Com. v. Cager, J. ( 2017 )

J-S28001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAROD CAGER,
Appellant No. 1994 WDA 2014
Appeal from the Judgment of Sentence June 16, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013713-2011
BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 25, 2017
Appellant, Jarod Cager, appeals from the judgment of sentence
entered on June 16, 2014 in the Criminal Division of the Court of Common
Pleas of Allegheny County, as made final when the trial court denied
Appellant’s post-sentence motions on October 30, 2014. We affirm.
The factual and procedural history in this case is as follows. On
August 14, 2011, Kiona Sirmons was at the home of relatives on Rochelle
Street in Pittsburgh, Pennsylvania. She was joined by several friends,
including Ravin Reid, Montaja Littlejohn, and Valon Pennix. Sometime later,
Sirmons’ boyfriend, Antwan Leake, and Jacelyn Terry joined the gathering.
Upon arrival, Terry remained in the living room with the other women but
Leake went into the kitchen. According to Detective James McGee, Sirmons
stated in an interview on September 2, 2011 that two black males entered
* Retired Senior Judge assigned to the Superior Court.
J-S28001-17
the residence and proceeded to the kitchen approximately 15 minutes after
Leake arrived.1 After two or three minutes, Sirmons heard multiple
gunshots and saw Appellant and Terrel Noaks run from the kitchen and exit
the front door.2 In a recorded statement given to the police on September
9, 2011, which the Commonwealth published to the jury, Sirmons confirmed
that she saw Appellant and Noaks exit the home shortly after the shooting.
Sirmons also identified Appellant and Noaks in a photographic array.
At trial, none of the women present at the Rochelle Street residence
recalled details of the shooting on August 14, 2011, including the identities
of any males who entered or left the house other than Leake. Sirmons
testified that she previously identified Appellant and Noaks as the shooters
because detectives harassed her and visited her at work. She also testified
that the police told her who to circle on the photographic array and she
denied telling police nicknames used by Appellant and Noaks.
Leake died after sustaining four gunshot wounds during the August 14
attack. Of these, wounds inflicted on Leake’s head and chest were deemed
capable of causing death. A ballistics expert called by the Commonwealth
testified that five shell casings recovered from the crime scene were .40
____________________________________________
1
Another detective testified at trial that Pennix met with investigators in
February 2013 and said that Appellant was present in the home before
Leake’s arrival and that he entered the kitchen area after Leake.
2
Sirmons testified at trial that she grew up with Appellant and that she
knew Noaks from her neighborhood.
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J-S28001-17
caliber Smith and Wesson casings fired from a Glock handgun. These
casings matched the .40 caliber bullet fragments recovered from the fatal
wounds inflicted upon Leake. The Commonwealth also called Tanner Shawl
as a witness against Appellant. Shawl testified that in December 2010,
approximately eight months prior to the murder, he purchased a .40 caliber
Glock handgun on behalf of Appellant. Shawl further testified that Appellant
selected the gun and supplied funds to purchase the firearm.
Lastly, the Commonwealth introduced testimony from a witness
trained in the field of cellular telephone data analysis. This testimony
established that Appellant received four calls from Leake on the day of
Leake’s murder. In addition, Noaks telephoned Appellant five times on the
date of the crime. Four calls from Appellant’s telephone on August 14, 2011
between 6:00 p.m. and 8:00 p.m. utilized a cellular tower situated in the
same general area as the crime scene and Appellant’s mother’s residence.
At the conclusion of trial on February 4, 2014, a jury convicted
Appellant of first-degree murder, 18 Pa.C.S.A. § 2502(a), and carrying a
firearm without a license, 18 Pa.C.S.A. § 6106(a)(1). The jury acquitted
Appellant of criminal conspiracy. On June 26, 2014, the court sentenced
Appellant to life imprisonment for his murder conviction and a concurrent
term of 40 to 80 months’ incarceration for carrying a firearm without a
license.
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J-S28001-17
Appellant filed his initial post-sentence motion on June 26, 2014 and,
thereafter, filed an amended motion on October 24, 2014. The court denied
post-sentence relief on October 30, 2014. Appellant subsequently filed a
timely notice of appeal on December 8, 2014, after the court reinstated his
direct appeal rights. Following several extensions, Appellant, pursuant to
Pa.R.A.P. 1925(b), filed a concise statement of errors complained of on
appeal on April 26, 2016. The trial court issued its opinion on August 2,
2016.
Appellant raises the following questions for our review:
Whether [Appellant] is entitled to a Frye[3] hearing to determine
the admissibility of an eyewitness identification expert consistent
with the recent holding in Commonwealth v. Walker[, 92 A.3d
766 (Pa. 2014)?]
Whether the trial court erred when it admitted evidence
concerning a firearm that had been purchased for [Appellant]
approximately eight months before the homicide[?]
Whether the trial court abused its discretion when it determined
that the verdict in this matter was not against the weight of the
evidence[?]
Appellant’s Brief at 4.
Appellant’s first two claims challenge trial court rulings governing the
admission of evidence. The following standards govern our review of such
claims.
____________________________________________
3
Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).
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The admission of evidence is committed to the sound discretion
of the trial court, and a trial court's ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.
Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010).
In his first claim, Appellant argues that the trial court improperly
denied his request for a Frye hearing to determine whether expert
testimony would have assisted the factfinder in assessing eyewitness
identification evidence. At trial, none of the Commonwealth’s witnesses
identified Appellant. Nonetheless, Sirmons’ pretrial statements to police
identified Appellant as one of two individuals who entered the home before
Leake was shot and fled the scene after shots were fired. The court
admitted her statements of identification for substantive purposes as prior
inconsistent statements pursuant to Pa.R.E. 803.1(1)(B) and (C). Citing
Walker, Appellant argues that he was entitled to show how expert
testimony would have aided the jury in considering Sirmons’ statement since
the Commonwealth primarily relied on her identification, which she made
following a stressful episode that involved gunfire. In its Rule 1925(a)
opinion, the trial court determined that expert testimony regarding
eyewitness identification would not have aided the jury in this case since
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none of the Commonwealth’s witnesses identified Appellant at trial. We
conclude that Appellant is not entitled to relief.4
In Walker, our Supreme Court set aside the per se restriction on
expert testimony concerning eyewitness identifications. Instead, the Court
held,
We now allow for the possibility that such expert testimony on
the limited issue of eyewitness identification as raised in this
appeal may be admissible, at the discretion of the trial court,
and assuming the expert is qualified, the proffered testimony
relevant, and will assist the trier of fact. Of course, the question
of the admission of expert testimony turns not only on the state
of the science proffered and its relevance in a particular case,
but on whether the testimony will assist the jury. Trial courts
will exercise their traditional role in using their discretion to
weigh the admissibility of such expert testimony on a
case-by-case basis. It will be up to the trial court to determine
when such expert testimony is appropriate. If the trial court
finds that the testimony satisfies Frye, the inquiry does not end.
The admission must be properly tailored to whether the
testimony will focus on particular characteristics of the
identification at issue and explain how those characteristics call
into question the reliability of the identification. We find the
defendant must make an on-the-record detailed proffer to the
court, including an explanation of precisely how the expert's
testimony is relevant to the eyewitness identifications under
consideration and how it will assist the jury in its evaluation.
The proof should establish the presence of factors (e.g., stress
____________________________________________
4
We reject the Commonwealth’s assertion that Appellant waived appellate
review of his opening claim. Appellant moved for the appointment of an
expert in October 2012, almost two years before Walker was decided. In
addition, Appellant alleged in his concise statement that the trial court erred
in refusing his request to appoint an expert to testify regarding eyewitness
identification. The question raised in Appellant’s concise statement fairly
subsumes the issue he raises on appeal and the trial court had an
opportunity to pass upon the present claim during pretrial proceedings.
Waiver is unjustified under these circumstances.
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J-S28001-17
or differences in race, as between the eyewitness and the
defendant) which may be shown to impair the accuracy of
eyewitness identification in aspects which are (or to a degree
which is) beyond the common understanding of laypersons.
Walker, 92 A.3d at 791-792.
Here, the trial court basically determined that expert testimony would
not have aided the jury in assessing the identification evidence offered in the
form of pretrial statements. We perceive no grounds to disturb this
assessment. As the trial court noted, none of the Commonwealth’s
witnesses identified Appellant at trial; however, this observation does not
lead to our conclusion, as we believe that the factors that make identification
of a stranger unreliable apply equally to identifications made within and
without the courtroom. Instead, the record here demonstrates that the
witnesses at trial retracted their prior statements, told the jury that they did
not recall details about the shooting or who was present, and relayed that
the events sub judice caused them great stress and trauma. Practically
speaking, the eyewitnesses here did the work of expert testimony in
explaining for the jury how factors such as stress and fear impaired their
ability to accurately identify any suspects. In addition, we note Sirmons’
testimony that she grew up with Appellant and knew Noaks from her
neighborhood. In totality, then, while the events at issue were no doubt
stressful (as the eyewitnesses themselves explained to the jury), there are
no factors in this case such as a claim of cross-racial identification or
identification of unknown individuals that call into question the reliability of
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J-S28001-17
the pretrial statements in a way that could elude the common understanding
of laypersons. Under these circumstances, Appellant is not entitled to relief.
In his second claim, Appellant asserts that the trial court erred in
admitting Shawl’s testimony regarding the purchase of a .40 caliber Glock
handgun on behalf of Appellant. Appellant maintains that this evidence was
irrelevant and highly prejudicial.
“All relevant evidence is admissible, except as otherwise provided by
law. Evidence that is not relevant is not admissible.” Pa.R.E. 402.
“Evidence is relevant if it logically tends to establish a fact material to the
dispute or tends to support a reasonable inference regarding a material
fact.” Commonwealth v. Barnes, 871 A.2d 812, 818 (Pa. Super. 2005).
In this case, the court concluded that the challenged evidence was relevant
since Appellant’s possession of an illegally obtained firearm that matched the
bullets at the crime scene, while not dispositive in and of itself, certainly
[made] it more likely that he committed the murder.” Trial Court Opinion,
8/2/16, at 15. After careful review, we concur with the court’s assessment
and adopt it as our own. Moreover, we see no basis for Appellant’s claim
that the introduction of the contested evidence constituted unfair prejudice.
Thus, this claim merits no relief.
In his final claim, Appellant contends the verdict was against the
weight of the evidence. To support this contention, Appellant points out that
no witness testified under oath that Appellant was at the crime scene and
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J-S28001-17
that the ballistic and cellular telephone evidence failed to establish his
participation in the murder.
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court:
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.
[Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa.
1994)]. 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. Commonwealth v. Farquharson, 354 A.2d 545(Pa. 1976). 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 not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (parallel citations
omitted).
After careful review and consideration, we conclude that the trial court
exercised sound discretion in rejecting Appellant’s challenge to the weight of
the evidence. See Trial Court Opinion, 8/2/16, at 16 (finding that verdicts
were not contrary to weight of the evidence where two witnesses identified
Appellant and Noaks shortly after killing, witnesses’ subsequent retraction
was result of witness intimidation, and ballistics and cellular telephone data
supported inference that Appellant was in vicinity of crime scene).
Accordingly, we adopt the trial court’s reasoning as our own and hold that
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Appellant’s final claim merits no relief. As we rely upon the trial court’s
opinion in part, we direct the parties to attach a copy of the trial court’s
opinion of August 2, 2016 to any future filings related to this appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
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Circulated 07/31/2017 03:04 PM
IN THE.C.OURJ'OF CO.MMON PLEAS OF ALLEGHENY COUNTY,. PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA CRIMINAL DlVISlON
V. CC No. 201113713
JAROD CAGER
Appeal of
JAROD CAGER,
Appellant
OPINiON
RANGQS,J. August 2, 2016
On February 4, 2014, Appellant; Jarod Cager, was convicted by a jury of one count of Murder
in the first Degree and one count of Carrying a Firearm Without a License; 1 This Court sentenced
Appellant on June 16, 2014 to a mandatory term of life ...vithout parole on the Murder in the First
Degree count, and a concurrent term of 40~80 months incarceration on the Carrying a Firearm
Without a.· License count. This Court denied Appellant's Post-Sentence Motion oh October 30, .2014,
Appellant filed a 'Notice of Appeal on December 81 2014 and, after several extensions of time due to
the lack of transcripts, filed his Statement.of Errors Complained of.on Appeal on April 27, 2016.
I
Appellant was found.not guilty of Criminal Conspiracy.
MATTERS COMPLAINED OF ON APPEAL
Appellant allegeseight errors on appeal: Appellant alleges that this Court erred in denying his
request for an expert witness to testify regarding eyewitness identification. Next, Appellant alleges
this Court erred when it denied his request for.information regardingthe unsolved shooting death of
Jason Daniels. Appellant alleges this Court erred in admitting color a.utopsy photographs that were
· more prejudicial rhan probative. Appellant next alleges this Court erred by permitdng the
Commonwealth to play a statement of a witness Appellant alleges was led by police, Appellant further
alleges thatthis Court erred.in.admittingtwo witnesses' statementswhich Appcliant deems.irrelevant,
highly prejudicial and of little probative value. Appellant alleges insufficiency of evidence as to both
counts as well as alleging that. the verdict was against the weight of the evidence. · (Statement of Errors
to be Raised on Appeal, p. 3~5)
SOMMARYOF THE EVtDEN'CE
At trial, Dr. Abdulrezak Shakir of the Allegheny CountyMedical Examiner's Office, testified
as an expert witness in the field of forensic pathology. (Transcriptof Jury Trial of J anuary 23:..February
4, 2014, Volume i, hereinafter, TI; at 124-125) Dr. Shakir conducted an autopsy on the body of
Antwan Leake, the. victim in this case .. (IT 126) Dr. Shakir testified that the deceased was riot under
the. influence pf any intoxicant or drug: (IT 129) Dr .. Shakir stated he found evidence of multiple
gunshot wounds to Leake: "one to the head, one on the chest, one on the, right heel, and evidence of
a grazing wound on the neck." (IT BO) Four color photographs taken during the examination of
the body were published to. the jury over the objection of defense counsel: (IT· 133) The bullet
wound to the head, in and of itself, was a fatal wound capable of causing death. (rt' 137) The bullet
rothe chest broke several rihs and penetrated both lobes ofthe left lung, causing massive blood loss.
(TT 139) This Wound was also capable, in and of itself, of.causing death. (T1' 14 I) In contrast, the
3
gunshot wound to the heel arid the bullet which grated. Leakes neck were. riot considered. lethal as
they would not. have caused Leake's death. (IT 145, 147) Two bullets were recovered from the
victim's bodyand sent to ballistic experts for analysis; ('IT 148) Dr. Shakir testified that, in his opinion
and within a reasonable degree ofmedica] certainty, the. cause ofdeath was gunshot wounds to the
.head and chest and the manner of death was homicide, Id.Clifton Pugh, a Pittsburgh Police Detective for 21 years, testified that. on August 14, 2011 he
was assigned to investigate the death ofAnrwon.Leake and was one of the tii:st detectives. to arrive 011
the scene. {IT 154) Detective Pugh testified that numerous pictures were taken of the crime. scene.
at J 15 Rochelle Street. (TT 158) In one of those pictures; a black semi-automatic: handgun protruded
from Leake's waist on his left side. (IT 170)
Kiona Sirmons testified that 31 S Rochelle Street was the home -of her cousin, Elizabeth
Macklin. (tr 182) She -stated that she was a frequent guest of the home and was. present on August
14;'.Zdl 1. She. had a key to the house and had gone there to retrieve some personal hems. (rT 186)
While she was there, she called some friends to come over, Ravin Reid and Montaja Littlejohn. ld.
Ravin and Montaja came over; and Montaja brought Valon Pennix.Montaja's friend.ro the residence,
(I'T 189) Some time later; Leake arrived with Jacelyn Terry. (IT 190) Jacelyn Stayed in the living
room with the other women, .bur Leake went to th¢ kitchen. Id. Sirmons testified that she arid Leake
were dating. (IT 192) Between the time Leake entered the house and the time she heardgunshots,
she testified that she did not. see anyone else come into the house. (IT 199) She testified that she
grew u.p with Jarod Cager and knew Terrel Noaks to see him in the neighborhood. (Tl' 208)
Contrary to her trial testimony, Sirmons previously identified Caget and Noaks as the two men
she saw fleeing from the house. Sirmons was interviewed by: the police on the night ofthe shooting,
and again on September 2, 2011. (TT 199, 202) On September 9, 2011, Sirmons ~vc a recorded
statement to the police. (IT 243} In the .recorded statement, which was published to thejury, Sirmons
4
indicated that Noaks and Cager ran out of the house shortly after. the shooting. (.rl" 240). She
jdcntified Noaks and Cager from a· series ~f.photographs. (IT 242)
At trial, her testimony on direct. examination . varied· substantially from the recording. She
testified that she did not.see who ran out of the 'house after the shooting: (IT 242) She: said that she
identified ~ager and Noaks· as the shooters because·
. Detective McGee "was getting. on qiy
. . nerves so I
told him .. anyiliing/1 (IT 205) She first testified .that the police never.showed her any photographs•
..('.IT 212) Later, she testified that the police did show her a photo array but .to1d her who to circle.
(IT 254) She denied telling the po.lite the nicknames. for Cagerand Noaks, (rt 20$.; 2.W).
Homicide Detective James
. .McGee testified that he interviewed Sirmons 011 :s:eptcm:b.et
. 2,.
2Ql1. rrr '292) .Detective McGee. testified 'that Sirmons told him she was at her aunt's housewith
her. girlfriends and.Leake. (TI" 293-294) She told the Detective that approximately 15· minutes after
Leake arrived, two black males walked into the house and proceeded to the kitchen where Leake-. was.
(TI' 29..4) Sheassumed.they were friends-of Leake. Id: Two or three minutes later, she. heard multiple.
gunshe>t~,. (IT 295) .She saw two 'people she. knew as, Hot Rod and Tide? running from the' kitchen
area out- the. front poor. Id:
.Next; Valon Pennixtestified thatshe .had little recollection of the specifics of September 2,
2on. She claimed that.people she d'.1d riot know enteredand exited the house. {tr 3?'9) She he.ard
one or more male voices that she did not recognize. (IT 330) She further claimed.that she clid hot
remember her interview. with the. ·police pr 'her meeting with officers and the Assistant District
Attomey ("ADA"). the previous week. She.denied ever tellln~ police that two men other than.Leake
entered the house on September zi,d: (TT'388) She. .denied that she told authorities that these nvo
2
Sirmons testified .ar trial that "Hot.'Rod" referred to: Cager and "Tido" referred to Noaks. (TT 24 7,
255)
5
······ ·····-····--··--"'"""·-·--··· .,, -·-············· .. ···········-···--··- ---·---·-· ···-·"·-- .. , ---·-·--···· · ·""_ , ,
men went to. the- back of the
~ house
. where the kitchen was· and ran outof
. . the
' . house
. after
. shots.
. . were
fired. '(IT 3$9)
Detective Pugh resumed the stand and testified that in February 2013- Pennix met with rhe
ADA arid two detectives, including himself .. (Yf '395) She stated at -that time 'that .onthe ·.nignr in
question, two males, . 011e whose name wasHot Rod, were in the home before Leake. arrived. (T:1'.394)
Leake arrived with Jacelyn and he: went to the kfrcben while Jacelyn stayed in the living room. (IT
397) Apptoximately a minute later, the two males also went info the.kirchen area. id Pennix seated
she heard .app.rQ}qin,Lcdy ten gµnshots·and hid until she 'heard Kicna's voice. u.
Ravia Reid testified that she was on the couch at 315 Rochelle Street on Aµgust 1 ~. 20·11:-whth
she heard four or five gunshots co·ming from the kitchen where she earlier saw teake go: Oucy Trial
Transcript, Volume It, .hereinafter-Tf'Z at 1'9-21) She did not see any other males arrive at the house.
(IT2.20) A(te.r she' heard the.shots.she. hid in. the .atric with V.alon and Kiana until .police-arfived,
(IT2 24-25)
J acclyn Terry testified similarly. She stated· that she was in the li:v.ing room, and Leake was in
the kitchen. (IT2 4'2-43) She heard gunshots. (IT2 4-8) Kiona walked into the kitchen, started
screaming and. called the police. Id; The police. roid.her-to go upstairs-and Jacelyn went to ·the· attic.
with Kiona. Id. She claimed she notsee any males 'other than Leake in the house. (Tf2 49)
Pittsburgh Police Detective Christopher Mayburn helped secure the scene and observed the
emotional state ofthe young women in the attic. (IT2 74) He described them as hysterical and
screaming, Id. He testified thatone of. the females said :two men with guns-left the house. :(TT2 75)
Detective Pugh resumed the stand again and described the crime scene as he first observed it.
(T't2 93} On· his initial walk-through, be observed shell casings near Leake's body and a bullet hole
· in the 'cabinet door. (TT2 9 .5) The front door wasopen and the sideand back doors were' closed and
.lockedwith deadbolts. ·(TT2 101) Eight bullet.casings were recovered from the .scene: four, .357
6
.. .. _._.._ -········ ··-·------·~
_____ __..,.,... ·- ... ··-···-----··-" .. ---·-----·-.
...._
caliber Sig Sauer casings and four Smith and Wesson casi11gs. (Tf 105) Detective P~$h also observed
·goug~s in ·the floor beneath the left.and right foot of the victim. (TT2 110). p. dama~eq bullet was
.also recovered from the basementdirectly below the kitchen. (IT2 l l6~ 1 l7) The -victirn was holding
a cell phone in .his riSht hand which wasunder bis body; (IT2120). A Ioaded Smith and Wes~n
semiautomatic pistol was tucked into the victim's waistband. '(TI'2 121)
Blase Kraeer, a Cit}' of Pittsburgh Detective assigned to the Mobile Crime Unit, testified as a
mobile crime expert. ·(IT2 .145-146)· He testified thathe and DetectiveJozwiak were dispatched to
315 Rochelle Street to process a crime scene. (rf2 l.46) He took photographs of the entire area and
·co1fo;:ted physical evidence, including the victim;s gun and several bullet casings. (IT2 147~14~) . He
',
also observed and photographed several bullet strikes onthe floor ofthe kitchen, .including one or
two. areas where a bullet completely penetrated through the floor. (IT2 149)
Joseph Bielevicz testified that as part. pf his ernpldyment as a Derective with the City, of
Pitrsburghon permanent detail.to the Bureau of Alcohol.Tobacco and.Firearms, he was invesdgaring.
an individual named Tanner Shawl on an.. unrelated matter. .(TT 2 184) Based on his. conversation
with Shawl,))ieJ~,.,~cz contacted Detective Pugh ..and informedhimthat he may wish to question Shawl
regarding rhe investi~_tion,.into Leake's death. (Tl1' i.88)
After inte.rv.ie:,wirtg Shawl, Detective Pugh gained information relative to this case, At trial,
Sha w.i testified that in December 20.10 he travelled toa gun .store in W¢st Mifflin to purchase a. firearm
fur Cager, (TI'2 205-206) Shawl had.knownCager for a year or two prior to the purchase. (IT2 206)
·:Cager-and·-Shawl discussed·the idea of purchasing.a gun on severalprior occasions. before Shawl finally
relented. (:IT.2 . 207) Cager and :Shawi' went into the. store together and .Ceger identified to Shawl
which gun: he wanted. (tr.z 209) Borh men Jcfr the store together and Cager ·gave Shawl
approximately $500.00 while they were i11 the car: Id Shawlreturned.to the store and purchased the
7
.... .._ .,,.,, '''""'"¥"'" ,.
·-······"'·'·· •,,, _ --···-·-··" __
, ,.._.,. . ,,,-- .. --•¥•'""""'''VO•,•,.rn••• ''' ''''""-'''"• ,,,,.,oo,__,. .......... -.,-.
gut1 thar-Cag_r: ·had selected, :t .40-caliber-Giock handgun. Id. Shawl gave.the Glock fo Cager and
drove him home. (IT2 219)
During: the. invesrigaiion into the Leake homicide, Pittsburgh Police Detective Scott .' Evans
testified that he Mirandized Cager and aftenvard Cager provided his cell phone number .as.
412.3-1.5.7243. (PT2 243-244) Pittsburgh. Police Officer Paul Able testified that he subsequentlr
arrested Cager on this case, recovered two cell phones from him, and gave these phones toDetective.
Lang, (IT2 ~33) City of'"Pittsbutgh.Offic'erCyrithia Smith testified tharshe arrested N.oaks and-after
'she Mirandized him, he gaveher personal information including: his cell.phone number; which he
stated was ·41.2.277,J888. (Ti'2 336)
Debra Tater, a, scientist with the Allegheny County Medical Examiner's Office, testified as an
expert inthe field of firearms and tool marks evaluation. ·(fTZ 276) She. tested four.carrridge casings.
stamped FC .:357 SIG which.were recovered from thecrime scene and determined ·that they were all
.discharged from. the same firearm. (TT2'.286) 'Based on: comparison with the crime Iab 'database;
these casings were determined.to match casingsrecovered .frorn other.crime scenes, (IT2 287) She·
also tested four AO S&.W casings stamped .RP arrd an -additiona1 casingsimilarly marked but: coilected
and ..packagedseparateiy. fIT2·288) She determined that all tive casingshad been fired from the-same-
weapon, and· that weapon WI_\S -a G!qck,. (ITi 2S9<29:0) -Thecasings ·-a:.1so matched the. :40 caliber
bullets recovered from the victim's head and chest, (IT2 Z95-Z96) Other lead.fragments removed
from Leake at the .au topsy were. unsui table. for comparison purpolies. (i'T2 29~) Leake' s.gun was also
test-fired and the test. casings were entered into the.samedatabase; It was: determined that both "his
gun and the g!-l.n usedtokill himhad been used.at-another xrirncseencon Julr 3.1, 2011.. (IT2 319)
Robert Levine, the mana~r of the firearms and too} marks section.of the AUe_ghe.ny County
Office of the Medical Examiner, testified as .an expert in the field of firearms evidence, (IT2,323)
8
...... --·-·--- --.---··· -- ----·-··-·---·--- --····"''' ,,,_,... .
He; examined Leake's clothes and.determined based on the relative presence or absence of.gunpowder
.residue that Leake had been shot from a distance of three to. four feet away. (TT2 327.)
Joseph 'Cirigliano, at the time of this .homicide investigation a Pittsburgh Police Detective
attached. to the Mobile Crime Unit.,testi.fkd that he tested .the spent.casings and damaged bullet
recovered from. thescene for latent prints: (IT2.344) He did not recoverany fingerprints buttestified
that failure to recover .prints from casings· and bullet {ragm~o:cs·is:.not unusual. (IT2 345) Hefurther
testified he ran the black Smith and Wessbn revolverrecovered'from Leake and ·it. came back as. stolen
out· ..of Bu tler Coun I:)~ on .December 18, 20,0f
The parties stipulated that neither Cager nor Noaks was licensed trief discussion
on an unrelated issue.xounsel forCager asks if themotion for the expert witness is denied and this
Court stated that it was denied. (1'1T ,6)
"This Court forth.er notes rhat W.qlkfr. was remanded to the trial court for it to determine through a
Fryt! hearing whether the· methodology used in that case was generall}'°accepted by scientists .in the
relevant field, Ieaving open questions of relevance and pro~atjv~ value. Id. .at 790. At a minimum,
this- Court.would hav¢ to 'make the same inquiry .
10
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Furthermore, of the fivepotential eyewitnesses in the house at the .tirne of-_i:h~ killing, none·
testified.at .trial that ihey,:saw anyone-run past.them after shots-we-re fired. Kiona denied seeing the
-men who-exited-the building afterthe shooting, Valen stated she could not remember.anything.about
the shooring,. 'includingher .statement to. the police.
. Ravin.andjacelyn testified that they hid in the
attic, and Montaja did nor testify at all. Since none of the witnesses-made an identification at trial,
the value of the proposed expert testimony was-diminished substantially,
AppelJant nextalleges chat this -Courr erred in denying Appellant's request for information
regarding
.
the shootingdeath of. Jason Daniels. Appellant
. alleges the unsolved homicide investigation
.
relaredto Daniels and the killing of.Leake in:· this case are related in some fashion. 'Trial counsel for
Noaks had interviewed St«:;_ph'anie:"'Peeblesi Daniels' cousin, who. said that shortly before Leake's
death> Daniels asked Peebles" to participate in a robbery of Leake. 'She said Daniels mentioned.
something about drug debts or possibly gurfs. Peebles declined to participate. Daniels lacer told
Peebles to look at the news, where she discovered that. Leake.had been killed, The .next day Daniels
told Peebles everything was fine, but.Danielswas killed shortly thereafter. Peebles.. said the. word .on
the. street. was that Daniels killed Leake, then Leakes, friends killed Daniels, The- two murders'
occurred within 24 hours of each other andthe.crime scenes were- within walking, distanceofone
This Court held .an ;;1 camera review of the Daniels homicide police -ihvestigatp'1.y file and
interviewed the· Detectives investigating the Daniels case before .denjing Appellant's motion,
Detectives Pugh.and.Boose statcd.lri·camera that Cag~r·a~d:Npaks killed Leake- over· d:ru~· that Leake
stole from 'Noaks that belonged to Cager. Two of the five. young-women present .at the- time ·of
Leake's shooting wereinterviewed and identified Cager and Noaks . Despitewitness reluctance to
cooperate (as subsequently ob.served by this Court during trial where significant efforts were made
n
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to intimidate witnesses. who wer~ called to testify]," the· witness identifications of Cager and Noaks
were solid, had been. made by two- people presentat.rhe .scene.at least one .of whom had known both
· men 'most of her life, and included knowled,ge ofthdr 'nicknames-and descriptions of each as young
A.fricari.,Americ;in. men -. Both ballistic evidenceand cell..phone records supported the eyewitness:
identifications ofthe two men charged in this case. In contrast, the Daniels: investigation uncovered
a sin~le suspect who was.described as a·whire,Ital.i;an.or Hispanic male w.earing camouflage clothing:
The physical description matched· a suspectnamed RashadWatson, whom :the police interviewed but
who was atlarge at the time. 'This ·.Court did.not find evidence.in :t.h.e qng9ing_ investigarion.of Daniels"
murder ';that would in any way connect it to Leake's murder and determirred that the potential of.
compromising rhiat ongoing.invesdgation bydisclosingpolice sources-was significant. As such> this
Court properlydenied the Motion .
.Appellanes. next allegation of error· is that this Court admitted color photogr~phs. of the
autop~y which were more prejudicial than probative. "Questions concerning ihe admissibility of
evidence-lie within.the sound discretion of the trial court, and we will not reverse the court's decision
on such a question-absent a dear abuse-of discretion." Com1110111vealth, ti. Maion'!y,876 A.2d )002, 1006
(Pa.Super.20.05). An abuseof discretion is not merely an error of judgment, buris rather the overriding
or misapplication .of.the law, or the exercise of jt1dgment that is manifesily unreasonable, or the result
5
The trial transcript does not begin to re.fleet the ..tension :in the packed courtroom and the
significant.problems this Court had controlling the crowd. This trial required the use of additional
deputiesboth inside and outside the Courtroom as groups of individuals with no apparent tiesto the
case filled.the Courtroom while Commonwealth. witnesses testified. On several occasions,
i~di0,duals were. observed.making threatening gestures a~d otheiw.ise:·behaving in ways that
appeared to be dearly intended.to.intimidate witnesses. (See, e.g. IT 552) il'tgularly, observers took
turns leaving the Courtroomto go into the.stairwell where they would send text-messages before.
returning to the Courtroom. U1ti.n}ateJy, this Court had co caution that, if.observers lefr the .roorn
during testimony' they would not be permitted. to return until the 'next rec ess as. the- disruptions were
·crea.tlng a distraction to the jury.
12
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.,,
.... ,~ __ ,.. , --
of bia~, prejudice, ill-will or partiality ;·as shown by theevidence or the record. Co.111monwealih v. Cameron,
'7$0 A.-2d ·688·! 692. (Pa;S\:.lper.2001).
This Court carefully exercised its .discretion .. .Although the. Court's precautionary measures
could -not completely sanitize the inflammatory-nature of the photographs, such is nor the . .test for
admissibiliry.. This Court reviewed . each photograph individually and correctly applied the. two-part
test to each photograph, This Court then admitted only those crime scene photographs thatit did
not: find to. '~e inflammatory .and. autop~.y and crime scene photographs that, while. p,otenti;:i,llx
inflammatory, had cvidentiary value the <:;ourt found to be "essential." Commomvi:dlth v. Ba.J/a,rd,60
A.3d 380,._·393-,94 (2013). Of the photographs this Court fourid inflarnmatory.rit admitted only those
.deerned necessary to explain to the jury the nature ofthe crime-and allew the Commonwealth to meet
its burden of'proof Redundant and unnecessarily gruesome photographs were excluded. This Court
gave a cau tionaryinstruction regarding. these pho.to,graph s, • both before they were admitted ·and· in· the.
charge. (TI 131-BZ, m:s9S) 11iis 'Court acted within its discretion, and withinthe bounds of rhe
decisional law governing th.i~ type-ofphotographic; evidence.
Turning to App!;llan.t's -riext allegation of error; .Appellant alleges 'this Court 'erred in
permitting. the Commonwealth to play the recorded statement-of Kiona Sirmons. Appellant- alleges.
that, homicide detectives led. Sirmons throughout hc;i;. recorded interview, The a,pplkabl~ rule of
evidence is Rule 613 (b), v;,hi_ch states:
Rule :613~ Witness's Prior Inconsistent Statement t9· .Impeach; Witness·'s Prior
Consistent Statement to Rehabilitate
(a) Wifness's Prior Inconsistent Statement.to Impeach. A\v1tness may be examined
concerning.a piioi inconsistenr statement made by the witness· to impeach the
'witness's: credibility. The-statement need not beshown or its contents.disclosed t6·
the witness at thai, timer hut on requestthe sratemcni or· contents must he . sh0wri
-or disclosed to an adverse party's attorney.
13
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(b). Extrinsic Evidence of a Witness's Prior Inconsistent Statement. Unless. the
interests of justice otherwise. -require, .extrinsic evidence of .a witness's prior
inconsistent statement is adrnissibleonly if, during the examination.ofthe witness,
(t) the starement.Ifwrirterx'is shown to, or if not written, itscontents are disclosed
to, the-witness; ,,
(2) the witness. is .given. an opportunity to. _explain or deny .the making of the
'statement; and
(3) an adverse' party is given an opportunity ~Q questionthe witness.
Pa.R.E. 61°3
The recordedstatement was admitted as a prior inconsistent statement, Appellant aUeges the:
Detcctiye's'questfons were ·improperly·lef1ding. Upon review of the transcript of the policeinterview
with Sirmons, it is· dear in context that the 'Detective aireidy had 'interviewed her and was: ~sk.ing
questions ro allow her ·to confirm important details and summarize her prior off the record
statements .. The.staterrrents fr1 the: recorded.interview areadmissible to allow the jury to compare the
credibility. of the witness at trial versus the credibility .of -the witness 011: an earlier occasion.
Appdlant?s. obj ectien goes to· the weigh t, and not the admissibili ty, of the evidence. "Our courts· 16ng
have permitted non-party witnesses to be. . cross-examined on prior statements they have made- when
those statements contradict their in-court testimony." Commo11,wrflltb v.. Crmnr)(!y;799 · A-~d 143; l48
(Pa. Super, 2002).
Appellant alleges, that this Court erred in permitting. testimony regarding,
. Tanner. Shawl
purchasing a firearm for A.ppdlant, Appellantalleges the testimony of Shawl and Detective Jos~pb
Bielecivz' on this matter was irrelevant and highly prejudicial. P.a.R}t, 402 J>.:rov:ides that generally,
.••[a] ll relevant 'evidence 'is admissible" and "[ejvidence that is not relevant is · not admissible."
Furthermore, Pa,R,.E. 401 ·_provides the Jollowirig test for relevancy:
· Evidence i.s relevant.if
(a). it. has -any tendency to 'make a fact more orIess probable than it would be without the
evidence; .and .
(b) thefact is of consequencein determining-the, action.
14
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i?a.R.E: 401.
Thus~.·.the basic re9~~site for the admissibility of any evidence in a case ls .th.~t-it be competent
and relevant. .Comrnot1W.ea/th v. Freid~ 834.A.2d 638, 641 .(Pa;~upe;.2003). Evidence .. is- .relevant if \t
logically tends. to establish a material fact in the case or tends to suppo.rt a reasonable inference-
regarding a: material fact. Com,nQtJ111ealth· u: Banies, 871 A2d 812,. 818 (Pa.Su.per.2005). though·
relevance has' not been precisely or universally defined, the courts of this Commonwealth have
repeatedly stated chat evidence is admissible.if the evidence l~gi~lly or reasonably tends to prove or
disprove a material fact 'in 'issue, tends to make .wch a fact more or. less: probable, or affords the basis
.for or ~upporq;. a .reasonable inference -or presumption reg?rding the existence.of a- material fact.
Fn:idl, 834 A2d at 64'1.
'The testimony of Detective Bielecivz and "Tanner Shawl established that, pdo.r to Lcake's
murder; Tanner Shawl illegally obtained a. w~~pon for Cager, ·a AO caliber Glock handgun, a firearm.
consistent with ballistic evidence at the scene of this homicide. As· part Ma case based partially on
. circumstantial'evidence, -the fact that Ca&erpossessed 'arr illegally obtained firearm that matched the
bullets found al the crime 'scene, while not dispositive' in and (if itself, certainly makes it more likely
he committed the murder. Assuch, the evidence-is relevant and this Court did not abuseits discretion .
. Appellant alleges-that thevetdictswere:agahi.snhcweighfof the.evidence because no witness.
testified under oath that AppGllan:t was.. at the scene, the ballistic and cell -phone testimony. and
evidence presented at trial did not establish Appellant's presence a.i the .scenc, The standard.for a
"·weight of the evidence" claim is.as follows:
· 'WI'tether a new trial .should. be granted on grounds ~.1:ia,t the.verdict is igainst
the weight of the -evidcnce .is .addressed to· the sound -discretion. of the trial
judge, and [her] decision wiU not be reversed on appeal unless there has peen
an abuse of discretion .... : The test is not whether the. court would have decided
.che case in the sameway hut-Whether the verdict is-so contrary to theevidence
15
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.. . . ~ .... - ..
..... .. ...._ .... _ ...
as. to make the award 'of a new trial imperative so ·(hat -right rnay he ·given
another opportunity to, prevail
Con1nlonwealthv. Taytor; 471 A.2d l.228, 1230 (Pa.Super r 1984): See also; Co11wi0.niNea(th. v. Nlarkr1. 704
A,2d 1l)95,.1098 (P:LSuper.1997)' (citing <;011m10nive,alf.h u. Simn1om, 662 Azd.621, 630 (Pa. 1995))..
The· verdicts were not against the :.veight of the -evidence. Two witnesses identified -C.ager.
and Noaks .to the police shortly after the killing. The. jury could reasonably conclude· that 'the
witnesses' subsequent retraction arrd claim ofmemory Ioss were the· result 0.f obvious attempts at
witness intimidation. Furthermore, a reasonable interpretation of the evidence by the jury .is that
Appcllan; was ·jn: thearea at the timeof the killing (based on the cell phone .evidence) .and that.he had
previously obtained a weapon that.matched one of the murder-weaponsjbascd on the testimony of
Detcctive.Bielecivz and Tanner Shawl). Based on the above, a. j.ury could reasonably conclude that
Appellant not only possessed a firearm but used it co kill Leake,
Appellant alleges. that ~he evidence- .was insufficient to establish guilt beyond a reasonable
doubt on.both counts, _The test for reviewing a sufficiency .of the evidence claim is well-settled:
[W]hether, viewing the evidence .in 'the light most favorable to the Commonwealth as-
verdict winner and drawing-all prope:r inferences favorable to the-Commonwealth, the
·jury could reasonably have determined. all elements of the crime to have been
established beyond a reasonable doubt. .. This· standard is equally applicable to cases
where the evidence is circumstantial ratherthan direct. so long as the combination of
the-evidence Iinks the .accused to ~he crime beycmd a reasonable doubt,
Commonwealth v. Hard.castle,546 A,2d) 101, l 10.5 (Pa. 1988) (citations omitted).
Appellant was: convicted of.Murderin the First Degree, which .is defined as:
§ 2-501. Criminal homicide·
(a) Offense.defined . ..-~.A..:p.er$Oh is guilry··of criminal hornicideif he.intcntiorrally, knowingly,
recklessly or negligently causes the .death of another .human being.
18 Pa,C$ ...§ 25.0l.
§ 1.5.02. Murder
16
' ············ , ,---·-··«···· " , __,,, ............•.• - .. ... ·············-- .. , , ···········-··· .
(a)Murder of the firstdegree.v-A criminal homicide constitutes murder of thefirst
degree when it is committed hy an intentional killing.
rs Pa.CS-. § 2502.
The element distinguishing first-degree murder front all other degrees of murder is willful,
premeditated, and deliberate intent to kill, which can be proven by circumstantial evidence.
Co,;i!l/OtJJVealth v. Wilson, 672 A.2d 293, cert. denied 519 U;S. 951. "[Tjhe jury is free to believe all, part,
or none of the evidence presented at trial," Commomli.ealth u: Go11zaletJ._A.3d_> 2015 WL 252446(Pa, Super, 2015) .. The evidence was sufficient for the jury to find Appellant guilty of first degree
murder. Accordingto the testimony, two rnenenrered the house, proceeded directly to the kitchen
and shot Leake multiple times; causing his death. Two eyewitnesses identified Cager and Noaks as
running out of the kitchen immediately aftet shots were fired. Ballistic evidencefrom the crime scene
matched a: gun Cager had obtained illegally. Cell phone records; put Cager arid Noaks in proximity
'to the crime at the time ofits commission, These facts, taken tegether, suffice i:o establish the basis
for Appellant's conviction for Murderin the First Degree.
Lastly, A.ppeUant alleges that the Commonwealth failed to pr.ove beyond a reasonable doubt
the Carrying a Firearm Witho.ut aLicense charge. Carrying a Firearm \Xlitho\lt a. License isdefined
as:
§ 6106. Firearms not to be carried without a license
(a) Offense defined.e-«
(1) Except as provided in. paragraph (2), any person who carries a firearm in any
vehicle or any personwho carries. a firearm concealed on or about his p~rson,
except in his place ofabode or fixed place of business, without.avalid and lawfully
issuedlicense under this chapter commits a felony of the third degree.
18 Pa.C.S, § 6l06(a),
The patties. stipulated that Cager was: a person unable to Iawfully possess a firearm.
Tanner Shawltestified that he had purchased a gun with Cager's money arid handed it to Cager
17
.in.Shawl's car.immediately after purchase. Eyewitness identification, cell.phone evidence .and
ballistic evidence from the crime scene tie Cager and that, or a very similar gun, .to the murder.
These facts suffice to establish the crime of Carrying a. Firearm With<>µta License.
CONCLUSION
.For all of the above reasons; no reversible error occurred and the findings and n1lings of this
Court should be AFF1RJ.\1ED.
BY THE COURT:
18
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CERTiFICATE OF SERVICE
The. undersigned hereby certifies that atrue arid correct copy ofthis OP1Nl0:N was .' mailed
to· the following individuals by firstclass.mail, pO:stage preprud oh ·the 2nd: day. of August, 2016-.
A. Kayleigh Shebs
Office o'f Conflict Counsel
429 Forbes Avenue, Suite J 4d 5
Pittsburgh, PA ·15219
l\fichaei'. Streily
Office .of the District. Attorney·
401 County Courthouse ·
43'6 Grant Street
Pittsburgh, PA J 5219
19.
. ... .
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