Com. v. Gelsinger, M. ( 2016 )

J.A02026/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
MICHAEL S. GELSINGER, :
:
Appellant :
: No. 627 MDA 2015
Appeal from the Judgment of Sentence December 5, 2014
in the Court of Common Pleas of Dauphin County Criminal Division
at No(s): CP-22-CR-0000926-2014
BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 29, 2016
Appellant, Michael S. Gelsinger, appeals from the judgment of
sentence entered in the Dauphin County Court of Common Pleas after a jury
found him guilty of first-degree murder,1 attempted homicide,2 possession of
firearm prohibited,3 and carrying a firearm without a license.4 Appellant
argues (1) the Commonwealth failed to prove he had the specific intent to
kill and disprove his self-defense claim, (2) the trial court erred in denying
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(a).
2
18 Pa.C.S. § 901.
3
18 Pa.C.S. § 6105(a)(1).
4
18 Pa.C.S. § 6106(a).
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his pretrial motion to sever Appellant’s trial from his co-defendant, and (3)
the verdict was against the weight of the evidence. We affirm.
We glean the factual history from the trial testimony. At
approximately 1:00 a.m. on December 6, 2013, Officer Michael Rudy of the
Harrisburg City Police received a report of shots fired around the 1600 Block
of Thompson Street in Harrisburg. N.T, 12/1/14-12/2/14, at 40 (“Vol. I”).
He arrived at 1619 Thompson Street and encountered Shawn Fox, who
resided there, standing on the front porch. Id. at 43-44, 56; N.T., 12/3/14,
at 10 (“Vol. III”). Officer Rudy observed a non-responsive female, later
identified as Fox’s girlfriend, Tiana Dockens (“Victim”), lying on the porch.
N.T. Vol. I at 44-58. As Officer Rudy attempted to treat Victim, Fox’s
roommate and cousin, Justin Baxter, approached the porch “cursing,
yelling,” and acting “belligerent.” Id. at 48-49, 57. Officer Rudy discovered
“a very small hole” on Victim’s abdomen. Id. at 47. Other police officers
arrived, and Officer Rudy rode in the ambulance with Victim to Hershey
Medical Center where she was pronounced dead. Id. at 49-50, 73. The
Dauphin County Coroner’s Office performed an autopsy that morning and
concluded, “[t]he cause of death [was] a gunshot wound to the abdomen”
and the manner of death was homicide. Id. at 91-92.
At the scene, police recovered three .380 cartridge casings that were
discharged from the same firearm and five .40 casings discharged from a
single Glock pistol. N.T. Vol. I at 138; N.T., 12/3/15-12/5/15, at 44-45
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(“Vol. IV”). Police determined the Glock belonged to Baxter. N.T. Vol. IV at
31. They believed Appellant, while a passenger in a car driven by his
brother, Joseph Payne-Casiano, exchanged gunfire with Baxter resulting in
Victim’s death. See id. at 39. Moreover, a bullet recovered from Victim was
determined to be “of the .380, 9-millimeter class.[5]” N.T. Vol. I at 151; N.T.
Vol. IV at 45. The Glock was ultimately discovered outside of 1617
Thompson Street, and the other firearm was never recovered. N.T. Vol. IV
at 5, 16, 31.
On December 11, 2013, the Commonwealth filed a criminal complaint
charging Appellant with the above crimes.6 The Commonwealth joined
Payne-Casiano as a co-defendant, and charged him with murder and
attempted murder.
On November 18, 2014, Appellant filed a motion for severance based
on the Commonwealth’s intention to introduce at trial a hand-written note by
Payne-Casiano to another inmate. Appellant’s Mot. to Sever, 11/18/14, at
2-4 (unpaginated). The contested portion of the note read, “1. Get at Moe
see what she gone [sic] say at my bro trial, try convince her to say bull shot
first.” Id. at Ex. A. Appellant argued that under the United States Supreme
5
The parties stipulated to the conclusions of the ballistics expert at trial.
N.T. Vol. IV at 44-45.
6
The Commonwealth also charged Appellant with possession with intent to
deliver a controlled substance and possession of drug paraphernalia, which
were subsequently withdrawn.
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Court decision in Bruton v. United States, 391 U.S. 123 (1968), if his co-
defendant declined to testify, the admission of Payne-Casiano’s note would
violate the Confrontation Clause of the Sixth Amendment. Id. The trial
court held oral argument and denied the motion on November 25, 2014.
On December 1, 2014, the case proceeded to a jury trial. Victim’s
father, Dion Dockens, testified that at the time of the murder, he lived at
1611 Thompson Street with his wife and children; Baxter was friends with
Victim and his other daughter, Monique; and Fox was Victim’s boyfriend.
N.T., 12/2/14, at 5-9 (“Vol II”). He testified that he did not know Appellant
prior to the shooting, but he knew Payne-Casiano as a friend of Monique.
Id. at 11-12. He explained that on the night of the shooting, he was home
and heard voices outside arguing. Id. at 13-14. He described the shooting,
in relevant part, as follows:
When I come outside on the porch, I see a car
parked . . . half in front of my house and the house
next door to mines [sic]. I see . . . [Payne-Casiano]
on the driver’s side and [Appellant] on the
passenger’s side.
[The Commonwealth]: Were they in or out of the
car?
A. They were out of the car.
Q. Both of them?
A. Both of them standing with the doors open.
[Baxter] was behind the vehicle. My daughter
Monique was standing almost by [Payne-Casiano]
where he was on the driver’s side. And [Victim] was
standing on—by [Baxter], right beside him, almost
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towards where [Appellant] was on the passenger’s
side.
Q. Go on.
A. I came down and I’m asking them what’s goin’
on. And [Baxter] is saying somethin’ to [Payne-
Casiano] and [Payne-Casiano’s] saying somethin’
back to him. I’m like, you all got to take this off my
street, and after that they kept goin’ on.
Next thing I know, [Baxter] walks back behind his
car, his vehicle, and you can hear the cocking of the
gun. He comes back around, and that’s when
[Appellant] says to him: We can light the streets up.
I said: We’re not having this here. You’re not
lighting the street up here. You all can take that
somewhere else.
Q. The initial back and forth that you started to
describe with [Payne-Casiano] and [Baxter], could
you make out what was going back and forth? Could
you get a sense of what that was about?
A. . . . I couldn’t understand what is was about,
because first of all, you know, [Baxter] was . . .
drunk. And then [Payne-Casiano] was sayin’
something’; [Appellant] was sayin’ something’; my
daughter was sayin’ somethin’. So you have, like,
five different voices, everybody sayin’ different
things. My main concern to get my daughters, you
know, these guys, you know, just get off my street.
* * *
Q. Were you able to get [your daughters] away?
A. Yes. . . . [M]e and my daughter Monique was
going up to the steps into my house. [Victim] said:
Dad, I’m going to [Fox’s]. Which she do[es] every
night. And that’s when she proceeded to walk down
towards [Fox’s].
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* * *
She walked down and she was on [Fox’s] steps on
his house, knocking on his door so that he can come
and open the door for her. And me and my daughter
was up on our porch. And I’m looking at her right
away, because I want to make sure that she gets
into the house.
Q. What’s going on below with [Payne-Casiano],
[Appellant], and [Baxter]?
A. [Payne-Casiano] and [Appellant] proceed to get
into the car. And [Baxter’s] walking around onto the
curb and starts walking down towards the house,
too.
* * *
Q. When [Baxter] started walking up the street, . . .
you previously described him as having a gun tucked
in the front waistband?
A. Yes.
Q: Did you see him remove it and have it out in his
hands as he’s walking away?
A: No, I didn’t. He still had his hands in his pants.
* * *
Q. What could you see?
A. I could just see the sparks coming out of the
side—passenger’s side window. You could see the
sparks coming back towards.
Q. Could you see an arm or a hand extended out of
the window?
A. I could see an arm. You couldn’t see, like, the
physical—you couldn’t see like, you know, the whole
arm. You could see the firing and wherever the gun
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was in, you could just see the firing coming out. It
was like that.
* * *
Q. How many shots did you hear?
A. Four to five.
Q. And then what?
A. And then, once they started firing, [Baxter] start
firing his gun back. In the process I see my
daughter [Victim], which I’m thinkin’ that she fell to
duck or something like that.
Q. Where did the car go?
A. . . . I really didn’t see . . . which way it turned or
whatever like that. I just seen the car go up there.
And once I seen my daughter fall, then I didn’t worry
about the car anymore.
Q. Did you see Baxter shoot back?
A. Yes.
Q. What happened first? The shots from the car? Or
Baxter fired?
A. The shots from the car.
Q. How certain are you of that?
A. I’m a hundred and fifty percent it was the car.
* * *
Q. And just to be fair, you described an arm
extending and you saw sparks from the passenger
window?
A. Yes.
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Q. When—and you might have said this, but I just
want to make sure it’s completely clear. When the
two got back in the car, who went to what side?
* * *
A. They got back – [Payne-Casiano] got back in the
driver’s side. [Appellant] got back in the passenger’s
side. And they sat there. And then as [Baxter]
walked past them, and that’s when the car starts
slowly moving up.
Q. Okay. Shots are fired from the car. Baxter
returns [fire]. Car leaves Thompson Street.
A. Yes.
Id. at 14-35. On cross-examination, Dockens clarified that shots were fired
from the car and Victim fell before Baxter discharged his firearm. Id. at 55,
59.
Monique Dockens testified that she met Payne-Casiano and Appellant
approximately eight years before when she was in ninth grade and that she
began dating Payne-Casiano in September 2013. Id. at 97-99. She
testified Payne-Casiano had called right after midnight on December 6,
2013, and told her he was going to stop by to see her. Id. at 100, 116-17.
In the meantime, Victim had asked her to call Baxter, and Baxter arrived at
their home “very drunk.” Id. at 101-02. Her testimony was largely
consistent with her father’s account: “Once the car started driving off, I seen
[Appellant’s] hand come out of the passenger’s side and started shooting
first.” Id. at 108. She reiterated on cross-examination: “I remember it as
[Appellant and Payne-Casiano] were slowly driving down. As they w[ere]
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driving down, they got a little bit past [Baxter]. And once they got a little bit
past [Baxter], they started shooting. And [Baxter] shot back.” Id. at 154.
At the time Appellant began shooting, she testified Baxter was “at the top of
his steps.” Id. at 109.
James Moffitt, an inmate at Dauphin County Prison, testified that
Payne-Casiano sent him a note in prison because Payne-Casiano “wanted me
to do some things for him.” N.T. Vol. III at 44, 50. The Commonwealth
admitted the original note into evidence and requested to publish it to the
jury. Id. at 52-53. Prior to publishing the note, the trial court instructed
the jury that it may only consider the note as evidence against Payne-
Casiano and not Appellant.7 Id. at 53. The Commonwealth then asked
Moffitt to read the note:
Get at Moe, see what she gone say at my bro trial.
Try convincer her – try convince—I don’t know what
that say – try something, bull shot first.
[The Commonwealth]: I’m sorry. You say you don’t
know what that word is?
A. Yeah.
Q. C-O-N-V-I-N-C-E?
7
We note prior to Moffitt’s testimony, out of the jury’s presence, the trial
court overruled objections by Appellant’s counsel and Payne-Casiano’s
counsel to the admissibility of the note on hearsay and relevancy grounds.
N.T. Vol. IV at 46-48. The trial court found that the note was “not an
assertion for the truth.” Id. at 48. The trial court then advised it would
read the cautionary instruction before the note’s admission and during the
court’s charge to the jury. Id. at 48-49. All parties agreed to the
instruction. Id. at 48.
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A. Convince.
Id. at 54.
After the Commonwealth rested, Appellant testified on his own behalf.
He explained the event as follows:
We got back in the car and there was a guy that was
standing on the side of the street. When we pulled
off, he was walking towards – he was walking down
toward 17th Street. As we . . . w[ere] going past
him, [I] heard a shot, and I duck my head and I
returned fire.
N.T. Vol. IV at 60. He acknowledged, on cross-examination, that the bullet
from his gun killed Victim, but testified it was an “accident” and his intention
was to “get away.” Id. at 87. He further testified on cross-examination by
the Commonwealth:
Q. We can agree that you shot in the direction of
Justin Baxter?
A. I shot in the direction where I heard the shots
coming from.
Q. . . . [A]nd who was in that direction?
A. When we were driving off, Justin Baxter was over
there.
Q. Okay. When you heard shots, though, you were
beyond where Baxter was?
A. Yes.
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Id. at 87-88. The essence of Appellant’s defense was that Baxter fired first,
and he was “in fear [for his] life, so [he] returned fire.” Id. at 89; see also
id. at 79, 87.
On December 5, 2014, the jury found Appellant guilty 8 of the above
crimes, and the trial court sentenced him to life imprisonment.9 Appellant
timely filed a post-sentence motion, on December 15, 2014, challenging the
weight and sufficiency of the Commonwealth’s evidence. Post-Trial Mot.,
12/15/14, at 1-2 (unpaginated). The trial court held oral argument on April
1, 2015 and denied the motion on April 3, 2015. Appellant timely appealed
and complied with Pa.R.A.P. 1925(b). The trial court authored a responsive
Rule 1925(a) opinion.
Appellant seeks review of the following issues:
I. Whether the evidence was insufficient at trial to
prove beyond a reasonable doubt that Appellant
committed the crime of first degree murder and
criminal attempt [to commit] murder where the
Commonwealth failed to prove beyond a reasonable
doubt that [Appellant] acted willfully, deliberately, or
with premeditation and where the Commonwealth
failed to disprove beyond a reasonable doubt that
[Appellant] acted in self-defense?
II. Whether the trial court erred in denying
Appellant’s [m]otion for [s]everance where the
8
The jury found Payne-Casiano not guilty of both charges.
9
Specifically, the trial court sentenced Appellant to life imprisonment for
first-degree murder, seven to fifteen years’ imprisonment for attempted
murder, and five to ten years’ on each firearms charge. Trial Ct.
Order,12/8/14; N.T. Sentencing Hr’g, 12/5/14, at 5-6.
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denial of the motion to sever Appellant’s trial from
the trial of his co-defendant violated Appellant’s right
under the Confrontation Clause of the United States
Constitution and Article 1, Section 9 of the
Pennsylvania Constitution, and where the denial of
Appellant’s motion resulted in a violation of Bruton
v. U.S., 391 U.S. 123 (1968)?
III. Whether the verdict was against the weight of
the evidence where the testimony presented by the
Commonwealth was inconsistent regarding the
details surrounding the shooting and the events
taking place in the early morning of December 6,
2013, and where the Commonwealth failed to prove
that Appellant was guilty of first degree murder and
criminal attempt homicide where the evidence
presented by the Commonwealth failed to establish
that Appellant acted with malice and the specific
intent to kill?
Appellant’s Brief at 7.
Appellant’s first issue challenges the sufficiency of the
Commonwealth’s evidence supporting first-degree murder. Specifically,
Appellant argues the Commonwealth failed to prove he had the specific
intent to commit murder. Id. at 13. He highlights his testimony that Baxter
fired shots first, and he fired in response; he also argues that the testimony
of Dion and Monique Dockens “does not disprove this assertion beyond a
reasonable doubt.” Id. at 13-14. He further argues self-defense was not
disproved because “neither witness could say whether Baxter had his gun
pointed at Appellant and his brother prior to the shots being fired.” Id. We
disagree.
The following principles guide our review over sufficiency claims:
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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
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 finder 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)
(citation omitted).
“To sustain a conviction for first-degree murder, the Commonwealth
must prove, beyond a reasonable doubt, that a human being was unlawfully
killed, that the accused was responsible for the killing, and that the accused
acted with a specific intent to kill.” Commonwealth v. Pagan, 950 A.2d
270, 278-79 (Pa. 2008) (citations omitted).
[A] specific intent to kill may be inferred from the
use of a deadly weapon to inflict injury on a vital
part of the body. A deadly weapon is defined as
[a]ny firearm, whether loaded or unloaded, or any
devise designed as a weapon and capable of
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producing death or serious bodily injury, or any
other device of instrumentality which, in the manner
in which it is used or it is intended to be used, is
calculated or likely to produce death or serious bodily
injury.
Talbert, 129 A.3d at 543 (citing Pagan, 950 A.2d at 279).
Furthermore,
When the defendant introduces evidence of self-
defense, the Commonwealth bears the burden of
disproving such a defense beyond a reasonable
doubt. The Commonwealth cannot sustain its
burden of proof solely on the factfinder’s disbelief of
the defendant’s testimony. The disbelief of a denial
does not, taken alone, afford affirmative proof that
the denied fact existed so as to satisfy a proponent’s
burden of proving that fact.
Commonwealth v. Rivera, 983 A.2d 1211, 1221 (Pa. 2009) (citations and
punctuation marks omitted).
The use of force in self-defense is justified under the following
circumstances:
§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the
person.—The use of force upon or toward another
person is justifiable when the actor believes that
such force is immediately necessary for the purpose
of protecting himself against the use of unlawful
force by such other person on the present occasion.
(b) Limitations on justifying necessity for use
of force.—
* * *
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(2) The use of deadly force is not justifiable under
this section unless the actor believes that such force
is necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse
compelled by force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death
or serious bodily injury, provoked the use of
force against himself in the same encounter; or
(ii) the actor knows that he can avoid the
necessity of using such force with complete
safety by retreating, except the actor is not
obliged to retreat from his dwelling or place of
work, unless he was the initial aggressor or is
assailed in his place of work by another person
whose place of work the actor knows it to be.
18 Pa.C.S. § 505(a), (b)(1)-(2).
Instantly, the Commonwealth presented, inter alia, the testimony of
Dion and Monique Dockens, eyewitnesses to the shooting. Both witnesses
testified that Baxter began slowly walking home after the argument outside
Dion Dockens’ residence appeared to end. N.T. Vol. II at 30-31, 108.
Appellant and Payne-Casiano followed him in the car they were driving, and
Appellant stuck his arm out from the passenger-side window and began
firing a gun. Id. at 31-33, 108-09. Dion Dockens testified he was “a
hundred and fifty percent” certain that the first shots fired came from
Appellant. Id. at 34. Both witnesses indicated that Baxter did not point his
gun or make any aggressive movement toward the vehicle as he walked
home. See id. at 109-10; id. at 32 (testifying Baxter had his hands “in his
pants” and did not have his gun drawn as he walked home).
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Viewing the evidence in the light most favorable to the
Commonwealth, we conclude there was sufficient evidence adduced to prove
Appellant had the specific intent to kill Baxter.10 See Talbert, 129 A.3d at
542; Pagan, 950 A.2d at 278-79. The jury was free to weigh all the
evidence and credit the testimony of the Commonwealth’s witnesses. See
Talbert, 129 A.3d at 543. Moreover, the jury was free to infer Appellant
had the specific intent to kill when he fired his weapon at Baxter, who did
not have his weapon drawn, three times. See id.; see also
Commonwealth v. Chine, 40 A.3d 1239, 1242 (finding the defendant had
specific intent to kill where he fired three shots at “an unsuspecting,
unarmed victim who had his back to [the defendant]”).
Likewise, we conclude the Commonwealth disproved Appellant’s self-
defense argument beyond a reasonable doubt. See Rivera, 983 A.2d at
1221. The testimony of Dion and Monique Dockens established that at the
time Appellant fired his gun, Baxter did not have his gun drawn or take any
aggressive actions toward the car. See N.T. Vol. II at 32, 109-110.
Furthermore, even by Appellant’s own testimony, at the time he alleged to
have heard shots fired, he was in his vehicle “beyond where Baxter was.”
N.T. Vol. III at 87-88. Therefore, Appellant’s use of deadly force was
10
The fact that Appellant killed an unintended victim does not affect our
analysis. “Pursuant to the doctrine of transferred intent, the intent to
murder may be transferred where the person actually killed is not the
intended victim.” Commonwealth v. Jones, 912 A.2d 268, 279 (Pa. 2006)
(citing 18 Pa.C.S. § 303(b)(1)).
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unjustified because the evidence established such force was not immediately
necessary for the purpose of protecting himself, and Appellant could have
avoided the use of deadly force by retreating. See 18 Pa.C.S. § 505(a),
(b)(1)-(2).
Next, Appellant challenges the trial court’s denial of his pretrial motion
for severance. He argues the note’s admission in the joint-trial violated his
right to cross-examine Payne-Casiano under the Confrontation Clause, citing
the United States Supreme Court’s decision in Bruton. Appellant’s Brief at
15-19. We hold Appellant is not entitled to relief.
We first note:
The decision whether to sever trials of co-defendants
is within the sound discretion of the trial court and
will not be disturbed on appeal absent a manifest
abuse of discretion. The determinative factor is
whether the defendant has been prejudiced by the
trial court’s refusal to sever his trial, and it is the
burden of the defendant to establish such prejudice.
Commonwealth v. Bond, 985 A.2d 810, 824 (Pa. 2009) (citations
omitted).
The Confrontation Clause guarantees a criminal
defendant the right to cross-examine witnesses.
Ordinarily, a witness whose testimony is introduced
at a joint trial is not considered a witness against a
defendant if the jury is instructed to consider the
testimony only against a co-defendant. This
principle is in accord with the well-established
presumption that jurors will abide by their
instructions. In Bruton, however, the United States
Supreme Court recognized that “there are some
contexts in which the risk that the jury will not, or
cannot, follow instructions is so great, and the
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consequences of failure so vital to the defendant,
that the practical and human limitations of the jury
system cannot be ignored.” Bruton, 391 U.S. at
135, []. Accordingly, the Bruton Court held that, if
a non-testifying co-defendant’s confession directly
and powerfully implicates the defendant in the
crime, then an instruction to the jury to consider the
evidence only against the co-defendant is
insufficient, essentially as a matter of law, to protect
the defendant’s confrontation rights.
Commonwealth v. Cannon, 22 A.3d 210, 217-18 (Pa. 2011) (some
citations, quotation marks, and alterations omitted; emphasis added).
However, “[w]hen the nontestifying co-defendant’s statement does not
inculpate the other co-defendant, there is no violation of the right of
confrontation.” Commonwealth v. Gribble, 703 A.2d 426, 437 (Pa. 1997)
(citation omitted), abrogated on other grounds by Commonwealth v.
Burke, 781 A.2d 1136 (Pa. 2001).
Our Supreme Court has discussed how to asses Bruton challenges:
In order to protect these rights, the Court has
developed different analyses under the Confrontation
Clause depending on how a statement is used at
trial. For example, where a hearsay statement,
given by a non-testifying declarant is offered to
establish the guilt of the non-declaring defendant,
the court must consider whether it was admitted
pursuant to either a firmly rooted hearsay exception
or contains particularized guarantees of
trustworthiness. Only if the hearsay statement was
admitted under such circumstances will such a
statement be deemed to respect the non-declaring
defendant’s right of confrontation. On the other
hand, where a hearsay statement is not admitted
against the non-declaring co-defendant as evidence,
then the court must consider whether sufficient
precautions have been taken to insulate the non-
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declaring co-defendant from spill-over prejudice due
to the admission of the hearsay statement.
Commonwealth v. Overby, 809 A.2d 295, 300-01 (citations and quotation
marks omitted).
A statement11 is hearsay if it is one that “the declarant does not make
while testifying” and “a party offers in evidence to prove the truth of the
matter asserted.” Pa.R.E. 801(c). Further, “[c]ommunications that are not
assertions are not hearsay. These would include questions, greetings,
expressions of gratitude, exclamations, offers, instructions, warnings, etc.”
Id. at cmt. In Commonwealth v. Parker, 104 A.3d 17 (Pa. Super. 2014),
appeal denied, 117 A.3d 296 (Pa. 2015), this Court held “that when a
question includes an implied assertion, the question constitutes a statement
for the purpose of Rule 801(a). If that statement is offered for the truth of
the matter asserted, it is hearsay and is generally inadmissible.” Parker,
104 A.3d at 24.12 “An out of court statement offered not for its truth but to
11
A “‘statement’ means a person’s oral assertion, written assertion, or
nonverbal conduct if the person intended it as an assertion.” Pa.R.E. 801(a).
12
In Parker, the relevant testimony came from the defendant’s
grandmother, who testified:
He said, Grandmom, he said, Grandmom, Can
you tell Bey I didn’t take anything from
anybody and I don’t have anything? He said,
But can you tell him I didn’t take anything from
him or the house. And I said, Put Bey on the
phone and I will tell him you been in the house all
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explain the witness’s course of conduct is not hearsay.” Commonwealth v.
Rega, 933 A.2d 997, 1017 (Pa. 2007) (citation omitted).
This Court has long recognized that any attempt
by a defendant to interfere with a witness's
testimony is admissible to show a defendant's
consciousness of guilt. See, e.g., Commonwealth
v. Johnson, 542 Pa. 384, 398–99, 668 A.2d 97, 104
(1995) (concluding that a witness's testimony that a
defendant offered him a bribe not to testify at trial
was admissible to show the defendant's
consciousness of guilt); Commonwealth v.
Goldblum, 498 Pa. 455, 472, 447 A.2d 234, 243
(1982) (citing cases for the proposition that the
Commonwealth may demonstrate consciousness of
guilt through attempts by a defendant to intimidate
or influence a witness).
Commonwealth. v. Johnson, 838 A.2d 663, 680 (Pa. 2003).
Instantly, the statement was not admitted against Appellant, and the
jury was cautioned to only consider it as evidence against Payne-Casiano.
See Overby, 809 A.2d at 300-01. The case sub judice does not present a
classic Burton issue in that the note is neither a confession by Payne-
Casiano offered for the truth of the matter asserted, nor does it directly and
powerfully implicate Appellant in the crime. See Cannon, 22 A.2d at 218.
The statement, itself, is not an assertion of truth; rather, it is a directive
from Payne-Casiano to another inmate to influence a witness’ testimony.
See Appellant’s Mot. to Sever at Ex. A; see also N.T. Vol. III at 54.
day and you just went on the porch. And he said—I
said, Where’s Bey? I said put Bey on the phone.
Parker, 104 A.3d at 21 (emphasis in original).
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Therefore, we conclude the statement is not hearsay. See Pa.R.E. 801 at
cmt; Johnson, 838 A.2d at 680. Further, the note does not imply an
assertion. See Parker, 104 A.3d at 24. It merely instructs Moffitt to
“convince” a witness to testify in a manner favorable to Appellant’s defense.
See Pa.R.E. 801 at cmt; Johnson, 838 A.2d at 680. Moreover, it did not
affirmatively inculpate Appellant at all because it did not assert that
Appellant was actually the one who shot his weapon first. See Gribble, 702
A.2d at 437.
Under the circumstances of this case, no Bruton violation occurred.
The note, authored by Payne-Casiano and admitted as evidence against him
only, was not a confession that directly and powerfully implicated Appellant.
See Cannon, 22 A.3d at 218. Therefore, the trial court did not abuse its
discretion in declining to sever Appellant’s trial based on a Bruton violation.
See Bond, 985 A.2d at 824; see also Rega, 933 A.2d at 1017 (“Because
this case did not involve hearsay, it is clearly distinguishable from those
cases . . . regarding the reading of a co-defendant’s confession implicating
the defendant.”).
Lastly, Appellant argues the verdict was against the weight of the
evidence. Specifically, Appellant argues the testimony of Dion Dockens
conflicted with his prior statements and the testimony of Monique Dockens.
Appellant’s Brief at 20-21. Appellant argues, “[b]ased on the evidence,
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Baxter arguably fired first and Appellant returned fire.” Id. at 21. We
conclude Appellant is not entitled to relief.
We assess weight challenges mindful of the following:
The 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.
Appellate review of a weight claim is a review
of the exercise of discretion, not the underlying
question of whether the verdict is against the
weight of the evidence. Because the trial
judge has had the opportunity to hear and see
the evidence presented, an appellate court will
give the gravest consideration to the findings
and reasons advanced by the trial judge when
reviewing a trial court’s determination that the
verdict is against the weight of the evidence.
One of the least assailable reasons for granting
or denying a new trial is the lower court’s
conviction that the verdict was or was not
against the weight of the evidence and that a
new trial should be granted in the interest of
justice.
Talbert, 129 A.3d at 545-46 (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)
Instantly, Appellant’s arguments rest on a reassessment of the
credibility of witnesses. The jury heard the testimony and was free to credit
Dion and Monique Dockens’ trial testimony despite the inconsistencies. See
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id. at *8. In denying the post-sentence challenge based on the weight of
the evidence, the trial court concluded:
After reviewing Dion and Monique’s testimony and
the testimony provided by [Appellant] we are unable
to find that [Appellant’s] testimony, given the facts
provided in this case, should be given greater weight
than Dion and Monique’s testimony. The
inconsistencies between the testimony provided by
Dion and Monique were not significant, both were
consistent concerning the fact that [Appellant,] shot
first. We therefore cannot find that the jury’s verdict
and their rejection of [Appellant’s] testimony in favor
of Dion and Monique’s testimony constitutes a denial
of justice.
Trial Ct. Op., 4/13/15, at 5.
We conclude the trial court properly exercised its discretion in denying
Appellant’s challenge to the weight of the evidence. The trial court did not
find the evidence so tenuous, vague, or uncertain as to afford Appellant a
new trial, and we give its determination the gravest consideration. See
Talbert, 129 A.3d at 545-46. Accordingly, Appellant is not entitled to relief.
Based on the foregoing discussion, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2016
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