Com v. Buford, N. , 101 A.3d 1182 ( 2014 )

J-S62013-14
2014 Pa. Super. 224
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NASIR BUFORD,
Appellant No. 3297 EDA 2012
Appeal from the Judgment of Sentence entered July 23, 2012,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0007423-2011
BEFORE: ALLEN, OLSON, and OTT, JJ.
OPINION BY ALLEN, J.: FILED OCTOBER 08, 2014
Nasir Buford, (“Appellant”), appeals from the judgment of sentence
imposed following his conviction by a jury of first degree murder, possessing
an instrument of crime, and violating the Uniform Firearms Act.1 We affirm.
The trial court provided the following background relative to this
action:
Appellant … appeals from this Court’s judgment[] of
sentence. Following a jury trial before this Court, Appellant was
found guilty of first Degree Murder, 18 Pa.C.S.A. §2502(a),
Possessing an Instrument of Crime, 18 Pa.C.S.A. §907 (PIC) and
a Violation of the Uniform Firearms Acts, 18 Pa.C.S.A. §§6106
(VUFA)[.] The charges stemmed from the September 18, 2010
killing of twenty-one (21) year old Nathaniel Palmer [“decedent”]
in an alleyway on the 1900 block of Bristol Street in Philadelphia.
____________________________________________
1
18 Pa.C.S.A. §§2502(a), 907, and 6106, respectively.
J-S62013-14
Following the verdict the Court sentenced Appellant to Life
Imprisonment for the murder conviction and lesser prison
sentences for the remaining convictions. [FN1: The Court
imposed prison sentences of three and a half (3½) to seven (7)
years for VUFA, and one (1) to two (2) years for PIC.] All
sentences were deemed to run concurrently. Timely Post
Sentence motions were filed and denied. The instant timely
appeal was filed.
Trial Court Opinion, 3/17/14, at 1. The trial court and Appellant have
complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. Is the appellant entitled to an arrest of judgment with respect
to his convictions for murder of the first degree, firearms not to
be carried without a license and possessing instruments of crime
since the evidence is insufficient to sustain the verdicts of guilt
as the Commonwealth failed to sustain its burden of proving the
appellant’s guilt beyond a reasonable doubt?
II. Is the appellant entitled to a new trial as a result of the trial
court’s error in denying his right to be present during the jury
selection phase of the trial during which prospective juror no. 7
was questioned?
III. Is the appellant entitled to a new trial as a result of the trial
court’s ruling that allowed the Commonwealth to introduce the
preliminary hearing testimony of Yvonne Ann Henderson?
IV. Is the appellant entitled to a new trial as a result of the trial
court’s ruling that allowed the Commonwealth to introduce that
portion of the preliminary hearing testimony of Yvonne Ann
Henderson with regard to her prior statement and identification
of a photograph of “Flip?”
V. Is the appellant entitled to a new trial as a result of the trial
court’s ruling that allowed the Commonwealth to present the
testimony of Dr. Edwin Lieberman concerning the results of an
autopsy performed by Dr. Hunt?
VI. Is the appellant entitled to a new trial as a result of the trial
court’s ruling that allowed the Commonwealth to introduce the
-2-
J-S62013-14
prior statements of Commonwealth witnesses Derrick Michael
Jackson and Ralph Smith as substantive evidence?
VII. Is the appellant entitled to a new trial as a result of the trial
court’s ruling that allowed the Commonwealth to present
testimony from Detective Joseph Bamberski with regard to the
statement [sic] of mind and out-of-court statements made by
unavailable witness Yvonne Ann Henderson?
Appellant’s Brief at 5-6.
Appellant’s first issue challenges the sufficiency of the evidence
supporting his convictions. Specifically, Appellant contends:
The Commonwealth’s evidence failed to establish the appellant’s
identity as a shooter or as a participant in the incident resulting
in the victim’s death … Even if the Commonwealth did, in fact,
prove the appellant’s involvement in the crime, it failed to prove
that the appellant acted with the specific intent to kill, malice or
premeditation, that he fired weapon or that he was responsible
for the victim’s death. The Commonwealth’s evidence in this
regard was speculative, conjectural and inherently unreliable and
did not sustain the Commonwealth’s burden beyond a
reasonable doubt.
Appellant’s Brief at 20.
Further, Appellant maintains:
[T]he Commonwealth failed to sustain its burden of proving the
appellant’s guilt of a violation of the Uniform Firearms Act, 18
Pa.C.S.A. §6016. Barrel length is an essential element of the
crime defined in 18 Pa.C.S.A. §6106. In this matter, the
Commonwealth presented absolutely no evidence to establish
barrel length.
Id. at 25-26 (citations omitted).
We recognize:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
-3-
J-S62013-14
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[finder] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Commonwealth v. Jones, 886 A.2d 689, 704 (Pa. Super. 2005) (citations
omitted).
We have expressed:
Evidence is sufficient to sustain a conviction for first-degree
murder where the Commonwealth has established that the
defendant acted with a specific intent to kill, that a human being
was unlawfully killed, that the defendant committed the killing,
and that the killing was deliberate. A specific intent to kill may
be inferred from the defendant's use of a weapon on a vital part
of the victim's body.
Commonwealth v. Ramos, 827 A.2d 1195, 1196 (Pa. 2003) (internal
citations omitted).
Our crimes code defines possessing an instrument of crime as follows:
§ 907. Possessing instruments of crime
-4-
J-S62013-14
(a) Criminal instruments generally.--A person commits a
misdemeanor of the first degree if he possesses any instrument
of crime with intent to employ it criminally.
(b) Possession of weapon.--A person commits a
misdemeanor of the first degree if he possesses a firearm or
other weapon concealed upon his person with intent to employ it
criminally.
***
(d) Definitions.--As used in this section, the following words
and phrases shall have the meanings given to them in this
subsection:
***
“Instrument of crime.” Any of the following:
(1) Anything specially made or specially adapted for criminal
use.
(2) Anything used for criminal purposes and possessed by the
actor under circumstances not manifestly appropriate for lawful
uses it may have.
“Weapon.” Anything readily capable of lethal use and
possessed under circumstances not manifestly appropriate for
lawful uses which it may have. The term includes a firearm
which is not loaded or lacks a clip or other component to render
it immediately operable, and components which can readily be
assembled into a weapon.
18 Pa.C.S.A. § 907(a)-(b), and (d).
Moreover, the Uniform Firearms Act provides in pertinent part:
§ 6106. Firearms not to be carried without a license
(a) Offense defined.--
(1) Except as provided in paragraph (2), any person who carries
a firearm in any vehicle or any person who carries a firearm
concealed on or about his person, except in his place of abode or
-5-
J-S62013-14
fixed place of business, without a valid and lawfully issued
license under this chapter commits a felony of the third degree.
(2) A person who is otherwise eligible to possess a valid license
under this chapter but carries a firearm in any vehicle or any
person who carries a firearm concealed on or about his person,
except in his place of abode or fixed place of business, without a
valid and lawfully issued license and has not committed any
other criminal violation commits a misdemeanor of the first
degree.
***
(e) Definitions.--
(1) For purposes of subsection (b)(3), (4), (5), (7) and (8), the
term “firearm” shall include any weapon which is designed to or
may readily be converted to expel any projectile by the action of
an explosive or the frame or receiver of the weapon.
18 Pa.C.S.A. § 6106(a)(1)-(2), (e)(1) (footnote omitted).
Here, the trial court determined:
The evidence, viewed in the light most favorable to the
Commonwealth[,] was as follows: on September 18, 2010 at
about 1:27 a.m., Philadelphia Police Officer Ernest Tolan
responded to a radio call for a person with a gun and was the
first arriving officer at the 1900 Block of Bonitz Street in
Philadelphia. He parked on the corner of Wayne Avenue and
saw the decedent lying in the middle of the street. The
[decedent] appeared to be shot multiple times and was
unresponsive. As other arriving responders tended to the
[decedent], Officer Tolan followed the blood trail to Bristol
Street. There, he observed buildings that had bullet damage
and saw a car with open windows. The smell of marijuana
emanated from inside the car. N.T. 7/18/12, 80-90.
Dr. Edwin Lieberman testified that the [decedent] suffered
three (3) gunshot wounds and also suffered blunt force trauma.
One bullet entered the [decedent's] right shoulder and exited his
back. That wound did not cause any significant trauma.
Another bullet entered the [decedent's] back and exited the right
shoulder. This shot caused a small fracture to the [decedent’s]
-6-
J-S62013-14
arm. The third shot entered the [decedent’s] chest piercing his
lung. This shot caused severe blood loss which resulted in the
[decedent's] death. All shots were from a distance greater than
two and a half (2½) feet. Medical evidence could not determine
the order of the shoots [sic]. Dr. Lieberman testified that after
suffering these three bullet shots, a victim would have been able
to run a distance until the loss of blood would cause the victim to
pass out and die. The [decedent] also suffered a red abrasion
on his right cheek, as if he had fallen. N.T. 7/18/12, 104-119.
Derrick Michael Jackson [“Jackson”], testified that he knew
both Appellant and the decedent. The witness was present at
the shooting scene, socializing with friends. He testified that he
heard two (2) shots from the alleyway. He saw the decedent
run and collapse. In his testimony he denied seeing the
shooting. However, in a signed statement given to police just a
few hours after the shooting, and introduced pursuant to
Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986) and
Commonwealth v. Lively, 464 A.2d 7 (Pa. 1992), the witness
gave a different version of the events. In that statement the
witness told the detectives that Appellant, whom he knew as
Flip, shot the decedent. He stated that prior to the shooting he
was with the decedent, Appellant's older brother, whom he knew
as Rafi and another person named Ralph Smith. They were
drinking. [FN2: Fingerprints belonging to Ralph Smith and the
decedent were obtained from cups recovered at the crime scene.
A vodka bottle was also recovered. N.T. 7/18/12, 63-64.] The
decedent briefly walked away into the alley to sell drugs to
Yvonne Henderson [“Henderson”]. He then heard a "loud bang,
bang and looked up." He saw a flash of a gun and saw Appellant
shooting from the alley. [FN3: At trial, the witness
acknowledged that he identified Appellant as the shooter in his
police statement. N.T. 7/18/12, 168.] Jackson, along with the
others ran and he eventually saw the decedent collapse. N.T.
7/18/12, 121- 153. (Testimony of [Jackson]); N.T. 7/19/12, 83-
98. (Testimony of Detective John Harkins)[.]
Ralph Smith [“Smith”] testified that he too was at the
shooting scene, knew all the people who were at the scene but
did not see the actual shooting. He testified that the car
belonged to him. This witness also gave a signed statement to
the detectives two (2) days after the shooting. In that
statement he provided a much more detailed version of what he
saw from when he first arrived at about 10 p.m. until the
shooting three and a half (3½) hours later. Immediately before
-7-
J-S62013-14
the shooting he saw [Jackson] and Appellant's brother. He did
not see Appellant. As Smith approached them, he saw the
decedent walking towards the alley with [Henderson]. Gunshots
rang out shortly thereafter and he, along with the others fled.
N.T. 7/18/12, 185-226. (Testimony of [Smith]); N.T. 7/19/12,
140-158. (Testimony of Detective Levy Morton)[.]
[Henderson] died before the trial. However her
preliminary hearing testimony was read to the jury.
[Henderson], who lived down the block from Appellant[,]
testified that she went to the alley to purchase drugs. She saw
the decedent standing by a car and gave him $10. She saw
Appellant pointing. Appellant turned and with an outstretched
arm started shooting at the decedent. The decedent ran,
knocking down [Henderson]. When she eventually got up the
decedent was gone. N.T. 7/19/12, 25-36.
Crime Scene Police Officer Edward Fidler was dispatched to
Bristol Street, which faced the alley way. He noticed bullet
strike marks and holes outside 1912 Bristol [S]treet. Inside he
recovered two (2) bullets. N.T. 7/19/12, 5-14. Police Officer
Edward Nelson, a firearms expert examined the two recovered
bullets. Although he was unable to determine whether they
were fired from the same gun, he was able to determine that
both were consistent with being fired from a revolver [FN5:
Significantly, no shell casings were found at the shooting
scene.], both had a similar pattern of lands and grooves, and
both were of similar caliber. N.T. 7/19/12, 52-66. Stipulated
evidence proved that Appellant was not licensed to carry a
firearm. [FN6: N.T. 7/19/12, 171.]
Trial Court Opinion, 3/17/14, at 2-5.
Our review of the record confirms the trial court’s recitation of the
facts and evidence adduced at trial, and supports the trial court’s
determination that there was sufficient evidence to support Appellant’s
convictions.
Contrary to Appellant’s contention, the Commonwealth’s evidence was
sufficient to establish that Appellant shot the decedent. Henderson’s
-8-
J-S62013-14
preliminary hearing testimony was read to the jury as discussed more fully
below. N.T., 7/19/12, at 25-49. Henderson identified Appellant, her
neighbor, as the decedent’s shooter. Id. at 28-31. At trial, Jackson testified
that he had recently reviewed the statement that he provided to law
enforcement following the shooting. N.T., 7/18/12, at 129, 131. Jackson
“recall[ed] [that] that’s what [he] told the Homicide detectives back on
September 18, 2010[.]” Id. at 129. Jackson further testified that he
“signed that statement” along with the photographs that he was shown by
law enforcement. Id. at 131. Jackson confirmed that in his statement to
law enforcement in the hours following the shooting, he stated that he
witnessed Appellant shoot decedent, and provided a description of Appellant.
Id. at 134-135.
Dr. Lieberman, a medical examiner with 22 years of experience,
testified that he had reviewed “the medical examiner’s case file [regarding
decedent’s autopsy] … the photographs taken during the autopsy, the actual
clothing worn by the decedent, as well as other records contained in the
file.” Id. at 105-106. Dr. Lieberman provided expert medical testimony that
the decedent sustained three gunshot wounds to his right shoulder, his back,
and his lung. Id. at 109-118. Dr. Lieberman further testified that Appellant
“died as a result of the gunshot wounds.” Id. at 118.
Viewing the evidence adduced at trial in the light most favorable to the
Commonwealth, the jury could have concluded that the Commonwealth
“established that [Appellant] acted with a specific intent to kill, that a human
-9-
J-S62013-14
being was unlawfully killed, that [Appellant] committed the killing, and that
the killing was deliberate.” See Ramos, 827 A.2d at 1196. Likewise, the
jury could have concluded that Appellant’s specific intent to kill could be
inferred “from [Appellant’s] use of a weapon on a vital part of [decedent’s]
body.” Id. Accordingly, we find that there was sufficient evidence to
support Appellant’s conviction for first degree murder. See
Commonwealth v. Johnson, 985 A.2d 915, 923 (Pa. 2009) (affirming
conviction for first degree murder where defendant was identified as person
who intentionally and deliberately shot victim multiple times causing victim’s
death).
Further, the record viewed in the light most favorable to the
Commonwealth, supports Appellant’s convictions for possessing an
instrument of crime and for violating the Uniform Firearms Act. See 18
Pa.C.S.A. §§ 907 and 6106, respectively. At trial, the jury heard testimony
that the crime scene evidence, as analyzed by firearms expert Police Officer
Nelson, involved two bullet “specimens” which were “consistent with
revolver-type ammunition.” N.T., 7/19/12, at 55, 62. Officer Nelson based
his opinion on “the caliber, the design of the bullet, the length of it, what we
call the cannelure. They both had a knurled cannelure[, meaning]…a
circumferential groove around it. These are things characteristic of revolver-
type ammunition.” Id. at 62. Officer Nelson showed the jury examples of a
revolver and a semi-automatic pistol. Id. at 62-63. Officer Nelson testified
that “[m]any people associate [a revolver handgun] with old western-type
- 10 -
J-S62013-14
movies or older firearms.” Id. at 63. Moreover, Appellant’s counsel
stipulated that Appellant was not licensed to carry a firearm. Based on the
foregoing evidence viewed in the light most favorable to the Commonwealth,
the jury could have reasonably concluded that the weapon used by Appellant
to shoot the decedent was a revolver-type firearm, which Appellant was not
licensed to carry, in violation of 18 Pa.C.S.A. §§ 907 and 6106. Indeed, in
Commonwealth v. Woodbury, 477 A.2d 890 (Pa. Super. 1984), we held
that a conviction for possessing an instrument of crime can be sustained
even if it is based on circumstantial evidence. Specifically, we explained:
The only evidence in support of the accusation of possession was
purely circumstantial. However, once the factfinder concluded
that the appellant was the slayer and that the death resulted
from the infliction of a gunshot wound, the factfinder could
logically have concluded from all of the evidence that appellant
had possession of a gun, that the gun was an instrument
commonly used for criminal purposes, and that his possession of
the gun was, under the circumstances, not manifestly
appropriate for any lawful use that the gun may have had. See
Commonwealth v. Keaton, 276 Pa. Super. 518, 522, 419 A.2d
578, 580 (1980), where a conviction for [possessing an
instrument of crime] was upheld based only upon circumstantial
evidence and with an absence of any direct evidence of actual
physical possession of the weapon. Therefore, appellant's
conviction for this offense was grounded upon competent
evidence. The evidence brought out during the course of the
trial is sufficient to sustain both the conviction for murder in the
third degree and the conviction for possession of an instrument
of crime.
Id. at 893-894 (footnote omitted). Accordingly, we find that Appellant’s
sufficiency claims are without merit.
- 11 -
J-S62013-14
Appellant’s second issue contends that he is “entitled to a new trial as
a result of the trial court’s error in denying his right to be present during the
jury selection phase of the trial during which prospective juror no. 7 was
questioned.” Appellant’s Brief at 27.
Our Supreme Court has explained:
The purpose of voir dire is to provide an opportunity to
counsel to assess the qualifications of the prospective jurors to
serve. It is therefore appropriate to use such an examination to
disclose fixed opinions or to expose other reasons for
disqualification. Commonwealth v. Drew, 500 Pa. 585, 588, 459
A.2d 318, 320 (1983) (citing Commonwealth v. Johnson, 452 Pa.
130, 305 A.2d 5 (1973)). See also Commonwealth v. Lopinson,
427 Pa. 284, 234 A.2d 552 (1967) and Commonwealth v.
McGrew, 375 Pa. 518, 100 A.2d 467 (1953). It is well settled
that the sole purpose of examination of jurors under voir dire is
to secure a competent, fair, impartial and unprejudiced jury.
Commonwealth v. Ellison, 902 A.2d 419, 423-424 (Pa. 2006).
Moreover, our Supreme Court recently observed:
The right to trial by jury is guaranteed by the Sixth
Amendment to the U.S. Constitution and by the Pennsylvania
Constitution, Article I, Section 6 and Section 9. A defendant's
right to be present at his or her trial is grounded in the
Confrontation Clause of the Sixth Amendment and in the Due
Process Clauses of the Fifth and Fourteenth Amendments. The
United States Supreme Court has determined that “[o]ne of the
most basic of the rights guaranteed by the Confrontation Clause
is the accused's right to be present in the courtroom at every
stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct.
1057, 25 L. Ed. 2d 353 (1970) (citing Lewis v. United States, 146
U.S. 370, 13 S. Ct. 136, 36 L. Ed. 1011 (1892)). In addition, the
High Court “has assumed that, even in situations where the
defendant is not actually confronting witnesses or evidence
against him, he has a due process right to be present in his own
person whenever his presence has a relation, reasonably
substantial, to the fullness of his opportunity to defend against
- 12 -
J-S62013-14
the charge.... Thus, a defendant is guaranteed the right to be
present at any stage of the criminal proceeding that is critical to
its outcome if his presence would contribute to the fairness of
the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745, 107
S. Ct. 2658, 96 L. Ed. 2d 631 (1987) (quotation marks and
internal citation omitted).
The High Court has explicitly affirmed that voir dire is a
critical stage of the criminal proceeding, during which the
defendant has a constitutional right to be present. Gomez v.
United States, 490 U.S. 858, 873, 109 S. Ct. 2237, 104 L. Ed. 2d
923 (1989) (citing Lewis, supra at 374, 13 S. Ct. 136). The
determination that voir dire is a critical stage of trial flows
directly from the recognition that a defendant's “life or liberty
may depend upon the aid which, by his personal presence, he
may give to counsel and to the court and triers in the selection
of jurors.” Lewis, supra at 373, 13 S. Ct. 136. However, certain
decisions regarding the conduct of voir dire are properly made
by counsel alone. See, e.g., Gonzalez v. United States, 553 U.S.
242, 128 S. Ct. 1765, 170 L. Ed. 2d 616 (2009) (holding that
defense counsel may decide whether to consent to voir dire
proceedings before a federal magistrate).
The High Court has also stated:
The mere occurrence of an ex parte conversation between
a trial judge and a juror does not constitute a deprivation
of any constitutional right. The defense has no
constitutional right to be present at every interaction
between a judge and a juror, nor is there a constitutional
right to have a court reporter transcribe every such
communication.
U.S. v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d
486 (1985).
Article I, § 9 of the Pennsylvania Constitution and
Pennsylvania Rule of Criminal Procedure 602 guarantee the right
of an accused to be present in the courtroom at every stage of a
criminal trial. Commonwealth v. Rompilla, 554 Pa. 378, 721
A.2d 786, 793 (1998); Commonwealth v. Ford, 539 Pa. 85, 650
A.2d 433, 440 (1994). Rule 602(a) provides that “[t]he
defendant shall be present at every stage of the trial including
the impaneling of the jury....” As we have recently determined,
this rule “plainly states that the defendant has the right to
observe every phase of the trial, including the impaneling of the
- 13 -
J-S62013-14
jury.” Williams, supra at 618. In addition, the jury selection
process is crucial to the preservation of the right to an impartial
jury as guaranteed by Article I, § 9 of the Pennsylvania
Constitution. Commonwealth v. Ingber, 516 Pa. 2, 531 A.2d
1101, 1102 (1987).
However, like the U.S. Supreme Court, this Court has
recognized that the right to be present in the courtroom during
one's trial is not absolute. This Court has stated that a
“defendant's presence in chambers and at sidebar is not required
where he is represented by counsel.” Commonwealth v. Boyle,
498 Pa. 486, 447 A.2d 250, 253 (1982). In Boyle, the appellant
challenged the trial court's denial of a recusal motion, citing the
appellant's exclusion from sidebar and in-chambers conferences
as evidence of judicial prejudice. We determined that there was
no merit to the appellant's assertions, noting that defense
counsel was present at the conferences and had an
unconstrained right to confer with his client. Id. at 252–53 & n.
7. See also Commonwealth v. Proctor, 526 Pa. 246, 585 A.2d
454, 460 (1991) (affirming the denial of relief after the trial
court reseated an erroneously dismissed juror, after discussion
with counsel but outside the defendant's presence).
***
[W]e conclude that although a defendant has the
clear right to participate in the jury selection process, that
right is not compromised where, as here, the defendant,
who was in the courtroom, was not present at sidebar
where his counsel was questioning several venirepersons
outside the range of his hearing. We reach this
conclusion because, like other jurisdictions, we recognize
that a defendant's right to participate in voir dire may be
satisfied through procedures that both ensure the
defendant's right to choose and be tried by a fair and
impartial jury, yet make accommodations for trial court
efficiency and safety, and the comfort, protection, and
respect for the jury pool. Nothing in the federal or state
constitutions, and nothing in Pa.R.Crim.P. 602(a),
requires a contrary result. We recognize and reaffirm, as
other jurisdictions have done, that trial courts are in the
best position to determine how to proceed in each case
and how to strike the appropriate balance. We hold that
where some questioning of venirepersons occurs at
sidebar and outside of the defendant's hearing, the
- 14 -
J-S62013-14
defendant's consultation with his or her counsel regarding
these proceedings may certainly serve as an adequate
basis upon which to conclude that the defendant's right to
be present during jury impanelment has been respected.
Commonwealth v. Hunsberger, 58 A.3d 32, 37-40 (Pa. 2012) (footnote
omitted) (emphasis supplied).
Appellant asserts that Hunsberger is distinguishable in this case, and
argues:
In Hunsberger, prospective jurors were questioned in the
defendant’s presence, but out of his hearing. The defendant
participated in the questioning and/or selection of these
prospective jurors since the record showed that the defendant
consulted with the trial counsel during the questioning and
selection of these jurors.
In the instant matter, the appellant’s trial counsel objected
to questioning of prospective Juror no. 7 in his absence. The
questioning of this prospective juror did not take place in the
appellant’s presence, but in the trial judge’s robing room out of
the sight and hearing of the appellant. Moreover, the record
does not reflect whether trial counsel ever consulted with the
appellant concerning prospective Juror no. 7.
Appellant’s Brief at 31. We do not agree with Appellant.
Our review of the record reveals that Appellant was present when the
trial court began its examination of the venirepersons. Indeed, the trial
court personally addressed Appellant to advise him that it was the trial
court’s “practice to introduce [Appellant], as well as all counsel” to the
venirepersons. N.T., 7/16/12, at 3. Likewise, Appellant was present when
the trial court explained to the venirepersons the following courtroom
procedure:
- 15 -
J-S62013-14
[I]f for some reason, ladies and gentlemen, one of these
questions [from the jury questionnaire] that I ask of you is
something that you would like to discuss in private and not in
front of the entire jury panel, then all you need to do is say that
to the Court and then you have to give us a minute or two.
What will then happen is we’ll go through that door to the robing
room, the stenographer and the attorneys and I will set up; and
then that juror will be brought to the back and questioned out of
the hearing of the other members of the panel.
Id. at 8.
Appellant was also present when the trial court began its examination
of prospective juror no. 7, and the potential juror revealed that her son had
been the victim of a crime involving a weapon. Specifically, the following
exchange occurred:
[Trial] Court: [] Juror number seven, you indicated that you or
someone close to you had been the victim of a crime?
Prospective Juror 7: Yes.
[Trial] Court: The person’s relationship to you and the crime?
Prospective Juror 7: My son.
[Trial] Court: And what was the crime?
Prospective Juror 7: He was robbed.
[Trial] Court: I am sorry to hear that. Was a weapon used?
Prospective Juror 7: He didn’t say.
[Trial] Court: Was he injured in any way?
Prospective Juror 7: Yes.
[Trial] Court: How was he injured?
Prospective Juror 7: Well, when he tried to finally get away, he
fell and that’s when they, a gang of them had robbed him of his
school bag, went through his pockets.
- 16 -
J-S62013-14
[Trial] Court: I am very sorry to hear that. Did he have to go to
the hospital as a result of this?
Prospective Juror 7: He wouldn’t tell me that.
[Trial] Court: Now, obviously, as a mother, this is a very
upsetting thing to happen to someone that you care about. Did
he report this to the police?
Prospective Juror 7: Yes.
[Trial] Court: Was anyone ever arrested?
Prospective Juror 7: Not that I know of.
[Trial] Court: Now, because of this experience, do you hold any
prejudice for or against the police department or the justice
system as a whole because your son was th[e] victim of a
robbery and assault and no one was ever apprehended?
Prospective Juror 7: No.
Id. at 29-30.
The trial court then questioned prospective juror no. 7 regarding her
“education and training past high school” and whether she had taken “any
classes that were law or law related[.]” Id. at 30. Prospective juror no. 7
asked the trial court, “can we talk in private?” Id. at 31. The following
discussion ensued:
[Trial] Court: Certainly. It will just—you just have to give us a
minute. If the stenographer will set up in the back and I will see
counsel.
As soon as we are set up, we will bring you into the back.
Okay.
---
(Whereupon, the following took place in the Judge’s robing
room.)
- 17 -
J-S62013-14
[Appellant’s counsel]: I just have to note a timely objection
because my client, he obviously can’t be present for this.
[Trial] Court: No. In regards to the sidebars, because of the
security, your client cannot be present. Your objection is noted
and I would direct you to relay to him any answer to this, the
additional questions.
---
(Whereupon, prospective juror number 7 enters the robing
room.)
---
[Trial] Court: All right. So juror number seven, in regards to
your legal training, you asked to see us at sidebar. What type of
specialized legal training do you have?
Prospective Juror 7: Okay. I work for the Department of
Homeland Security, ICE, but every now and then we have to
take training, mandatory training for our job.
[Trial] Court: All right. So, let me ask you this, because,
obviously you are in a high security position. I see that you
work for deportation and removal of—this is of people involved
as immigrants or in terrorist issues?
Prospective Juror 7: Both.
[Trial] Court: Both. So, obviously, you have regular contact
with members of law enforcement both on the state, federal, and
local issue?
Prospective Juror 7: Yes, ma’am.
[Trial] Court: So here is what I want to know: Because you
work in an, obviously, very—we appreciate your, the work that
you do.
Prospective Juror 7: Thank you.
[Trial] Court: Is there anything about the nature of that work
that you think would impact your ability to be a fair juror in this
case?
Prospective Juror 7: No.
- 18 -
J-S62013-14
[Trial] Court: [] What I want to know is if I instruct you on the
law and I tell you what it is, do you understand that you have to
apply the law as I give it to you, not any law that you know,
think you know, may have been—may have studied, tested on or
discussed in a classroom, would you be able to follow my
instructions on the law?
Prospective Juror 7: Yes, uh-huh.
[Trial] Court: Okay. And how long have you worked in your
capacity for Homeland Security and the other agencies?
Prospective Juror 7: I’ve been with Homeland Security for 15
years, and the Department of Defense for 16 years.
***
[Trial] Court: Okay. So, counsel, you may, if you have
additional questions, [Appellant’s counsel], you may ask those
questions.
[Appellant’s counsel]: Yes. You said [you are a] deportation
and removal assistant. If you could just elaborate a little bit
on—
Prospective Juror 7: Okay. That’s my title. Well, I mainly work
in administrative, timekeeper, purchases and maybe moving
some files every now and then. I have contact with who we
bring in.
[Appellant’s counsel]: Okay. That’s all.
Id. at 31-34.
Consonant with Hunsberger, we find that the trial court was “in the
best position to determine how to proceed” regarding prospective juror no.
7’s request for a private discussion. Hunsbereger, 58 A.3d 40. We further
find that the trial court did not abuse its discretion in determining that
“because of security” Appellant would not be in the robing room. N.T.,
7/16/12, at 31. Moreover, Appellant’s counsel was present during the in
- 19 -
J-S62013-14
camera examination of prospective juror 7, and questioned her after the trial
court concluded its own examination. Id. at 31-34. Further, while Appellant
argues that “the record does not reflect whether trial counsel ever consulted
with the appellant concerning prospective Juror no. 7,” the record clearly
reflects that Appellant’s trial counsel was specifically “direct[ed] to relay to
[Appellant] any answer” and information received from prospective juror no.
7 during the in camera examination. Appellant’s Brief at 31; N.T., 7/16/12,
at 31.
Appellant’s counsel was afforded “an opportunity … to assess the
qualifications of the prospective juror[] to serve.” Ellison, supra, at 423-
424. We are not persuaded that Appellant’s absence from the in camera
examination of prospective juror no. 7 resulted in Appellant being tried
before an incompetent, unfair, partial and prejudiced jury. Id. Appellant
was present during the rest of the jury selection process. Accordingly,
applying the rationale espoused by our Supreme Court in Ellison and
Hunsberger, we find that Appellant’s challenge to his absence from the in
camera examination of prospective juror no. 7 is unavailing.
Appellant’s third and fourth claims of error challenge the admission of
Henderson’s preliminary hearing testimony, including references to the
portion of Henderson’s statement to law enforcement which “made reference
to a photographic identification of an individual known as ‘Flip,’ presumably
the appellant … [because] Henderson never indicated that ‘Flip’ was the
individual responsible for the death of the victim.” Appellant’s Brief at 33,
- 20 -
J-S62013-14
45. “A ruling on the admissibility of evidence will only be reversed upon a
showing that the trial court abused its discretion.” Commonwealth v.
Kunkle, 79 A.3d 1173, 1179 (Pa. Super. 2013) (internal citations and
quotations omitted).
Instantly, the trial court determined:
Appellant, under two separate theories, challenges this
Court's ruling permitting the use of [Henderson's] preliminary
hearing testimony. He first claims that he did not have a full and
fair opportunity to cross examine her at the preliminary hearing.
He also objects to the admissibility of certain portions of her
testimony concerning a prior statement and an identification of
Appellant's photograph. The exception to the hearsay rule which
permits the admission of an unavailable witness's prior
preliminary hearing testimony "is ‘predicated on the “indicia of
reliability" normally afforded by adequate cross-examination.
But where . . . that indicia of reliability' is lacking, the exception
is no longer applicable." Commonwealth v. Bazemore, 614 A.2d
684, 687 (Pa. 1992), quoting Commonwealth v. Mangini, 425
A.2d 734, 739 (Pa. 1981). Therefore, "in order for prior
testimony to be admissible in a subsequent proceeding as
substantive evidence against the accused, there must have been
a 'full and fair opportunity to cross-examine.'" Commonwealth
v. Thompson, 648 A.2d 315, 322 (Pa. 1994), quoting
Commonwealth v. Bazemore, supra at 687. "The
Commonwealth may not be deprived of its ability to present
inculpatory evidence at trial merely because the defendant,
despite having the opportunity to do so, did not cross-examine
the witness at the preliminary hearing stage as extensively as he
might have done at trial." Commonwealth v. Thompson, supra
(footnote omitted). However, where the defense, at the time of
the preliminary hearing, was denied access to vital impeachment
evidence, such as prior inconsistent statements of the witness or
the witness's criminal record, a full and fair opportunity to cross-
examine the unavailable witness may be deemed to have been
lacking at the preliminary hearing. Commonwealth v. Smith,
647 A.2d 907, 911-915 (Pa. Super[.] 1994).
The record of the preliminary hearing discloses that prior
to the preliminary hearing, counsel was provided with the
- 21 -
J-S62013-14
witness prior statement and with the witness arrest record. N.T.
6/28/2011, 4. We reviewed the substance of the preliminary
hearing and determined that counsel was accorded full and fair
cross examination of the witness. We find no errors concerning
the use of any prior statements. We also note that the witness
knew Appellant as they lived near each other. Accordingly any
challenge to the identification of his photo is baseless. Therefore
Appellant's challenges to the admissibility of these [sic]
testimony fails under both theories.
Trial Court Opinion, 3/17/14, at 6-7 (footnotes omitted).
The record and applicable jurisprudence supports the trial court’s
admission of Henderson’s preliminary hearing testimony as substantive
evidence, which includes Henderson’s identification of Appellant in her law
enforcement statement. At the preliminary hearing, the Commonwealth
asserted that Appellant’s “[c]ounsel has been provided a copy of
[Henderson’s] statement, as well as her FBI [extract] for purposes of
preservation.” N.T., 6/28/11, at 4. Appellant’s counsel at the preliminary
hearing did not deny the Commonwealth’s assertion that those materials had
been provided to him. Id. We further note that Appellant’s preliminary
hearing counsel did not assert to the trial court that there was any
outstanding discovery which would prevent him from conducting a full and
fair cross-examination of Henderson. Id. 3-34. During direct examination,
Henderson explained that she had known Appellant, a.k.a Flip, for
approximately two to three years. Id. at 6, 13. Henderson testified that she
and Appellant live on “the same block.” Id. at 8. Henderson described
Appellant point and shoot at decedent. See id. at 9-11. During Henderson’s
testimony, the Commonwealth provided Henderson with a copy of
- 22 -
J-S62013-14
Henderson’s statement to law enforcement “the night that this happened.”
Id. at 16-17. The Commonwealth reiterated that Appellant’s preliminary
hearing counsel “has a copy [of Henderson’s statement to law enforcement],
as well as any relevant [FBI] extracts.” Id. at 17. Henderson testified she
had initialed and signed her statement to law enforcement, had signed a
page with Appellant’s picture and written the name “Flip” on it, and had
signed a separate document indicating she had “adopted” her statement to
law enforcement. Id. at 17-18. Henderson admitted that the statement to
law enforcement contained her “words when [she] talked to Homicide,” and
that she told them “what [she] saw” and “who [she] saw do it.” Id. at 18-
19. Henderson denied that “anyone force[d] her to say anything[.]” Id. at
19.
Appellant’s preliminary hearing counsel cross-examined Henderson
about 1) her being a crack addict; 2) her efforts to reach Appellant to buy
drugs from him; 3) her drug sale with decedent after she could not reach
Appellant; 4) her topics of conversation with decedent during the drug
transaction; 5) her drug and alcohol use the evening of the shooting; 6) her
vision and her use of reading glasses; 7) what Henderson heard prior to the
shooting; 8) Appellant’s position in the alley before the shooting; 9) the
lighting in the alley and Henderson’s lack of flashlight; 10) what Appellant
was wearing; 11) the length of time Appellant stood in the alley prior to the
shooting; 12) Henderson’s position in the alley prior to the shooting along
with the decedent’s position vis á vis Henderson; 13) decedent’s height; 14)
- 23 -
J-S62013-14
what Henderson observed after the shooting; 15) her actions following the
shooting; 16) her failure to tell law enforcement at the crime scene that
Appellant had perpetrated the shooting; 17) and her fear of Appellant and
“everybody” following the shooting. Id. at 19-30. After the Commonwealth
re-examined Henderson, Appellant’s preliminary hearing counsel asserted to
the trial court that “[f]or the purpose of this hearing, I don’t have any
other questions.” Id. at 32 (emphasis supplied).
At trial, Appellant’s trial counsel “stipulated … that [Henderson] is
deceased.” N.T., 7/16/12, at 3. The trial court colloquied Appellant
regarding this stipulation, and Appellant affirmed that he “accept[ed] that
stipulation[.]” Id. at 4. Accordingly, Henderson’s unavailability is
undisputed. Appellant’s trial counsel conceded that “I have nothing to
disprove that [Appellant’s preliminary hearing counsel] did, in fact, receive
the notes of testimony” concerning Henderson. Id. at 5. In arguing against
the admission of Henderson’s preliminary hearing testimony, Appellant’s trial
counsel complained that Appellant’s preliminary hearing counsel did not
have “available to him [the] physical evidence to corroborate [Henderson’s]
statement such as her phone records where she makes reference to making
a phone call to both [Appellant] and to the decedent.” Id. Appellant’s trial
counsel further argued that Appellant’s preliminary hearing counsel did not
have “the rest of the discovery,” which deprived Appellant’s preliminary
hearing counsel from having “an idea of what other witnesses would say
comparable to [Henderson].” Id. at 5-6.
- 24 -
J-S62013-14
In admitting Henderson’s preliminary hearing testimony, the trial court
reasoned:
The Court will note that I have read the preliminary hearing
notes of June 28th of 2011, that there was extensive direct and
cross [examination] of [Henderson], there was a copy of the FBI
extract and the statement [Henderson gave to law enforcement
[was] provided [to counsel]…[.] [S]o after review of the notes
[of testimony,] the Court finds that there was a full and fair
cross-examination of [Henderson], that the notes were properly
preserved, that [Appellant] was present, and therefore, was able
to confront the witness and consult with his attorney and that
the Commonwealth may, in fact, use the notes of [Henderson’s]
testimony at the trial.
Id. at 6-7.
Based on our review of the preliminary hearing and decisional law, we
find that the trial court did not abuse its discretion in admitting at trial
Henderson’s preliminary hearing testimony, which included references to her
identification of Appellant in her law enforcement statement. Henderson,
who had known Appellant for approximately two to three years, was clearly
unavailable, her criminal record and statement to law enforcement had been
provided to Appellant’s preliminary hearing counsel, and Appellant’s
preliminary hearing counsel had a full and fair opportunity to cross-examine
Henderson. N.T., 6/28/11, 4-32; see Commonwealth v. McCandless,
728 A.2d 713, 721 (Pa. Super. 2001) (admitting preliminary hearing
testimony of a deceased witness at a second trial regarding whom appellant
had a full and fair opportunity to cross-examine at the preliminary hearing);
see also Appellant’s Brief at 40 relying on Commonwealth v. Rodgers,
- 25 -
J-S62013-14
372 A.2d 771 (Pa. 1977) (“[I]t is well settled that an unavailable witness’
prior recorded testimony from a preliminary hearing is admissible at trial and
will not offend the right of confrontation, provided the defendant had counsel
and a full opportunity to cross-examine that witness at the prior
proceeding.”). Therefore, we find that Appellant’s third and fourth claims of
error are without merit.
Appellant’s fifth issue challenges the admission of Dr. Lieberman’s
testimony “since he did not perform the autopsy on the victim’s body.”
Appellant’s Brief at 47. Specifically, Appellant contends:
Herein, Dr. Lieberman was called at trial as an expert in
forensic pathology. He was called as a witness due to the fact
that Dr. Hunt, the medical examiner who performed the autopsy
was no longer employed by the Medical Examiner’s Office in
Philadelphia and it was claimed that [Dr. Hunt] was not available
to testify. Dr. Lieberman testified that he reviewed the file. Dr.
Lieberman apparently agreed with the findings contained in Dr.
Hunt’s report.
***
Dr. Lieberman’s testimony was essentially hearsay. The
admission of inadmissible hearsay must always equate with the
denial of the right of confrontation. The fact that Dr. Lieberman
was qualified and testified as an expert in forensic pathology
does not cure the denial of the appellant’s right to confront Dr.
Hunt.
Id. at 50. Appellant further contends that “[p]rovisions have to be made to
assure that the medical examiner who performed the autopsy is returned to
Philadelphia in the criminal prosecution.” Id. We disagree.
In rebutting this claim of error, the trial court explained:
- 26 -
J-S62013-14
Appellant challenges the testimony of Dr. Lieberman
because he did not conduct the actual autopsy. The autopsy
was conducted by former Medical Examiner, Dr. Hunt, who by
the time of trial was with the Riverside, California Medical
Examiner's Office. N.T. 7/18/12, 105. Dr. Lieberman, who at
the time of trial was a Philadelphia Medical Examiner for 22
years, testified that prior to his testimony he reviewed Dr. Hunt's
complete report, the photographs taken during the autopsy, the
actual clothing worn by the decedent and other documents
contained in the Medical Examiner's file. N.T. 7/18/12, 104-106.
Contrary to Appellant's assertion, the record is clear that Dr.
Lieberman did not simply recite the opinion of Dr. Hunt. His
testimony was based upon his own conclusions after his own
independent review of the file. This was demonstrated beyond
any dispute as he found an error in Dr. H[u]nt's initial report.
Dr. Hunt's report indicated that one of the bullet wounds
traveled right to left. Dr. Lieberman testified that it was an error
and that bullet traveled left to right. N.T. 7/18/12, 109.
Accordingly, this claim too must be rejected.
Trial Court Opinion, 3/17/14, at 7-8. We agree with the trial court. See
Commonwealth v. Ali, 10 A.3d 282, 306 (Pa. 2010) (post-conviction relief
for ineffective assistance of counsel denied for counsel’s failure to seek a
mistrial after medical examiner who did not author autopsy report testified;
inter alia, prior jurisprudence held that “a medical expert who did not
perform the autopsy may testify as to cause of death as long as the
testifying expert is qualified and sufficiently informed”) citing
Commonwealth v. Smith, 391 A.2d 1009 (Pa. 1978) and
Commonwealth v. Mitchell, 570 A.2d 532 (Pa. 1990).
Likewise, in Commonwealth v. Reed, 645 A,2d 872 (Pa. 1994), we
observed:
Appellant contends, first, that trial counsel was ineffective for
failing to object to the testimony of Dr. Joshua Perper, the
- 27 -
J-S62013-14
Allegheny County coroner, concerning the cause of death of the
victim, Thomas Law. Dr. Catherine Janosz, a former employee
of the coroner's office, performed the autopsy on the victim, and
Dr. Perper's testimony concerning the cause of death was based
on his review of the report of Dr. Janosz, who did not testify.
Appellant maintains that Dr. Janosz's report was hearsay and
that the admission of Dr. Perper's testimony as to the contents
of that report caused appellant to be denied his right of cross-
examination.
Reed, 645 A.2d at 880. Relying on Mitchell, we denied post-conviction
relief for ineffective assistance of counsel, and noted:
In Commonwealth v. Mitchell, 391 Pa. Super. 100, 570
A.2d 532 (1990), appeal denied, 527 Pa. 599, 589 A.2d 689
(1990), a panel of this Court considered the claim of appellant,
who had been convicted of first degree murder, that his trial
counsel was ineffective for failing to object to the testimony of
the medical examiner, Dr. Catherman, concerning the manner
and cause of the victim's death. Dr. Catherman based his
testimony on autopsy reports prepared by Dr. Carpenter, who
was unavailable because he had moved out of the country.
Judge Olszewski, the author of the lead opinion, concluded that
the testimony was properly admitted and that trial counsel was
therefore not ineffective for failing to object to it.
Reed, supra, at 880. Given the foregoing, we find Appellant’s challenge to
the admission of Dr. Lieberman’s testimony to be unavailing.2
Appellant’s sixth issue challenges the trial court’s admission of
Jackson’s and Smith’s prior police statements, which were inconsistent with
their trial testimony. Appellant contends:
____________________________________________
2
The fact that the procedural posture of this direct appeal differs from the
post-conviction relief posture of Ali and Reed, supra, does not affect our
analysis.
- 28 -
J-S62013-14
At trial, neither Jackson nor Smith claimed to have witnessed the
shooting. Neither Jackson nor Smith adopted their statements
as required by Lively [infra]. Moreover, the detective who
interviewed Jackson was not call[ed] as a witness at trial since
he was on vacation at the time. Clearly, the statements of
Jackson and Smith could not be considered as substantive
evidence.
Appellant’s Brief at 54. We disagree.
Pennsylvania Rule of Evidence 803.1 governs the admission of prior
inconsistent statements, and provides in pertinent part as follows:
Rule 803.1. Exceptions to the Rule Against Hearsay--
Testimony of Declarant Necessary
The following statements are not excluded by the rule against
hearsay if the declarant testifies and is subject to cross-
examination about the prior statement:
(1) Prior Inconsistent Statement of Declarant-Witness. A
prior statement by a declarant-witness that is inconsistent with
the declarant-witness's testimony and:
(A) was given under oath subject to the penalty of perjury at a
trial, hearing, or other proceeding, or in a deposition;
(B) is a writing signed and adopted by the declarant; or
(C) is a verbatim contemporaneous electronic, audiotaped, or
videotaped recording of an oral statement.
Pa.R.E. 803.1(1).
Our Supreme Court explained:
In Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66
(1986), we reconsidered the longstanding rule that prior
inconsistent statements of a non-party witness could only be
used to impeach the credibility of the witness, not as substantive
evidence to prove the truth of the matters asserted therein. We
were persuaded to adopt the developing view that such
statements may be used as substantive evidence where the
- 29 -
J-S62013-14
declarant is a witness at trial and available for cross-
examination.
In Brady, the defendant was convicted of second degree
murder, burglary and criminal mischief for the stabbing death of
a security guard. The defendant's girlfriend, Tina Traxler, was
interviewed by the police on the day of the murder. Traxler first
told the police that she and the defendant were riding in a car
that became stuck in a ditch near the manufacturing plant where
the security guard was employed. When she accompanied the
police to the area, however, Traxler admitted that they had
entered the plant and that her boyfriend had stabbed the
security guard.
Traxler agreed to make a tape-recorded statement when
she returned to the police station. In her recorded statement,
she identified her boyfriend as the perpetrator of the crimes.
She stated that they had entered the plant and that her
boyfriend had stabbed the security guard when he surprised
them while they were attempting to pry open a dollar bill change
machine.
Traxler recanted her tape-recorded statement when called
as a witness by the Commonwealth at trial. She denied that she
and her boyfriend had entered the plant. Traxler admitted that
she had given the statement to the police, but explained the
discrepancies by claiming that she was afraid of the police and
had told them what they wanted to hear. The Commonwealth
was permitted to introduce the tape-recorded statement as
substantive evidence to prove the truth of the matters asserted
and the jury was instructed that the statement could be
considered for that purpose.
We held that the tape-recorded statement was properly
admitted as substantive evidence because the statement was
rendered under highly reliable circumstances assuring that it was
voluntarily given. Furthermore, the witness was subject to
cross-examination as to the validity of each statement. The jury
had the opportunity to observe the demeanor of the witness and
to assess her credibility.
We did not address in Brady under what circumstances a
prior inconsistent statement would be considered highly reliable
so as to render the statement admissible as substantive
evidence. The issue was subsequently addressed in
Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992). We
- 30 -
J-S62013-14
held that a prior inconsistent statement by a non-party witness
shall be used as substantive evidence only when it was given
under oath at a formal legal proceeding, or the statement was
reduced to a writing signed and adopted by the declarant, or the
statement was recorded verbatim contemporaneously with the
making of the statement.
***
[] By restricting such use of prior inconsistent statements
to those given under oath at a formal proceeding, or reduced to
a writing signed and adopted by the witness, or which are
contemporaneous verbatim recordings of a witness's statements,
we intended “to ensure that only those hearsay declarations that
are demonstrably reliable and trustworthy [will be] considered as
substantive evidence....” 530 Pa. at 471, 610 A.2d at 10.
Commonwealth v. Wilson, 707 A.2d 1114, 1115-1117 (Pa. 1998).
In admitting the prior inconsistent statements of trial witnesses who
recanted their prior statements in a first degree murder trial, our Supreme
Court reasoned:
Our Court has, thus, fully embraced the view that it is the
finder-of-fact's ability to make in-person observations of the
witness at the time of trial, as he or she explains the reasons for
the prior statement, which is most crucial to its assessment of
the witness's credibility. We have determined that it is the
“great engine of cross examination” which furnishes the best
method by which the witness's motives for changing his or her
story, from that given previously, may be fully and thoroughly
explored, and, correspondingly, it is the best means to furnish
the finder-of-fact with a sound basis by which it may discern
which of the two tales told by the witness is worthy of belief.
***
Our Court's decision in Brady, … acknowledges the
practical reality that, for the trial process to function in the
manner it was intended, i.e., as a vehicle for the discovery of
truth, prior inconsistent statements of a testifying witness
bearing on the matter in controversy are valid probative
evidence that the finder-of-fact should not only be permitted to
- 31 -
J-S62013-14
hear, but also, vitally necessary for it to consider if it is to render
a sound ultimate decision.
***
[S]ince the out-of-court statements of Garvin, Lawrence
and Lanier to the police were reduced to writing, and each of
these individuals, by their own admission, signed every page of
their statements and, also, the attestation statements at the end
which declared that the information in the statements was
accurate, all three statements were properly admitted as
substantive evidence under Pa.R.E. 803.1(1). Garvin, Lawrence
and Lanier were thoroughly tested through cross-examination at
Appellant's trial, so that the jury had the opportunity to observe
these witnesses as they repudiated their out-of-court
statements, and to assess the credibility of their explanations for
the repudiations. Further, the three out-of-court statements
were fundamentally consistent with one another in recounting
the same narrative of the manner in which the shooting
transpired and in describing similar essential details; thus, they
were not so patently unreliable so as to render a jury verdict
based upon them one of pure conjecture.
Commonwealth v. Brown, 52 A.3d 1139, 1169-1171 (Pa. 2012).
Here, as the trial court correctly observed, “both statements properly
were admitted pursuant to Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986)
and Commonwealth v. Lively, 464 A.2d 7 (Pa. 1992).” Trial Court Opinion,
3/17/14, at 8. Pursuant to Pa.R.E. 803.1(1)(b), and consonant with Wilson
and Brown, supra, Jackson’s and Smith’s prior statements to law
enforcement, which were inconsistent with their trial testimony, were not
“excluded by the rule against hearsay” because both declarants testified at
trial and were subject to cross-examination, and their prior inconsistent
statements were “writing[s] signed and adopted by” them. See
Commonwealth v. Jones, 644 A.2d 177, 180 (Pa. Super. 1994) (affirming
- 32 -
J-S62013-14
admission of prior inconsistent statement of trial witness as substantive
evidence because, inter alia, “the statement had been given by [trial
witness] twelve days after the shooting of [decedent], at a time when the
events had been fresh in the witness's mind and when it had been less likely
that the witness had any motive for falsification”).
Appellant’s seventh and final issue claims the trial court erred in
allowing Detective Bamberski to testify regarding the state of mind and
hearsay statements of Henderson. See Appellant’s Brief at 56. The trial
court opined:
Appellant mischaracterizes a small portion of Detective
Bamberski's testimony concerning [Henderson's] demeanor at
the preliminary hearing and alleges reversible error claiming that
such testimony was incompetent and constituted inadmissible
hearsay. Contrary to Appellant's claim, the Court limited the use
of the testimony to relevant, non-hearsay issues. It sustained
defense counsel's first objection and cautioned the jury as to the
limited use of the testimony. We explained our reasoning at the
time it occurred and we rely upon that reasoning expressed in
the notes of testimony. See N.T. 7/20/12, 19-24.
Trial Court Opinion, 3/17/14, at 8.
Based on our review of the record, we find that the trial court did not
abuse its discretion in admitting the challenged portions of Detective
Bamberski’s testimony. Detective Bamberski testified that Henderson “was
afraid” on the day of her testimony at the preliminary hearing because
“there had been some intimidation.” N.T., 7/19/12, at 19. The trial court
sustained Appellant’s counsel’s objection and instructed the jury as follows:
- 33 -
J-S62013-14
[L]adies and gentlemen, obviously, [Henderson] is not here to
testify today. The detective may have that information but,
obviously, it’s hearsay. You’re not to consider it. You are to
disregard that.
Id. While the trial court precluded Detective Bamberski from testifying
about what Henderson “said to [Detective Bamberski],” the trial court ruled
that Detective Bamberski could “describe what [he] observed about her
demeanor in the courtroom, how she conducted herself, or anything else
that would be a direct observation.” Id. at 20. Detective Bamberski testified
that Henderson’s demeanor at the preliminary hearing “was fearful…for her
safety.” Id. at 23. Detective Bamberski further stated that Henderson “was
sober. She was not someone who was abusing narcotics at that point.” Id.
We discern no trial court error of law or abuse of discretion in admitting this
testimony. See Johnson, 838 A.2d at 673 (deeming a witness’ testimony
“not hearsay, since it does not involve an extrajudicial statement, but rather
an observation based on [witness’] personal knowledge”). Moreover, the
trial court’s contemporaneous cautionary instruction to the jury ordering
them to disregard hearsay testimony weighs against a finding of error. See
Commonwealth v. Walter, 849 A.2d 265, 270 (Pa. 2004) (internal citation
omitted) (“In a jury trial where the jury is instructed to disregard the
information which was improperly brought to its attention, the impact of an
error may be minimized so as to render it harmless.”).
- 34 -
J-S62013-14
In sum, viewing the evidence in the light most favorable to the
Commonwealth, and finding no trial court error of law or abuse of discretion,
we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2014
- 35 -