Com. v. Williams, H. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HENRY DION WILLIAMS, :
:
Appellant : No. 2014 WDA 2013
Appeal from the Judgment of Sentence entered on November 26, 2013
in the Court of Common Pleas of Washington County,
Criminal Division, No. CP-63-CR-0001527-2012
BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 26, 2015
Henry Dion Williams (“Williams”) appeals from the judgment of
sentence entered following his conviction of first-degree murder, persons not
to possess firearms and firearms not to be carried without a license. 1 We
affirm.
In its Opinion, the trial court set forth the relevant facts underlying the
instant appeal, which we adopt and incorporate herein by reference. See
Trial Court Opinion, 7/3/14, at 4-9.
Following a jury trial, Williams was convicted of the above-described
charges. Thereafter, for his conviction of first-degree murder, the trial court
sentenced Williams to life in prison, ordered that Williams pay restitution to
the victim’s mother in the amount of $6,685, and required Williams to pay
1
18 Pa.C.S.A. §§ 2502(a), 6105, 6106.
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the costs of prosecution. For his conviction of persons not to possession
firearms, the trial court imposed a concurrent prison term of three to six
years. Williams’s conviction of carrying a firearm without a license merged
with his other firearms conviction at sentencing. Williams timely filed a
Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement
of matters complained of on appeal.
On appeal, Williams raises the following claims for our review:
I. Did the trial court err in denying [Williams’s] Motion to
Dismiss under Pa.R.C[rim.]P., Rule 600?
II. Did the trial court err by allowing a Commonwealth
witness, [Sergeant] Ronald Aiello [“Sergeant Aiello”], to
present testimony of a prior consistent statement provided
to him by another Commonwealth witness, Kayla
Cunningham [“Cunningham”], after that witness had
concluded her testimony?
III. Did the trial court err by allowing a Commonwealth
witness, Lt. Daniel Stanek [“Lieutenant Stanek”], to
present hearsay testimony regarding information provided
to him by [Williams’s] mother, Valerie Clark [“Clark”],
when that witness did not testify and such testimony by
[Lieutenant] Stanek was beyond the scope of cross[-
]examination?
IV. Did the trial court err by allowing a Commonwealth
witness, [Lieutenant] Stanek, to present testimony[,]
which was speculative in nature[,] regarding the
truthfulness and accuracy of the testimony of the
Commonwealth’s witnesses, [] Cunningham and April Lash
[“April”]?
V. Did the trial court err by allowing a Commonwealth
witness, [Lieutenant] Stanek, to present testimony
regarding gunshot residue evidence when said witness was
not qualified as an expert in the field of gunshot residue
evidence?
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VI. Did the trial court err by denying [Williams’s] Motion to
exclude[,] for any purposes[,] the statements of an eye
witness, Desiree Wilson [“Wilson”], which statements were
not provided to [Williams] in response to his request for
discovery materials until the date before the witness was
scheduled to testify?
VII. Did the trial court err and deny [Williams] a fair trial and
due process by granting to the Commonwealth the right to
use in rebut[t]al, if it chose to so use, the statements of an
eye witness, [] Wilson, when those statements were not
provided to [Williams] in response to his request for
discovery materials[,] and which statements effected
[Williams’s] decision whether or not to testify at trial?
VIII. Did the Commonwealth present sufficient evidence to
sustain the verdict of guilty for each count, including:
criminal homicide[-]murder of the first degree, possession
of a firearm prohibited, and firearms not to be carried
without a license?
IX. Was the verdict of guilty entered against the weight of the
evidence on each count, including: criminal homicide[-
]murder of the first degree, possession of a firearm
prohibited, and firearms not to be carried without a
license?
Brief for Appellant at 4-5.
Williams first claims that the trial court improperly denied his Motion to
Dismiss pursuant to Pennsylvania Rule of Criminal Procedure 600. Id. at 11.
Williams points out that Lieutenant Stanek filed the Criminal Complaint on
May 24, 2012, but Williams was not arrested and incarcerated until June 20,
2012. Id. Williams asserts that the Commonwealth did not bring him to
trial until September 9, 2013, “which is more than 365 days from the date of
the filing of the [C]riminal [C]omplaint.” Id. According to Williams, at no
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time did he request a continuance nor was he unavailable to proceed to trial.
Id. at 12. Williams further argues that the pre-arrest delay of 27 days
caused him substantial prejudice, “as he had not been to trial within the
time limits of Rule 600.” Id. at 13. Williams contends that the pre-arrest
delay of 27 days is not excludable from the Rule 600 calculation, and that
the Commonwealth did not exercise due diligence during this delay. Id.
We first set forth our standard and scope of review:
In evaluating Rule [600] issues, our standard of review of a trial
court’s decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion 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, as shown by the evidence or the record, discretion is
abused.
The proper scope of review is limited to the evidence on the
record of the Rule [600] evidentiary hearing, and the findings of
the [trial] court. An appellate court must view the facts in the
light most favorable to the prevailing party.
Additionally, when considering the trial court’s ruling, this Court
is not permitted to ignore the dual purpose behind Rule [600].
Rule [600] serves two equally important functions: (1) the
protection of the accused’s speedy trial rights, and (2) the
protection of society. In determining whether an accused’s right
to a speedy trial has been violated, consideration must be given
to society’s right to effective prosecution of criminal cases, both
to restrain those guilty of crime and to deter those
contemplating it. However, the administrative mandate of Rule
[600] was not designed to insulate the criminally accused from
good faith prosecution delayed through no fault of the
Commonwealth.
So long as there has been no misconduct on the part of the
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Commonwealth in an effort to evade the fundamental speedy
trial rights of an accused, Rule [600] must be construed in a
manner consistent with society’s right to punish and deter crime.
In considering [these] matters . . . courts must carefully factor
into the ultimate equation not only the prerogatives of the
individual accused, but the collective right of the community to
vigorous law enforcement as well.
Commonwealth v. Horne, 89 A.3d 277, 283-84 (Pa. Super. 2014)
(quoting Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super.
2007) (en banc)).
In its Opinion, the trial court addressed Williams’s claim and concluded
that it lacks merit. See Trial Court Opinion, 7/3/14, at 9-16. The trial
court’s findings are supported in the record and its legal conclusions are
sound. See id. Discerning no abuse of discretion by the trial court in
rejecting Williams’s claim as without merit, we affirm on the basis of the trial
court’s Opinion with regard to Williams’s Rule 600 claim. See id.
In his second issue, Williams argues that the trial court improperly
admitted the testimony of Sergeant Aiello, regarding the prior consistent
statements made by Cunningham. Brief for Appellant at 15. Williams
asserts that Sergeant Aiello’s testimony about statements made by
Cunningham “is hearsay and served to improperly bolster [Cunningham’s]
testimony.” Id. at 16.
“An appellate court’s standard of review of a trial court’s evidentiary
rulings, including rulings on the admission of hearsay …, is abuse of
discretion.” Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. 2014).
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“Hearsay means a statement that ... the declarant does not make
while testifying at the current trial or hearing; and ... a party offers in
evidence to prove the truth of the matter asserted in the statement.”
Pa.R.E. 801(c). “Hearsay is not admissible except as provided by [the
Pennsylvania Rules of Evidence], by other rules prescribed by the
Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802.
Pennsylvania Rule of Evidence 613(c) addresses the admissibility of a
prior consistent statement by a witness as follows:
Evidence of a prior consistent statement by a witness is
admissible for rehabilitation purposes if the opposing party is
given an opportunity to cross-examine the witness about the
statement, and the statement is offered to rebut an express or
implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty
memory and the statement was made before that which
has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the
witness has denied or explained, and the consistent
statement supports the witness’ denial or explanation.
Pa.R.E. 613(c).
In its Opinion, the trial court addressed Williams’s claim and concluded
that it lacks merit. See Trial Court Opinion, 7/3/14, at 16-18. Upon review,
we discern no abuse of discretion or error by the trial court. Accordingly, we
adopt the trial court’s analysis, and affirm based upon the rationale set forth
in the trial court’s Opinion with regard to this claim. See id. We
additionally note the following.
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Even if the trial court improperly had admitted Sergeant Aiello’s
testimony, we conclude that such error would be harmless. “Where an error
is deemed to be harmless, a reversal is not warranted.” Commonwealth v.
Kuder, 62 A.3d 1038, 1053 (Pa. Super. 2013). Harmless error exists where
(1) the error did not prejudice the defendant or the prejudice
was de minimis; (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3)
the properly admitted and uncontradicted evidence of guilt was
so overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Id. (citation omitted).
Our review discloses that Sergeant Aiello’s testimony regarding his
interview of Cunningham is merely cumulative, and caused Williams no
prejudice. During cross-examination, defense counsel questioned
Cunningham regarding whether she saw anyone in the parking lot upon
exiting Pickle’s Bar:
Q. [Defense counsel]: As you and [April] were going out of the
bar at Pickle’s to get in your car to go to [Taco] Bell, did you
stop and talk to anybody?
A. [Cunningham]: No. Well, my uncle, on our way out of the
bar, he spoke to us and then he came out and said something to
us and he went back in. But other than that, no.
Q. You guys turned around to answer him and then continued at
that point in time?
A. Yes.
Q. I believe you said you didn’t see anybody else outside at that
point in time?
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A. No.
Q. You proceed across the street, you said you walked in front
of your vehicle, between your vehicle and another vehicle?
A. Yes.
…
Q. Was there any reason why you chose to drive your vehicle
instead of April driving hers?
A. No.
Q. You did not open April’s door first?
A. No.
Q. You went around and started to open yours?
A. I didn’t even get to open mine, no.
Q. Did you get to your side of the car?
A. I did, but I didn’t get to open my door.
Q. Because you heard a noise?
A. Yes.
Q. Which I believe you characterized as a shot?
A. Yes.
Q. Prior to hearing the shot[,] you were not looking down the
street, correct?
A. No. I looked at them whenever I walked out of the bar, but I
was looking straight ahead and then I turned and looked.
Q. When you heard this first shot you started to run at that
point?
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A. No. I turned and looked because I thought it was fireworks,
that’s what it sounded like. Then I seen sparks come out from
two other[s] and I knew right then and there and I seen the guy
grab his chest and he hit the ground. The shooter looked, just
looked over at me because I screamed[,] and started backing up
in the parking lot.
Q. The person you described as the shooter started backing up,
walking backwards?
A. Yes.
Q. At that point you then run across the street, you and April
run across the street and go to Pickle’s to go inside?
A. Yes.
Q. As you and April are running back to Pickle’s[,] did you see
anyone else in your pathway?
A. No.
Q. You did not see Mark Jones at that point?
A. No.
Q. I believe it was your testimony that you did not see Mark
Jones outside at all?
A. No.
Q. Prior to entering into Pickle’s bar after you notice this person
backing through the parking lot, did you stay outside long
enough to see that person actually go all the way through the
parking lot?
A. After so far back[,] he was like out of sight as we ran into the
bar just to protect ourselves as well.
Q. I guess what I’m asking you is, you saw the person backing
up into the parking lot to a point in time where you could not see
anybody?
A. Right.
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Q. One because it was dark or because you were running into
Pickle’s bar and not looking anymore?
A. No. Once I seen, like heard the shots and then I looked and
seen like he was making contact with me as he was backing up,
I ran into the bar and then that was it.
Q. So, really other than these couple of steps back up you don’t
know where this person you described as the shooter went after
that?
A. No.
Q. So he may have continued all the way back into the alley run
left down Ewing, may have run right down Ewing, is that
correct?
A. Right.
Q. The person that you said was the shooter, after you ran back
into Pickle’s[,] did you ever see this person again that evening?
A. No.
N.T., 9/2-13/13, at 189-93. On re-direct examination, the prosecutor
questioned Cunningham about her observations upon leaving the bar:
Q. [The Commonwealth]: In Commonwealth’s [Exhibit] 4[, a
videotape,] you and April are about to go out [of] the door. …
[A]s you go out you are first and it appears you’re looking back
into the bar?
A. [Cunningham]: Yes.
Q. Then you turn to your right to go across the street?
A. Yes.
Q. Did you at any time look to the left to see who was to the left
of the door at Pickle’s?
A. No.
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Q. As you went across the street[,] did you turn around to see
what April was doing behind you?
A. No.
Q. You don’t know if April came in contact with anybody who
might have been on the left side of the door?
A. No.
Id. at 192-93.
At the close of redirect examination, and upon no further questions by
defense counsel, the trial court questioned Cunningham as follows:
Q. [THE COURT]: … I just want to clarify. You said you saw the
sparks fly out?
A. [Cunningham]: Yes.
Q. Did you see the gun?
A. I did not see the gun personally, but the way he was holding
on his side[,] I could tell—
Q. You could see his arm?
A. Yes.
Q. And you saw sparks fly from there?
A. Yes.
Q. And that’s the second two?
A. Right.
Q. Not the first one?
A. Yes.
Id. at 193-94.
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The Commonwealth next called Sergeant Aiello as a witness. The
Commonwealth questioned Sergeant Aiello about his interview of
Cunningham at the crime scene:
Q. [The Commonwealth]: Did you [] have the opportunity to
interview witnesses?
A. [Sergeant Aiello]: Ms. Cunningham.
Q. Did you take a written statement or just kind of your own
interview at first?
A. Just my own interview.
Q. Was that reduced to a report?
A. Yes sir.
Q. With regard to her statement to you[,] how did she describe
the shooter?
[Defense counsel]: Objection, Your Honor. Ms. Cunningham
has testified. She could have given that information on direct
testimony[,] as it pertains to it and now it would be hearsay.
[The Commonwealth]: We submit that inasmuch as she has
testified to prior consistent statements, she has been subject
[to] cross-examination.
[Defense counsel]: Your Honor, she has not seen this officer’s
report. She has not initialed it and indicated that it is in fact
what she told the officer, so it would not be admissible at this
point in time.
THE COURT: The Officer can give [Cunningham’s] testimony as
part of his report to the extent it’s consistent or inconsistent.
I’m going to overrule the objection.
Q. [The Commonwealth]: How did she describe the shooter?
A. [Sergeant Aiello]: She states that he was wearing a black
shirt and flat billed cap.
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Q. Did she give any description of the event in terms of the
weapon being pointed by that shooter?
A. Yes. She said that there was a handgun and she saw sparks
coming out of it.
Q. Did she say what she did after she heard these shots?
A. She stated that she heard three shots and she screamed
when it happened.
Q. Did she say what she then did?
A. Yes. She said that the individual looked at her, the other
male fell down close to the sidewalk and street and then she ran
inside the bar, to get inside the bar.
Id. at 195-97.
Sergeant Aiello’s testimony regarding his interview with Cunningham
was cumulative, and any prejudice resulting from the admission of this
evidence was, at best, de minimus. See Kuder, 62 A.3d at 1053. Under
these circumstances, even if the trial court had erred in admitting Sergeant
Aiello’s testimony regarding Cunningham’s statements, Williams is not
entitled to relief. See id.
In his third issue, Williams claims that the trial court improperly
admitted hearsay testimony by Lieutenant Stanek regarding statements
made by Williams’s mother, Clark. Brief for Appellant at 17. According to
Williams, Lieutenant Stanek testified that he had questioned Clark regarding
a vehicle that was registered to her being found at the scene of
the homicide, regarding who had use of that vehicle, regarding
the fact that a warrant for the arrest of [Williams] for that
homicide had been issued, and implying that she had
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communicated this information to [Williams,] resulting in a delay
in his arrest for 27 days from the date of the incident.
Id. Williams asserts that the trial court improperly admitted this testimony,
when Clark was available to testify and was present in the courtroom during
Lieutenant Stanek’s testimony. Id. at 18. Williams further asserts that the
trial court improperly admitted the redirect testimony of Lieutenant Stanek,
which exceeded the scope of cross-examination. Id. at 17.
In its Opinion, the trial court addressed Williams’ claim and concluded
that it lacks merit. See Trial Court Opinion, 7/3/14, at 18-23. We agree
with the sound reasoning of the trial court, as stated in its Opinion, and
affirm on this basis as to Williams’s third issue. See id.
In his fourth issue, Williams claims that the trial court improperly
permitted Lieutenant Stanek “to present testimony which was speculative in
nature regarding the truthfulness and accuracy” of testimony provided by
Cunningham and April. Brief for Appellant at 19. Williams claims that the
trial court improperly permitted Lieutenant Stanek to testify as to whether
he would be surprised “that various things could not be seen in the
surveillance videos.” Id. In support, Williams offers the following
argument:
[T]he admission of such testimony was in error, and was
extremely prejudicial to [Williams]. This speculative testimony
by [Lieutenant] Stanek related to the actions taken or which
may have been taken by the Commonwealth’s “eye witnesses[,]”
[] Cunningham and [April,] and as such was an attempt to
bolster the truthfulness and accuracy of their testimony given
prior to [Lieutenant] Stanek’s testimony.
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Id.
The trial court addressed this claim in its Opinion and concluded that it
lacks merit. See Trial Court Opinion, 7/3/14, at 23-25. Upon our review of
the record, we agree with the sound reasoning of the trial court, as set forth
in its Opinion, and affirm on this basis. See id.
In his fifth issue, Williams claims that the trial court improperly
admitted the testimony of Lieutenant Stanek regarding gunshot residue
evidence, “when said witness was not qualified as an expert in the field of
gunshot residue evidence[.]” Brief for Appellant at 20. Williams challenges
the admission of Lieutenant Stanek’s explanation for not submitting swabs of
the victim’s hands, taken during the autopsy, to the Pennsylvania State
Police Crime Lab for gunshot residue testing. Id. According to Williams,
Lieutenant Stanek’s testimony was “in the nature of an expert’s opinion[,] as
it implies that even if the swabs were sent to the Lab for gunshot residue
testimony, the experts at the Lab would have found the swabs to contain
nothing of evidentiary value.” Id. at 21. Williams argues that such
evidence by a lay witness is based on conjecture and speculation, and,
therefore, is inadmissible. Id.
In its Opinion, the trial court concisely addressed this claim and
concluded that it lacks merit. See Trial Court Opinion, 7/3/14, at 25-26.
We agree with the sound reasoning of the trial court, as set forth in its
Opinion, and affirm on this basis. See id.
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In his sixth and seventh issues, Williams claims that the trial court
improperly admitted, as rebuttal, statements made by Wilson, where the
Commonwealth had failed to provide the defense with Wilson’s statements
during discovery. Brief for Appellant at 25. Williams states that on the
morning of the third day of trial, the Commonwealth advised defense
counsel of its intention to call Wilson as a witness. Id. at 26. Williams
claims that his counsel did not have sufficient opportunity
to prepare for a proper cross[-]examination of the witness,
particularly when it became known to the defense that the
witness, [] Wilson, was claiming that another individual, Angela
Butler [a.k.a.] Angela Odum, was in the car with her and
[Williams] on the night of the incident[,] after the incident
occurred[,] and corroborate her testimony.
Id. at 26-27. The trial court ultimately granted a defense Motion to preclude
Wilson’s testimony, permitting her testimony only on rebuttal. Id. at 27.
Notwithstanding, Williams claims that the Commonwealth violated
Pa.R.Crim.P. 573, and that its violation had “a chilling effect on [Williams’s]
decision whether or not to testify at his trial, and resulted in a violation of
his constitutional right to due process and a fair trial.” Id.
A trial court possesses discretion in fashioning an appropriate remedy
for a violation of the rules of discovery. Commonwealth v. Smith, 955
A.2d 391, 394 (Pa. Super. 2008). A trial court’s ruling in this regard will not
be reversed absent an abuse of discretion. Id.
In its Opinion, the trial court provided a comprehensive summary of
the circumstances underlying the Commonwealth’s failure to provide
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information regarding Wilson, its interpretation and application of Rule
573(B)(1)(b), and its reasons for granting Williams’s Motion, but permitting
the Commonwealth to present Wilson as a rebuttal witness. See Trial Court
Opinion, 7/3/14, at 26-34. Upon our review, we find no abuse of discretion
by the trial court, and affirm on the basis of its Opinion with regard to this
claim. See id.
In his eighth issue, Williams argues that the evidence is insufficient to
sustain his convictions. Brief for Appellant at 28. Williams argues that the
evidence proved only that he was present at the same bar as the victim; he
and the victim left the bar at about the same time; and Williams was in the
general vicinity at the time of the shooting. Id. Williams directs our
attention to evidence that he was not found in the vicinity after the shooting,
and that only his mother’s vehicle was found at the scene. Id. Williams
further points out that the Commonwealth presented no scientific evidence
connecting him to the firearm allegedly used in the shooting. Id. at 30.
Finally, Williams points out discrepancies in the testimony presented by
three Commonwealth witnesses. Id.
In reviewing a challenge to the sufficiency of the evidence, we
evaluate the record “in the light most favorable to the verdict winner giving
the prosecution the benefit of all reasonable inferences to be drawn from the
evidence.” Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super.
2009) (citation omitted).
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Evidence will be deemed sufficient to support the verdict when it
established each element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty, and may sustain its burden by means of
wholly circumstantial evidence. Significantly, [we] may not
substitute [our] judgment for that of the factfinder; if the record
contains support for the convictions they may not be disturbed.
Id. (citation and quotation marks omitted). We further are cognizant that a
defendant’s presence at the scene of the crime is not sufficient to establish
his complicity in that crime. Commonwealth v. Toritto, 67 A.3d 29, 32
(Pa. Super. 2014).
The trial court addressed Williams’s challenge to the sufficiency of the
evidence in its Opinion, and concluded it lacks merit. See Trial Court
Opinion, 7/3/14, at 36-38. We agree with the sound reasoning of the trial
court, and affirm the trial court’s rejection of this claim on the basis of the
reasoning stated in its Opinion. See id.
Finally, Williams challenges the verdict as against the weight of the
evidence. Brief for Appellant at 33. Williams claims that the
Commonwealth’s evidence established only that he and the victim “were
both in the same bar during the same night, that they both left the bar at
about the same time, and [were] in the same general vicinity when the
victim sustained several gunshot wounds to his face and chest[,] which
resulted in the victim’s death on said date.” Id. at 34. Williams argues that
the Commonwealth presented no evidence showing Williams as possessing a
firearm concealed or visibly possessed on his person. Id. Williams points to
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discrepancies regarding what transpired prior to the shooting, and that the
evidence permits more than one logical conclusion. Id. at 35.
In its Opinion, the trial court addressed Williams’s claim and concluded
that it lacks merit. See Trial Court Opinion, 7/3/14, at 34-36. We agree
with the trial court’s sound reasoning, and discern no abuse of discretion in
its rejection of Williams’s claim. See id. Accordingly, we affirm on the basis
of the reasoning set forth in the trial court’s Opinion with regard to this
claim. See id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2015
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( ( Circulated 02/10/2015 11:36 AM
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:.0 909 A.2d 853, 858 (Pa. Super. 2006);(intemal citations omitted).
33 Commonwealth v. Peterson, 19 A.3d 1131, 1134-1135 (Pa.Super. 2011).
34 Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before
the court, after hearing and due consideration. An abuse of discretion 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, as shown by the evidence or the record,
discretion is abused. Commonwealth v. Peterson, 19 A.3d 1131, 1134-1135 (Pa.Super. 20 II).
11
Circulated 02/10/2015 11:36 AM
In making its determination, the Trial Court first took under consideration the principles
supporting Rule 600:
This Court is not permitted to ignore the dual purpose behind Rule 600. Rule 600
serves two equally important functions: (1) the protection of the accused's speedy
trial rights, and (2) the protection of society .... So long as there has been no
misconduct on the part ofthe Commonwealth in an effort to evade the
fundamental speedy trial rights of an accused, Rule 600 must be construed in a
manner consistent with society's right to punish and deter crime. 35
In order to balance these rights, the crux of the inquiry must be:
Whether the Commonwealth exercised due diligence, and whether the
circumstances occasioning the delay of trial were beyond the Commonwealth's
control. ... Due diligence is fact-specific, to be determined case-by-case; it does
not require perfect vigilance and punctilious care, but merely a showing the
Commonwealth has put forth a reasonable effort.36 37
Reasonable effort, "includes such actions as the Commonwealth listing the case for trial
prior to the run date to ensure that the defendant was brought to trial within the time prescribed
by Rule 600."38
The Trial Court found that due diligence was exercised by the Commonwealth from May
24,2012, when the arrest warrant was filed, until the apprehension of the Defendant on June 20,
2012. In a Comment to Pa.R.Crim.P. 600, it is expressly stated:
For purposes of paragraph [Pa.R.Crim.P. 600] (C)(l) ... the following periods of
time, that were previously enumerated in the text of former Rule 600(C), are
examples of periods of delay caused by the defendant. This time must be excluded
from the computations in paragraphs (C)(1)[ ... ]
(1) the period of time between the filing of the written complaint and the defendant's
arrest, provided that the defendant could not be apprehended because his or her
whereabouts were unknown and could not be determined by due diligence. 39
35 Commonwealth v. Peterson, 19 A.3d 1131, 1135 (Pa.Super. 20 II).
36 Commonwealth v. Selenski, 994 A.2d 1083, 1088-1089 (Pa. 20 I 0); citing Commonwealth v. Hill, 736 A.2d 578,
588 (Pa. 1999).
37 Pa.R.Crim.P. 600 was amended in 2012. In the explanatory Comments to Rule 600, the quotation listed in
footnote 36 from Commonwealth v. Selenski. 994 A.2d 1083 (Pa. 2010) is cited. Additionally, the quotation was
recently cited in Commonwealth v. Davis, 86 A.3d 883, 891 (Pa.Super. 2014).
38 Commonwealth v. Hunt, 858 A.2d 1234, 1242 (Pa. Super. 2004).
39 Pa.R.Crim.P 600-Comment.
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At the Rule 600 hearing, Lt. Stanek testified that he immediately attempted to locate the
Defendant by various means including: current cell phone number; current and recent addresses
attributed to him; facsimile and emailed copies of the arrest warrant to the Chartiers police
department, where the Defendant was thought to be located; communication with the
Defendant's mother; contact with Allegheny County Adult Probation, where the Defendant had
open cases. Lt. Stanek further stated that the Defendant's information was placed in the NCIC
network, and his information was released to major media outlets, including local television
stations and the local newspaper, the Washington Observer Reporter.
The Defendant was apprehended by the McKeesport Police Department on June 20,
2012. The arrest warrant was executed by McKeesport Police at an address not in the possession
of Lt. Stanek. At the Rule 600 hearing, Lt. Stanek testified that a Fugitive Notice from the
Magisterial District Justice was not sought for the Defendant. He explained that a Fugitive
Notice is not typically exercised until all other means are exhausted, which is determined on a
case-by-case basis. At that juncture in the investigation, Lt. Stanek was under the belief the
Defendant would be located and apprehended. 40
The Trial Court found that the prosecution took all steps available to apprehend the
Defendant and demonstrated due diligence during that time.
A Case Management Order was filed on September 24,2012, at the request of the
Commonwealth and at the consent of the Defense, delineating that discovery was to be
completed by October 15,2012, pretrial motions filed by November 15,2012, a pretrial
conference scheduled for January 9, 2013, and trial set for February 2013.
The Defendant filed an Omnibus Pretrial Motion on November 15,2012, and a hearing
was held on the matter on January 9, 2013. The Trial Court filed its decision on the motions on
40 RSHT 7-22.
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(
February 13,2013. The Defense asserts that the time from the filing of Defendant's Omnibus
Pretrial Motions and the Court's decision does not make the Defendant unavailable and that time
should not be attributed to the Defendant because trial was set for February in the Case
Management Order, whether Pretrial Motions were filed or not.
The Court finds that time was indeed excludable. The Court acknowledges:
The mere filing of a pretrial motion by a defendant does not automatically render
him unavailable. Rather, a defendant is only unavailable for trial if a delay in the
commencement of trial is caused by the filing of the pretrial motion ... .If a delay
is created, in order to establish that the delay is excludable, the Commonwealth
must demonstrate by a preponderance of the evidence, that it exercised due
diligence in opposing or responding to the pretrial motion. 41
Moreover, at the outset of the case, the Case Management Order was agreed to by all
parties. Defense counsel willingly consented and raised no objection to the issuance of the Case
Management Order. Additionally, the Case Management Order in fact benefited the Defendant.
Pa.R.Crim.P. 579 reads in pertinent part, "except as otherwise provided in these rules, the
omnibus pretrial motion for relief shall be filed and served within 30 days after arraignment.,,42
The Defendant was formally arraigned on July 25,2012. Clearly, Defendant's Omnibus Pretrial
Motions were not filed within the time designated by the Rule. The Case Management Order
permitted the Defendant to file his motions and make those claims. Moreover, even if the
Defendant wished to bring the matter to Court in January or an earlier month, the pending ruling
on the Pretrial Motion prevented such action, even though such a request was never made by the
Defendant.
Finally, the Court avers that no other judges of the Washington County Court of
Common Pleas were available to try this matter during that time period. The Defense argued in
41 Commonwealth v. Lynn, 815 A.2d 1053, 1059 (Pa.Super. 2003); quoting Commonwealth v. Hill, 558 Pa. 238, 736
A.2d 578, 587 (1999).
42 Pa.R.Crim.P. 579(A).
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the Rule 600 hearing that the Commonwealth has a duty to seek out another Court to hear the
case if the assigned Court is unavailable. This claim is frivolous.
In Commonwealth v. Anderson, 959 A.2d 1248 (Pa.Super. 2008), a case the Defendant
cited, the Superior Court noted, "the extent to which the Commonwealth must look for other
available courtrooms is not clear. "43 In another case cited by the Defense, Commonwealth v.
Hawk, 597 A.2d 1141 (Pa.Super. 2008), the Superior Court detem1ined that the Commonwealth
did not exercise due diligence when they did not seek another judge. However, that case was
decided under different circumstances, where the assigned trial judge was ill for 5 weeks and
then on vacation for an additional 4 weeks.
The Superior Court set forth in Commonwealth v. Riley, 19 A.3d 1146 (Pa.Super. 2011):
Because the Commonwealth cannot control the calendar of a trial court, delay
occasioned by the court's unavailability is usually excusable. However, the
Commonwealth may, under some circumstances (e.g. a prolonged judicial
absence), have a duty to seek other courtrooms to try the case. The extent of this
duty depends on the specifics of each case. The guiding principle is, again, that
the Commonwealth must exercise due diligence by putting forth a reasonable
effort in light of the particular case facts.44
During the entire 2013 calendar year, the Washington County Court of Common Pleas
bench was one-third absent, due to the retirement of Judge Janet Moschetta-Bell and Judge Paul
Pozonsky. Accordingly, an excessive number of criminal cases were assigned to Judge Katherine
Emery and to the undersigned. There was no available judge to substitute for a homicide trial.
Such delays encountered during the pendency of the case was clearly beyond the
Commonwealth's control, and the Commonwealth exercised due diligence and reasonable efforts
in bringing this matter to trial, as evidenced by setting the trial for the February trial term, which
was well before the original run date of May 24, 2012.
43Commonwealth v. Anderson, 959 A.2d 1248, 1250 (Pa.Super. 2008).
44Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa.Super. 2011); citing: Commonwealth v. Trippett, 932 A.2d 188,
198 (Pa.Super.2007); citing: Commonwealth v. Anderson, 959 A.2d 1248, 1250 (Pa.Super.2008); (citations omitted).
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The Trial Court properly inquired as to the Commonwealth's diligence in bringing this
matter to trial. The Court places significant emphasis on the importance in the safety and
protection of the general public in a matter as serious as a homicide, and its interest in punishing
and deterring crime. The record demonstrates that the Commonwealth exercised due diligence to
bring the Defendant to trial within the time prescribed by Rule 600. Accordingly, the Trial
Court's decision to deny Defendant's Motion to Dismiss under Pa.R.Crim.P. 600 was proper.
The Defendant next claims the trial court erred when it allowed a Commonwealth
witness, Detective Ronald Aiello, to present testimony of a prior consistent statement provided to
him by another Commonwealth witness, Kayla Cunningham, after that witness had concluded
her testimony.
On direct examination, Kayla Cunningham was shown a surveillance video from Pickles
bar. During the course of the video, Kayla Cunningham identified the shooter, the Defendant. On
cross-examination, Kayla Cunningham was questioned extensively about the person she
identified as the shooter and what she witnessed prior to, during and following the shooting. 45
Sergeant Ronald Aiello was subsequently called to testify.
Sgt. Aiello testified that he spoke to Kayla Cunningham at the scene of the crime. During
that interview, amongst other things, Ms. Cunningham described the shooter. At one point during
direct examination, Sgt. Aiello was asked to read from his report the statement Kayla
Cunningham gave describing the shooter, to which Defense counsel objected. Defense counsel
asserted that any testimony by Sgt. Aiello regarding statements made by Ms., Cunningham
constituted hearsay and should have been developed during her testimony.46
Mr. Lucas: With regard to [Ms. Cunningham's] statement to you how did she
describe the shooter?
45 TT 179.
46 TT 195-196.
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Mr. Alterio: Objection, Your Honor. Ms. Cunningham has testified. She could
have given that information on direct testimony as it pertains to it would be
hearsay.
Mr. Lucas: We submit that insomuch as she has testified to prior consistent
statements she has been subject to cross examination.
Mr. Alterio: Your Honor, she has not seen the officer's report. She has not
initialed it and indicated that is in fact what she told the officer, so it would not be
admissible at this point in time. 47
The standard of review when ruling on the admissibility of evidence is well settled:
Admission of evidence is a matter within the sound discretion of the trial court,
and will not be reversed absent a showing that the trial court clearly abused its
discretion. Not merely an error in judgment, an abuse of discretion occurs when
the law is overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by
the evidence on record. 48
The Court submits that the statement was admissible as a prior consistent statement to
rehabilitate Ms. Cunningham's testimony identifying the shooter.
(c) Witness's Prior Consistent Statement to Rehabilitate. Evidence of a witness's
prior consistent statement is admissible to rehabilitate the witness's credibility if
the opposing party is given an opportunity to cross-examine the witness about the
statement and the statement is offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty memory and the
statement was made before that which has been charged existed or arose;49
In Commonwealth v. Swinson, 626 A.2d 627 (Pa.Super. 1993), the Superior Court
determined that a Detective was permitted to read from his report statements made to him by a
victim/witness during an interview regarding the incident in question. The Superior Court opined
that the witness was subject to extensive cross-examination and that the statement was merely a
47 TT 195-196.
48 Commonwealth v. Handjield, 34 A.3d 187,207-08 (Pa. Super. 2011).
49 Pa. R. Evid. 613.
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prior consistent statement offered to rehabilitate the witness, whose credibility was attacked by
way of faulty memory. 50
The Trial Court finds the Swinson reasoning analogous and persuasive to the matter at
bar. A review of the transcripts revealed that Ms. Cunningham was subject to extensive cross-
examination of her recollection of the events on May 24,2012, with the design of casting doubt
on her memory and general credibility. Therefore, it is not error for the Trial Court to permit Sgt.
Aiello's testimony to rehabilitate and rebut any claim of inconsistency with respect to Ms.
Cunningham'S testimony.
Defendant next asserts that a new trial should be granted because the Trial Court erred
when it allowed a Commonwealth witness, Lieutenant Daniel Stanek, to present hearsay
testimony regarding information provided to him by Defendant's mother, Valerie Clark, when
that witness did not testify and when such testimony by Lt. Stanek was beyond the scope of cross
examination.
During the course of cross examination, Lieutenant Stanek testified:
Mr. Alterio: You mentioned a black Lincoln?
Lt. Stanek: Yes.
Mr. Alterio: And it being impounded?
Lt. Stanek: Yes.
Mr. Alterio: I don't know if you actually impounded it, but-
Lt. Stanek: It was my decision, yes.
Mr. Alterio: And it was taken, r believe, as seen in the photographs?
Lt. Stanek: No. It goes to Eisenminger's.
50 Commonwealth v. Swinson, 626 A.2d 627, 632-633 (Pa.Super. 1993).
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\
Mr. Alterio: I'm sorry. The photographs of the vehicle show the entire vehicle,
front, passenger side, rear, driver's door?
Lt. Stanek: Yes.
Mr. Alterio: And you also look at the vehicle before it was photographed, correct?
Lt. Stanek: I had observed it at the scene. Once we had it impounded we couldn't
get it - we had other things we were doing - we couldn't get the warrant till later
on. So when we went back down we photographed it again before we go into it.
So that's what you see going around, Detective Aiello is hitting all corners.
Mr. Alterio: It would not have been driven from the scene, it would have been
towed?
Lt. Stanek: Yes. It was put on a flatbed.
Mr. Alterio: Before it was put on the flatbed did you actually observe it?
Lt. Stanek: You mean when it was on Ewing Street? Absolutely. Yes.
Mr. Alterio: Once it got back to the garage where it was impounded you viewed
it?
Lt. Stanek: Yes.
Mr. Alterio: To your knowledge had it changed in any manner?
Lt. Stanek: No.
Mr. Alterio: Was one or more than one of the tires on the vehicle flat?
Lt. Stanek: No, they were not.
Mr. Alterio: None of them?
Lt. Stanek: No. 51
On redirect examination, the Commonwealth asked Lt. Stanek:
Mr. Lucas: Mr. Alterio asked you about that Lincoln vehicle and I believe during
brief direct that you had answered questions about the person you talked to about
that vehicle?
Lt. Stanek: Yes, Valerie Clark.
51 TT 247-248.
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Mr. Lucas: What was her relationship to Mr. Williams?
Lt. Stanek: It's his mother. She's sitting right over there in the courtroom.
Mr. Lucas: When did you have that discussion with her?
Mr. Alterio: Objection, Your Honor. Beyond the scope of cross.
The Court: Overruled.
Lt. Stanek: I'd have to refer to a report. I actually tried to call her several times and
she tried calling me. I think it was a couple of days after that we were actually able
th
to communicate. It could have been the 25 . I'm not sure. I actually have a
supplemental regarding that information.
Mr. Lucas: 27 days later?
Lt. Stanek: No. Absolutely not.
Mr. Lucas: 27 days after this, what happened on that day?
Mr. Alterio: Objection, Your Honor. Beyond the scope of cross.
The Court: Overruled.
Lt. Stanek: That's when Mr. Williams was located in McKeesport and taken into
custody for the homicide upon a warrant.
Mr. Lucas: The location in McKeesport, did it match any of the addresses on the
documents that were inside that Lincoln?
Lt. Stanek: No. 52
First, the Court finds that no hearsay was entered into evidence during redirect
examination of Lt. Stanek.
(c) Hearsay. "Hearsay" means a statement that:
(1) the declarant does not make while testifying at the current trial or
hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in
the statement. 53
52 TT 251-252.
53 Pa.R.E. 801.
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As clearly illustrated above, during redirect examination, Lt. Stanek testified as to whom
he had spoken, Valerie Clark, and when he had spoken to her. There was no out of court
statement made by Ms. Clark or Lt. Stanek offered into evidence. 54
Moreover, as the record reflects, Defense counsel made no objection regarding any
alleged hearsay. It has long been held, "failure to raise a contemporaneous objection to the
evidence at trial waives that claim on appeal."55
Pennsylvania Rule of Appellate Procedure 302(a) states:
General rule. Issues not raised in the lower court are waived and cannot be raised
for the first time on appea1. 56
The Court further finds that the prosecution's redirect examination was proper. "The
scope of redirect examination is largely within the discretion of the trial court."57 Generally, "re-
direct examination is limited to answering only such matters as were drawn out in the
immediately preceding examination. "58
The Court submits that the Commonwealth's questions did not go beyond the scope of
cross examination when the prosecution raised questions related to the black Lincoln vehicle
found at the scene. Defense counsel questioned Lt. Stanek as to the condition and whereabouts of
the Lincoln, as well as the extent of the investigation of the vehicle. The Trial Court found this
line of questioning prompted the Commonwealth to clarify for the jury the purpose of the
investigation.
54 (a) Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person
intended it as an assertion. Pa. R. E. 80 l.
55 Commonwealth v. Thoena Tha, 64 AJd 704, 713 (Pa.Super. 2013); citing: Commonwealth v. Pearson, 685 A.2d
551, 555 (Pa.Super. 1996).
56 Pa.R.A.P. 302(a).
57 Commonwealth v. Fransen, 42 A.3d 1100, 1117 (Pa.Super. 2012) appeal denied, 76 A.3d 538 (Pa. 2013);
quoting: Commonwealth v. Dreibelbis, 426 A.2d 1111, 1117 (1981); quoting: Commonwealth v. Hoover, 16 A.3d
1148,1150 (Pa.Super. 2011). (citations omitted).
58 Commonwealth v. Carpenter, 617 A.2d 1263, 1266 (1992).
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It has also been recognized "that a trial judge has wide discretion to vary the normal order
of proof and may permit a party to bring out on re-direct examination relevant evidence which
inadvertently the party failed to bring out on direct examination."59
During direct examination the prosecution inquired:
Mr. Lucas: Lt., if you could, tell the jury who that vehicle was registered to.
Mr. Stanek: Valerie Clark.
Mr. Lucas: Did you make any efforts to contact Ms. Clark.
Lt. Stanek: Yes.
Mr. Lucas: Were you successful?
Lt. Stanek: Yes.
Mr. Lucas: In the course of that conversation with Ms. Clark did you tell her-
I'm not asking for anything she said - but did you tell her why you were
interested in the vehicle and in Mr. Williams?
Lt. Stanek: Yes.
Mr. Lucas: Did you inform her of any pending court action against Mr. Williams?
Lt. Stanek: Yes.
Mr. Lucas: What did you tell her?
Lt. Stanek: I explained we had a homicide warrant for him.
Mr. Lucas: Lt., did you also obtain a search warrant to search that vehicle?
Lt. Stanek: Yes. 60
The Commonwealth's questions on redirect examination were relevant to the above line
of questioning on direct examination to complete the record. Accordingly, the Commonwealth's
questions fall within the recognized rules regarding the scope of redirect examination. The Trial
59 Hon. Mark 1. Bernstein, Pennsylvania Rules of Evidence with Comments and Annotations 459 Gann Law Books
2007edition;citing: Commonwealth v Brown, 342 A.2d 84, 91 CPa. 1975).
60 TT 226.
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Court did not abuse its discretion when it permitted Lt. Stanek to testify to his knowledge of the
Lincoln on redirect examination when Defense Counsel questioned him at length as to such
knowledge on cross examination. The assignment of error by the Defendant does not merit the
relief requested.
The Defendant also moves for a new trial on the basis that the trial court erred in
allowing a Commonwealth witness, Lt. Daniel Stanek, to present testimony which he argues was
speculative in nature regarding the truthfulness and accuracy of the testimony of the
Commonwealth's witnesses, Kayla Cunningham and April Lash.
This claim has no merit. During cross examination Defense counsel asked a series of
questions regarding the view of a security camera mounted on a telephone pole outside of the
bar. Defense counsel queried as to why Ms. Lash and Ms. CUlli1ingham were seen crossing the
parking lot, but were not in view of the video surveillance when returning to the bar following
the shooting, as consistent with their testimony. In response the prosecution inquired on redirect
examination:
Mr. Lucas: Lt., with regard to that pole camera the view primarily is just straight
across at Pickle's?
Lt. Stanek: Yes.
Mr. Lucas: The direction of travel of Kayla and April when they went to their
vehicles across the street was in a diagonal fashion going to the parking lot?
Lt. Stanek: Yes.
·Mr. Lucas: And the parking lot obviously is where the shooting occurred?
Lt. Stanek: Yes.
Mr. Lucas: Does it surprise you that you did not see them go back across-
Mr. Alterio: Objection. Speculation on the part of the witness.
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The Court: If you know. Overruled. [ ... ]
Lt. Stanek: No. They are running back in away from the shooting that they just
observed. There is no doubt that they ran back into the bar. You saw the footage.
They are definitely coming back into the bar. They didn't go anywhere else. 61
"A witness may testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. Evidence to prove personal
knowledge may consist of the witness's own testimony.,,62 Lt. Stanek testified to his knowledge
of the circumstances based on his review of evidence, including eye witness testimony and the
surveillance camera images, both of the inside of the bar and the parking lot.
As noted above, "the admission of evidence is solely within the province of the trial
court, and a decision thereto will not be disturbed absent a showing of an abuse of discretion."63
The Trial Court merely exercised its discretion in accordance with the law and properly
overruled the objection by the Defense. The Defendant is entitled to cross examination to
challenge the witness' knowledge in regard to his testimony. The jury is free to evaluate the
testimony and accept or reject the testimony. Lt. Stanek's testimony was supported by a litany of
evidence for the observed facts, leading him to testify that the facts were consistent with the
particular scenario. Lt. Stanek's testimony that Ms. Lash and Ms. Cunningham returned to the
bar following the shooting, although outside of the view of the pole camera, was consistent with
all eye witness testimony, including Ms. Lash, Ms. Cunningham, Mr. Jones and Ms. Barrows, as
well as the cameras inside of the bar viewing the two women returning to the bar.
The Trial Court finds that the testimony was properly admitted, and to the extent the
officer's testimony may have been improperly admitted, its admission was harmless error.
61 TT 250.
62 Pa. R. E. 602.
63Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013); citing: Commonwealth v. Mitchell, 902 A.2d 430,
452 (2006); Commonwealth v. Chamberlain, 612 Pa. 107,30 A.3d 381, 422 (2011); (citations omitted).
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The doctrine of harmless error is a technique of appellate review designed to advance
judicial economy by obviating the necessity for a retrial where the appellate court is convinced
that a trial error was harmless beyond a reasonable doubt. Its purpose is premised on the well-
settled proposition that a defendant is entitled to a fair trial, but not a perfect one. 64
The Court finds that any error in the admission ofLt. Stanek's statement regarding the
route from the parking lot back to the bar taken by Ms. Lash and Ms. Cunningham after the
shooting was harmless error because the statement was merely cumulative of eye witness
testimony and the surveillance video.
The Trial Court properly exercised its discretion and accordingly the Defendant is not
entitled to relief based on his claim that Lt. Stanek's statement was improperly admitted.
Defendant also asserts that he is entitled to a new trial because the Trial Court erred in
allowing the introduction of testimony by Lt. Daniel Stanek regarding gunshot residue evidence
when said witness was not qualified as an expert in the field of gunshot residue evidence.
The testimony complained of is as follows:
Mr. Lucas: Lt., in the course of this trial there's been testimony that the victim's
hands were bagged at the scene and that swabs were taken of the victim's hands at
autopsy?
Lt. Stanek: Correct.
[ ... ]
Mr. Lucas: Did you submit these swabs for further analysis at the Greensburg lab?
Lt. Stanek: No, I did not.
Mr. Lucas: Can you explain to the jury why you didn't?
Lt. Stanek: Yes. In these types of cases my experience is in past cases the lab will
not perform the test.
64Commonwealth v. Allshollse, 36 A.3d 163, 182 (Pa. 2012), cert. denied. 133 S. Ct. 2336, (U.S. 2013); citing:
Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa. 1981).
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Mr. Lucas: Have you had instances where they've been refused?
Lt. Stanek: Yes. We've actually submitted them and had them returned. We've
actually consulted and had them say: don't send it. 65
Defendant contends that Lt. Stanek offered expert testimony, when he was not qualified
to do so, when he testified that the reason he did not send gunshot residue to be tested was
because he believed the experts would not perform the test.
The Court finds the Defendant's assignment of error to be without merit. Lt. Stanek did
not testify that he discussed with experts whether he should or should not send the swabs for
examination and they informed him not to send it because he would not receive a result. He did
not offer testimony, expert or layperson, as to what the result of a gunshot residue test would or
would not reveal. He offered testimony only as to why he did not submit the swab for a gunshot
residue test. Further, the underlying premise for his decision not to send the gunshot residue was
based on his own prior experiences. As reflected above, Lt. Stanek testified that, based on his
prior experiences, the crime lab would not perform the test at trial.
Following Lt. Stanek's testimony, defense counsel had an opportunity to cross examine
the witness or to call an expert to rebut the Lt. Stanek's testimony regarding the propriety of lab
testing. However, that avenue was not explored. The Court submits that the testimony by Lt.
Stanek as to why the swabs were not submitted for testing is not expert testimony and the
testimony was properly admitted.
Defendant further claims that he is entitled to a new trial due to the Court's error in
denying the Defendant's Motion to Exclude for any purpose the statements of an eye witness,
Desiree Wilson, which statements were not provided to the Defendant in response to his request
for discovery materials until the date before the witness was scheduled to testify at trial.
65 TT312-318.
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Near the conclusion of the Commonwealth's case-in-chief, the prosecution disclosed that
police had interviewed an additional witness, Desiree Wilson. The prosecution came to learn
about Ms. Wilson through a confidential informant. The informant submitted a report and
statement to Lt. Stanek of his understanding of Ms. Wilson's knowledge of the incident.
However, in order to inquire as to any knowledge of Ms. Wilson regarding the homicide, it was
necessary for the prosecution to compromise the identity of the confidential informant. The
prosecution initially decided not to pursue this avenue, so Ms. Wilson was never interviewed.
During the course of trial, the Commonwealth made contact with Ms. Wilson about her
knowledge and the informant agreed to the Commonwealth's strategy and was willing to come
forward. Ms. Wilson was then interviewed on September 12,2013. The defense was also given
the opportunity to interview Ms. Wilson on September 12, 2013. During the course of those
interviews, Ms. Wilson revealed that on the night of the murder, the Defendant made a cell
phone call to her and asked her to pick him up near the crime scene. Also, the next day
Defendant called her and asked her to go pick up the gun used in the shooting, and disclosed to
her where to find the weapon. Ms. Wilson then reached out to the informant. The informant
directed her to not assist the Defendant in any of his requests.
Defense counsel argued that the Commonwealth and police had knowledge of this
information for an extended period of time and under Pa.R.Crim.Pro.573, the Commonwealth
was required to disclose this witness. Since the Commonwealth failed to timely disclose this in
discovery, any testimony should be deemed inadmissible. Defense counsel also noted that this
information would affect the strategy of the defense.
The Trial Court initially determined that the testimony was admissible and that the
Commonwealth was excused from the mandatory discovery disclosure due to the nature in which
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the information was uncovered from the informant. However, after further argument and
reconsideration of the matter, the Trial Court determined that the information was required to be
mandatorily disclosed as inculpatory evidence, and by not providing the evidence, it was unfair
surprise to the defense.
Pennsylvania Rule of Criminal Procedure 573 in relevant part states:
(B) Disclosure by the Commonwealth
(1) Mandatory:
In all court cases, on request by the defendant, and subject to any protective order
which the Commonwealth might obtain under this rule, the Commonwealth shall
disclose to the defendant's attorney all of the following requested items or
information, provided they are material to the instant case. The Commonwealth
shall, when applicable, permit the defendant's attorney to inspect and copy or
photograph such items.
[ ... ]
(b) any written confession or inculpatory statement, or the substance of any oral
confession or inculpatory statement, and the identity of the person to whom the
confession or inculpatory statement was made that is in the possession or control
of the attorney for the Commonwealth;
[ ... ]
(d) the circumstances and results of any identification of the defendant by voice,
photograph, or in-person identification; [... r
The anticipated testimony of Ms. Wilson would indeed fall into the subsections listed
above. Consequently, Desiree Wilson was not permitted to testify. No statements by Ms. Wilson
were admitted into evidence, in any manner, for any purpose. In granting the defense motion to
exclude this evidence, however, the Court indicated that Ms. Wilson could be called to testify as
a rebuttal witness if the "door was opened." Accordingly, the Trial Court indeed granted the
Defendant's Motion to Exclude statements and the Defendant's assignment of error is unsound. 67
The Defendant also argues that the Court erred and therefore denied the Defendant 'a fair
trial and Due Process by granting the Commonwealth the right to use in rebuttal, if it so chose to
so use, the statements of eye witness, Desiree Wilson, as set forth above, when those statements
66 23 4 Pa. Code § 573.
67 TT 279-312; 340-347.
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were not provided to the Defendant in response to his request for discovery materials and which
statements affected the Defendant's decision whether or not to testify at trial.
In the instant matter, as explained above, the reason the witness was not disclosed to the
attention to defense counsel was due to the sensitive nature of the source of the information.
During the course of trial, the Commonwealth deemed it necessary for Ms. Wilson to testify and
the informant agreed to the Commonwealth's strategy. At that point, defense counsel was
immediately notified and also was given the opportunity to interview Ms. Wilson that same
morning. Mr. Lucas indicated that Ms. Wilson's interview revealed that she possessed more
knowledge of the incident on May 24,2012, than what was initially disclosed by the confidential
informant.
As noted above, the Trial Court indicated that while it would not permit Ms. Wilson to
testify during the Commonwealth's case-in-chief, she would be permitted to testify on rebuttal if
the "door was opened." Defense counsel posits that the Defendant intended to testify that he was
not the person who committed the shooting, but if Ms. Wilson testified during the
Commonwealth's case-in-chief or rebuttal, then he would not testify and change his defense
completely by arguing self-defense. 68 As a result of the Court's ruling, the Commonwealth
rested.
The Defense called Anita Cunningham as their first witness. Ms. Cunningham testified
that while standing on her porch in the early morning hours of May 24,2012, she heard three
gunshots. She testified that while she did not see the shooting, following the shots she saw a man
with a hat on run down the street. In response, Ms. Cunningham called 9-1-1. She further
68 TT 286; 297-298.
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testified that the man she saw running appeared to be a "white man" because "he walked like a
white man"69
After recalling Officer Stanek to testify briefly, the Defense rested. Outside the jury's
purview, the Defendant was called and sworn. It was explained to the Defendant at length, by the
Court and Defense counsel, his right to testify on his own behalf. The Defendant responded that
he understood his right to testify and agreed with the strategy of defense counsel and opted not to
testify on his own behalf. 70 The Defendant chose to exercise his Constitutional right and elected
not to testify. There was then a discussion with the Trial Court and counsel whether the
theoretical "door" had been opened for Ms. Wilson to testify due to the testimony of Anita
Cunningham suggesting that another individual, a "white man", committed the murder.
However, the Commonwealth elected to not call Ms. Wilson after the defense explained that the
testimony presented was not intended to suggest that a "white man" committed the murder, but
that defense witness Anita Cunningham was calling into question the eye witness accounts of
April Lash, Kayla Cunningham and Mark Jones. 71 The Commonwealth accordingly withdrew
their request to offer Ms. Wilson as a rebuttal witness.72
If prospective evidence is not in compliance with Pa.R.Crim.P.573, the rule dictates:
(E) Remedy. If at any time during the course of the proceedings it is brought to
the attention of the court that a party has failed to comply with this rule, the court
may order such party to permit discovery or inspection, may grant a continuance,
or may prohibit such party from introducing evidence not disclosed, other than
testimony of the defendant, or it may enter such other order as it deems just under
the circumstances. 73
69 TT 320-334.
70 IT 342-344.
71 Note: Although during the prior discussion regarding Ms. Wilson's testimony, Defense counsel stated that Anita
Cunningham would be offered to suggest another individual was the perpetrator. TT 297-298.
72 TT 340; 347.
73 Pa.R.Crim.P. 573.
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The Trial Court submits that it properly fashioned a remedy in accordance with
Pa.R.Crim.P. 573(e) based on the unusual circumstances of the case and for the reasons stated
below.
Generally,
The admission of rebuttal testimony is within the sound discretion of the trial
court and the appropriate scope of rebuttal evidence is defined by the evidence
that it is intended to rebut. Where the evidence proposed goes to the impeachment
of the testimony of his opponent's witnesses, it is admissible as a matter of right.
Rebuttal is proper where facts discrediting the proponent's witnesses have been
offered. 74
While declining the admission of Ms. Wilson as a witness for the Commonwealth's case-
in-chief, the Trial Court determined that if any evidence presented by the defense, including
testimony by the Defendant suggesting he was not the shooter, the Court would allow Ms.
Wilson's testimony to be offered to impeach such testimony on rebuttal. However, the Court
acknowledges this does not end our inquiry.
Pa.R.Crim.P. 573 requires mandatory disclosure of inculpatory evidence possessed by the
Commonwealth to be disclosed when it is in their possession, but it has further been developed
that:
As a matter of due process, it is error to fail to provide evidence that will be used
to impeach the credibility of defense witnesses .... It is true that we cannot expect
the Commonwealth to anticipate the materiality of all possible rebuttal evidence
[and] we can imagine cases in which the materiality of certain evidence in the
Commonwealth's possession might not become apparent until after trial has
begun. On the other hand, Rule [573] makes no distinction between rebuttal
evidence and evidence the Commonwealth expects to use in its case-in-chief. In
cases where the prosecutor can reasonably predict possible defense strategies and
evidence, he must also be held to reasonable anticipation of what evidence in his
possession might be material in rebuttal. 75
74 Commonwealth v. Ballard, 80 A.3d 380,401-02 CPa. 2013); quoting: Commonwealth v. Fletcher. 750 A.2d 261,
278 CPa. 2000); citing: Commonwealth v. Hughes. 865 A.2d 761, 797 n. 40 CPa. 2004). Flowers v. Green. 420 Pa.
481,218 A.2d 219, 220 (Pa.1966).
75 Commonwealth v. Ulen, 650 A.2d 416, 418 (Pa. 1994); citing Commonwealth v. Jenkins, 383 A.2d 195 (Pa.
1978); citing: Commonwealth v. Jackson. 319 A.2d 161 (Pa. 1974); citing: Commonwealth v. Moose, 602 A.2d 1265
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When the Commonwealth improperly fails to disclose evidence, the pertinent question
then becomes, "whether [the Commonwealth] could reasonably have predicted possible defense
strategies. If it could, then the prosecutor will be held to reasonable anticipation of what evidence
in his possession might be material. "76
It was clear to the Trial Court, that although the Commonwealth was aware of the
potential witness, police and the Commonwealth did not know the extent of Ms. Wilson's
testimony until the Commonwealth's case developed during the course of trial. Had the
Commonwealth known of Ms. Wilson's knowledge of the crime prior to trial, police certainly
would have sought her out, interviewed her and provided that information to defense counsel.
While it is foreseeable that Ms. Wilson's testimony may have been relevant, the Commonwealth
did not have first-hand knowledge of her contact with Defendant after the crime. Furthermore,
the Commonwealth was not made aware of any potential defense to be offered by Defendant.
In Commonwealth v. Sullivan, 820 A.2d 795 (Pa.Super2003), the Superior Court found
that the trial court did not err when it denied defendant's motion for mistrial when the
Commonwealth offered testimony of a state trooper regarding his recollection of the defendant's
statements to police after an incident that the defense claimed was an undisclosed inculpatory
statement. The Court found there was no discovery violation when it reasoned:
Although the disputed statement by Trooper Beaken can certainly be
characterized as inculpatory, disclosure of such a statement under Rule
573(B)(1)(b) is limited by the express terms of the rule to any statement 'that is in
the possession or control of the attorney for the Commonwealth. ' The
Commonwealth was not in possession of the disputed statement, therefore the
prosecution had no obligation to provide it to the defense. Perhaps our Supreme
Court will someday interpret its rule to apply to inculpatory statements in the
(Pa. 1992); quoting: Commonwealth v. Thiel, 470 A.2d 145, 148 (Pa. Super. 1983); citing: Commonwealth v. Oliver,
379 A.2d 309 (Pa. Super. 1977); (citations omitted).
76 Commonwealth v. Hanford, 937 A.2d 1094, 1101 (Pa. Super. 2007); quoting: Commonwealth v. Ulen, 650 A.2d
416 (Pa. 1994); citing: Commonwealth v. Thiel, 470 A.2d 145, 148 (Pa. Super. 1983).
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possession of the police but not known to the prosecution, as is the case for
exculpatory statements by virtue of Kyles and Burke. 77
The factual background of Sullivan is analogous to the matter at bar. As set forth on the
record during trial, the police obtained Ms. Wilson's name from a confidential informant, but
Ms. Wilson was never contacted or interviewed. As soon as Ms. Wilson was interviewed by
police and it appeared that her testimony was relevant, material and inculpatory, Defense counsel
was notified and given the opportunity to do the same. The Trial Court submits that the Sullivan
reasoning is controlling and its principles should be consistently applied.
It should also be noted, "no Brady violation occurs where the parties had equal access to
the information or if the defendant knew or could have uncovered such evidence with reasonable
diligence.,,78 79 While the Court acknowledges that "Brady" violations reference mandatory
eXCUlpatory evidence, the Court submits that the matter at bar similarly entails mandatory
disclosure of evidence, although inculpatory in nature. In this instance, the Trial Court asserts
that the Defense had equal access to Ms. Wilson as a witness, who was Defendant's
acquaintance. Based on the offer of Ms. Wilson's testimony, the Defendant contacted her on two
separate accounts to assist him in locating a weapon as well as giving him a ride from the scene
on the night of the crime. Obviously, the Defendant could have uncovered such evidence without
77Commonwealth v. Sullivan, 820 A.2d 795, 804 (Pa.Super. 2003); citing: Commonwealth v. Dugger, 486 A.2d 382,
386 (Pa. 1985). See Pa.R.Crim.P. 573; See Commonwealth v. Burke, 781 A.2d 1136 (2001) (prosecution's Brady
obligation extends to exculpatory evidence in files of police agencies of the same government bringing the
prosecution). See Kyles v. Whitley, 514 U.S. 4 I 9, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)(extended the
prosecution's duty under Brady to discover and disclose to the accused favorable evidence known to the others
acting on the government's behalfin the case, including the police). See Brady v. Maryland, 373 U.S. 83 (1963)(the
suppression by the prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution).
78Commonwealth v. Collins, 888 A.2d 564, 578 (Pa. 2005); citing: Commonwealth v. Morris, 822 A.2d 684, 696 (Pa.
2003); referencing: Brady v. Maryland, 373 U.S. 83, 83 S. Ct. I 194 (1963).
79 Brady v. Mmyland, 373 U.S. 83, 83 S. Ct. 1194 (1963), established an ongoing obligation to disclose exculpatory
evidence. There is a "Brady" violation when there has been suppression by the prosecution of either eXCUlpatory or
impeachment evidence that was favorable to the accused, and the omission of such evidence prejudices the
defendant.
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the Commonwealth's assistance and therefore the evidence could have been properly admitted as
rebuttal, although it was not.
Finally, it is significant that the primary reason Ms. Wilson was not pursued as a witness
by the police was their concern that if Ms. Wilson was contacted, the identity and safety of the
confidential informant might be compromised.
Taking into account the Defendant's ability to contact Ms. Wilson on his own, and the
apparent nature of the friendship of Ms. Wilson and the Defendant, the Trial Court found that
based on the circumstances, including: the danger of releasing an informant's identity; the public
interest in resolving developing cases; and the nature of the information, the testimony could be
offered as rebuttal, if appropriate. As set forth above, review of the introduction of evidence
requires deference to the trial court's discretion. The Trial Court found that if the Defense
presented testimony that he was not the perpetrator or the defense that another shooter committed
the crime, then the Commonwealth should have had the opportunity to present Ms. Wilson as
rebuttal evidence to impeach such testimony.
The Defendant also argues that the verdict was against the weight of evidence on each
count including, Criminal Homicide,80 Criminal Homicide, First Degree Murder;81 Possession of
Firearm Prohibited;82 and Firearms Not to be Carried Without a License. 83
Defendant filed Pre-Sentence Motions on November 21,2013, petitioning the Court to
grant his Motion Judgment of Acquittal or grant a Motion for a New Trial. The Defendant was
80 18 Pa.C.S. § 2501(a).
81 18 Pa.C.S. § 2502(a).
82 18 Pa.C.S. § 6105(a)(I).
83 18 Pa.C.S. § 6106 (a)(I).
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sentenced on the above convictions on November 26,2013. 84 The Trial Court submits that the
verdict was supported by the weight of evidence.
The Trial Court is given considerable discretion when ruling on a Defendant's motion
that the verdict is against the weight of the evidence. 85 "The Trial Court will award a new trial
only when the jury's verdict is so contrary to the evidence as to shock one's sense ofjustice."s6
Therefore, a trial court's denial of a motion for a new trial based on a weight of the evidence
claim is the least assailable of its rulings.87
A motion for a new trial on the grounds that the verdict is against the weight of the
evidence concedes that there is sufficient evidence to sustain the conviction. 88 The Pennsylvania
Supreme Court stated:
A new trial should not be granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived at a different conclusion.
A trial judge must do more than reassess the credibility ofthe witnesses and
allege that he would not have assented to the verdict ifhe were a juror. Trial
judges, in reviewing a claim that the verdict is against the weight of the evidence,
do not sit as the thirteenth juror. Rather the role of the trial judge is to determine
that notwithstanding all the facts, certain facts are so clearly of greater weight that
to ignore them or to give them equal weight with all the facts is to deny justice. 89
A challenge to the weight of the evidence is a matter of the Trial Court's sound
discretion, appellate review of the determination is solely a question of whether the Trial Court
abused its discretion, and does not reach the underlying question of whether the verdict was
against the weight of the evidence. 9o The Superior Court of Pennsylvania has stated that
"[d]iscretion is abused when the course pursued represents not merely an error of judgment, but
84 Pa.R.Crim.P. 607. A claim that the verdict is against the weight of the evidence must be raised orally, on the
record, at any time before sentencing, by written motion before sentencing, or in a post sentence motion.
85 Commonwealth v. Cousar, 928 A.2d 1025, 1035-1036 (Pa. 2007).
86 !d. at 1036.
87 /d. ;citing Commonwealth v. Keaton, 729 A.2d 529, 540-541 (Pa. 1999).
88 Commonwealth v. Whiteman, 485 A.2d 459 (Pa.Super. 1984).
89 Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000).(internal citations omitted).
90 ld. at 753; citing Commonwealth v. Brown, 648 A.2d at 1177 at 1189 (Pa. 1994).
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where the judgment is manifestly unreasonable or where the law is not applied or where the
record shows that the action is a result of partiality, prejudice, bias, or ill wi11.,,91
The evidence presented at trial, and as described above, overwhelmingly supported the
verdict rendered by the jury. The Commonwealth's witnesses testified in a credible manner to
the facts of the case. The Defendant, on the other hand, claimed in his defense that the
allegations of his involvement in the shooting were unfounded. The defense put forth that the
Defendant did not commit, plan or participate in the shooting. The Defense claimed the
Defendant, while present at the scene, was not the person who committed the shooting. He
argued that any surveillance video did not show him fleeing the scene. The Defense also argued
that the eye witnesses' accounts were inaccurate. The jury justifiably rejected this defense.
Simply put, based on the evidence elicited during trial, it would be impossible for the Trial Court
to find the evidence was so contrary to the verdict as to shock the conscience of the Trial Court
or to determine that the Defendant was denied justice.
The remaining issue raised in Defendant's Concise Statement of Matters Complained of
on Appeal challenges the sufficiency of the record upon which the jury based its verdict.
Defendant filed his Pre-Sentence Motions on November 21,2013. The Trial Court filed an
Opinion and Order denying Defendant's Post Sentence Motions on November 26,2013.
The evidence presented in this case was sufficient to sustain the Defendant's conviction
on all of the charges. A claim challenging the sufficiency of the evidence in a criminal case is a
question of law requiring the reviewing court to determine whether all of the elements of the
crimes charged were proven beyond a reasonable doubt.92 In making this determination, this
Court is required to review the entire record and view all of the evidence presented at trial in the
91Id. at 753.
92Commonwealth v. Widmer, 744 A.2d 745, 751 CPa. 2000); citing Commonwealth v. Karkaria, 625 A.2d 1167 CPa.
1993).
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light most favorable to the verdict winner, the Commonwealth, and to give the Commonwealth
the benefit of all reasonable inferences from the facts presented. 93
"Where the evidence offered to support the verdict is in contradiction to the physical
facts, in contravention to human experience and the laws of nature, then the evidence is
insufficient as a matter of law.,,94 However, it is not for the reviewing Court to determine the
credibility of witnesses and the weight to be accorded to the evidence produced, as these are
matters solely within the province of the trier of fact, who is free to believe all, some, or none of
the evidence. 95
From the testimony and evidence presented at trial, it was reasonable for the jury to
believe that the Defendant committed Criminal Homicide in the First Degree of the victim. The
bartender of Pickles bar, Amber Barrows, identified the man with the black T-shirt and red
baseball hat on as the Defendant, Henry "Henny" Williams. Eye witness testimony and
surveillance video indicated the Defendant was seen leaving the bar with the victim. It was also
established that the Defendant and victim were standing alone in Pickles parking lot when
witnesses heard three shots fired. Eye witnesses saw Defendant with a gun and their testimony
also established the victim then grabbed his chest and fell to the ground, while flashes were seen
from the shots fired. The Defendant then remained standing over the victim for a few moments
before he fled through an alley, leaving his vehicle at the scene. A stolen Sturm Ruger handgun
was recovered approximately a block away from Pickles bar later that day. It was determined
that three rounds were fired from the recovered handgun and that the discharged bullet jackets
and cartridge cases were fired from that gun.
93 Id. at 751; citing Commonwealth v. Chambers, 599 A.2d 630 (Pa. 1991).
94 Id.; citing Commonwealth v. Santana, 333 A.2d 876 (Pa. 1975).
95Commonwealth v. McCalman, 795 A.2d 412, 415 (Pa. Super. 2002); citing Commonwealth v. Passarelli, 789
A.2d 708, 716 (Pa. Super. 2001).
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Likewise, the Court finds that the evidence presented at trial linking the Defendant to the
handgun recovered was sufficient for the jury to convict Defendant of the charge of Possession
of Firearms Prohibited and Firearms Not to be Carried without a License.
Accordingly, the Court asserts the testimony and evidence established the requisite
elements of the crimes of Criminal Homicide,96 Criminal Homicide, First Degree Murder;97
Possession of Firearm Prohibited;98 and Firearms Not to be Carried Without a License. 99
For the reasons set forth above, the Trial Court respectfully submits that the verdict of the
jury should be upheld, and that the Judgment of Sentence should be affirmed.
DATE:
Jfz/d 1.
96 18 Pa.C.S. § 2S01(a).
97 18 Pa.C.S. § 2S02(a)
98 18 Pa.C.S. § 6105(a)(I)
99 18 Pa.C.S. § 6106 (a)(l)
38