Com. v. Gardner, J. ( 2016 )

J-A34017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON GARDNER
Appellant No. 196 MDA 2015
Appeal from the Judgment of Sentence September 19, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000410-2013
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED APRIL 11, 2016
Jason Gardner appeals from the judgment of sentence imposed on
September 19, 2014, in the Court of Common Pleas of Lycoming County.
On that same day, a jury convicted Gardner of second-degree murder,
robbery, conspiracy to commit robbery, and flight to avoid apprehension,
trial, or punishment.1 The court sentenced Gardner to life imprisonment
without the possibility of parole. On appeal, Gardner raises sufficiency,
weight, evidentiary, and suppression issues. For the reasons below, we
affirm on the basis of the trial court’s opinions.
Gardner’s convictions stem from the January 9, 2013, fatal shooting of
the victim, Terrell Henderson-Littles, in an alley in Williamsport,
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1
18 Pa.C.S. §§ 2502(b), 3701(a)(1)(ii), 903(a), and 5126(a), respectively.
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Pennsylvania. In its opinion, the trial court fully and correctly sets forth the
relevant facts and procedural history of this case. See Trial Court Opinion,
3/25/2015, at 1-12. Therefore, we have no reason to restate them herein.
Gardner presents the following six issues for our review:
1. Whether the trial court erred in finding that the
Commonwealth presented sufficient evidence of robbery,
conspiracy to commit robbery and murder in the second
degree when there was no evidence of a taking required for
the robbery?
2. Whether the court erred in upholding the verdicts when the
weight of the evidence was against the verdict?
3. Whether the court erred in precluding evidence of a
Commonwealth witness’s prior use and possession of a
firearm when the witness was a co-defendant in a murder
case?
4. Whether the trial court erred in permitting the Commonwealth
to play recorded telephone conversations between [Gardner]
and a third party when there was no probative value to those
calls?
5. Whether the court erred in permitting the Commonwealth to
use a visual aid during its closing that was not supported by
the evidence nor was it ever admitted as an exhibit?
6. Whether the court erred in failing to grant a motion to
suppress statements when there was no continuation of
interrogation as a result of being transported from Easton to
Williamsport, [Pennsylvania]?
Gardner’s Brief at 4-5.
After a thorough review of the record, the briefs of the parties, the
applicable law and standard of review, and the well-reasoned opinions of the
Honorable Nancy L. Butts, we conclude Gardner’s issues merit no relief.
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With respect to issues one, two, three, and four, the trial court’s Pa.R.A.P.
1925(a) opinion comprehensively discusses and properly disposes of these
questions. See Trial Court Opinion, 3/25/2015, at 13-21 (finding: (1) there
was sufficient evidence to convict Gardner of robbery, second-degree
murder, and conspiracy where the evidence established Gardner was
brought to Williamsport to rob people, he asked permission to rob the
victim, he pulled out a gun and shot the victim, the victim died as a result of
the gunshot, and he told a third-party that he took about three bags of
marijuana from the victim;2 (2) the verdict was not against the weight of the
evidence and did not shock the trial court’s conscience 3 where (a) Gardner’s
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2
We note that Gardner included in his sufficiency argument two claims
regarding the preliminary hearing. He asserts: (1) there was no evidence
of taking presented at the preliminary hearing to support the prima facie
case of robbery and (2) the Commonwealth’s use of Shabazz’s statement
violated Bruton v. United States, 391 U.S. 123 (1968). See Gardner’s
Brief at 12, 15. “[I]t is well-settled that errors at a preliminary hearing
regarding the sufficiency of the evidence are considered harmless if the
defendant is found guilty at trial.” Commonwealth v. Ricker, 120 A.3d
349, 353 (Pa. Super. 2015). Therefore, we need not address these claims
further.
Nevertheless, we note the trial court addressed Gardner’s challenge to
a prima facie case of robbery in its September 30, 2013, opinion. See Trial
Court Opinion, 9/30/2013, at 7-9. Moreover, with respect to Shabazz’s
statement, Gardner concedes there was no joint trial in the present matter
and therefore, Bruton does not apply. See Gardner’s Brief at 15.
3
With respect to weight claims, our standard of review is well-settled:
“[A]n appellate court does not substitute its judgment for the finder of fact
and consider the underlying question of whether the verdict is against the
weight of the evidence, but, rather, determines only whether the trial court
(Footnote Continued Next Page)
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cohort, Mirad Shabazz, testified that he gave Gardner permission to rob the
victim, and Gardner said it was “a go” and pulled out a gun, (b) a jailhouse
informant, Gage Michael Wood, stated that Gardner admitted he came to
Williamsport to rob people and “shot the kid in the face” after the victim did
not surrender his drugs, and (c) the jury received a corrupt and polluted
source instruction regarding Shabazz and was aware of Wood’s motive in
testifying and received a cautionary instruction regarding the matter; (3)
evidence regarding Shabazz and his prior use and possession of firearms
(including an arrest in Easton, Pennsylvania while seen carrying a rifle and
an outstanding weapons charge in New Jersey) was properly precluded
because it was offered only to show that Shabazz had a propensity for
violence and carrying weapons, which violated Pa.R.E. 404(b)(1); and (4)
evidence of Gardner’s recorded prison phone conversations regarding a
“Bishop” was properly admitted as probative because Gardner’s associate,
Isaiah Fulton, testified that they called Gardner’s gun a “Bishop,” Gardner
stated a “Bishop” was brought up with them on their trip to Williamsport,
and Gardner had denied knowledge of a gun so that evidence of him talking
about the gun would refute his lack of knowledge).
_______________________
(Footnote Continued)
abused its discretion in making its determination.” Commonwealth v.
Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, 134 S. Ct. 1792 (U.S.
2014)
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With respect to Gardner’s fifth issue, we note the following regarding
the Commonwealth’s use of a non-admitted visual aid during closing
argument:
“Visual aids may be used to assist the jury in understanding the
evidence in appropriate cases, and permission to do so is within
the sound discretion of the trial judge.” Commonwealth v.
Pelzer, 531 Pa. 235, 245, 612 A.2d 407, 412 (1992). This rule
applies equally to demonstrative aids used during the actual trial
phase and during the parties’ opening and closing arguments.
Moreover, it is well-settled that, during closing arguments, a
prosecutor must be given reasonable latitude to present the
Commonwealth’s theory of the case provided that the evidence
and the inferences derived therefrom reasonably support such a
scenario. See, e.g., Commonwealth v. Persichini, 444 Pa.
Super. 110, 125, 663 A.2d 699, 706 (1995).
Commonwealth v. Rickabaugh, 706 A.2d 826, 837 (Pa. Super. 1997),
appeal denied, 736 A.2d 603 (Pa. 1999).
Here, the prosecutor explained his use for the aid: “But I wanted to
state that Mirad Shabazz in his testimony indicates that at the time of the
shooting Gardner was standing in direct front of him in a south direction and
that the victim was to his left.” N.T., 9/18/2014, at 184.
The following exchange then occurred:
THE COURT: So [the prosecutor’s] choosing to focus on one
item of testimony rather than another.
[Defense counsel]: Fine. But, Your Honor, again, my
objection --
THE COURT: Yeah.
[Defense counsel]: You have my objection.
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THE COURT: I do. And, again, [the prosecutor’s] going to couch
this as it’s not labeled as an exhibit. It’s something that’s --
ladies and gentleman, you know, I’ve put this together based
upon my recollection of the testimony. You know, you heard the
judge ad nauseam say it’s your recollection that controls. But I
remember that when Mirad Shabazz testified this is where he
had everybody placed.
[Defense counsel]: See, my recollection is different than that.
And, again, it’s obviously the jury. But okay.
THE COURT: Yeah. And I think that’s where we’re dealing with
it, you know.
Id. at 184-185.
As pointed out by the trial court, Shabazz did testify that Gardner was
in front of him at the time the gun went off and the victim was to the left of
him. N.T., 9/15/2014, at 109.
During closing arguments, the prosecutor stated:
But we know based upon where the body fell dead standing that
there was movement and we know the way the bullet was
passing through his head from left to right, front to back, and
up, his feet where he stands left to right, front to back, and up,
that the bullet passes through Terrell Littles’ head and up
through that drip edge and up into the sky. Colton Engel[, a
friend of the victim,] doesn’t see it because he can’t see what’s
happening over here, but he does see Mirad Shabazz who is
raising his hand in this direction, raising his hands maybe
because he’s surprised at what the heck is going on over here
between these two. Maybe because things are getting out of
hand with the robbery. We don’t know, but Mirad Shabazz takes
the stand and says when that gun goes off Jason Gardner is in
front of me, Terrell Littles is to my left. And when he says that it
clicks with the Commonwealth because we say well, that’s what
our physical evidence shows. That is exactly what our physical
evidence shows.
N.T., 9/19/2014, at 29-30.
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In its opinion, the court found it did not err in permitting the
Commonwealth to use a visual aid during closing arguments because the aid
was supported by Shabazz’s testimony as to where Gardner and the victim
were standing in relation to him. See Trial Court Opinion, 3/25/2015, at 19-
20.
Given the foregoing, particularly that a prosecutor must be given
reasonable latitude to present the Commonwealth’s theory of the case
during closing arguments, and based upon our review of the record, in which
there were many individuals present at the shooting and the Commonwealth
was using the aid to show where the actors were located, we conclude the
trial court did not abuse its discretion in permitting the Commonwealth’s use
of the visual aid.
With respect to Gardner’s remaining claim, his sixth, the trial court
correctly addressed the issue in its September 30, 2013, opinion and order.4
In denying the motion to suppress, the trial court noted Gardner was
interviewed by the same officer that provided him with the earlier Miranda5
warnings, the second interview occurred approximately two and a half hours
after the warnings were initially given, and the interviews occurred in
different locations. See Trial Court Opinion, at 9/30/2013, at 5. The court
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4
The court incorporated its analysis from the September 30, 2013, opinion
in its Rule 1925(a) opinion. See Trial Court Opinion, 3/25/2015, at 13.
5
Miranda v. Arizona, 384 U.S. 436 (1966).
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found that while the different locations of the interviews supported Gardner’s
position that he should have been re-advised of his rights, that was
mitigated by fact that the officers advised Gardner prior to the trip back to
Williamsport and during the first interview that they would continue to talk in
the police vehicle. Id. The court concluded that because it was the same
officer conducting both interviews and there was a short amount of time
between the inquiries, these factors further supported the determination that
the police were not required to re-advise Gardner of his rights. Id. at 5-6.
Moreover, the court indicated that in his first statement, Gardner averred he
and Shabazz went straight to their friend’s apartment and did not see the
victim or a shooting. See Trial Court Opinion, at 9/30/2013, at 6. In the
second statement, he said that he and Shabazz were at the scene of the
shooting. Id. The court emphasized that while these statements were
different, Gardner merely acknowledged he was at the scene, but did not
admit that he was involved in the shooting in any way. Id. Therefore, the
court found that these two statements were not substantively different. Id.
As such, the court concluded that based on the facts of the case, the police
did not have to re-inform Gardner of his Miranda rights before talking to
him in the police vehicle. Id.
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We conclude that the trial court’s opinions properly dispose of the
issues in this case. Accordingly, we affirm on the basis of those opinions
with respect to Gardner’s numerous claims,6 with one additional comment.
At several points in Gardner’s brief, Gardner alleges the only credible
evidence is his own testimony, which he claims is more reliable than that of
the other witnesses. We emphasize that “the fact-finder is free to believe
all, part, or none of the evidence, and credibility determinations rest solely
within the purview of the fact-finder.” Commonwealth v. Flor, 998 A.2d
606, 626 (Pa. 2010). It follows from the above principle that the jury was
not required to believe Gardner’s testimony and that it could rely on the
testimony from the other witnesses, which implicated Gardner as the
shooter.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2016
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6
We note Gardner raised additional claims with the trial court, which it
analyzed in its opinions, that are currently not before us on direct appeal.
Accordingly, we need not address those claims further.
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...
IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA
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' -·334 A.2d 594,
597 (Pa. 1975).
An accused, of course, need not be reinformed of his rights, and asked whether he wishes
to assert them each time he is asked a question. On the other hand, we have held that the
accused must be so reinformed, and given a new opportunity to assert constitutional
rights when warranted by the circumstances. Several "objective indicia" have been noted
as significant in determining the issue: we have considered (1) the time lapse between
the last Miranda warnings and the accused's statement; (2) interruptions in the continuity
of the interrogation; (3) whether there was a change of location between the place where
3
the last Miranda warnings were given and the place where the accused's statement was
made; (4) whether the same officer who gave the warnings also conducted the
interrogation resulting in the accused's statement; and (5) whether the statement elicited
during the complained of interrogation differed significantly from other statements which
had been preceded by Miranda warnings.
Id. at 598 (citations omitted).
In Wideman, the defendant and his wife arrived at the police administration building at
5:15 AM. Id. at 596. At 5:45 AM, the defendant was given Miranda warnings by Detective
Bacher but no questions were asked. At 6:45 AM, Detective Basmajian re-warned the defendant
and asked him questions for about a half an hour. At 10:30 AM, the defendant was taken to an
interrogation room and given a lie detector test. The defendant was then interrogated again by
Detective Melfi, spoke with his wife, and took a three and a half (3 Yi) hour nap. From 5:30 to
6:00 PM the defendant was interrogated by Detective Kuester. Id. at 596-97. At 6:45 PM,
Detective Smith interrogated the defendant and he admitted to a shooting. Id. at 597. The
Defendant had not been given his Miranda warnings since 6:45 AM.
The Supreme Court of Pennsylvania found that the defendant should have been re-
advised of his Miranda rights. Id. at 598-99. The Supreme Court noted that continuity of
interrogation was broken on several occasions, the delay was twelve (12) hours, a different
officer gave the Miranda warnings than interrogated the defendant, and there was a material
difference between the statement made when Miranda warnings were given and twelve (12)
hours later. See also Commonwealth v. Wideman, 334 A.2d 594, 599 (Pa. 1975) (determining
that rewarning was necessary when twelve hours elapsed from the time of the Miranda warnings
and the interrogation, a different officer questioned the defendant, and the defendant was moved
to another location). In addition, the Supreme Court suppressed the defendant's subsequent
formal, written statement as it was a product of the inadmissible oral confession.
4
On the other hand, .in Gray, the defendant was questioned about a murder and given his
Miranda warnings at 6:00 PM. Commonwealth v. Gray, 374 A.2d 1285 (Pa. 1977). The
defendant denied any knowledge of the homicide during the forty-five (45) minute interrogation.
After an approximate hour and a half break, the defendant was re-questioned by another officer
and was not re-advised of his Miranda warnings. The Defendant then stated that he was in the
victim's house.
The Supreme Court of Pennsylvania ruled that the interrogation should not have been
suppressed. The Supreme Court noted that "[w]hile a different officer conducted the second
interview, the statements did not materially differ. In the first, [defendant] admitted being with
the victim outside her house. In the second, he added that he accompanied her inside and saw
her fall against a table. After placing her on the couch, [defendant] stated that he left." Id. at
1289. Further, the time between the Miranda warnings and the interrogation was two (2) hours
and it was conducted in the same room. Id.; see also Commonwealth v. Ferguson, 282 A.2d 378,
379-80 (Pa 1971) (finding that rewarning was not necessary when a different officer than the
one that gave the warnings conducted the interrogation).
Here, the Defendant was interviewed by the same officer that gave the Miranda warnings,
the second interview occurred approximately two and a half (2 Yi) hours after the warnings were
initially given, and the interviews occurred in different locations. The different locations of the
interviews support the Defendant's position that he should have been re-advised of his rights.
This factor, however, is mitigated by the officers' reference that they would continue talking in
the police vehicle. The Defendant was advised prior to the trip back to Williamsport and during
the first interview that they would continue to talk in the police vehicle. In addition, the same
5
officer conducting both interviews and the time between the interviews supports the
Commonwealth's position that police were not required to re-advise the Defendant of his rights.
Another of the "objective indicia" used by courts is whether the first and second
statements significantly differ. In the Defendant's first statement he stated that he and Shabazz
went straight to their friend's apartment and did not see the victim or a shooting.1 In the
Defendant second statement he stated that he and Shabazz were at the scene of the shooting. The
Defendant's subsequent statement is different than the first; however, he merely states that he
was at the scene of the shooting. The Defendant did not state that he was involved in the
shooting in any way. In Gray, the defendant denied any knowledge of a homicide and then later
said that he was inside the house and saw the victim fall to the ground. The facts here are similar
to Gray, in that the Defendant first denied knowledge and then stated that he was at the scene.
Therefore, this Court finds that the first and second statements by the Defendant were not
significantly different.
Based on the facts of this case, the Court finds that police did not have to re-inform the
Defendant before talking to him in the police vehicle. The first interview of the Defendant ended
with police stating that they would continue to talk during the drive to Williamsport. In addition,
the statements were not significantly different, occurred within a short period of time from each
other, and were conducted by the same officer.
Motion to Dismiss
The Defendant contends that the Commonwealth failed to establish aprimafacie case for
the robbery charges. Specifically, it is alleged that the Commonwealth did not provide any
I
The Defendant's initial statement to police was that he was in the general area of the shooting but did not know
anything about it.
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evidence that there was any sort of taking ortheft in this matter. A person is guilty ofrobbery if
during the course of committing a theft he either:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious
bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second
degree;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts
him in fear of immediate bodily injury;
(v) physically takes or removes property from the person of another by force however
slight; or
(vi) takes or removes the money of a financial institution without the permission of
the financial institution by making a demand of an employee of the financial
institution orally or in writing with the intent to deprive the financial institution
thereof.
18 Pa.C.S. § 3701(a)(l). Further, "[a]n act shall be deemed 'in the course of committing a theft'
if it occurs in an attempt to commit theft or in flight after the attempt or commission."
After reviewing the Preliminary Hearing transcript, the Court finds that the
Commonwealth has sufficiently established e prima facie case for all the robbery charges. Isaiah
Fulton (Fulton) testified that before the co-Defendants went to buy marijuana from the victim,
Gardner asked Shabazz if he would go with him to rob him. N.T., March 8, 2013, p. 45, 59.
After the shooting occurred Shabazz told Fulton that Gardner shot the victim after he refused to
give them more marijuana and reached for the gun:
HOFFA: So you didn't ask anybody what happened?
FULTON: Yeah. I asked 'em what happened and they told me.
HOFFA: Who told you?
FULTON: Mirad.
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HOFFA: And when you say Mirad you're talking about Shabazz?
FULTON: Yeah.
HOFFA: And what did he tell you again?
FULTON: He said that Jason shot the boy.
HOFFA: Did he say why?
FULTON: He said because he tried to reach for the gun.
HOFFA: Did he - well, what - did he tell you if they took the pot or
did they pay for the weed? Did he tell you that?
FULTON: No, he say they took it.
HOFFA: He took it.
FULTON: And handed him the weed and he didn't want to give the
rest of it so he tried to, like, wrestle for the gun and he got
shot.
HOFFA: And then what else did you say happened after that? He
gave you the weed and he wouldn't give him the rest?
FULTON: Right. That's what he told me - he said that he -I guess he
tried to - I don't really know. He just said that he - he
wasn't trying to give the rest of the weed up and he tried to
wrestle him for the gun.
HOFFA: He didn't want to give up the rest of the weed and he tried
to wrestle him for the gun.
FULTON: Yeah.
HOFFA: And that's what Shabazz is telling you?
FULTON: Right.
Id. at 70-71. In addition, Shabazz made similar statements to Agent Raymond Kontz of the
Williamsport Bureau of Police:
8
COMMONWEALTH: And in that interview with Mr. Shabazz did he make any -
what did he tell you with regard to the homicide of Terell
Littles?
KONTZ: He indicated that the shooter would have been Jason
Gardner, that at one point during the commission of a
robbery that the victim had gotten brave and reached out to
grab the gun and at that point that Mr. Gardner had to shoot
· him.
COMMONWEALTH: Did Mr. Shabazz indicate to you whether he knew or didn't
know that this was going to be a robbery?
KONTZ: He indicated that they were going there to commit the
robbery, that as they approached the victim was still inside
a vehicle and that he had actually told Mr. Gardner that as
long as they were in the vehicle that the robbery wouldn't
take place. They weren't familiar with the area. They were
afraid they would be taken somewhere where they couldn't
find their way back to the residence that they were staying.
When Mr. Littles got out of the vehicle Shabazz- or I'm
sorry, Mr. Gardner turned to Shabazz and said it was on, so
at that time the robbery was going to take place.
Id. at 84. The Defendant points out that Colton Engel (Engel) did not observe a taking. The
testimony, however, established that Engel was not observing them the entire time and also he
did not see what Gardner was doing while he was watching Shabazz. Id. at 22, 35.
Motion for Severance
The Defendant contends that the co-Defendants' case should be severed due to a potential
violation of Bruton, which states that an incriminating statement by a non-testifying co-
defendant violates the other defendant's right to cross-examine as guaranteed by the
Confrontation Clause of the Sixth Amendment. Bruton v. U.S., 391 U.S. 123 (1968). There is
no violation, however, if the incriminating statement is redacted and the trial court gives an
accurate and repeated cautionary charge. See Commonwealth v. Travers, 768 A.2d 845 (Pa.
9
2001); Commonwealth v. Johnson, 378 A.2d 859 (Pa. 1977); Commonwealth v. Whitaker, 878
A.2d 914 (Pa. Super. 2005).
Based on the law, the Court finds that severance of the co-Defendant's cases is not
necessary if the Commonwealth redacts Shabazz's statement for use at trial. The Court will
require that the Commonwealth provide defense counsel the redacted version of the statement at
least sixty (60) days before the start of trial. This will give the Defendant adequate time to raise
any issues from the redacted statement.
ORDER
AND NOW, this ]ZJ__~ of September, 2013, based upon the foregoing Opinion, the
Court finds that the Williamsport Bureau of Police was not required to re-advise the Defendant
of his rights prior to interviewing him again in their police vehicle. In addition, the
Commonwealth established aprimafacie case for the robbery charges. Therefore, the
Defendant's Omnibus Pre-trial Motion is DENIED.
It is ORDERED and DIRECTED that the Commonwealth provide defense counsel with
the redacted version of Shabazz's incriminating statement at least sixty (60) days before the start
of trial.
xc: DA
Robert Hoffa, Esq.
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