Com. v. Long, T. ( 2020 )

J-A29001-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TARIQ DEVON LONG :
:
Appellant : No. 1432 WDA 2017
Appeal from the Judgment of Sentence Entered May 15, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001806-2017
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 07, 2020
Appellant, Tariq Devon Long, appeals from the judgment of sentence of
11½-23 months’ incarceration and a consecutive term of 2 years’ probation,
imposed after he was convicted of person not to possess a firearm (“PNPF”),
18 Pa.C.S. § 6105. Appellant challenges the weight and sufficiency of the
evidence supporting his conviction. After careful review, we affirm.
The trial court only provided a severely truncated summary of the
evidence produced at trial in this case, and Appellant did not produce a
separate summary of the facts in his brief at all. However, the Commonwealth
set forth the following detailed summary of the facts adduced at trial, which
accurately reflects the record, and to which Appellant has not objected.
The evidence presented at trial revealed the following. Shortly
after 5:00 a.m. on May 11, 2014, police were summoned to the
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* Retired Senior Judge assigned to the Superior Court.
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intersection of Hamilton Avenue and Hale Street in the Homewood
section of the City of Pittsburgh where they discovered the body
of gunshot victim Jeffrey Jackson near the Art House. [N.T.,
2/9/17-2/14/17, at] 43, 45-46, 69[]. The forensic pathologist’s
examination revealed that he had suffered six gunshot wounds,
four of which were to the chest, one to the wrist and one to the
armpit. Id. at 137-39. Two bullets were recovered from the body
and one was recovered from the victim’s clothing. Id. at 145,
147. The pathologist determined that the victim died as a result
of multiple gunshot wounds to the trunk. Id. at 148.
Police found four 40-caliber fired casings with the same head
stamp near the victim, two of the same type of casings under the
victim (with one of those stuck to his clothing), and another such
casing 25 feet from where the victim was lying. Id. at 54-55, 64,
71-72. A copper jacket bullet fragment was found near the victim
and a bullet fragment was also found under his body. Id. at 73-
75. In the early afternoon on that same day, a constable who
lived on Kelly Street at the corner of Multi Way in Homewood
contacted police to report that his son had discovered a gun on
the ground near their house. Id. at 152-[]55.
Police recovered the weapon—an S&W 40 caliber [pistol]—from a
small vacant, grassy lot across from the constable’s home, near
the intersection of Multi Way and Kelly. Id. at 170-71, 174, 371-
72. Based on an indentation in the dirt made by the gun and the
lack of footprints or tire tracks leading to it, testimony was offered
that this meant the gun had been either dropped or thrown. Id.
at 173-74. The gun was processed for DNA and fingerprints. Id.
at 179-80.
A firearms expert examined the seven spent 40-caliber casings
found at the scene, as well as the projectiles recovered during the
autopsy, and determined that they all had been discharged from
the recovered firearm. Id. at 194, 196-97. The jacket fragments
found at the scene had likewise been discharged from this firearm.
Id. at 198.
Police attempted to speak to a number of people who were on the
street shortly after the shooting and were given the name of
Sabrina Zellars as a possible witness.5 Id. at 320-21. Ms. Zellars
was brought into the station several days later on May 16, 2014,
for an interview with Detectives William Fleske and Margaret
Sherwood. When she arrived, Detective Fleske informed her he
had heard she was present and witnessed the shooting and that
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she might have been involved. Id. at 321. Ms. Zellars voluntarily
provided a statement, which was audiotaped. (VTS6 at 2). At the
start of the interview, Detective Sherwood again informed Ms.
Zellars as to the reason she was brought to headquarters and the
witness acknowledged her awareness that she was not under
arrest and was free to leave at any time. Id.
5 Ms. Zellars was a prostitute in the Homewood area and at
the time of trial, was currently in jail for that offense. Id.
at 88, 104.
6 The letters “VTS” at 2, refers to the Voluntary Taped
Statement of Sabrina Zellars, dated May 16, 2014.
Currently, this transcript is not a part of the certified record
with this [c]ourt. Undersigned counsel has contacted
[A]ppellant’s counsel and an agreement has been made to
supplement the record. Presumably, when filed, the
transcripts will be found in Part II of the Docket Entries.
Ms. Zellars reported that earlier on the evening of the incident,
she had seen a brown-skin male, whom she recognized as
[A]ppellant, leaning against a Grand Am on Mulford Street. She
said she knew him because she had previously purchased drugs
from him and he lived with her friend Candace. When she saw
him leaning on the car, he asked her if she had seen “Jeff.” She
indicated she knew which Jeff he was looking for based on an
earlier incident she had heard about that took place in January
outside of [A]ppellant’s house after which Jeff went to jail,
followed by the arrests of [A]ppellant and Candace. Id. at 3-5.7
7 A detective and his partner responding to shots fired while
working in Homewood on January 15, 2014, saw [A]ppellant
and [the] victim standing face to face on the side of the road
on Hamilton Avenue. When the detectives announced who
they were and asked to see hands, both men turned and
started to leave. At the time, the detective saw [A]ppellant
grab his waistband which indicated that he was likely
carrying a gun. The detective caught up to and cuffed the
victim, while his partner went after [A]ppellant, who had
entered Candace Black’s house. Once police kicked in the
door, [A]ppellant came downstairs and he followed the
detective’s command to put up his hands. As [A]ppellant
and the victim were simultaneously placed in separate
patrol cars, [A]ppellant repeatedly asked the detective if the
victim was being taken to headquarters even though he had
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been told numerous times that the victim was under arrest
and being transported directly to jail. Appellant was not
arrested that day. [N.T.] at 202-21, 226[]. The victim was
arrested and pled [guilty] to a possession charge. Id. at
224. Ms. Black was subsequently arrested and placed in jail
on March 9, 2014. Id. at 232.
Later that morning[,] at approximately 5:00, Ms. Zellars ran into
Jeff, the victim, and a woman named Theresa on Hamilton
Avenue. As they stood on the corner of Hamilton and Hale Street,
a man wearing a black hoodie with the hood up and tied came
from behind the Art House and fired a shot as he walked toward
them. Ms. Zellars reported that she immediately began running
down Formosa Way toward Wilkinsburg and hid on the side of a
nearby building. While hiding, she heard several more shots and
then saw the shooter run past her with a gun in his hand; as he
ran, she said his hood came off8 and she recognized [A]ppellant.
Id. at 3, 5-6. She further reported that she saw him throw the
gun into some grass as he ran. Id. at 8. Police had also presented
Ms. Zellars with a photo array and she identified [A]ppellant as
the shooter by circling his picture, writing[,] “He shot Jeff[,]”
above it, and signing her name. Id. at 10-11.
8 Ms. Zellars stated that [A]ppellant was wearing the same
hoodie she had seen him wearing earlier that night. []VTS
at 7[].
When testifying at trial, however, Ms. Zellars provided a version
of events different from what she had reported to police in her
statement given shortly after the shooting. She stated that she
had known the victim for a year or two, as well as his girlfriend
Theresa, because they “hung out all of the time” in Homewood.
[N.T.] at 89[]. She also knew [A]ppellant and his girlfriend
Candace from living in the same neighborhood; she and Candace
had also gone to school together. Id. at 89-90. At the start, Ms.
Zellars stated that she did not want to be in court testifying
against [A]ppellant; the court permitted her to be treated as a
hostile witness. Id. at 90-91, 93.
Although she conceded she had given a recorded statement9 and
testified at the preliminary hearing that she had witnessed the
victim get shot, ran down Formosa and hid against a house, Ms.
Zellars claimed that she had made up the story she had given to
police that [A]ppellant was the shooter and that she had seen him
discard the weapon. According to Ms. Zellars, she was high on
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crack cocaine and scared and invented the story because the
detectives told her she would be arrested for conspiracy and put
in jail for life. Id. at 91-97, 99-101, 119, 125-26. She further
alleged that the detectives gave her money to supply her drug
habit if she named [A]ppellant as the shooter. Id. at 103-05,
107-08. She denied knowing who had shot the victim and claimed
the detective told her where the gun had been found. Id. at 105,
112.
9 The audio recording of Ms. Zellars statement was played
for the jury. [Id.] at 110[].
Counter to Ms. Zellars’ allegations, Detective Fleske testified that
he never threatened Ms. Zellars, never told her a gun had been
recovered, never provided information about the shooter[,] and
never told her she was going to jail if she did not name [A]ppellant
as the shooter. Id. at 321-23, 327. He further stated that the
only money he had ever given her was $3 for a soda; no money
was ever given to her in an effort to support her crack habit. Id.
at 326-27. He said that he attempted to get her to enter witness
protection but she refused. Id. at 325.
With regard to Detective Sherwood’s conduct during the interview,
Detective Fleske testified that while in his presence, she at no
point gave any money to Ms. Zellars, she never threatened her,
nor did she ever tell her what to say. Id. at 338-39. When asked
to clarify whether any of this interview … took place when he was
not in the room, the detective stated that he was present the
“whole time she was in the interview room until the time we
dropped her off….” Id. at 350-51.
Detective Fleske had also interviewed [A]ppellant following his
arrest on November 18, 2014. Id. at 328. During the interview,
[A]ppellant denied that he was present at the time of the shooting,
alleging that he did not shoot or even know the victim. He instead
claimed that he was with Ms. Black and his children that day. Id.
at 343.
A forensic biologist from the Medical Examiner’s Office testified
that the DNA swab from the recovered firearm contained a partial
DNA mixture profile from more than one individual. In comparing
a buccal swab obtained from [A]ppellant, she stated that “no
conclusions could be drawn regarding [A]ppellant as a possible
contributor to the sample due to insufficient data.” Id. at 233,
240. As a result, the data was sent to Dr. Mark Perlin, an expert
in the field of DNA analysis and detection, from Cybergenetics for
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additional testing using TrueAllele[,] which he explained was a
statistical computer program used for the analysis and
interpretation of complex DNA mixture evidence. Id. at 247-48,
250, 252. When asked if he determined a “match statistic
interpreting [Appellant]’s DNA being on the gun,” Dr. Perlin
stated, “We found that a match between the handgun swab and
[Appellant was] 5.17000 or five thousand seventy times more
possible than a coincidental match with an unrelated African
American Person…. That’s the number that results when
comparing his genotype and the genotype found on the firearm.”
Id. at 285, 289. He further explained that the “chance of having
a match statistic of at least 5.17 thousand … if the person had not
contributed [his] DNA to the handgun would be less than one in
50,000.” Id. at 286.
Outside the jury’s presence, the prosecutor offered [A]ppellant’s
certified prior conviction for robbery of a motor vehicle into
evidence and the court admitted it in the context of only the non-
jury trial proceeding. Id. at 311-12.
The defense presented testimony from Theresa Franklin who
stated that she had been in a relationship with the victim at the
time of the shooting and that they would get high together. Id.
at 355. She stated that on the night of the incident she was “[o]ut
of [her] mind” high and walking with the victim. Id. at 356, 361.
As they approached the corner of Hamilton and Hale, the victim
was approximately six feet ahead of her and she saw Ms. Zellars
standing near the stop sign. Ms. Franklin then saw someone
dressed all in black—pants, gloves and a hoodie with the hood up
and tied—come out of nowhere and fire shots at the victim. She
claimed that she was unable to see the shooter’s face, nor could
she tell his race, and she ran down Hamilton as soon as she heard
the shots. Id. at 356-59, 361-62. She estimated that the shooter
was her height, 5’ 7” and a half, and stated that [A]ppellant, whom
she knew, was shorter than her. Id. at 360. Ms. Franklin alleged
that she did not remember the recorded statement she had given
to police on November 16, 2014. Id. at 364. After hearing her
recorded statement played in court, she testified that she did not
believe police were attempting to get her to name [A]ppellant as
the shooter. Id. at 368-69.
Commonwealth’s Brief at 3-12 (some footnotes omitted).
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The Commonwealth charged Appellant with one count each of criminal
homicide and PNPF. Prior to trial, the court granted Appellant’s motion to
sever the offenses. Appellant’s trial began on February 9, 2017. Appellant
was simultaneously tried by the jury for the homicide offense and by the court
for PNPF. The jury returned a not-guilty verdict on criminal homicide, but the
trial court found Appellant guilty of PNPF. On May 15, 2017, the court
sentenced Appellant to 11½-23 months’ incarceration followed by 3 years’
probation. Appellant filed a timely post-sentence motion, challenging, inter
alia, the legality of his sentence1 and the weight of the evidence supporting
his conviction. On August 30, 2017, the trial court granted relief on the
sentencing claim, but denied the post-sentence motion in all other respects.
Immediately thereafter, the trial court resentenced Appellant to 11½-23
months’ incarceration followed by 2 years’ probation, with full credit for time
served. Appellant filed a timely notice of appeal, and complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) statement. The trial court issued its
Rule 1925(a) opinion on January 24, 2019.
Appellant now presents the following questions for our review:
1. Whether there was insufficient evidence to convict Appellant of
PNPF when the Commonwealth failed to prove that Appellant
actually possessed the firearm?
2. Whether the trial court abused its discretion in failing to grant
a new trial when the verdict was contrary to the weight of the
evidence?
____________________________________________
1Appellant’s legality-of-sentence claim asserted that the trial court failed to
adequately credit him for time served.
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Appellant’s Brief at 6.
Sufficiency of the Evidence
Appellant first asserts that there was insufficient evidence to
demonstrate that he possessed a firearm. He contends that the trial court’s
reliance on the prior inconsistent statement by Sabrina Zellars, combined with
the DNA evidence, could not establish, beyond a reasonable doubt, that he
possessed the at-issue firearm.
We review a claim that the evidence was insufficient to support a
conviction under the following, well-established standard of review:
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations
omitted).
In order to establish a violation of Section 6105, the Commonwealth
must establish 1) actual or constructive possession of a firearm, 2) by a person
prohibited from doing so. 18 Pa.C.S. § 6105(a). Appellant concedes that he
is a person prohibited from possessing a firearm and, thus, he only challenges
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the sufficiency of the evidence with regard to the possession element of the
offense.
In rejecting Appellant’s sufficiency claim, the trial court reasoned as
follows:
In looking at all of the facts of this particular case and the
inferences reasonably being drawn therefrom, it is clear that the
Commonwealth’s evidence is more than sufficient to show that
[Appellant] possessed the firearm that was used in the killing of
[the victim]. When the Medical Examiner’s Office was unable to
make a definitive finding concerning the DNA, it turned that gun
over to Cybergenetics, a company that specializes in DNA testing
and evaluation. Mark Perlin, the president of that company, set
forth the types of examinations that were used in developing the
DNA sample from the gun and was able to conclude that there was
sufficient DNA on the gun to establish that [Appellant] possessed
that weapon.
In conjunction with this testimony, the Commonwealth presented
the testimony of Sabrina Zellars, who testified that she was at or
near the intersection of Hamilton Avenue and Hale Street when
she saw [Appellant] running from the scene after shots had been
fired and she saw [Appellant] throw the gun into a vacant lot on
Formosa Way. The gun, however, was found in a lot located on
Kelly Street, approximately one block from where Zellars
identified that the gun had been tossed.
Zellars was interviewed by the police and eventually put her
statement on tape, which tape was played for the jury on the basis
that it constituted a prior statement of the witness[,] which was
inconsistent with her trial testimony.
At the time of trial, Zellars maintained that she was forced to
testify in the manner in which she did and that the police provided
her with the information as to the details of this shooting. She
further maintained that the police threatened to charge her as co-
conspirator in the death of [the victim] if she did not testify that
[Appellant] was [the victim]’s killer. Zellars further testified that
she was concerned for not only her safety, but the safety of her
seven children. [Appellant] presented all of this information to
the jury and it is clear that the jury did not convict [him] of the
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crime of criminal homicide based upon the equivocal and
inconsistent testimony of Zellars. However, this testimony,
coupled with the DNA results and the reasonable inferences drawn
therefrom, was more than sufficient to establish that [Appellant]
possessed the firearm that was ultimately used to kill [the victim].
Trial Court Opinion (“TCO”), 1/24/19, at 5-6.
Appellant argues that by the trial court’s choosing to accept as true Ms.
Zellars’ prior inconsistent statement regarding her observation of Appellant
with a firearm following the shooting, while rejecting her recantation of that
statement in-court, “Appellant’s conviction for [PNPF] became a product of
speculation and conjecture.” Appellant’s Brief at 23. We disagree.
A prior inconsistent statement can itself be sufficient to support a
conviction. Prior inconsistent statements are always admissible for
impeachment purposes, but also may be admitted as substantive evidence
when the statement was given in reliable circumstances and where the
declarant is subject to cross-examination. See Commonwealth v.
Carmody, 799 A.2d 143, 148 (Pa. Super. 2002) (recognizing that “a prior
inconsistent statement may be offered not only to impeach a witness, but also
as substantive evidence if it meets additional requirements of reliability”).
Here, the factfinder was permitted to use Ms. Zellars’ prior inconsistent
statement as substantive evidence despite her subsequent in-court
recantation.
Furthermore, the trial judge, sitting as factfinder, was free to assess
independently Ms. Zellars’ credibility. Thus, while it may be obvious that the
jury did not find Ms. Zellars’ prior inconsistent statement credible for purposes
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of Appellant’s homicide trial, the trial court was in no way bound by that
assessment when considering the PNPF offense. See Commonwealth v.
Yachymiak, 505 A.2d 1024, 1026 (Pa. Super. 1986) (recognizing that
“inconsistent verdicts may be rendered by a jury and that such verdicts are
not grounds for a new trial or for reversal” and that the “same rule applies in
nonjury trials”). In any event, it is not at all clear from the jury’s verdict of
acquittal on homicide that the jury rejected Ms. Zellars’ prior inconsistent
statement in its entirety and, thus, it may be that the verdicts are not
inconsistent at all. See Commonwealth v. Horton, 644 A.2d 181, 184 (Pa.
Super. 1994) (“[A]n acquittal cannot be interpreted as a specific finding in
relation to some of the evidence.”) (cleaned up). Moreover, Ms. Zellars’ prior
inconsistent statement was not the only evidence of Appellant’s possession of
firearm. The DNA evidence also linked Appellant to the gun. Even if the DNA
evidence was not flawless, the combination of these circumstances constitutes
sufficient evidence of Appellant’s commission of the PNPF offense.
Additionally, we ascertain that the evidence in this case exceeded that
which we considered in Commonwealth v. McClellan, 178 A.3d 874 (Pa.
Super. 2018). In McClellan, the defendant, who was not permitted to
possess a firearm, was staying at his grandmother’s home with multiple other
individuals, all of who were his relatives. Id. at 877. Police discovered a
firearm in a common area of the home that had trace DNA from at least three
contributors. “[A]dditional DNA testing and analyses were undertaken to
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assess the relative probability that [McClellan], rather than a family member,
contributed to the DNA mixture.” Id. at 879.
Of the four DNA samples taken from the gun in question, one
yielded no conclusion and another, from the trigger, was more
probable if it came from a relative of [McClellan]’s and two
unknown, unrelated individuals than if it came from [McClellan]
and two unknown, unrelated individuals.
However, the two other DNA swab samples pointed more heavily
to [McClellan]. First, it was determined that the DNA sample
taken from the gun’s grip was at least 384 times more probable if
the sample originated from [McClellan] and two unknown,
unrelated individuals than if it originated from a relative to
[McClellan] and two unknown, unrelated individuals. Therefore,
the laboratory concluded there was “strong support” that
[McClellan] contributed to this mixture.
Testing of the DNA sample retrieved from the gun’s magazine also
yielded the conclusion that the DNA sample was at least 29 times
more probable if the sample originated from [McClellan] and two
unknown, unrelated individuals than if it originated from a relative
to [McClellan] and two unknown, unrelated individuals.
Id. (footnotes omitted).
Based on that evidence, we concluded that the there was sufficient
evidence to demonstrate McClellan’s constructive possession of the firearm.
Id. at 880. Here, similar DNA evidence was provided but, unlike in McClellan,
the DNA evidence was buttressed by a witness who observed Appellant
holding a firearm. Thus, our decision in McClellan supports a determination
that the evidence was sufficient to convict Appellant of PNPF in this case.
Accordingly, we conclude that Appellant’s first claim lacks merit.
Weight of the Evidence
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Appellant also asserts that the trial court abused its discretion by failing
to grant him a new trial based on his claim that the verdict was against the
weight of the evidence. We review a weight-of-the-evidence claim under the
following, well-established standard of review:
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no
obligation to view the evidence in the light most favorable to the
verdict winner. An allegation that the verdict is against the weight
of the evidence is addressed to the discretion of the trial court. A
new trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. A trial judge must do more than
reassess the credibility of the witnesses and allege that he would
not have assented to the verdict if he were a juror. Trial judges,
in reviewing a claim that the verdict is against the weight of the
evidence do not sit as the thirteenth juror. Rather, the role of the
trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
Widmer, 744 A.2d at 751–52 (citations and quotation marks omitted). In
order for a defendant to prevail on a challenge to the weight of the evidence,
“the evidence must be so tenuous, vague and uncertain that the verdict shocks
the conscience of the court.” Commonwealth v. Talbert, 129 A.3d 536, 546
(Pa. Super. 2015) (citation and quotation marks omitted).
Based on Ms. Zellars’ prior inconsistent statement, in combination with
the appearance of Appellant’s DNA on the firearm, as discussed above, the
evidence pointed toward Appellant’s possession of a firearm. Although the
evidence in this case was not overwhelming, the verdict still falls far short of
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‘shocking the conscience’ of this Court and, thus, we ascertain no abuse of
discretion by the trial court in its reaching the same conclusion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2020
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