Com. v. Jenkins, D. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
DARNELL JENKINS, :
:
Appellant : No. 2658 EDA 2013
Appeal from the Judgment of Sentence September 3, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0005600-2011
BEFORE: DONOHUE, SHOGAN and WECHT, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 20, 2015
Appellant, Darnell Jenkins (“Jenkins”), appeals from the judgment of
sentenced entered on September 3, 2013 by the Court of Common Pleas of
Philadelphia County, Criminal Division, following his convictions of first-
degree murder, firearms not to be carried without a license, carrying
firearms on public streets or public property in Philadelphia, and possessing
instruments of crime (“PIC”).1 For the reasons that follow, we vacate
Robinson’s judgment of sentence and remand for a new trial.
The trial court summarized the facts of this case as follows:
On September 8, 2010, at about 10:25 p.m.,
[Jenkins allegedly] shot Lamont Smith (“Smith”) in
the head as a result of an on-going dispute between
them. At trial, the jury heard that Jared Stovall
(“Stovall”), on the day before the shooting, made a
plan to get defendant Jenkins and the victim Smith
1
18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907(a).
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together because Stovall wanted Jenkins and Smith
to “squash the beef” between them. Multiple phone
calls between Stovall and decedent Smith and
between Stovall and Jenkins confirm that Stovall set
up the meeting between Jenkins and Smith.
Jenkins was seemingly apprehensive about the
meeting because earlier in the day [on] September
8th someone had shot at him. Accordingly, Jenkins
decided that he needed additional weapons to bring
to the arranged meeting and he asked neighborhood
friend Martamus Watts (“Watts”) to get him a
“second” gun. Numerous text messages sent
between Jenkins and another number ending in 3705
both before and after the shooting on September 8,
2010 confirm that Jenkins brought a gun with him to
the meeting. Specifically, at 10:16 p.m.[,] Jenkins
texted “He on his way with dudes frm [sic] Willows.
l got bull Jerry hammer on me.” Then there was a
response text saying “You want me to bring minds
[sic] out or what!” At 10:19 p.m., approximately six
minutes before the murder, Jenkins responded
saying “Yea, he bring niggas frm [sic] 58 and
Willows.”
The arranged meeting turned into an argument
between Jenkins and Smith and gunfire erupted.
Witnesses heard about four or five gunshots and saw
muzzle flash from Jenkins’ hand. Immediately after
hearing the gunshots, the witnesses saw Smith fall
to the ground. Jenkins and Stovall both took off
running westbound on Chester Street from 60th to
61st. Stovall later texted one of the witnesses to see
if Smith was dead and if there were “any shells
outside.”
Philadelphia police officers arrived on scene and
found Smith lying on his right side with a large pool
of blood under his head. The officers recovered two
cell phones from Smith’s pocket as well as his keys
and glasses. Additionally, the officers recovered
Smith’s five-shot black revolver with five live
cartridges that had been underneath his waist area.
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Medics arrived and transported Smith to the Hospital
of the University of Pennsylvania, where he was
pronounced dead on September 9, 2010 at 1:58
a.m. An autopsy revealed that victim Smith had
sustained three .38/.357 caliber gunshots to the
head, specifically two to the neck and one to the
brain.
Trial Court Opinion, 6/27/14, at 3-4 (footnotes omitted).
On September 3, 2013, following trial, a jury found Jenkins guilty of
the above-referenced crimes. At the conclusion of trial, the trial court
sentenced Jenkins to life imprisonment without the possibility of parole. On
September 11, 2013, Jenkins filed a timely notice of appeal. On April 25,
2014, the trial court ordered Jenkins to file a concise statement of the errors
complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules
of Appellate Procedure. On May 16, 2014, Jenkins filed his timely Rule
1925(b) statement.
On appeal, Jenkins raises the following issues for our review and
determination:
1. Did not the trial court err in permitting Roland
Jackson to testify to incidents of intimidation, where
there was no evidence that those incidents occurred
at [Jenkins’] behest, where the witness was fully
cooperative with the prosecution both at the time of
his initial statement and at trial, and where such
evidence was therefore both irrelevant and grossly
prejudicial?
2. Did not the attorney for the Commonwealth
commit gross and intentional misconduct by violating
the [trial] court’s order limiting the introduction of
prior statements and testimony of Roland Jackson,
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repeatedly inquiring as to matters specifically barred
by the court, and commenting in the jury’s presence
that he was not being “allowed” to introduce certain
material, and did not the court err in denying the
defense’s motion for a mistrial on the basis of that
misconduct?
Jenkins’ Brief at 3.
For his first issue on appeal, Jenkins argues that the trial court erred in
permitting the Commonwealth to question Roland Jackson (“Jackson”), the
Commonwealth’s principal eyewitness, about how he was threatened and
told not to come to court prior to testifying at the preliminary hearing in this
case. Jenkins’ Brief at 12-18. Jenkins asserts that because there is no
evidence linking him to these threats and because the Commonwealth did
not use this testimony to explain inconsistencies in Jackson’s testimony or to
explain any prior inconsistent statements made by Jackson, the evidence
was irrelevant and grossly prejudicial. Id. at 12, 15-16.
Jenkins’ first issue challenges an evidentiary ruling made by the trial
court. We review a trial court’s evidentiary decisions according to the
following standard:
The decision to admit or exclude evidence is
committed to the trial court’s sound discretion, and
evidentiary rulings will only be reversed upon a
showing that a court abused that discretion. A
finding of abuse of discretion may not be made
merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous. Matters within the trial
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court’s discretion are reviewed on appeal under a
deferential standard, and any such rulings or
determinations will not be disturbed short of a
finding that the trial court “committed a clear abuse
of discretion or an error of law controlling the
outcome of the case.”
Commonwealth v. Koch, 106 A.3d 705, 710-11 (Pa. 2014) (quotations
and citations omitted).
The questioning to which Jenkins takes issue proceeded as follows:
Q There were a couple of incidents that occurred
after [the interview with detectives], both on a bus
and at your house, that caused you not to come to
the [c]ourt when you were subpoenaed for a
preliminary hearing in the months that followed
September of 2010?
A Yes.
Q I’m not asking and you’re not to say who it
was who came or anything like that, but were you
instructed not to come to court?
A Yes.
Q That was the first time getting off the bus?
A Yes.
Q And then somebody came or two people came
to your home?
A Yes.
Q How did that make you feel?
A I was mad.
Q Also scared?
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A A little bit.
Q If not for you but for your three-year-old son?
A I ain’t really scared; I’ma [sic] be honest. I
ain’t scared of nobody.
N.T., 8/27/13, at 56-57.
Regarding the threatening of witnesses, this Court has held:
In general, “‘threats by third persons against ...
witnesses are not relevant [and thus not admissible
into evidence] unless ... the defendant is linked in
some way to the making of the threats.’”
Commonwealth v. Carr, [] 259 A.2d 165, 167
([Pa.] 1969) (citation omitted). Nevertheless, an
exception to the rule exists where the evidence in
question was not offered to prove the accused’s
guilt “but to explain a [witness’] prior inconsistent
statement.” [Id.] at 167.
Commonwealth v. Bryant, 462 A.2d 785, 788 (Pa. Super. 1983)
(brackets, except for citation modifications, in original); see also
Commonwealth v. Collins, 702 A.2d 540, 544 (Pa. 1997) (“[T]he
Commonwealth’s line of questioning was permissible to demonstrate [that
the witness’] motive for changing his testimony was that he was afraid of
the consequences if he testified truthfully.”); Commonwealth v. Martin,
515 A.2d 18, 21 (Pa. Super. 1986) (“When the evidence in question is not
offered to prove the defendant’s guilt, but to explain a [witness’] prior
inconsistent statement, however, it is admissible.”). “Such evidence,
however, must be used to rehabilitate the witness after the defense, in an
effort to discredit the witness, has questioned the witness about the previous
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testimony.” Commonwealth v. Rickabaugh, 706 A.2d 826, 838 (Pa.
Super. 1997) (emphasis in original).
We conclude that the trial court erred in allowing the Commonwealth
to question Jackson about the threats he received prior to testifying at the
preliminary hearing. First, as the Commonwealth concedes and the certified
record on appeal confirms, there is no evidence linking Jenkins to making
threats against Jackson. See N.T., 8/26/13, at 11. Although the record
does reflect that Jenkins’ brother Jermaine was responsible for threatening
Jackson, there is no evidence Jenkins wanted his brother or encouraged his
brother to do so. See id. at 4-21; N.T., 8/30/13, at 85; see also Jenkins’
Motion In Limine, 8/19/13, ¶ 1(d.). Additionally, while arguing the matter
prior to trial, the prosecutor stated that he was not going to make any
connection between Jenkins and the threats and that he was not going bring
out that it was Jenkins’ brother who threatened Jackson. N.T., 8/26/13, at
11. Furthermore, the trial court instructed the jury that they could not “infer
that [Jenkins] in any way directed, requested or even was aware that the
contact was made or even knew the people who made the contact.” N.T.,
8/30/13, at 85. Thus, the jury heard no evidence linking Jenkins to threats
made against Jackson.
Second, the certified record also reflects that the Commonwealth did
not offer the evidence of the threats against Jenkins to explain a prior
inconsistent statement. The Commonwealth questioned Jackson about the
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threats he received on direct examination, not redirect examination. See
N.T., 8/27/13, at 56-57. While Jenkins did attempt to impeach Jackson at
trial with portions of his testimony from the preliminary hearing, see id. at
93-94, 106-10, the Commonwealth never offered the threats against
Jackson as an explanation for these inconsistencies. Thus, the
Commonwealth did not use the evidence of the threats against Jackson
following an effort by Jenkins’ counsel to discredit Jackson by questioning
him about previous testimony. See Rickabaugh, 706 A.2d at 838.
The Commonwealth argues that the evidence of threats against
Jackson was admissible “to show their impact on the witness,” “to allow the
jury to fairly evaluate Jackson’s demeanor,” and to assist in the jury’s
determination of Jackson’s state of mind. Commonwealth’s Brief at 14, 20.
The Commonwealth asserts that Jackson appeared agitated while on the
stand, which it contends the jury could have attributed “to a lack of candor
or malice towards [Jenkins].” Id. at 14-15. As stated above, evidence that
a witness was threatened by someone other than the defendant is generally
inadmissible at trial. See Bryant, 462 A.2d at 788. The narrowly
prescribed exception to the general rule is that such evidence is admissible
only to explain a prior inconsistent statement. See id. The exception to the
rule proposed by the Commonwealth here, namely that the evidence is
admissible so that the jury can assess the witness’ state of mind, is so broad
that it would, in practice, swallow the general rule. In the present case, the
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Commonwealth contends that the threats to Jackson show that he testified
credibly despite fear of retribution. Commonwealth’s Brief at 16. Such an
argument, however, could be (and presumably would be) made for any
witness testifying that he or she had received some threat prior to taking the
stand. This result would be contrary to the well-established law of
Pennsylvania in this area.
Additionally, the Commonwealth argues that the evidence of threats
against Jackson is admissible to explain why he did not voluntarily come
forward with information about Smith’s murder and to explain why he was
not initially forthcoming with police. Id. at 15. Jackson, however, testified
that he did not receive any threats until after his initial police interview and
prior to when he was to testify at the preliminary hearing.2 N.T., 8/27/13,
at 56. Thus, the threats Jackson received after his initial police interview are
not relevant to explain why he did not voluntarily come forward with
information about the murder or why he was not initially forthcoming with
police.3
2
We note that it was the Commonwealth, and not Jenkins’ counsel, who
elicited the testimony about Jackson not being initially forthcoming when he
spoke to police. See N.T., 8/27/13, at 55-56.
3
Furthermore, the Commonwealth contends that the evidence of threats
against Jackson is admissible because the basis of Jenkins’ defense, as
indicated by Jenkins’ counsel’s opening statement, was that Jackson was not
a credible witness who was falsely accusing Jenkins of murder and that it
was therefore proper to preemptively address Jackson’s credibility on direct
examination by bringing out the evidence of threats against Jackson. See
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The testimony regarding the threatening of Jackson did not implicate
Jenkins nor was it elicited in response to Jenkins’ counsel impeaching
Jackson’s testimony. Thus, the trial court clearly erred in admitting the
evidence of threats against Jackson. See Bryant, 462 A.2d at 788. This
does not end our inquiry, as we must now determine whether this error was
harmless. See Rickabaugh, 706 A.2d at 838 (“we must now consider
whether the error warrants a reversal of Appellant’s conviction; for it is well-
settled that not every legal mishap prejudices a defendant to the extent that
a reversal is necessary”). Our Supreme Court has stated the following
regarding the harmless error doctrine:
“The harmless error doctrine, as adopted in
Pennsylvania, reflects the reality that the accused is
entitled to a fair trial, not a perfect trial.”
Commonwealth v. Rasheed, [] 640 A.2d 896, 898
([Pa.] 1994); Commonwealth v. Story, [] 383
A.2d 155 ([Pa.] 1978). We have described the
proper analysis as follows:
Harmless error exists if the record
demonstrates either: (1) the error did
not prejudice the defendant or the
prejudice was de minimis; or (2) the
erroneously admitted evidence was
merely cumulative of other untainted
Commonwealth’s Brief at 15-16 n.4. The Commonwealth, however, does
not cite any pertinent authority in support of this argument. See id. Rather
the Commonwealth cites two inapplicable cases holding that where a
defendant bases his or her defense on impeaching a witness’ credibility, the
Commonwealth may introduce prior consistent statements before the
defense impeaches the witness on cross-examination. See id. (citing
Commonwealth v. Cook, 952 A.2d 594, 625-26 (Pa. 2008);
Commonwealth v. Smith, 540 A.2d 246, 258 (Pa. 1988)).
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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.
Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014) (quoting
Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997);
Commonwealth v. Williams, 573 A.2d 536 (Pa. 1990)).
We conclude that the harmless error doctrine is inapplicable here
because none of the three above-referenced requirements prongs of the
were satisfied in this case. First, the trial court’s error was not de minimis
and did prejudice Jenkins because it predisposed the jury to believe
Jackson’s testimony. As the Commonwealth readily acknowledged,
That [Jackson] chose to testify, in the face of
threats, was also relevant because it spoke volumes
about his credibility. It was reasonable for the jury
to conclude that the witness would only have faced
down those threats if he had actually seen [Jenkins]
murder [Smith], and not merely to falsely accuse
someone.
Commonwealth’s Brief at 16.
It is well settled, however, that “the question of a witness[’] credibility
is reserved exclusively for the jury.” Commonwealth v. Alicia, 92 A.3d
753, 761 (Pa. 2014) (quoting Commonwealth v. Davis, 541 A.2d 315, 317
(Pa. 1988)); see also Commonwealth v. Kane, 10 A.3d 327, 334
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(Pa. Super. 2010) (holding that the “credibility of witnesses is a matter
within the exclusive province of the factfinder”). Additionally, “Evidence of a
witness[’] character for truthfulness or honesty is not admissible to bolster
the witness[’] credibility unless the witness[’] truthfulness and honesty have
first been attacked.” Commonwealth v. Schwenk, 777 A.2d 1149, 1156
(Pa. Super. 2001)
By allowing the Commonwealth to introduce evidence of the
intimidation of Jackson to demonstrate that he was a credible witness,
without Jackson’s credibility having first been attacked, the trial court
permitted the Commonwealth to invade the province of the jury’s exclusive
right to make credibility determinations. See Commonwealth v. Smith,
567 A.2d 1080, 1083 (Pa. Super. 1989) (holding that by introducing
evidence of a witness’ credibility prior to the defense impeaching that
witness, the Commonwealth “usurped the credibility determining function of
the jury”). The improperly admitted evidence of the intimidation of Jackson
allowed the Commonwealth to show that Jackson, the lone eyewitness to the
murder in this case and the only source of evidence that could put Jenkins at
the scene of the crime, testified in the face of threats and potential
retribution. This predisposed the jury to believe and find credible the
testimony of the Commonwealth’s most important witness. Consequently,
the trial court’s error in this respect was not de minimis and was prejudicial
to Jenkins.
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Second, the erroneously admitted evidence was not merely cumulative
of other untainted evidence that was substantially similar to the erroneously
admitted evidence. Jackson was the lone eyewitness of the murder in this
case. He provided the only testimony that placed Jenkins at the scene of the
crime and was the only witness that identified Jenkins as the person that
shot Smith.
Third, we cannot conclude that the trial court’s error could not have
contributed to the verdict as the properly admitted and uncontradicted
evidence of guilt was not overwhelming and the prejudicial effect of the error
was not insignificant by comparison. A review of all of the evidence of guilt
introduced in this case, excluding the testimony of Jackson, reveals the
following.
Martamus Watts (“Watts”), who had known Jenkins for a couple
months prior to Smith’s murder, testified that he met with Jenkins on
September 8, 2010, approximately a half hour before Smith was killed.
N.T., 8/26/13/, at 157-58. Watts stated that Jenkins spoke briefly with him
about an earlier altercation Jenkins had in which someone had shot at him.
Id. Watts recounted that Jenkins asked Watts if he could get him a second
gun because he was going to meet a couple of men near 60th Street and
Chester Street to “squash the beef” between them and that he would feel
safer if he had another weapon. Id. at 159-62.
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Rasheed Dublin (“Dublin”) testified that when was coming home from
work on September 8, 2010, between 10:20 and 10:30 p.m., he observed
three black males on the 6000 block of Chester Street, none of whom he
recognized, talking with one another. N.T., 8/29/13, at 50-52. Once Dublin
was inside his house, he heard multiple gunshots. Id. at 51-52. Dublin
immediately ran outside and upon observing Smith lying on the ground in a
pool of blood, dialed 911. Id. at 51-53. Dublin was unable to identify either
Jenkins or Stovall as one of the three men he saw conversing on the 600
block of Chester Street. Id. at 52. After he reviewed a picture of Stovall,
whom he recognized from the neighborhood, Dublin further testified that he
could definitely say that Stovall was not one of the three men he observed
that evening. N.T., 8/29/13, at 58; see also N.T., 8/30/13, at 17.
Officer Charles Henry (“Officer Henry”), of the Philadelphia Police
Department, testified that he and Sergeant Michael Davis (“Sergeant Davis”)
responded to a radio call, at approximately 10:25 p.m. on September 8,
2010 for shots fired near 60th Street and Chester Street. N.T., 8/27/13, at
146-47. Officer Henry stated that the flash information described two black
males in their mid-twenties, both approximately 5’7”, fleeing westbound on
Chester Street from 60th to 61st wearing white t-shirts, and blue jeans, one
of whom had a close haircut, a beard, and glasses. Id. at 147. Officer
Henry testified that when he and Sergeant Davis arrived at the crime scene,
they encountered Smith lying on the ground in a pool of blood around his
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head. Id. at 147-48. Officer Henry recounted that at the crime scene, he
and Sergeant Davis recovered two cell phones from Smith’s pocket and a
black revolver near Smith’s body. Id. at 148. Officer Brian Stark, who
processed the crime scene, testified that the revolver recovered near Smith
was a five-shot revolver loaded with five live (unfired) cartridges. N.T.,
8/26/13, at 104-05, 115. Officer Henry further testified that he and
Sergeant Davis also encountered Roland Jackson near the crime scene, who
was sitting on the steps of 6029 Chester Street. N.T., 8/27/13, at 157. The
two officers also later spoke with Stovall’s mother, who had last seen Stovall
around 7:50 p.m. that evening, and informed them that he was wearing a
white t-shirt, blue jean shorts, and glasses. Id. at 154. Sergeant Davis also
testified and his testimony corroborated that of Officer Henry. See N.T.,
8/29/13, at 73.
Dr. Marlon Osbourne (“Dr. Osbourne”), from the medical examiner’s
office, testified that Smith died from multiple gunshots to the head and
neck. N.T., 8/27/13, at 11. Officer Cruz, who examined the ballistics,
testified that all three of the bullets removed from Smith’s head and were
fired from the same firearm, which was either a .38 caliber revolver or a
.357 caliber revolver. N.T., 8/26/13, at 142-44. Watts stated that he had
once or twice, prior to Smith’s murder, seen Jenkins in possession of a black,
slightly rusty, .38 caliber revolver. Id. at 169.
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Additionally, the jury heard testimony from Detective John Verecchio
(“Detective Verecchio”) of the Philadelphia Police Department and Agent
William Shute (“Agent Shute”) of the FBI Cellular Analysis Survey Team,
regarding cell phone activity on the night of the murder. Detective
Verecchio testified that between 9:40 p.m. and 10:20 p.m. there were six
calls from Stovall to Smith and that Stovall also made calls to Jenkins in that
timeframe. N.T., 8/28/13, at 186-87. Agent Shute testified that between
10:05 p.m. and 10:43 p.m. there were nine calls on Jenkins’ phone that
originated in geographical area that included the location of Smith’s murder.
Id. at 90-98. Based on Jenkins’ cell phone data, Agent Shute was able to
conclude that between 10:05 p.m. and 10:43 p.m. on the night of Smith’s
murder, Jenkins was present in a geographic area that included the crime
scene. Id. at 94-98.
Further, as stipulated by counsel, the jury heard evidence regarding
several text messages sent between Jenkins and other numbers of unknown
persons both before and after Smith’s murder. On September 8, 2010, the
night of Smith’s murder, at 10:16 p.m., Jenkins texted a number ending in
3705 the following: “He on his way with dudes frm Willows. I got bull Jerry
hammer on me.” N.T., 8/29/13, at 31. Detective Verecchio testified that he
understood “hammer” to mean “gun.” N.T., 8/28/13, at 221. Then there
was a response text from the 3705 number that read: “You want me to
bring minds out or what!” N.T., 8/29/13, at 31. At 10:19 p.m.,
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approximately six minutes before Smith’s murder, Jenkins responded to the
3705 number: “Yea, he bring niggas frm 58 and Willows.” Id. at 31. The
same night, following the shooting, at approximately 10:39 p.m., a text was
sent to Jenkins from the 3705 number stating: “Switch this line for safety.”
Id. at 31-32. Then, at 11:57 p.m., there was another text to Jenkins from
the 3705 number saying “They no – boy crib. Don’t talk to him no more or
say anything to at all.” Id. at 32.
Additionally, there was an exchange of text messages between Jenkins
and another number ending in 3496 on September 13, 2010. Jenkins
received a text that read: “Shit cooled dwn since that day. It dnt be no
undies and a whole lot of cop cars sliddn up da’9 or da’0 when I be out
there. So just lay low for like anova week. R.” Id. at 33. In response,
Jenkins sent a text to the 3496 number stating: “Helan dis Jalil cousin. Get
with me. Dee. A 10 on the scale.” Id. Finally, there was a text from
Jenkins to another number ending in 4849 on September 14, 2010 saying
“My other number to reach me at (267) 250-2979. Dee.” Id. at 34.
Thus, based on this evidence, the certified record reflects that, in the
hour before Smith’s murder, there were several telephone conversations
between Smith and Stovall and Stovall and Jenkins, though the content of
these phone conversations is unknown. During that same timeframe on the
night of the shooting, Jenkins met with and told Watts that he was nervous
about meeting with some other men near 60th and Chester Street in order to
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“squash the beef” and that he was heading to this meeting with at least one
gun and that he would have felt safer if he had a second gun. Jenkins
attempted to obtain a second firearm from Watts for this meeting. Shortly
before Smith’s death, Jenkins also texted an unknown person that he was
going to a meeting with unidentified individuals, that he was bringing a gun
to the meeting, and he told the recipient of the text to bring a gun with him
or her to this meeting. The record does not reveal with whom Jenkins was
meeting with or that Jenkins actually attended the meeting. Except for
Jackson’s testimony, we do not know Jenkins’ exact location at the time
Smith was shot or if he was ever at the scene of the crime. The record,
however, does reflect that Jenkins was in a geographic area during Smith’s
murder that included the crime scene.
The certified record further reflects that Smith died of multiple
gunshots wounds from either a .38 caliber revolver or a .357 caliber
revolver, but we do not know which gun was used. We do know, however,
that Watts had seen Jenkins in possession of a .38 caliber revolver prior to
Smith’s murder. Finally, the certified record reflects, according to the text
messages stipulated to by the Commonwealth and Jenkins, that Jenkins was
instructed to “lay low” for a time after Smith’s death.
Accordingly, based on this evidence, we cannot say, excluding
Jackson’s testimony, that there was overwhelming evidence of guilt. At
most, the evidence, excluding Jackson’s testimony, reveals that at the time
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of Smith’s murder Jenkins was armed, on his way to meet with unknown
individuals to “squash the beef,” somewhere in the vicinity of the scene of
the crime. The evidence, excluding Jackson’s testimony, also reflects that
Jenkins, at some point prior to Smith’s murder, was in possession of the
same type of gun with which Smith may have been shot. The evidence,
excluding Jackson’s testimony is circumstantial at best, as none of it places
Jenkins at the scene of the crime when Smith was shot or identifies Jenkins
as the shooter. Therefore, we conclude that improper admission of evidence
relating to the intimidation of Jackson was not harmless.4
Although we resolve Jenkins’ first issue in his favor, we nonetheless
proceed to address his second issue, for purposes of completeness, because
we will be remanding this case for a new trial. For his second issue on
appeal, Jenkins argues the trial court erred in denying his request for a
mistrial based on prosecutorial misconduct. Jenkins’ Brief at 19-28. Our
standard of review for claims of prosecutorial misconduct is as follows:
Our standard of review for a claim of prosecutorial
misconduct is limited to whether the trial court
abused its discretion. In considering this claim, our
attention is focused on whether the defendant was
deprived of a fair trial, not a perfect one. Not every
inappropriate remark by a prosecutor constitutes
reversible error. A prosecutor’s statements to a jury
do not occur in a vacuum, and we must view them in
context. Even if the prosecutor’s arguments are
improper, they generally will not form the basis for a
4
We note that the Commonwealth did not attempt to make any harmless
error argument.
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new trial unless the comments unavoidably
prejudiced the jury and prevented a true verdict.
Commonwealth v. Toritto, 67 A.3d 29, 37 (Pa. Super. 2013) (en banc),
appeal denied, 80 A.3d 777 (Pa. 2013) (quoting Commonwealth v. Lewis,
39 A.3d 341, 352 (Pa. Super. 2012)). Therefore, “we focus not on the
culpability of the prosecutor but rather on whether his actions deprived [the
appellant] of a fair trial by prejudicially rendering the jury incapable of fairly
weighing the evidence and entering an objective verdict.” Commonwealth
v. Melvin, 103 A.3d 1, 27 (Pa. Super. 2014).
The prosecutorial misconduct with which the Commonwealth takes
issue followed extensive argument over the question of whether the
Commonwealth could, in response to the impeachment of Jackson and
another witness, Martamus Watts, call a fellow Assistant District Attorney to
read the entirety of those witnesses’ police statements and preliminary
hearing testimony into the record. See N.T., 8/27/13, at 175-222; N.T.,
8/28/13, at 4-66. The trial court ruled, much to the prosecutor’s dismay,
that the Commonwealth could rehabilitate the witnesses only as to those
points on which they had been impeached, but that it would not permit the
Commonwealth to bolster the witnesses’ testimony by pointing to their
consistency on every other point to which they had previously spoken or
testified. See id.
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The questioning leading to the request for a mistrial proceeded as
follows:
Q In any way, shape or form was [Jackson] ever
uncooperative?
[Defense Counsel]: Objection, Your Honor.
THE COURT: Sustained. Ms. Pescatore is not a
witness. She’s here just to read for you what was
said or done at the preliminary hearing notes. Her
credibility, who she is is not for you to assess. She’s
just here to read something to you. In fact, I don’t
believe -- is my understanding. That’s the
objection?
[Defense Counsel]: Yes, Your Honor.
THE COURT: So even though -- so we’re just here
so she can give to you that information in the notes
that I think she has. So objection sustained.
[Prosecutor]: Okay.
BY [Prosecutor]:
Q So let’s go to where I’m allowed to read from.
[Defense Counsel]: Objection.
THE COURT: Sustained.
BY [Prosecutor]:
* * *
Q Okay. And did [Jackson], during that
preliminary hearing, identify anyone other than
[Jenkins] as the shooter in this case?
[Defense Counsel]: Objection.
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J-A20009-15
THE COURT: Sustained. What I’m going to tell my
jury: What did or didn’t happen at the preliminary
hearing is not what you’re evaluating. It’s just
whether something that you hear here is consistent
or not, and how does that affect your view of the
believability of [Jackson]’s testimony in court to you.
You may continue
BY [Prosecutor]:
* * *
Q Was there anywhere in these notes of
testimony that [Jackson] named [Stovall] as the
shooter?
[Defense Counsel]: Objection.
THE COURT: Sustained. Again, [Prosecutor], you
know what she is here for. This is not for you guys
to say, here’s what may or may not have happened
in the preliminary hearing. We’re only hearing this
to see if it was consistent or not with what you heard
in court, and how does that affect witness’[]
believability and credibility.
[Prosecutor], I don’t want to have to interrupt you
again. You know what my ruling was.
BY [Prosecutor]:
Q Turn to Page 25, please, Ms. Pescatore.
Starting with Line 3, you are permitted to go to Line
15.
[Defense Counsel]: Objection.
THE COURT: Sustained.
[Prosecutor]: Okay. Not 15? I don’t know.
THE COURT: The form of the question …
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J-A20009-15
[Defense Counsel]: It was the form of the question.
N.T., 8/28/13, at 116-24.
Jenkins contends that the Commonwealth’s questioning irreparably
tainted the jury and implied that the trial court was hiding evidence from the
jury. Jenkins’ Brief at 28. While we are troubled by the prosecutor’s
disrespect for the trial court and his refusal to accept the trial court’s ruling,
we conclude that the trial court did not abuse its discretion in denying
Jenkins’ request for a mistrial. First, defense counsel’s objection prevented
Pescatore from answering the prosecutor’s questions. Second, the trial court
sustained each of defense counsel’s objections, and provided several
curative instructions to the jury informing them if the proper purpose of
Pescatore’s testimony. This Court has long held that “[a] jury is presumed
to follow a trial court’s instructions[.]” Commonwealth v. Reid, 99 A.3d
470, 501 (Pa. 2014). Additionally, at the outset of Pescatore’s testimony,
the trial court instructed the jury as follows:
THE COURT: I’m just going to let my jury know that
the district attorney is about to present to you what
we call a statement from one of the witnesses that
you heard from, Mr. Jackson. I want to give you
some special instructions about this statement or
whatever it is you are about to hear.
What you’re about to hear is not, is not, substantive
evidence. When we say “substantive evidence,” it
means that it’s not -- the only reason that you’re
going to be hearing preliminary hearing -- some
things that may have been said at a preliminary
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J-A20009-15
hearing is for you to assess whether certain
statements made here in court were consistent or
not here in court. This is to help you to assess
somebody’s credibility. It is not in any way being
admitted into evidence. The rules -- and I’ll read for
you what the Rule of Evidence is so that you’ll
understand that there – the evidence rules say that
under certain circumstance[s] -- and we’ve had a
hearing to make sure that those circumstances are
correct. Under certain circumstances, evidence of a
witness’ prior consistent statement may be heard by
the jury to rehabilitate the witness. Meaning, so that
you may hear this for you to make a determination
whether Mr. Jackson’s testimony was consistent or
not, and how does that affect Mr. Jackson’s
testimony here in court. That’s the only reason that
it’s being admitted. We call it rehabilitation
evidence.
N.T., 8/28/13, at 112-13. Our Supreme Court has held that “[a] mistrial is
not necessary where cautionary instructions are adequate to overcome
prejudice.” Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa.
2011). Therefore, there was no abuse of discretion in the trial court’s
determination that the challenged questioning did not require the remedy of
a mistrial.
Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2015
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