Com. v. Reed, T. ( 2022 )

J-A19038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TARENCE LAMAR REED :
:
Appellant : No. 1129 MDA 2021
Appeal from the Judgment of Sentence Entered November 2, 2017
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000267-2016
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: SEPTEMBER 26, 2022
Appellant Tarence Lamar Reed appeals from the judgment of sentence
entered by the Court of Common Pleas of Franklin County after Appellant was
convicted of first-degree murder and related charges. After careful review,
we affirm.
Appellant was charged with first-degree murder and related offenses in
connection with the December 14, 2015 shooting death of Deval Green during
a home invasion orchestrated by six individuals. In September 2017,
Appellant and one of his-codefendants, Antoine Alphonzo Hunter, proceeded
to a joint jury trial, at which the four remaining defendants testified against
Appellant and Hunter as a part of their cooperation agreements. The trial court
aptly summarized the factual background of this case as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
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On Monday, December 14, 2015, at 12:51 a.m., a neighbor
of 33-year-old Deval Green called 911 to report shots fired at Mr.
Green’s mobile home located in Guilford Township, just outside
the Borough of Chambersburg. Less than a minute later, the
victim’s fiancé, Faith Carbaugh, called 911 to report that Mr.
Green had been shot following a home invasion robbery. Police
were on the scene almost immediately and began attempting to
render aid to Mr. Green who had been shot three times. Mr. Green
was transported to Chambersburg Hospital where he died of his
injuries shortly thereafter.
Mr. Green had lived in the mobile home in question for
around six months at the time of the murder. Also living at the
residence and present at the time of the crime was Ms. Carbaugh;
her son B.D., age fifteen (15) at the time of the crime; and S.G.,
the three (3) year-old daughter of Mr. Green and Ms. Carbaugh.
Mr. Green and Ms. Carbaugh were both drug addicts and drug
dealers, and they regularly sold drugs from their home. This
included marijuana, which B.D. also used and sold. At the time of
the crime, the three only sold marijuana at the insistence of B.D.,
who wanted his mother to stop using harder drugs. Ms. Carbaugh
and Mr. Green stopped using heroin in October of 2015, but at the
time of the crime, were both active and illegal users of crack
cocaine, suboxone, methadone, and Percocets. B.D. believed that
the crime occurred because the intruders incorrectly believed that
Mr. Green and Ms. Carbaugh still sold harder drugs than
marijuana.
Mr. Green was also a member of the Crip gang, and he went
by the nickname “C” or “C-Money.” Also a member of the gang
was a twenty-three (23) year old man named Tyree Swindell, who
was like a “little brother” to Mr. Green and went by the nickname
“Blue.”
Late Sunday evening, several hours before the crime, Tyree
Swindell was visiting the home of co-conspirators 21-year-old
Cheyenne Kline-Branche and her 21-year-old boyfriend Gerald
Scarlett (also known as “Jamaica” or “Junior”). Also present in
the home at the time was Appellant (also known as “Shottie”), co-
Defendant Antoine Hunter (also known as “HT” or “Ocky”), and
20-year-old Damien Calloway, all of whom were associates of
Kline-Branche and Scarlett. The group had been playing video
games, drinking alcohol, and smoking marijuana. These six
individuals conspired to rob Mr. Green because Swindell said he
was a drug dealer, agreeing to split anything they took evenly
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between them. No one involved in the conspiracy knew Mr. Green
except Swindell.
Kline-Branche then borrowed her mother’s gold minivan and
drove Appellant, Scarlett, Calloway, and Swindell to a Giant
grocery store on Wayne Avenue so that Swindell could buy
cigarettes and Appellant could buy duct tape for his car. Just
before 11:25 p.m., less than an hour before the crime, the gold
minivan is captured on surveillance footage from the grocery
store. Surveillance footage recovered from inside the store shows
Swindell and Appellant enter the store and purchase cigarettes
and two rolls of duct tape. … The co-conspirators then returned
to the Kline-Branche residence and began planning their individual
roles in the robbery.
Kline-Branche drove the gold minivan to Mr. Green’s home.
Scarlett sat in the front passenger seat while Swindell and
Calloway sat in the rear. Appellant, Hunter, and another unknown
individual followed in a red sedan. The two vehicles arrived in the
parking lot of a small warehouse next door to Mr. Green’s home.
Appellant, Hunter, Calloway, Swindell, and Scarlett exited their
vehicles.
Kline-Branche was armed with a purple .9 millimeter SCCY
pistol which she testified remained holstered during the duration
of the crime. Kline-Branche also owned a black .40 caliber Ruger
pistol which is believed to be the murder weapon, but she testified
that Scarlett generally carried this weapon and that the pair
considered it to belong to him. Scarlett handed this gun to
Appellant and told Appellant not to shoot or kill anybody. Hunter
was already armed with a long gun. Calloway was not armed.
Appellant, Hunter, and Calloway covered their faces and
approached the house, with the expectation that Appellant and
Hunter would commit the robbery while Calloway stood as a look-
out. All three went onto the front porch of the residence.
[In Mr. Green’s home, a]round an hour before the crime,
Ms. Carbaugh told B.D. that Swindell would be coming over that
night to purchase a gram of marijuana. … [S]hortly after
midnight[,] Ms. Carbaugh began making food while Mr. Green
played video games on a PlayStation gaming system in the living
room. B.D. had just gone to bed in another room and was trying
to sleep. Ms. Carbaugh and B.D. testified that they heard
someone knocking on the door. When Mr. Green answered the
door, he either “lunged himself out the door” or “someone took
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him by the collar and pulled him out” of the door. Either way, a
scuffle then ensued on the porch between Mr. Green and
Appellant.
While many individuals testified to having heard the
shooting, only one individual testified to having seen the shooting.
Calloway testified that during the scuffle on the porch, stating
“[Appellant] left off a shot from the pistol. That’s when I seen Mr.
Green fall to the ground.” Calloway was unsure whether Mr.
Green was shot at the time, but physical evidence corroborates
this testimony and seems to indicate that Mr. Green was shot in
the leg at this time. Appellant entered the house while Hunter
and Calloway remained outside, returning shortly thereafter with
two bags of stolen items. As Calloway turned around to run back
to the gold minivan, Appellant tossed him a bag of items.
Calloway then heard two more shots.
This pattern of the three gunshots is corroborated by the
testimony of the next-door neighbor, Cole Deardorff. Mr.
Deardorff lived in the house immediately adjacent to Mr. Green
and testified that he had been watching television when he heard
yelling coming from Mr. Green’s home. He then heard a single
gunshot. At that time, Mr. Deardorff retrieved his own firearm
from nearby and proceeded to Mr. Green’s residence. As he was
exiting his own residence, he heard two more gunshots.
Immediately following the shooting, Mr. Deardorff ran
underneath the branches of several low-hanging pine trees that
separated his property from Mr. Green’s. He saw “two or three
guys running” away from him. He encountered Ms. Carbaugh,
B.D., and S.G. outside, and discovered Mr. Green lying on his side
at the base of the front porch facing the skirting. Mr. Deardorff
attempted to render aid to Mr. Green and found that he had a
pulse but was not breathing, and Mr. Deardorff was unsure if Mr.
Green was alive.
As Calloway had turned to flee at the time of the final two
gunshots, he did not witness the murder. However, Corporal
Andrew Thierwachter, a forensic mapping expert employed by the
Pennsylvania State Police, prepared several diagrams of the house
and the location of the evidence using forensic technology. Using
measurements he collected at the crime scene, Corporal
Thierwachter prepared a bullet trajectory analysis[.] …
Mr. Green was killed by either one or both of the two
gunshots fired by Appellant while Calloway was running to the
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van. Gunshot Wound A struck Mr. Green from behind in the
middle of the base of the neck at a downward angle. This bullet
injured Mr. Green’s sixth cervical spine vertebrae before exiting
through the front of Mr. Green’s neck. Gunshot Wound B struck
Mr. Green from behind in the right shoulder, also traveling at a
downward angle, but drastically more downward than Gunshot
Wound A. Gunshot Wound B injured a major artery and vein and
the left lung before exiting through Mr. Green’s chest.
After Appellant shot Mr. Green, Appellant and Hunter
returned to the red sedan and Calloway to the gold minivan, and
the two vehicles fled the scene.
Trial Court Opinion (T.C.O.), 10/22/21, page 8-15 (some citations omitted).
Appellant was charged with first-degree murder, second-degree
murder, robbery, conspiracy to commit robbery, burglary, conspiracy to
commit burglary, theft by unlawful taking, and conspiracy to commit theft by
unlawful taking.
At the conclusion of the ten-day trial, the jury convicted Appellant and
Hunter on all charges, with the exception of second-degree murder. On
November 2, 2017, the trial court sentenced Appellant to life imprisonment
without the possibility of parole for the first-degree murder conviction. On the
remaining charges, the trial court imposed an aggregate sentence of 19-38
years’ imprisonment to be served consecutively to the life sentence. Appellant
did not file a post-sentence motion.
On Monday, December 4, 2017, Appellant filed a timely notice of appeal
to this Court. However, on July 2, 2018, this Court dismissed the appeal as
Appellant failed to file a brief. On October 9, 2020, Appellant filed a petition
for relief pursuant to the Post-Conviction Relief Act (“PCRA”). On July 26,
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2021, the PCRA court granted Appellant’s PCRA petition and reinstated his
right to a direct appeal nunc pro tunc.
On August 25, 2021, Appellant filed a timely notice of appeal and
subsequently complied with the trial court’s order to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
In his concise statement, Appellant raised the following issues for our
review:
a. Whether the Trial Court erred in finding sufficient evidence to
convict [Appellant] of 18 [Pa.C.S.A.] § 2502(a), Murder of the
first degree, when the Commonwealth failed to prove that
[Appellant] committed a willful, deliberate, and premeditated
killing?
b. Whether the Trial Court erred in finding sufficient evidence to
convict [Appellant] of 18 [Pa.C.S.A.] § 903 Conspiracy –
Burglary – Overnight Accommodation, Person Present?
c. Whether the Trial Court erred in finding sufficient evidence for
conviction for 18 [Pa.C.S.A.] § 3502(a)(1) Burglary –
Overnight Accommodation, Person Present?
d. Whether the Trial Court erred in finding sufficient evidence for
conviction of 18 [Pa.C.S.A.] § 3502(a)(1) Conspiracy –
Robbery – Threat Immediate Serious Injury?
e. Whether the Trial Court erred in finding sufficient evidence to
convict [Appellant] of 18 [Pa.C.S.A.] § 3501(a)(1)(ii)
Conspiracy – Robbery – Threat Immediate Serious Injury?
f. Whether the Trial Court erred in finding sufficient evidence to
convict [Appellant] of a second count of 18 [Pa.C.S.A.] §
3501(a)(1)(ii) Conspiracy – Robbery – Threat Immediate
Serious Injury?
g. Whether the Trial Court erred in finding sufficient evidence to
convict [Appellant] of a third count of 18 [Pa.C.S.A.] §
3501(a)(1)(ii) Conspiracy – Robbery – Threat Immediate
Serious Injury?
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h. Whether the Trial Court erred in finding sufficient evidence to
convict [Appellant] of a third count of 18 [Pa.C.S.A.] § 903
Conspiracy - Theft by Unlawful Taking – Moveable Property?
i. Whether the Trial Court erred in finding sufficient evidence to
convict [Appellant] of a third count of 18 [Pa.C.S.A.] § 3921(a)
Theft by Unlawful Taking – Moveable Property?
j. Whether the judgment exercised in the imposition of
[Appellant’s] sentence of total confinement of 19-38 years
beyond the life sentence imposed at Count 1 is, on its face,
manifestly unreasonable as to constitute an abuse of discretion
by the Trial Court?
Concise Statement, 9/16/21, at 2-3.
Before we analyze the merits of Appellant’s arguments, we must address
the trial court’s contention that we should find several of these issues to be
waived as a result of Appellant’s failure to provide a concise statement with
sufficient detail to allow the trial court to identify and address Appellant’s
specific claims of error.
In similar circumstances, our courts have held that:
Rule 1925 is a crucial component of the appellate process, which
“is intended to aid trial judges in identifying and focusing upon
those issues which the parties plan to raise on appeal.”
Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 308
(1998). “When an appellant fails adequately to identify in a
concise manner the issues sought to be pursued on appeal, the
trial court is impeded in its preparation of a legal analysis which is
pertinent to those issues.” In re Estate of Daubert, 757 A.2d
962, 963 (Pa.Super. 2000). “In other words, a Concise Statement
which is too vague to allow the court to identify the issues raised
on appeal is the functional equivalent of no Concise Statement at
all.” Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super.
2001).
“In order to preserve a challenge to the sufficiency of the evidence
on appeal, an appellant's Rule 1925(b) statement must state with
specificity the element or elements upon which the appellant
alleges that the evidence was insufficient.” Commonwealth v.
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Garland, 63 A.3d 339, 344 (Pa.Super. 2013) (citing
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009)).
“Such specificity is of particular importance in cases where, as
here, the appellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must prove
beyond a reasonable doubt.” Gibbs, 981 A.2d at 281.
Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa.Super. 2015).
Where a 1925(b) statement “does not specify the allegedly unproven
elements[,] … the sufficiency issue is waived [on appeal].” Commonwealth
v. Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008).
In Williams, this Court found that Williams had waived his sufficiency
challenges to four of his convictions when his court-ordered 1925(b)
statement failed to articulate the specific elements of any of the crimes which
he alleged had not been proven. This Court noted that the trial court “required
a more detailed statement to address the basis for the sufficiency challenge”
as Appellant had been convicted of multiple crimes, including first-degree
murder, and that each of the crimes had numerous elements which the
Commonwealth was required to prove beyond a reasonable doubt. Id., 959
A.2d at 1258 n.9.1
____________________________________________
1 The Williams Court distinguished the factual circumstances presented in
that case from those in Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d
1058 (2007) in which our Supreme Court found that a panel of this Court had
erred in finding the appellant had waived several of his sufficiency claims by
failing to present these issues with adequate detail in his 1925(b) statement.
While the facts in Laboy involved a “relatively straightforward drug case,” the
Supreme Court acknowledged that “in more complex criminal matters the
common pleas court may require a more detailed statement to address the
basis for a sufficiency challenge.” Id. at 415, 936 A.2d 1060.
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Similar to the facts of Williams, in the instant case, Appellant was tried
for eight separate crimes, including a charge of first-degree murder, along
with his co-defendant Hunter. Their joint trial lasted ten days and included
the testimony of four of the other perpetrators of the robbery alongside fifteen
other witnesses. The Commonwealth also offered specialized testimony in the
area of ballistics and other investigative techniques, such that there was a
significant amount of evidence to review.
Therefore, as Appellant failed to provide adequate detail in his concise
statement for the sufficiency challenges in issues (b) through (i) to allow for
proper review, we find these issues to be waived.
However, Appellant did offer adequate detail in his concise statement to
allow the trial court to review the sufficiency of the evidence supporting his
first-degree murder conviction when he asserted that “the Commonwealth
failed to prove that [Appellant] committed a willful, deliberate, and
premeditated killing.” Concise Statement, at 2. We proceed to review the
merits of that claim.
Our standard of review for a challenge to the sufficiency of the evidence
is well-established:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa.Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
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links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Juray, 275 A.3d 1037 (Pa.Super. 2022) (quoting
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.Super. 2011)).
We review challenges to the sufficiency of the evidence supporting a
first-degree murder conviction according to the following principles:
In the case of first-degree murder, a person is guilty when the
Commonwealth proves that: (1) a human being was unlawfully
killed; (2) the person accused is responsible for the killing; and
(3) the accused acted with specific intent to kill. 18 Pa.C.S. §
2502(d); Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d
1280, 1283 (2000). An intentional killing is a “[k]illing by means
of poison, or by lying in wait, or by any other kind of willful,
deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). The
Commonwealth may prove that a killing was intentional solely
through circumstantial evidence. The finder of fact may infer that
the defendant had the specific intent to kill the victim based on
the defendant's use of a deadly weapon upon a vital part of the
victim's body. Commonwealth v. Rivera, 565 Pa. 289, 773 A.2d
131, 135 (2001).
Commonwealth v. Clemons, 650 Pa. 467, 503, 200 A.3d 441, 462 (2019)
(quoting Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 651-52
(2008)).
While Appellant does not challenge the jury’s finding that he was the
individual responsible for the victim’s death, Appellant claims the record is
“completely devoid” of evidence that he intended to kill the victim. Rather,
Appellant argues that the victim’s death was the unfortunate result of a
“spontaneous struggle” that occurred when the intended robbery escalated
quickly. Appellant’s Brief, at 10-11. We strongly disagree.
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Although Appellant asserts that the trial testimony showed that he and
his co-defendants only agreed to rob the victim of drugs and money and never
planned to murder the victim, the record contains ample evidence that
Appellant himself had the specific intent to kill the victim.
Appellant orchestrated a plan to commit a home invasion with his
cohorts, several of whom were armed with firearms. Appellant and Hunter
took the victim by surprise when they attacked the victim as he opened the
door to his residence just after midnight.
While Appellant’s cohorts had instructed him not to shoot anyone during
the robbery, Appellant immediately shot the victim in his thigh upon
confronting him at the door, causing the victim to fall to the floor of the porch.
As the victim was unarmed and now injured, it was not likely that he posed a
threat to Appellant or the success of the armed robbery.
Thereafter, Appellant entered the victim’s residence, threatened the
victim’s family, and stole a number of items. As Appellant exited the home,
he threw a bag containing the stolen items to Mr. Calloway, who had been
serving as a lookout.
At that time, the victim tried to escape to avoid further conflict with
Appellant. Although the victim was unarmed, injured from a bullet wound,
faced away from Appellant, and posed no threat to Appellant, Appellant fired
two shots at the victim from behind at a downward angle. Appellant aimed
his firearm at vital parts of the victim’s body as one bullet hit the back of the
victim’s neck and injured his one of his cervical vertebrae; the other bullet
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punctured a major artery, vein, and his lung. The victim was unable to survive
his severe internal injuries.
Based on the foregoing evidence, we agree with the trial court that the
jury had sufficient evidence to find that Appellant had formed the specific
intent to kill the victim. Thus, Appellant’s challenge to the sufficiency of the
evidence supporting his first-degree murder conviction is meritless.
Appellant also argues that the trial court abused its discretion in
imposing a sentence of total confinement of 19-38 years beyond the life
sentence, which Appellant believes is manifestly unreasonable. Appellant’s
Brief, at 14.
Appellant’s challenge to the trial court’s decision to impose consecutive
sentences implicates the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Prior to reaching the
merits of a discretionary sentencing issue[, w]e conduct a four-
part analysis to determine: (1) whether appellant has filed a
timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
the issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P. 720; (3)
whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018)
(quotation marks, some citations, and emphasis omitted).
As noted above, Appellant filed a timely counseled notice of appeal after
sentencing but his appeal was ultimately dismissed for his failure to file a brief.
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Appellant then filed a PCRA petition seeking the reinstatement of his direct
appeal rights nunc pro tunc, claiming he had been abandoned by counsel on
direct appeal. After the PCRA court granted this petition, Appellant filed
another timely appeal.
However, Appellant never preserved his challenge to the trial court’s
discretion to impose consecutive sentences by objecting at sentencing or filing
a post-sentence motion. Moreover, Appellant did not request the
reinstatement of his right to file post-sentence motions nunc pro tunc.
Our Supreme Court has held that upon the reinstatement of direct
appeal rights nunc pro tunc, an appellant is not automatically entitled to the
reinstatement of post-sentence motions nunc pro tunc. Commonwealth v.
Liston, 602 Pa. 10, 12, 977 A.2d 1089, 1090 (2009). Nevertheless, a PCRA
court may reinstate a defendant's post-sentence rights nunc pro tunc if the
defendant successfully pleads and proves he was deprived of the right to file
and litigate post-sentence motions as a result of ineffective assistance of
counsel. Id. at 20 n. 9, 977 A.2d at 1095 n. 9. See also Commonwealth
v. Fransen, 986 A.2d 154 (Pa.Super2009) (holding PCRA petitioner was not
entitled to the reinstatement of his post-sentence rights nunc pro tunc since
he did not request that relief with PCRA court and the court did not hold an
evidentiary hearing on that issue).
Accordingly, while the PCRA court granted Appellant the right to file a
direct appeal nunc pro tunc, it did not grant him the right to file a post-
sentence motion as he never requested this relief and did not assert in any
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way that counsel had been ineffective in failing to file a post-sentence motion
or had abandoned him at this stage of the criminal proceedings.
Thus, we must find Appellant’s challenge to the discretionary aspects of
his sentence to be waived as it was not properly preserved at sentencing or
in a post-sentence motion.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2022
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