.T., 2/10/2015 p. 238]. In his statement, Mr. Colon told police that in the early hours of
October 30, 2010, he was at his sister's in Crosby Square, which is roughly five minutes from Ess's Bar.
Appellant, or "Burgers" came back to the apartment and told Ms. Yokley and Mr. Colon that they needed
to take a ride with him. Mr. Colon had no idea where they were going that evening. Appellant first told
them to stop at a Citgo to get dutchies to smoke weed. As they were coming up Madison Street, they saw
two men walking towards Ess's Bar. After seeing the men, Appellant told Ms. Yokley to park around the
corner on Rose Street. Appellant got out of the car, and five minutes later Mr. Colon heard four or five
shots. Appellant walked back to the car and told Ms. Yokley to drive back to Crosby Square. When he got
back into the vehicle, Mr. Colon saw a black and brown revolver in Appellant's hand. Appellant told Mr.
Colon that he was fighting with the two men in Ess's Bar earlier that evening.
Some days after the shooting, Appellant was in the car with Ms. Yokley and Mr. Colon. Ms.
Yokley tried to te11 Appellant that she was through with dating him, and in response Appellant stated:
"bitch, you're pregnant and you got my baby bitch I'll kill you." Appellant pulled out the same gun from
the night of the shooting and pointed it at Mr. Colon and Ms. Yokley and said: "bitches you tell anybody
9
I'll kill both of you all."
8
See Commonwealth Exhibit C-13 Statement of Carlos Colon.
9
See Commonwealth Exhibit C-13, page 6
Page 7 of 23
The following day, February 17, 2012, Sijoumey Yokley (herein Ms. Yokley) gave Detective
Michael Jay and Detective Randy Bothwell a statement in reference to the homicide of Emmerson Price."
Ms. Yokley stated that on October 30, 2010, she was at 501 Bar with her friends. Around 2:00a.m., she
was leaving 501 bar and Appellant approached her and told her he had gotten in a fight at Ess's on
Madison Street. Ms. Yokley got into a silver Aurora along with Appellant and her brother, Mr. Colon.
She was driving. They stopped at the Citgo. In addition, they stopped at a house on Rose Street, where
Appellant went inside and came back out with a gun. As they were heading up Madison Street, she saw
two males walking. Appellant got out of the car and shook one of the male's hands. Ms. Yokley pulled
off and parked on Rose Street. She heard gunshots and saw Appellant running back up to the car. After
that, she drove to the RS afterhours club in Ridley for Appellant to meet someone who never showed and
then home to Crosby Apartments. Ms. Yokley also stated that Appellant had threatened to kill her in
reference to this incident multiple times.
On September 6, 2012, Detective Tyler and Detective Bothwell obtained a statement from Jeffrey
Rose (herein Mr. Rose), Mr. Adams' cell mate at George W. Hill Correctional Facility back in April
2012-August of 2012.11 While they were cell mates, Mr. Adams told Mr. Rose that he and his cousin were
victims of a shooting in Chester after they were leaving the bar. Mr. Rose stated:
"One night after they left the bar that the shooter approached him, shot one time with a 38, missed
him, two more shots he let go, hit the victim in the chest, and the last three shots hit Robert
Adams Jr. I think I believe in the back, the side, and the leg. Um he told me that the victim I mean
that the shooter didn't have a mask on so he knew who he was." 12
Mr. Rose also stated that Mr. Adams said his cousin had an altercation with the shooter earlier in
the evening. Mr. Adams didn't give a name of the shooter during the conversation but also said that a
female was driving the car the shooter got out of. Mr. Adams also stated that he wasn't cooperating with
the investation because he "wasn't no snitch."
10
See Commonwealth's Exhibit C-18 Statement of Sijourney Yokley
11
See Commonwealth Exhibit C-21 Statement of Jeffrey Rose
12
See Commonwealth Exhibit C-21 page 2
Page 8 of23
PROCEDURAL IUSTORY
On or about February 21, 2012, Appellant was arrested and charged with First Degree Murder for
the death of Emerson Price III, Attempted Homicide for the shooting of Robert Adams and related
charges. Michael J. Malloy, Esquire entered his appearance on behalf of Appellant.
On May 8, 2012, The Commonwealth filed its Notice of Aggravating Circumstances Pursuant to
Pa.R.Crim.P. 802. Scott Galloway, Esquire was appointed to represent Appellant in all matters pertaining
to penalty phase. The case was originally assigned to The Honorable Patricia Jenkins; however, was re-
assigned to this Court in January of 2014.
After investigation, the Commonwealth withdrew the Notice on June I 1, 2014. On June 23,
2014, This Court permitted Scott Galloway to withdraw his appearance as his representation in the
penalty phase was no longer necessary.
Several pre-trial motions in limine were filed on behalf of Appellant. This Court issued an order
on September 2, 2014, granting Appellant's request for Mr. Johnson's phone records from George W.
Hill Correctional Facility for the years 2012, 2013, and 2014. On December 16, 2014, this Court granted
Appellant's motion to preclude testimony of any possession of weapons prior to the date of the incident
and ordered that there would be no testimony as to the incident at J&S Seafood, where Appellant was
charged with another homicide docketed at 3302-201i13• On January 20, 2015, this Court granted
Appellant's request for George W. Hill to produce any notes or records of Carlos Colon and any
disciplinary records of Carlos Colon.
A jury was selected on December 5, 2014 and trial commenced on December 16, 2014. However,
due to defense counsel's very serious family emergency on December 17th and without objection by
Appellant, this Court declared a mistrial and rescheduled trial for February 2015.
Based upon the testimony at the mistral, Appellant filed a motion to preclude the following
testimony: ( 1) statement from victim, Mr. Price, to his sister Emerald Brown that Bob and Mr. Price
shook hands after their argument; (2) Mr. Colon's testimony that after the shooting Appellant threatened
13
Appellant was convicted in that case on October 23, 2014 and it is currently on appeal.
Page 9 of 23
him while brandishing the same gun used in the homicide; (3) Mr. Colon's testimony that Appellant stole
money from his family subsequent to the alleged incident. This Court denied Appellant's first two
requests but granted the third.
A jury was selected on February 6, 2015. The Commonwealth informed this Court they were
proceeding on Count I: Murder in the First Degree; Count 2: Murder in the Third Degree, Count 3:
Criminal Attempt to Homicide; Count 4: Aggravated Assault Serious Bodily Injury Caused; and Count 7:
Possessing an Instrument of Crime. [N.T., 2/10/2015 p. 6].
On February 10, 2015, trial commenced. The Commonwealth called Emerald Brown, Sandra
Brown, Officer Jonathan Ross, and Detective David McDonald who testified to the facts as stated above.
In addition, the Commonwealth also elicited testimony from Carlos Colon, Sijoumey Yokley, Allante
Johnson, as well as, Deputy District Attorney Stephanie Wills, Esq., Corporal Jeffrey Dietz, Detective
Louis Grandizio, Donald Beese, Jeffrey Rose, Doctor Allen Gabroy, M.D., and Doctor Bennett Preston,
M.D.
Carlos Colon testified consistent to the statement he gave police. In addition, Mr. Colon testified
that the vehicle they used to drive Appellant on the evening of October 30, 2010, was a silver four door
Oldsmobile with rims and that when Appellant got back into the vehicle, he told him that he walked up to
the two guys they saw walking on Madison Street, shook his hand with his right hand and then shot him
with his left hand. [N.T., 2/10/2015 p. 241-254]. Mr. Colon also testified that some days after the
incident, he, Appellant and Ms. Yokley were in the car and Appellant specifically said he would kill the
both of them if they talked about the shooting. [N.T., 2/10/2015 p. 257]. Mr. Colon also testified that
although he entered into a plea agreement with the Commonwealth on August 23, 2012 for gun charges
he was facing, he later withdrew from the agreement and entered a plea in that case on November 9, 2012.
[N.T., 2/10/2015 p. 268]. In addition to that case, Mr. Colon also testified that he pied guilty to assaulting
a corrections officer and to possession with intent to deliver in Lancaster County, for which he is
Page 10of 23
currently incarcerated. [N.T., 2/10/2015 p. 270]. Mr. Colon had no plea agreement with the Lancaster
14
County District Attorney's Office to testify against Appellant. [N.T., 2/10/2015 p. 271].
Sijourney Yokley's initial trial testimony as to where she, Appellant, and Mr. Colon were headed
once they picked her up from 501 bar differed from her statement given in February of 2012. [N.T.,
2/10/2015 p. 320-321]. This Court, after a sidebar with counsel, sent the jury back to the jury room and
warned Ms. Yokley that she could be subjecting herself to perjury if she was lying on the stand or if she
had lied in the statement before and told her she had a right to seek counsel. [N.T., 2/10/2015 p.322-323].
Ms. Yokley did not wish to continue to testify at the time; however, after giving Ms. Yokley time to
think, she proceeded to testify and counsel continued with his direct. Ms. Yokley stated she did remember
giving a statement to police and remembered reviewing it prior to trial. [N.T.,2/11/2015 p.328-329]. Ms.
Yokley recalled telling the detectives that they went to the Citgo to get rolling papers and then saw the
two men on Madison street. [N.T., 2/10/2015 p.330-331].
Allante Johnson testified that he did not appear for the hearing in December because he was
scared of what would happen to him back home in Chester ifhe did. [N.T., 2/11/2015 p. 109]. Mr.
Johnson was frightened because prior to December his car was vandalized and the words "die rat" were
written on the back. [N.T., 2/11/2015 p. 111]. Mr. Johnson testified he was not blood cousins with the
victims but that their mothers had grown up together. [N.T., 2/11/2015 p. 112]. Mr. Johnson testified
consistently with his statement that he saw Appellant on Madison Street get out of a silver four door
sedan, approach Mr. Price and Mr. Adams and fire shots. [N.T., 2/11/2015 p. 115-120]. In addition, Mr.
Johnson testified that he had entered into a plea agreement with the Commonwealth in connection with
his testimony but that it was no longer valid because he did not show up in December. [N.T., 2/11/2015 p.
132].
14
The Commonwealth presented testimony from Christopher Larson, First Assistant District Attorney of Lancaster
County who testified that he is currently handling Mr. Colon's Lancaster County case and that Mr. Colon has not
received any consideration on his Lancaster case for his testimony in the homicide of Emerson Price. [N.T.,
2/11/2015 p. 20-26].
Page 11 of 23
Mr. Johnson also stated that subsequent to his testimony at the preliminary hearing, his mother
called defense counsel, Mr. Malloy. [N.T., 2/11/2015 p. 138]. Mr. Malloy went to visit Mr. Johnson in
prison where they met in the visiting room. [N.T., 2/11/2015 p. 138]. They had a conversation about Mr.
Johnson's testimony at the preliminary hearing conducted on April 13, 2012. Mr. Malloy wrote down his
questions and Mr. Johnson's answers." The conversation written down by defense counsel states that Mr.
Johnson said he lied at the preliminary hearing because he was afraid of a long jail sentence for his new
drug case and probation violation. Mr. Johnson was not present on the night the shooting occurred and did
not see Jamir Williams shoot anyone. [N.T, 2/11/2015 p. 139-141].
Mr. Johnson testified that what he told defense counsel in that conversation was not true and that
he only gave this statement to defense counsel because he did not want anything happening to him or to
his family, who reside in Chester. [N.T., 2/11/2015 p. 142-143].
Stephanie Wills, Esquire, Deputy District Attorney for the Delaware County District Attorney's
Office testified in relation to the plea agreement with Allante Johnson. Ms. Wills testified that Mr.
Johnson provided a statement to police in July of2011 in connection with the shooting prior to a plea
agreement even being memorialized, which did not occur until November 29, 2011. [N.T., 2/11/2015
p.216]. Ms. Wills prepared the plea agreement involving Mr. Johnson's cooperation in the homicide and
his underlying drug prosecution and was directly involved with Mr. Johnson and his attomey.16 [N.T.,
2/11/2015 p. 215]. The agreement stated that Mr. Johnson was not promised anything in return for his
testimony; rather Mr. Johnson would plead guilty to his PWID charge and the Commonwealth, at the time
of sentencing, would explain to the sentencing judge his cooperation in the prosecution of Appellant.
[N.T., 2/11/2015 p. 218]. However, due to Appellant's failure to appear to testify in December of 2014,
he violated the agreement and it was no longer valid at the time he testified. [N.T., 2/11/2015 p. 234-236].
Ms. Wills formally revoked the agreement via letter.17
15
See Commonwealth Exhibit C-31.
16
See Commonwealth Exhibit C-28.
17
See Commonwealth Exhibit C-32.
Page 12 of 23
Corporal Jeffrey Dietz has been employed with the Pennsylvania State Police since 1995 as a
firearm and tool mark examiner. [N.T., 2/11/2015 p. 73-75]. As a firearm and toolmaker examiner, some
of his duties include: conducting forensic examinations on firearms, discharged bullets, shot shells and
cartridge cases to see if they were fired by a particular firearm; testing firearms to determine if they are
safe and operable; providing investigators with a list of firearms that bullets could have been discharged
from; examining clothing or other objects that may have been struck by a bul1et in order to determine
approximate muzzle or target distance., etc. [N.T., 2/11/2015 p. 75]. Corporal Dietz was qualified and
testified as an expert in firearms and tool mark examinations. [N.T., 2/11/2015 p. 76]. Corporal Dietz
performed an examination on two discharged and mutilated metal jacketed bullets that were recovered
from Mr. Price's body and submitted to the Pennsylvania State Police. [N.T., 2/11/201 Sp. 78]. After a
thorough examination, Corporal Dietz opined that both projectiles had been fired from the same firearm.
[N.T., 2/11/2015 p. 84]. In addition, Corporal Dietz opined that, based on the grain weight of the bullets
and the size that they were most likely discharged from a 38 or a 357 caliber revolver. [N.T., 2/11/2015 p.
85]. 18
Detective Louis Grandizio also testified at trial. Detective Grandizio is employed with the
Delaware County Criminal Investigation Division as a firearms and tool mark examiner. [N.T., 2/11/2015
p. 89-91]. As a firearms and tool mark examiner his duties include: identifying firearms by make, model,
caliber, and country of origin; test firing firearms for operability; conducting microscopic comparisons of
fired cartridge cases, bullets, and bullet specimens; performing trajectory studies for distance
determination and gunshot residence pattern testing. [N.T., 2/11/2015 p. 89]. Detective Grandizio
qualified and testified as an expert in firearms and tool mark examinations. [N.T., 2/11/2015 p. 92].
In regard to the homicide of Mr. Price, Detective Grandizio was provided with two bullet
specimens that he received from Detective Michael Jay on September 14, 2012. [N.T., 2/11/2012 p. 98].
As a result of his analysis, Detective Grandizio determined that the bullets were fired from one particular
firearm, the firearm being unknown to him at the time. [N.T., 2/11/2015 p. 98]. After Detective Jay asked
18
Corporal Dietz's lab report was marked as C-23.
Page 13 of 23
for a cross-check, which is done by taking evidence from one job and comparing it to another incident,
Detective Grandizio was provided with two additional projectiles that came from the Pennsylvania State
Police Lab. [N.T., 2/11/2015 p. 99]. Detective Grandizio determined that all of the projectiles, the two he
was provided and the two from the PA State Police Lab were all fired from one particular firearm. [N.T.,
2/11/2015 p. 99]. Detective Grandizio opined that the caliber was a 38/357 type class; which are generally
19
expelled from revolvers. [N.T., 2/11/2015 p. 100].
Mr. Rose testified to his statement and conversation with Mr. Adams. In addition, Donald Beeese,
investigator at George W. Hill Correctional Facility testified that Mr. Adams and Jeffrey Rose were
cellmates for a period of two weeks from 7/12/2012 to 7/23/2012. [N.T., 2/11/2015 p. 104].
Mr. Adams testified that he did not know who the shooter was because the shooter was wearing a
mask, that he did not know who was involved in the altercation at the bar earlier that evening, and that he
had no idea who Jeffrey Rose was. [N.T., 2/11/2-15 p. 183-206].
Dr. Allen Gabroy, M.D., now retired, was employed at Chester Crozer Medical Center in October
of 2012. [N.T., 2/11/2015 p. 4]. Dr. Gabroy qualified and testified as an expert in the field of general
surgery and surgical critical care. [N.T., 2/11/2015 p. 7]. In the early morning hours of October 30, 2010,
Dr. Gabroy was working as a trauma surgeon and cared for Mr. Price. [N.T., 2/11/2015 p. 8]. Dr. Gabroy
explained the extensive injuries to Mr. Price and the procedures undertaken to save his life, which were
not successful. Mr. Adams died at 5:50 that morning. [N.T., 2/11/2015 p. 8-14].
Dr. Gabroy also reviewed Mr. Adams' chart and testified that Mr. Adams had been shot in the
chest and in the abdomen and required an operation for the abdomen wound which went through his
colon and small bowel. [N.T., 2/11/2015 p. 15]. Dr. Gabroy testified that without the immediate surgery,
20
the result would have been death. [N.T., 2/11/2015 p. 16].
On February 12, 2015, the Commonwealth presented its last witness, Dr. Bennett Preston, who
has been a medical examiner since 1986 and has been conducting autopsies for Delaware County since
19
Detective Grandizio's ballistics report was marked as C-25.
20
The medical chart of Emerson Price was marked as C-20 and the medical chart of Robert Adams was marked as
C-11.
Page 14 of 23
2000. [N.T., 2/12/2015 p. 4]. Dr. Preston was qualified and testied as an expert in pathology and forensic
pathology. Dr. Preston performed the autopsy on Mr. Price on October 30, 2012.21 Dr. Preston opined that
the cause of death was multiple gunshot wounds and the manner of death was homicide. [N.T., 2/12/2015
p. 15].
The Commonwealth rested and the defense did not present any witnesses.
The jury returned the following verdict: Count 1: Murder of the First Degree- Emerson Price,
GUILTY; Count 3: Criminal Attempt Homicide-Robert Adams, GUILTY22; Count 4: Aggravated
Assault: Robert Adams, GUIL TY23; Count 7: Possession of Instrument of Crime, GUILTY.
On March 20, 2015, this Court sentenced Appellant as follows: Count I : life without parole;
Count 3: 240 to 480 months consecutive to Count 1; Count 7: 30 to 60 months consecutive to Count land
24
3. Count 4 merged with Count 3 for sentencing purposes. [N.T., 3/20/2015 p.29].
On April 1, 2015, This Court appointed Douglas Smith as appellate counsel. Counsel filed a
notice of appeal on April 6, 2015. This Court issued a I 925(b) Order and granted counsel's request for
additional time to file his answer. On June 17, 2015, counsel filed a timely statement of matters
complained of on appeal.
DISCUSSION
1) The Evidence Presented at Trial was Sufficient as a Matter of Law to Sustain All of
Appellant's Convictions.
Appellant contends the evidence presented at trial was insufficient to sustain his convictions for
Murder in the First Degree", Criminal Attempt to Commit Murder", Aggravated Assault", and
Possession of an Instrument of Crime28•
21
Dr. Preston's autopsy report was marked as C-34.
22
The jury also found that Robert Adams suffered serious bodily injury as a result of the attempted homicide.
23
The jury also found that Robert Adams suffered serious bodily injury as a result of the aggravated assault.
24
Appellant was also sentenced to life without parole plus 30 to 60 months on transcript 3302-2012, where
Appellant murdered Rahim Hicks and injured Deron Hudson.
25
18 Pa.C.S. §2S02(a).
26
18 Pa.C.S. §90l(a).
27
18 Pa.C.S. §2702(a)(1).
28
18 Pa.C.S. §907(a).
Page 15 of 23
"Because evidentiary sufficiency is a question of law, our standard of review is de novo and our
scope of review is plenary." Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013). "There is
sufficient evidence to sustain a conviction when the evidence admitted at trial, and all reasonable
inference drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner,
are sufficient to enable the fact finder to conclude that the Commonwealth established all of the elements
of the offense beyond a reasonable doubt." Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014).
Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of evidence claim must fail. Commonwealth v.
Kelly, 78 A.3d 1136, 1139 (Pa. Super. 2013). The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Martin, at 718.
A. The Evidence Was Sufficient to Sustain Appellant's Conviction for Murder in the First
Degree,
In order to sustain a conviction for first degree murder, the evidence must have proved beyond a
reasonable doubt that: (I) a human being was unlawfully killed; (2) the defendant was responsible for the
killing; and (3) the defendant acted with malice and a specific intent to kill. 18 Pa.C.S. §2502(a);
Commonwealth v. Martin, 101 A.3d 706, 719 (Pa. 2014). Specific intent and malice can be inferred from
the use of a deadly weapon on a vital part of a victim's body. Commonwealth v. Burno, 94 A.3d 956, 969
(Pa. 2014).
Appellant's contention that the evidence presented was insufficient to convict him of murder in
the first degree lacks factual and legal support. The medical examiner, Dr. Bennett Preston, testified that
the cause of death of Emerson Price was a gunshot wound and the manner of his death was a homicide.
Consequently, the first element, the unlawful killing of a human being, was established.
The second element, i.e. Appellant was the perpetrator responsible for the death of Emerson
Price, and the third element, that he acted with malice and a specific intent to kill Emerson Price were
unequivocally proven beyond a reasonable doubt by the eyewitness testimony placing Appellant at the
scene with a hand gun and firing the shots that struck Emerson Price and Robert Adams. Furthermore, the
Page 16 of 23
Commonwealth methodically built the foundation through the testimony of the various witnesses and the
exhibits entered into evidence.
Despite the threats made against him and despite his plea agreement having been terminated for
non-cooperation, Allante Johnson testified that he saw Appellant get out of a silver car with rims that was
driven by a female, and saw Appellant shoot at both Mr. Price and Mr. Adams.
Although the versions of events as testified to by Johnson, Mr. Colon and Ms. Yokley differed
slightly, the salient operable facts regarding the event were consistent and neatly meshed together to form
a vivid and stark picture of the murder. Ms. Yokley was the driver of silver car with rims; Mr. Colon was
a rear seat passenger; and Appellant was in the front passenger seat. [N.T., 2/10/2015 p. 331]. As the
silver car was traveling up Madison Street toward Rose Street, Appellant pointed out two men walking
down Madison Street. [N.T., 2/10/2015 p. 331]. Appellant got out of the vehicle and told Ms. Yokley to
tum down Rose Street. Within minutes, both Ms. Yokley and Mr. Colon heard gunshots. [N.T.,
2/10/2015 p. 249]. Ms. Yokley then saw Appellant running towards the vehicle, while Mr. Colon saw the
gun in Appellant's hand when he got back in the car. [N.T., 2/10/2015 p. 251]. Appellant told Ms.
Yokley and Mr. Colon thathe was fighting with these men earlier in the evening. [N.T., 2/10/2015 p.
251].
Jeffrey Rose testified that his former cellmate, Robert Adams, told him he and his cousin were the
victims of shooting over an argument in a bar earlier in the evening. [N.T., 2/11/2015 p. 43-45].
The testimony of the above individuals places Appellant at the scene with a weapon when
gunshots are heard, and Allante Johnson specifically identifies Appellant as the shooter. Thus, there was
an abundance of direct and circumstantial evidence from different sources that satisfy the second element
of the charge.
Appellant's actions, commencing with the altercation in Ess's Bar, demonstrate actual malice and
specific intent. Appellant left Ess's Bar that evening threatening that people better not be around when he
got back. Appellant then picked up Mr. Colon and Ms. Yokley, stating that he needed a driver. Appellant
then navigatged his way around Chester to find Mr. Price and Mr. Adams walking down Madison Street.
Page 17 of 23
Appellant jumped out of the vehicle and told Ms. Yokley to continue to Rose Street. Appellant went up to
the victims, pulled out a gun and began shooting, repeatedly firing shots in rapid succession; both
victims' sustaining multiple gunshot wounds. Appellant's callous execution of Emerson Price, III and
attempted execution of Robert Adams was nothing short of cold, calculated murder, and, as such, the
conviction should be affirmed.
B. The Evidence was Sufficient to Sustain Appellant's Conviction for Criminal Attempt to
Commit Homicide.
"A person commits an attempt when, with intent to commit a specific crime, he does any act
which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S.A. § 901(a). "A
person may be convicted of attempted murder if he takes a substantial step toward the commission of a
killing, with the specific intent in mind to commit such an act." Commonwealth v. Jackson, 955 A.2d 441,
444 (Pa. Super. 2008).
After the altercation in Ess's Bar, Appellant left the area, but vowed to return. Appellant
subsequently secured a vehicle, retrieved a gun, and then had SijourneyYokley drive him back to the area
of Ess's Bar in order to consummate the threat he made, i.e. "no one better not be out here when I get
back." [N.T. 2/10/2015 p. 57]. Upon his arrival back in the area, Appellant exited the car, raised his
weapon and then fired several shots directly at Mr. Adams, with three shots striking Mr. Adams. [N.T.
2/10/2015 p. 199]. Dr. Gabroy testified that injuries Mr. Adams sustained caused serious bodily injury
and without being treated as quickly as they were, Mr. Adams would have died. [N.T. 2/11/2015 p. 16].
The testimony categorically demonstrated numerous steps taken by Appellant toward the attempted
murder of Robert Adams. Fortunately for Appellant, excellent trauma care received by Mr. Adams at
Crozer-Chester Medical Center saved Appellant from a second murder charge in this case. Therefore,
based on the evidence presented, Appellant's conviction for attempted murder should be affirmed.
Page 18 of 23
C. The Evidence was Sufficient to Sustain Appellant's Conviction for Aggravated Assault
Serious Bodily Injury.
"A person is guilty of aggravated assault if he attempts to cause serious bodily injury to another,
or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life." 18 Pa.C.S.A. § 2702(a)(l).
Appellant's argument that the evidence was insufficient to sustain a conviction for aggravated
assault causing serious bodily injury is wholly without merit. Appellant walked up to Mr. Adams, fired
several shots at him, and ran away, manifesting extreme indifference to the value of Mr. Adams life. Dr.
Gabroy testified as to the serious bodily injured that the shots caused to Mr. Adams and the jury found
beyond a reasonable doubt that serious bodily injury did occur. As such, Appellant's argument is devoid
of merit.
D. The Evidence was Sufficient to Sustain Appellant's Conviction for Possession of Instrument
of Crime.
"A person commits a misdemeanor of the first degree ifhe possesses any instrument of crime
with intent to employ it criminally." 18 Pa.CS.A.§ 907.
Appellant's argument is wholly without merit. Mr. Johnson, Ms. Yokley, and Mr. Colon all saw
Appellant with a gun that evening. Appellant used the gun to kill Mr. Price and seriously injure Mr.
Adams. Therefore, the conviction should be affirmed.
Appellant's 1925(b) statements claims that Mr. Johnson, Ms. Yokley, and Mr. Colon were
incredible witnesses because they gave inconsistent statements to police and had motive to fabricate their
testimony to the jury and this is why the evidence was insufficient. This Court does not find such an
argument to be a sufficiency question but rather a question as to the weight of the evidence presented,
which is not specifically raised in Appellant's 1925(b). However, this Court notes that the jury was free to
believe all, some, or none of the evidence presented. The jury determined that the witnesses, although
their statements had some inconsistencies were credible.
Page 19 of 23
2) This Court Did Not Abuse its Discretion When Permitting Carlos Colon and/or Sijourney
Yokley to Testify About Threats Made By Appellant After the Shooting.
The admissibility of evidence is at the discretion of the trial court and subject to review for abuse
of discretion. An abuse is not merely an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill will direction is abused. Commonwealth v. Hairston, 84 A.3d 657, 664-65 (Pa.
2014).
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity therewith. Pa.RE. 404(b)(I). "Evidence of other crimes may be
admitted where such evidence is part of the history of the case and forms part of the natural development
of the facts." Commonwealth v. Ferguson, 107 A.3d 206, 211 (Pa. Super. 2015).
Appellant asserts that Carlos Colon and Sijoumey Yokley's testimony elicited other criminal
conduct by Appellant." This Court properly denied Appellant's pre-trial motion in limine to exclude that
testimony and properly allowed Mr. Colon and Ms. Yokley's testimony at trial that Appellant threated to
kill them if they spoke of the shooting.
In his pretrial motion, counsel argued, "the evidence should have been prohibited because the
threats were not made in reference to the crime in question and therefore not relevant and serve no other
purpose than to present an uncharged crime against the defendant which is not relevant and will cause
substantial prejudice to the defendant." This assertion is completely erroneous because the threats were
made to silence these two witnesses from coming forward with evidence of the homicide committed by
Appellant. The mere fact that Appellant was not charged with witness intimidation does not render the
threats irrelevant. Likewise, this testimony did not cause substantial prejudice, as the testimony as to
Appellant's culpability in the crimes charged was overwhelming. Furthermore, this testimony presented
the jury with a clearer picture of the development of the case, given Appellant's attempts to discredit the
29
Although counsel addressesthese arguments as separate points in his 1925(b)statement, this Court will address
them in tandem because they are the same issue.
Page 20 of 23
timeliness and completeness of the investigation, (murder on October 3 0, 2010) and the filing of the
charges (February 21, 2012). [N.T., 2/10/2015 p 296); [N.T., 2/11/2015 p. 161]; [N.T., 2/12/2015 p. 37].
In Appellant's 1925(b) statement, counsel alleges the testimony showed evidence of other crimes.
The testimony was not provided to prove Appellant's character or in order to show any actions in
conformity therewith. The testimony from both witnesses was part of the sequence of events after the
crime was committed and was not offered as evidence under 404(b) as counsel's argument appears to be
alleging. The evidence was highly relevant and was offered for the sole purpose of demonstrating why
Ms. Yokley and why Mr. Colon did not immediately come forward. Equally telling, the prosecution in
closing argument did not touch upon this, further showing that this was not offered as evidence of a
crime.
3) Appellant Was Not Prejudiced By My. Yokley's Decision to Continue With Testifying
Despite Any Fifth Amendment Rights.
It is a longstanding principle that the right of a witness to refuse to testify on the ground that his
testimony may incriminate him is a right personal to him alone. The person against whom the witness is
called has no rights in relation to the matter. Commonwealth v. Kinnard, 326 A.2d 541 (Pa. Super. 1974)
citing Commonwealth v. DeMasi, 234 Pa. 570 (Pa. 1912). Appellant is without standing to complain if the
sole basis for the complaint is that the testimony would tend to incriminate the witness. Commonwealth v.
Spallone, 35 A.2d 727 (Pa. Super. 1944) (Appellant objected to the testimony of a witness on the ground
it would tend to incriminate her however it was not contended her testimony was irrelevant or
inadmissible on any other ground and, as such, had no standing to complain on appeal).
Appellant's contention that this Court erred by allowing Sijoumey Yokley to re-take the witness
stand and testify after she claimed her Fifth Amendment privilege is nothing more than a red-herring.
First and foremost, the privilege attaches to the individual testifying and not to Appellant against whom
the testimony is given and Appellant does not have standing to raise the issue. Second, while the record
does not capture Ms. Yokley' s change of mind prior to re-taking the witness stand, it is obvious that she
Page 21 of 23
did this voluntarily and without coercion, as demonstrated by her subsequent testimony. Third, counsel
for Appellant never objected to Ms. Yokley coming back into the courtroom to testify.
Appellant's initial objection to Ms. Yokley was not based on his concern for her perjuring herself;
rather, it was a veiled attempt to prevent her from testifying against him period. Appellant knew she was
an eyewitness and that her statement to the police confirmed this. If the jury heard this, it would be
extremely damaging and undermine his defense.
As the record reflects, while Sijoumey Yokley was testifying, it was reported to this Court that
her mother was signaling to her daughter, particularly when this Court was addressing the right to counsel
if Ms. Yokley felt she may implicate or perjure herself. Ms. Yokley's initial response to want counsel
was predicated on her mother's gesturing. After Ms. Yokley exited the courtroom into the rear hallway
for a brief time, she came back in and testified in a composed and forthright manner without any
objection from counsel for Appellant. [N.T., 2/10/2015 p. 322-327].
4) This Court Did Not Err By Permitting Allante Johnson to Testify In Regards to His Vehicle
Being Vandalized Prior to Trial.
The admissibility of evidence is at the discretion of the trial court and subject to review for abuse
of discretion. An abuse is not merely an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill will direction is abused. Commonwealth v. Hairston, 84 A.3d 657, 664-65 (Pa.
2014).
Appellant argues that Allante Johnson should not have been allowed to testify that someone
vandalized his car and wrote "die rat" on the back. In addition, Appellant argues this Court erred when it
allowed the testimony because there was no showing that it was linked directly or indirectly to Appellant,
who was incarcerated at the time of the vandalism.
Appellant's argument is without merit. Mr. Johnson was responding to the Commonwealth's
question as to why he did not appear back in December of 2014, which was the reason his plea agreement
was voided. Appellant answered that he did not appear because he was scared because someone
Page 22 of 23
vandalized his car and wrote "die rat". The evidence was offered to show that sometime between Mr.
Johnson's preliminary hearing testimony and the date he was supposed to show for trial in December that
he was frightened because of a specific and particular incident. When Mr. Johnson began to talk about
another incident, the Commonwealth stopped Mr. Johnson and did uot proceed with that particular tine of
questioning. The testimony was directly related to the matter, even if Appellant was incarcerated at time.
In addition, Appellant's allegation that this Court did not give a curative instruction is without
merit. When Mr. Johnson testified that people at the jail and people on the street were talking about doing
things to him, counsel objected, and this Court sustained the objection. In addition, this Court ordered the
response stricken from the record and counsel responded "good enough, your honor." [N.T., 2/11/2015 p.
136]. Thus, Appellant's claim is without merit.
Throughout the litigation process, Appellant sought to have this Court completely sanitize the
trial by preventing witness after witness from testifying as to how street life in Chester is and how
Appellant operates in that milieu. Where direct intimidation failed and witnesses stepped forward,
Appellant implored this Court to disallow portions of their testimony that touched upon the stated and
implied threats should they testify. Even in the courtroom, family of Appellant and those aligned with
him employed dark, cold stares and body posture attempting to convey the not so subtle message that
testimony harmful to appellant would be answered. Fortunately, the witnesses, though concerned and
scared for their safety, set these fears aside and testified.
CONCLUSION
Appellant's issues are without merit and his judgment of sentence should be affirmed.
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