Com. v. Smith, M. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARCUS SMITH, : No. 311 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, October 3, 2012,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0002575-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2014
Marcus Smith appeals the judgment of sentence entered on October 3,
2012, in the Court of Common Pleas of Allegheny County. We affirm.
The facts, as summarized by the trial court, are as follows:
Appellant spent the morning of February 12, 2011,
at the home of Tanisha Helms in the Hill District
section of the City of Pittsburgh. (T.T. 146-147,
157, 593).[Footnote 6] While there Appellant
returned a phone call from his girlfriend,
Ashley Woessner, who confronted him about getting
another woman pregnant. (T.T. 476-477).
Appellant, assuming that their mutual friend
Dane Smith had told Woessner about the other
woman, became upset with Smith. Smith and
Appellant referred to each other as brothers even
though they were unrelated.[Footnote 7] He told
Woessner, “Dane is lying. Say no more, he is gone,”
and hung up on Woessner. (T.T. 475, 477, 595).
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[Footnote 6] The designation “T.T.”
followed by numerals refers to Trial
Transcript, August 20-23, 2012.
[Footnote 7] It was established that
Dane Smith introduced Marcus Smith to
Ashley Woessner as his brother, though
the two were unrelated. (T.T. 475).
Additionally, when police interrogated
Appellant about the shooting death of
Dane Smith he became angry and
several times stated, “I did not shoot my
brother.” (T.T. 595).
Appellant exited Helms’s residence and waited
on her front porch, anticipating Smith’s arrival there.
Appellant’s friend Donta Ripley was already waiting
outside for Appellant, and joined him on the porch.
(T.T. 317, 322). Dane Smith arrived at
approximately 2:00 P.M. and Appellant walked down
the porch steps to confront him. The two argued
and Smith began to walk away. Appellant yelled for
Smith to stop, but he continued to walk away.
Appellant pulled out a sawed-off shotgun and shot
into the air, prompting both Smith and Ripley to run
down Reed Street towards Centre Avenue. (T.T.
135, 179, 199, 208-210, 257, 323-325, 593-594).
Appellant, shotgun in hand, chased Smith onto
Centre Avenue where Smith darted back and forth
between midday traffic in an attempt to avoid
Appellant. (T.T. 179-180, 186, 211, 226, 319-320,
325-326). Appellant shot at Smith striking him on
the right side with shotgun pellets. (T.T. 239-242,
258-259). Despite being shot, Smith managed to
maneuver around a truck on Centre Avenue, but
Appellant followed him as Smith pleaded, “Don’t
shoot me. I didn’t make this phone call. I had
nothing to do with it.” (T.T. 256, 260, 263-264).
Appellant shot Smith again, this time grazing his
right arm and causing him to fall to the ground.
(T.T. 188, 229, 245-246, 265, 285). From the
ground Smith again pleaded with Appellant, “You
don’t have to do this.” (T.T. 230). Appellant stood
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over Smith, pointed the gun at him, and shot him in
the head. (T.T. 188, 230-231, 243, 283, 285-286).
Appellant crossed to the opposite side of
Centre Avenue and ran behind a church. (T.T. 266,
283, 331). From the parking lot behind the church,
Appellant jumped over a fence and slowly jogged up
the hillside away from the scene. (T.T. 268-269,
289, 306).
When police arrived Smith was found lying
facedown [sic] next to the front wheel of the truck;
he was bleeding from his side and had an obvious
gunshot wound to the head. (T.T. 163, 305-306).
He was emergently transported to Mercy Hospital but
attempts to save his life were to no avail. (T.T.
352). Smith suffered a gaping wound to his right
arm, a large defect in his skull, and small pellet
wounds on his right hip, arm, side, abdomen, and
back. (T.T. 239-242). The cause of death was
multiple gunshot wounds to the head and trunk, and
the manner of death was homicide. (T.T. 255).
Appellant attempted to avoid taking
responsibility for Smith’s death by persuading
Emmanuel Robinson to turn himself in as the
shooter. Robinson was a friend of both Appellant
and Smith, and was of limited cognitive ability.
Appellant suggested that since Appellant was
expecting a child with Robinson’s aunt, and since
Robinson did not have a criminal record, he could
take responsibility for the shooting. Woessner and
Appellant drove Robinson to the building that housed
the homicide office and told him to ask for
Detective Sherwood. (T.T. 332-333, 421-423).
Robinson went into the homicide office and
confessed to the shooting, but once it became
apparent that he was not the shooter based on his
limited ability and inability to answer basic questions
about the shooting, Detective Sherwood had
Robinson escorted home. (T.T. 425-426, 561).
Undeterred, Appellant directed Robinson to locate
the murder weapon in the woods near the end of
Brackenridge Street where he had discarded it.
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Woessner drove Robinson to that location the
following morning and Robinson retrieved the
shotgun. (T.T. 427-428, 488). Woessner later
drove Robinson to the homicide office and waited
outside with the headlights shining into the lobby so
she could update Appellant while Robinson went
inside with the shotgun. Once inside, Robinson
notified the front desk that he was there to confess
to a murder and laid down on the ground with his
limbs outstretched so detectives could retrieve the
shotgun. Detectives escorted Robinson inside and
Woessner drove away. (T.T. 431-433, 494). Once
inside, Robinson told Detective Sherwood that
Appellant sent him there. Robinson was arrested
and charged with a firearms violation. (T.T. 407,
433-434). Upset that homicide charges had not
been brought against Robinson, Appellant sent
Woessner to police headquarters the following day to
say that Robinson was the killer. However, once she
arrived there and was interrogated by detectives,
Woessner told them that Robinson was setup by
Appellant to confess to a crime that Robinson did not
commit. (T.T. 497-500).
Police executed a search warrant and
recovered a backpack from the living room of
Helms’s residence on Reed Street, containing indicia
for Appellant and an empty Remington shotgun shell
box. (T.T. 147-149, 151-152). One 12-gauge
shotgun shell was recovered from the sidewalk in
front of Helms’s Reed Street residence and a second
12-gauge shotgun shell was recovered from a nearby
yard on Centre Avenue. It was determined that
these shells were both discharged from the firearm
that Appellant instructed Robinson to retrieve. (T.T.
138, 144, 161, 365-366). A 12-gauge shotgun shell
wadding was recovered from Smith’s brain during
autopsy, and a second shotgun shell wadding was
found next to the truck where Smith was found on
Centre Avenue. (T.T. 165-166, 244, 365-366).
Based on the evidence above and an interview
with Woessner which revealed that Appellant hid
several guns at a home in North Braddock, police
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obtained an arrest warrant for Appellant and a
search warrant for that home. (T.T. 563). The SWAT
team executed the search; their announcement
prompted Appellant to flee from the front bedroom
to the rear of the house, but he eventually emerged
and was detained. SWAT found the duffel bag of
guns described by Woessner in the front bedroom,
as well as shotgun shells and a second loaded
sawed-off shotgun. (T.T. 564, 567, 582, 584-585,
587). Appellant was formally arrested and charged
as noted hereinabove.
Trial court opinion, 11/12/13 at 5-9.
Appellant was charged with one count of criminal homicide, two counts
of person not to possess a firearm, one count of altering/obliterating mark of
identification, one count of possession of a firearm with altered
manufacturer’s number, and two counts of prohibited offensive weapon.1
Appellant filed a motion to suppress and a hearing was held on August 20,
2012, before the Honorable Edward J. Borkowski. The motion was denied
and a jury trial immediately commenced. Appellant was subsequently
convicted of first degree murder, possession of a firearm with altered
manufacturer’s number, and both counts of possession of a prohibited
offensive weapon; he was found not guilty of altering or obliterating marks
of identification.
On October 3, 2012, appellant received a mandatory sentence of life
imprisonment without the possibility of parole for first degree murder, a
1
The two counts of person not to possess a firearm were severed prior to
trial. On August 28, 2012, appellant was found guilty of both counts.
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consecutive term of 3 to 6 years’ imprisonment at Count 2 (person not to
possess a firearm), at Count 3 (person not to possess a firearm) and Count
5 (possession of a firearm with altered manufacturer’s number) concurrent
terms of 3 to 6 years’ imprisonment were imposed. No further penalty was
assigned for the remaining counts. Appellant’s post-sentence motions were
denied by an order entered on January 18, 2013, and a timely notice of
appeal was filed on February 11, 2013. (Docket #21, 22.)
Herein, the following issues have been presented for our review:
I. Did the lower court err in denying the Motion
to Suppress the identification made by
Fannie Lauw?
II. Did the lower court err in allowing the
Commonwealth to present the testimony of
Dionne Walker, who provided an in-court
identification after providing a vague
description to detectives on the day of the
incident, and after being unable to identify
anyone in a photo array?
III. Did the lower court err in denying the motion
for a new trial on the grounds that the verdict
was against the weight of the evidence?
Appellant’s brief at 3.
Appellant’s first two issues argue that the trial court erred by not
suppressing Fannie Lauw’s and Dionne Walker’s identification testimony that
appellant was the shooter.
When reviewing a challenge to a trial court’s denial
of a suppression motion, our standard of review is:
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limited to determining whether the
suppression court’s factual findings are
supported by the record and whether the
legal conclusions drawn from those facts
are correct. Because the Commonwealth
prevailed before the suppression court,
we may consider only the evidence of the
Commonwealth and so much of the
evidence for the defense as remains
uncontradicted when read in the context
of the record as a whole. Where the
suppression court’s factual findings are
supported by the record, we are bound
by these findings and may reverse only if
the court’s legal conclusions are
erroneous. Where, as here, the appeal
of the determination of the suppression
court turns on allegations of legal error,
the suppression court’s legal conclusions
are not binding on an appellate court,
whose duty it is to determine if the
suppression court properly applied the
law to the facts. Thus, the conclusions of
law of the courts below are subject to
our plenary review.
Commonwealth v. Delvalle, 74 A.3d 1081, 1084 (Pa.Super. 2013),
quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa.Super.
2012), appeal denied, 57 A.3d 68 (Pa. 2012).
We find no error with either the trial court’s decision or rationale.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court, it is our
determination that there is no merit to the first two questions raised on
appeal. The trial court’s opinion, filed on November 12, 2013,
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comprehensively discusses and properly disposes of the question presented.
We will adopt it as our own and affirm on that basis.
We note our agreement with the trial court that both witnesses had an
independent basis for their identifications and both witnesses independently
recognized appellant when they saw him in the courtroom. Additionally,
although both witnesses failed to identify appellant positively in the
photographic array after the incident, neither of them ever identified another
person as the shooter. The absence of pretrial identification affects the
weight of the identification evidence at trial, not its admissibility. See
Commonwealth v. Rush, 562 A.2d 285, 289 (Pa. 1989). Accordingly, the
witnesses are permitted to identify the defendant as the perpetrator at trial,
if they are able to do so, subject to cross-examination regarding their failure
to identify him on previous occasions. Commonwealth v. McIntosh, 476
A.2d 1316, 1320 (Pa.Super. 1984).
In the final issue presented, appellant argues that his convictions are
against the weight of the evidence. We note our standard of review:
Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying
question of whether the verdict is against the
weight of the evidence. Because the trial judge
has had the opportunity to hear and see the
evidence presented, an appellate court will give the
gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the
weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was
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not against the weight of the evidence and that a
new trial should be granted in the interest of justice.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained[,] [t]he
term ‘discretion’ imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on
the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the
original) (citations omitted).
We agree with the Commonwealth that in making his argument on
appeal, appellant ignores the evidence presented against him and argues the
evidence in his favor. Here, the trial court took into consideration that the
jury heard identification testimony from three separate witnesses and also
heard testimony concerning appellant’s plan, within hours of the murder, of
having Robinson falsely confess to the crime. (Trial court opinion, 11/12/13
at 18-19.) Two inmates also testified that appellant made statements about
killing his brother and needing to get rid of a female witness. (Id.) The trial
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court found that the verdict did not shock its sense of justice. We find no
reason to overturn this decision.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2014
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