Com. v. McCrommon, S. ( 2016 )

J. S45026/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
SHANE LENELL MCCROMMON :
Appellant :
: No. 1749 WDA 2015
Appeal from the Judgment of Sentence July 13, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004830-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
SHANE LENELL MCCROMMON :
Appellant :
: No. 1750 WDA 2015
Appeal from the Judgment of Sentence July 13, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0005377-2014
BEFORE: OLSON, DUBOW AND PLATT, JJ.*
MEMORANDUM BY DUBOW, J.: FILED AUGUST 10, 2016
Appellant, Shane Lenell McCrommon, appeals from the Judgment of
Sentence entered in the Court of Common Pleas of Westmoreland County on
July 13, 2015. We affirm.
*
Retired Senior Judge Assigned to the Superior Court.
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On October 24, 2013, the Commonwealth charged Appellant with one
count each of Third Degree Murder and Aggravated Assault1 arising from the
death of Jeffrey Edwards (the “Victim”). On November 4, 2014, in a
separate criminal information, the Commonwealth charged Appellant with
Criminal Solicitation-Hindering Prosecution,2 alleging that Appellant
attempted to solicit two people to contact proposed Commonwealth
witnesses to prevent or alter their testimony at Appellant’s trial on the
Murder and Aggravated Assault charges. The trial court consolidated these
cases for purposes of trial.
On March 30, 2015, at Appellant’s Pre-Trial Conference, his counsel
filed a Motion for Continuance, which the trial court denied. Trial
commenced on April 7, 2015. Prior to empaneling the jury, Appellant’s
counsel again moved for a continuance in order to obtain an expert witness.
The trial court likewise denied this Motion, although the court permitted
Appellant to contact an expert witness if so desired. Appellant also filed a
Motion in Limine prior to the commencement of trial seeking to suppress
letters the Commonwealth sought to use as evidence in support of its
Hindering Prosecution charge, which the trial court also denied.
On April 13, 2015, a jury convicted Appellant of the above charges.
On July 13, 2015, the trial court sentenced Appellant to a term of 20 to 40
1
18 Pa.C.S. § 2502(c) and § 2702(a)(1), respectively.
2
18 Pa.C.S. § 902(a).
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years’ incarceration for the Murder conviction3 and a concurrent sentence of
two to four years’ incarceration for the Criminal Solicitation-Hindering
Prosecution conviction. Appellant timely filed a Post-Sentence Motion on
July 22, 2015, which the trial court denied on October 16, 2015. This timely
appeal followed.
The trial court set forth the facts as elicited at trial as follows:
Facts at trial showed that [Appellant] was angry with [the
Victim] because [the Victim] was supposed to be selling
drugs for [Appellant], but instead was diverting customers
to other drug dealers. On June 25, 2012, [the Victim]
appeared at a residence located at 1005 Victoria Avenue in
New Kensington, PA. Present at that time were Lisa
Schreckengost, Michelle Monfredi [ ,] and Takayla Witcher.
At approximately 11:30 p.m., [Appellant], who had arrived
somewhat earlier asked Ms. Schreckengost to get [the
Victim], who was located in the back bedroom of the
apartment. [The Victim] entered the front bedroom and
was confronted by [Appellant]. Ms. Schreckengost heard
thumping sounds and when she entered the room,
observed [Appellant] kicking [the Victim] in the side and in
his face. He was unconscious and gasping for air. The
confrontation and beating lasted 7-10 minutes.
Michelle Monfredi heard grunting and groaning indicative of
someone being beaten. The altercation lasted 5-10
minutes. After [Appellant] left the home, she observed
that [the Victim’s] face was bloody, he was unconscious
and groaning and “not in there.”
Takayla Witcher[ ], also present, heard [Appellant] accuse
[the victim] of “backdooring” him and saw him strike [the
Victim] in the face. The beating continued despite the fact
that after the first punch [the Victim] fell to the floor.
After the beating ceased, Ms. Witcher noted that [the
3
The Assault conviction merged for the purposes of sentencing. N.T.
Sentencing, 7/13/15, at 19.
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Victim] did not move and was gasping for air. Despite
efforts to revive him, he remained slumped on the floor.
She noted his lip and head were bleeding and his body
limp. No ambulance was called.
The following day, June 27, 2012, Raymond Nelson was
contacted and asked to take [the Victim] to the hospital.
He proceeded to the second floor of 1005 Victoria Avenue
and observed [the Victim] lying under the window in the
corner of the bedroom. [The Victim] had defecated and
urinated on himself and was unconscious. Mr. Nelson
rolled him onto a blanket, carried him to his car, and took
him to the Emergency Room at Citizens Hospital. Medical
personnel were told that [the Victim] was found at the
bottom of a stairway.
Nurse Leighanne Saliba, and Emergency Room nurse at
Citizens, testified that at 2:20 p.m. on June 27, 2012, she
assisted in removing [the Victim] from a vehicle. He was
unconscious, with bruising on both temporal areas of his
face, had a small lip laceration and only responded to
painful stimuli. She characterized his appearance as
decerebrate, his arms extended and palms pointing
outward, indicative of a brain injury. His condition was
critical and Life Flight was summoned and transported him
to Allegheny General Hospital.
[The Victim] underwent surgery on July 3, 2012 for
herniated cervical disks and spinal cord trauma. An
electroencephalogram revealed a severe cortical brain
injury. Cheryl Edwards, [the Victim’s] sister, testified that
she visited her brother at Allegheny General Hospital and
later at Forbes Nursing Facility until his death on
November 9, 2012. Her brother never spoke and
remained curled in a fetal position. He was fed from a
feeding tube and breathed through a trachestomy tube.
Dr. Cyril Wecht performed an autopsy and determined that
the immediate cause of death was pneumonia. The
underlying cause of death was posttraumatic
encephalopathy due to severe concussive forces.
[Appellant] was arrested. While incarcerated he wrote
letters to his girlfriend, Noel Bridges, instructing her to
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contact Takayla Witcher and Jason Jackson and to tell
them that if questioned by police, they should “play dumb”
and deny being present during the beating. A letter was
also given to Janelle Houser during her transport to a
magistrate’s office on November 13, 2014. Ms. Houser
was incarcerated with Michelle Monfredi. The letter,
Exhibit 38, instructed Ms. Houser to find out what [Ms.
Monfredi] intended to do. This letter was signed by
[Appellant] and turned over to Detective Klein.
Testimony was also provided by Shane DelGrosso, an
inmate in the Clearfield County Jail. Mr. DelGrosso stated
that [Appellant] told him that he had beat someone up
because he owed him money and guessed that he killed
him.
In defense, [Appellant] presented the testimony of Sheth
Houser who stated that he spent June 26-27, 2012, with
Takayla Witcher.
Trial Ct. Op., 10/16/2015, at 1-4.
Appellant raises the following six issues on appeal:
1. The Court of Common Pleas abused its discretion in
allowing into evidence letters purported to have been
written by Appellant which could not properly be
authenticated due to a lack of a known sample letter
written by the Appellant, over the pre-trial objection of
Appellant’s counsel.
2. The Court of Common Pleas abused its discretion in
denying Appellant a continuance in order to better assist
counsel in preparing a defense, to allow counsel more time
to contact witnesses, and to appoint an expert witness in
order to determine the actual cause of the victim’s death.
3. The Court of Common Pleas abused its discretion when
it denied Appellant’s request for an involuntary
manslaughter jury instruction, which was appropriate
given the facts and circumstances of the case.
4. The Court of Common Pleas erred in denying Appellant’s
Post-Sentence Motions based on the uniformly [c]aucasian
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jury selected at trial, which was an unfair representation of
Appellant’s peers.
5. The Court of Common Pleas erred in denying Appellant’s
Post-Sentence Motions as the evidence presented at trial
was not sufficient to convict the Appellant of the crimes
charged.
6. The Court of Common Pleas erred in denying Appellant’s
Post-Sentence Motions as the jury verdict was against the
weight of the evidence, such as to shock one’s sense of
justice.
Appellant’s Brief at 2.
Appellant first challenges the trial court’s denial of his Motion in Limine
to preclude admission of the letters in support of the Commonwealth’s
Hindering Prosecution charge. Appellant avers that the letters, sent to Noel
Bridges and Janelle Houser, were improperly authenticated because the
Commonwealth did not have a “known” sample of Appellant’s handwriting to
which a comparison the letters could be made. Appellant’s Brief at 7.
Appellant claims that the Commonwealth offered no proof that the “known”
samples—35 letters signed by Appellant containing his return address and
seized by police from Appellant’s girlfriend—were, in fact, written by
Appellant. Therefore, Appellant claims the trial court erred in admitting
letters into evidence.
We review a trial court’s evidentiary rulings for an abuse of discretion.
Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013). An abuse
of discretion is not a mere error in judgment but, rather, involves bias, ill
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will, partiality, prejudice, manifest unreasonableness, or misapplication of
law. Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa. Super. 2011).
The rules of evidence provide that the requirement of authentication or
identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what
its proponent claims. Pa.R.E. 901. In In re F.P., this Court held:
A document may be authenticated by direct proof and/or
by circumstantial evidence. Commonwealth v. Brooks, [
] 508 A.2d 316, 318 (Pa. Super. 1986) (citations omitted).
“‘[P]roof of any circumstances which will support a finding
that the writing is genuine will suffice to authenticate the
writing.’” Id. at 319, quoting McCormick, Evidence § 222
(E. Cleary 2d Ed. 1972). “The courts of this
Commonwealth have demonstrated the wide variety of
types of circumstantial evidence that will enable a
proponent to authenticate a writing.” Id. (collecting
cases).
In re F.P., 878 A.2d 91, 94 (Pa. Super. 2005).
We agree with the trial court that there was sufficient proof of the
authenticity of the letters such that their admission into evidence was
proper. Noel Bridges, Appellant’s girlfriend, testified that she exchanged
correspondence with Appellant during his incarceration and that the police
seized a stack of letters she had received from Appellant. N.T. Trial, 4/7/15-
4/13/15, at 392-93. All of the seized letters contained Appellant’s return
address. N.T. at 320. One of the letters, Exhibit 37, instructed Ms. Bridges
to contact Takayla Witcher through a third-party in order to instruct Ms.
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Witcher to deny being present at and having knowledge of the assault on the
Victim. N.T. at 394-96.
Janelle Houser testified that she received a letter, Exhibit 38, which
was signed by Appellant. N.T. at 387. This letter asked Ms. Houser to find
out what witness Michelle Monfredi was “going to do” and stated, “[i]f any of
them telling hoes down there are around, you knock somebody’s head off.”
N.T. at 485.
In addition, a document examiner and handwriting expert, Corporal
Robert Negherbon, examined Exhibits 37 and 38. He confirmed, after
comparing the exhibits with the other letters seized from Ms. Bridges, that
the handwriting in Exhibits 37 and 38 was that of Appellant. N.T. at 369
In light of the direct and circumstantial evidence demonstrating the
authenticity of Exhibits 37 and 38, we conclude the trial court did not abuse
its discretion in admitting them into evidence. Accordingly, Appellant is not
entitled to relief on this issue.
In his second issue, Appellant claims the trial court abused its
discretion in denying Appellant’s March 30, 2015 and April 7, 2015 Motions
for Continuance. Appellant alleges that the trial court “fail[ed] to recognize
the nature of the crimes at issue and the intricacy of the evidence.”
Appellant’s Brief at 10. He claims that, “had the court allowed counsel more
time to find an expert, the Appellant would have been better able to
determine the cause of trauma, extent of injury, and cause of death. This
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would have enabled the Appellant to more effectively cross examine
Commonwealth witnesses on these matters and present evidence on his
behalf.” Id. at 11. Appellant avers that he was prejudiced by the trial
court’s rulings because they precluded him from being able to “actively
determine causation as it related to his defense.” Id.
We review an order denying a motion for continuance for an abuse of
discretion. Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa. Super.
2014); Commonwealth v. Hansley, 24 A.3d 410, 418 (Pa. Super. 2013).
“In reviewing a denial of a continuance, the appellate court must have
regard for the orderly administration of justice, as well as the right of the
defendant to have adequate time to prepare a defense.” Hansley, 24 A.3d
at 418.
The Commonwealth charged Appellant with Third Degree Murder and
Aggravated Assault on October 24, 2013. On March 29, 2015, over 18
months later, Appellant provided counsel with a list of potential witnesses
Appellant wanted counsel to contact on his behalf.4 Counsel took no action
in the case, but informed the court that he was ready for trial.
4
Counsel notes that the court appointed him to represent Appellant in
November 2014, but shortly thereafter he was hospitalized, and was unable
to make any progress with the case until mid-January 2014. He claims that
this fact, and Appellant’s incarceration some distance from Westmoreland
County, prevented him from meeting with Appellant to discuss the case
details and trial strategy until the day before the pretrial conference.
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On March 30, 2015, at Appellant’s pretrial conference, counsel
requested a continuance for the first time. The trial court denied the
request, based in part on the Assistant District Attorney’s opposition and his
offer to assist Appellant in locating his potential witnesses.
At the commencement of trial on April 7, 2015, Appellant again
requested a continuance, this time claiming that he needed time to explore
the possibility of hiring a medical expert to testify about the Victim’s cause
of death. The Assistant District Attorney opposed this request. The trial
court denied the Motion, and noted that Appellant had not re-raised his
previous request for time to contact witnesses, ostensibly because he had
interviewed them in the intervening week.
Although we are mindful of Appellant’s right to adequately prepare his
defense, after reviewing the record, we conclude that the trial court did not
abuse its discretion in denying Appellant’s Motions. Appellant was aware as
early as October 2013 that he would need to prepare a defense to the
Aggravated Assault and Murder charges, yet his counsel waited until trial
had commenced to notify the trial court that he was considering hiring an
expert witness to testify as to causation. The trial court’s decision not to
permit a continuance at this late date was not manifestly unreasonable in
light of the facts and the trial court’s interest in the orderly and timely
administration of justice. See Antidormi, 84 A.3d at 745.
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In his third issue on appeal, Appellant claims the trial court abused its
discretion in denying his request for an involuntary manslaughter jury
instruction.5 Appellant’s Brief at 13. He avers that the facts presented could
support a finding of recklessness or gross negligence, and, thus, an
involuntary manslaughter instruction was warranted. Id. at 15.
“In reviewing a challenge to the trial court's refusal to give a specific
jury instruction, it is the function of this Court to determine whether the
record supports the trial court's decision.” Commonwealth v. Kendricks,
30 A.3d 499, 507 (Pa. Super. 2011) (quotation and citation omitted). “[O]ur
standard of review when considering the denial of jury instruction is one of
deference—an appellate court will reverse a court's decision only when it
abused its discretion or committed an error of law.” Commonwealth v.
Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (quotation and citation
omitted). When evaluating a jury instruction, the charge must be read as a
whole to determine whether it was fair or prejudicial. Id.5
The Crimes Code defines involuntary manslaughter as follows:
§ 2504. Involuntary manslaughter
(a) General rule.—A person is guilty of involuntary
manslaughter when as a direct result of the doing of an
unlawful act in a reckless or grossly negligent manner, or
the doing of a lawful act in a reckless or grossly negligent
manner, he causes the death of another person.
18 Pa.C.S. § 2504(a).
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Moreover, “a trial court should not instruct the jury on legal principles
which have no application to the facts presented at trial. Rather, there must
be some relationship between the evidence presented and the law upon
which an instruction is requested.” Commonwealth v. Taylor, 876 A.2d
916, 925 (Pa. 2005) (quotations and internal citation omitted. “Accordingly,
a criminal defendant must establish that the trial evidence would ‘reasonably
support’ a verdict based on the desired charge and may not claim
entitlement to an instruction that has no basis in the evidence presented
during trial.” Id at 925-26.
“In determining whether the evidence would support a manslaughter
charge, we must view the evidence in the light most favorable to the
defendant.” Commonwealth v. Soltis, 687 A.2d 1139, 1141 (Pa. Super.
1996).
In considering Appellant’s request for an involuntary manslaughter
charge, the trial court noted that it “found no evidence in the record to
support a determination that the killing resulted from an accident or
negligence.” Trial Ct. Op., 10/16/15, at 10. It further opined:
In this case, [Appellant] arranged to be present in order to
confront [the Victim] about “backdooring” him. Almost
immediately, he struck the unsuspecting victim in the face
causing him to collapse. He beat him continuously for 5-
10 minutes, striking and kicking him in the face and torso.
Subsequent to this episode [the Victim] lost the ability to
walk, eat or breathe independently, or speak, and
remained curled up in a fetal position until his death.
[Appellant] presented no evidence to show this conduct
was accidental or grossly negligent. Thus, without making
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involuntary manslaughter an issue in the case, and
because the beating was prolonged and brutal, the request
for a charge of involuntary manslaughter was properly
denied.
Id. The record supports the trial court's decision. We agree with the trial
court that an involuntary manslaughter jury charge was not appropriate in
light of the evidence. Therefore, this issue lacks merit.
In his next issue, Appellant claims the trial court erred in denying his
Post-Sentence Motion in which he alleged that his Sixth Amendment right to
a jury of his peers was violated. See U.S. Const. amend. VI. Appellant
notes that he is African-American and the jury panel from which he selected
his jury was all white.6
To prevail on a claim of underrepresentation of certain groups in a jury
pool, the complainant must show: “(1) the group allegedly excluded is a
distinctive group in the community; (2) the representation of this group in
venires from which juries are selected is not fair and reasonable in relation
of the number of such people in the community; and (3) this
underrepresentation is due to systematic exclusion of the group in the jury
selection process. ‘Systematic’ means caused by or inherent in the system
by which juries were selected. Proof is required of an actual discriminatory
practice in the jury selection process, not merely underrepresentation of one
particular group.” Commonwealth v. Estes, 851 A.2d 933, 935 (Pa.
6
Appellant raised this issue during jury selection. See N.T. at 29.
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Super. 2004) (quotations and citations omitted). “The mere showing of
underrepresentation, absent an actual discriminatory practice in the jury
selection process, causes [a defendant’s] constitutional claim to fail.” Id. at
936.
As stated by the trial court, “[i]n this case, other than objecting to the
composition of the panel, [Appellant] made no showing that the panel was
unfairly selected or that the underrepresentation of African Americans was
due to a systemic exclusion of this group. It was incumbent upon
[Appellant] to show discrimination in the use of the jury lists. His failure to
provide this evidence is fatal to this claim.” We agree with the trial court.
Appellant is not entitled to relief on this claim.
Next, Appellant claims the Commonwealth’s evidence was insufficient
to convict him of Third Degree Murder. Appellant’s Brief at 17. He avers
that there was insufficient evidence to establish a causal connection between
the beating and the Victim’s death, and insufficient evidence to prove that
Appellant acted with malice. Id.Our standard of review of sufficiency claims is well-settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
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defendant's guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006)
(quotation and citation omitted).
Murder in the third-degree is defined as “all other kinds of murder”
other than first-degree and second-degree murder. 18 Pa. C.S. § 2502(c).
In Commonwealth v. Seibert, 622 A.2d 361, 364 (Pa. Super. 1993), the
Court states “the elements of third-degree murder, as developed by case
law, are a killing done with legal malice but without the specific intent to kill
required in first-degree murder.” "Malice express or implied is the criteria
and absolutely the essential ingredient of murder." Commonwealth v.
Commander, 260 A.2d 773, 776 (Pa. 1970). “Malice may be found to exist
not only in an intentional killing, but also in an unintentional homicide,
where the perpetrator ‘consciously disregarded an unjustified and extremely
high risk that his actions might cause death or serious bodily harm.’”
Commonwealth v. Young, 431 A.2d 230, 232 (Pa. 1981).
Addressing Appellant’s sufficiency challenges, trial court opined that
the jury found that the Victim’s “condition prior to the beating, and his
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condition immediately thereafter was consistent with his injuries as
established by the coroner and medical witnesses.” Trial Ct. Op. at 11.
Although Appellant claims that the Commonwealth’s witnesses provided
contradictory and inconsistent testimony, the trial court noted that, “the
jury, making its own credibility determinations, decided which testimony to
believe and which to reject.” Id.The Commonwealth’s evidence established that Appellant arranged to
to be present in order to confront the Victim about “backdooring” him.
Almost immediately, Appellant struck the Victim in the face causing him to
collapse. Appellant continued to beat the Victim for 5-10 minutes, striking
and kicking him in the face and torso. We agree with the trial court that the
Commonwealth presented sufficient evidence of malice, and a causal
connection between the beating and the Victim’s death, for the jury to find
Appellant guilty of Third Degree Murder. Accordingly, this issue fails.
Last, Appellant claims the verdict was against the weight of the
evidence. Appellant’s Brief at 17. Specifically, Appellant claims that the
testimony of the medical witnesses was inconsistent with the Victim’s
injuries.
We note that, when considering challenges to the weight of the
evidence, “[]he weight of the evidence is exclusively for the finder of fact[,]
who is free to believe all, none or some of the evidence and to determine the
credibility of witnesses.” Commonwealth v. Talbert, 129 A.3d 536, 545
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(Pa. Super. 2015) (internal quotation marks and citations omitted). Further,
“[i]n order for a defendant to prevail on a challenge to the weight of the
evidence, the evidence must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.” Id. at 546 (internal quotation
marks and citation omitted).
In the instant matter, the jury, as the fact-finder, made its own
credibility determinations and decided which testimony to believe and which
to reject. It “found that [the Victim’s] condition prior to the beating, and his
condition immediately thereafter was consistent with his injuries as
established by the coroner and medical witnesses.” Trial Ct. Op. at 11. We
will not disturb the jury’s findings as they do not “shock[] the conscience of
the [C]ourt.” Talbert, 129 A.3d at 546 (quotation and citation omitted).
For the foregoing reasons, we affirm Appellant’s Judgment of
Sentence.
Judgment of Sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2016
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