Com. v. Cambric, J. ( 2020 )

J-S62009-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA N. CAMBRIC :
:
Appellant : No. 1601 WDA 2018
Appeal from the Judgment of Sentence Entered July 17, 2018
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001269-2014
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 11, 2020
Joshua N. Cambric appeals from the judgment of sentence entered in
the Cambria County Court of Common Pleas on July 17, 2018 following his
conviction for first degree murder and related charges for his involvement in
a 2014 fatal shooting.
On March 30, 2014, Tony Phillips was shot and killed in the parking lot
of a bar in Johnstown, Cambria County, while sitting in the driver’s seat of his
sister’s car. At trial, the Commonwealth presented circumstantial evidence to
establish that Cambric, Keith Reed, and Jeremy Woodard had formulated and
carried out a plan to kill Tony Phillips. This evidence consisted of multiple
witnesses and video surveillance footage from multiple locations.
Phillips’ sister, Tanya Phillips, testified that Reed called her residence
looking for her brother on the day of the murder. She told Reed that her
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brother was not home, but offered suggestions on where he might be. Tanya
had loaned her brother her golden tan colored Chevrolet Malibu earlier that
day. Phillips’ aunt testified that Reed came to her sister’s house looking for
Phillips and convinced Phillips to go have a drink with him.
The owner of the bar where the shooting occurred testified that while
he was getting in his car to leave the bar that night he saw a gold-colored
vehicle pull into the parking lot. He observed a black male, who he identified
as Reed1 get out of the passenger side of the gold car and go into the bar. He
then saw a different black male, wearing glasses and gray cargo pants, come
out and fire two shots from a handgun through the driver’s door window of
the gold car. The shooter then walked to a black SUV that was waiting for him.
The owner identified Cambric as the shooter in court.
After local dispatch advised police to be on the lookout for a black SUV
in connection with the shooting, they effectuated a stop of a vehicle matching
the description in the parking lot of a gas station. A passenger alighted from
the SUV before the driver attempted to flee by driving away. The driver,
identified as Woodard, was apprehended shortly thereafter. The passenger
was tracked to a local motel, were he was found in a room, having checked in
approximately fifteen minutes before police arrived. An officer positively
identified Cambric as the passenger who fled from the black SUV.
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1 He further testified that Reed was a regular patron of the bar.
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Video evidence from the gas station showed Cambric exiting the black
SUV and leaning down between the pumps, the black SUV departing, the
police cruiser in pursuit, and Cambric walking toward the motel. Officers later
located a firearm lodged between the gas pumps where Cambric had leaned
down. Scientific testing and analysis established that all bullets recovered had
been fired by the firearm recovered at the gas station.
The Commonwealth sought to try the men jointly. However, the trial
court denied the Commonwealth’s request. This Court quashed the
Commonwealth’s appeal of the denial, and our Supreme Court denied review.
After several scheduling issues, trial was scheduled for March 2017.
Cambric filed a motion to dismiss the charges, asserting that his right
to a speedy trial had been violated. After a hearing, the trial court denied the
motion. Cambric then filed a motion seeking the recusal of the Cambria County
District Attorney’s office, which the trial court granted. The Office of the
Attorney General assumed the responsibility for the case, and after trial, the
jury convicted Cambric of first degree murder, conspiracy to commit murder,
two counts of aggravated assault, receiving stolen property, and tampering
with physical evidence.
On July 17, 2018, Cambric was sentenced to life imprisonment for first
degree murder, a consecutive five to ten years’ incarceration for receiving
stolen property, and a consecutive six months to two years’ incarceration for
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tampering with or fabricating physical evidence.2 The trial court subsequently
amended the sentence on the charge of receiving stolen property to thirty-
three to one-hundred and twenty months’ incarceration.
Cambric filed timely post-sentence motions, which were denied after a
hearing. This timely appeal followed.
In his first issue on appeal, Cambric challenges the sufficiency of the
evidence to sustain all charges. Specifically, in his Rule 1925(b) statement, he
contends the evidence was wholly inconsistent and speculative because the
convictions were based solely on circumstantial evidence and the eyewitness’
testimony was conflicting as to their identification of the perpetrator. Cambric
is not challenging the sufficiency of the evidence to support any of the specific
legal definitions of his convictions. Rather, he is challenging the sufficiency of
the evidence to establish that he was the person who committed the crimes.
Our standard of review for a challenge to the sufficiency of the evidence
is to determine whether, when viewed in a light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences therefrom are
sufficient for the trier of fact to find that each element of the crimes charged
is established beyond a reasonable doubt. See Commonwealth v. Dale, 836
A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable doubt by means
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2 The charges of conspiracy to commit criminal homicide and aggravated
assault merged with the charge of first degree murder for sentencing.
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of wholly circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657,
661 (Pa. Super. 2007) (citation omitted).
“The facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Id. (citation omitted). “As an
appellate court, we do not assess credibility nor do we assign weight to any
of the testimony of record.” Commonwealth v. Kinney, 863 A.2d 581, 584
(Pa. Super. 2004) (citation omitted). Thus, we will not disturb the verdict
“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.” Bruce,
916 A.2d at 661 (citation omitted).
The trial court, in its opinion, has thoroughly reviewed this claim and
disposed of the argument on the merits. We have reviewed the parties’ briefs,
the relevant law, the certified record, and the trial court’s well-written opinion.
The trial court’s findings of fact and conclusions of law comprehensively
dispose of Cambric’s first issue on appeal, with appropriate references to the
record and without legal error. We therefore adopt its reasoning and affirm on
its basis. See Trial Court Opinion, 2/5/2019. It is clear there is overwhelming
evidence in support of the verdict.
Furthermore, although Cambric phrased this claim as a challenge to the
sufficiency of the evidence, we find his claim to be more properly categorized
as a challenge to the weight of the evidence. Cambric’s argument focuses
almost exclusively on his contention that the testimony was contradictory and
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inconsistent. This is a challenge not to the sufficiency of the evidence, but to
its weight.3 See Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.
Super. 2003) (“A sufficiency of the evidence review, however, does not include
an assessment of the credibility of the testimony offered by the
Commonwealth.”) As Cambric has raised a separate weight claim in his second
issue on appeal, we will address the issue on its merits.
In his challenge to the weight of the evidence supporting the jury’s
verdict, Cambric raises the same arguments he made in his sufficiency
argument, specifically that the eyewitness testimony was conflicting. Cambric
contends the jury’s verdict based on solely circumstantial evidence was so
contrary to the evidence that it constitutes a miscarriage of justice and
requires the grant of a new trial.
We do not review challenges to the weight of the evidence de novo on
appeal. See Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).
Rather, we only review the trial court’s exercise of its discretionary judgment
regarding the weight of the evidence presented at trial. See id. We may only
reverse the lower court’s verdict if it is so contrary to the evidence as to shock
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3 While challenges based on inconsistent testimony generally implicate the
weight of the evidence, our Supreme Court has made an exception to the
general rule that the finder of fact is the sole arbiter of the facts where the
testimony is so inherently unreliable that a verdict based upon it could amount
to no more than surmise or conjecture. Commonwealth v. Karkaria, 625
A.2d 1167, 1170 (Pa. 1993). Instantly, we do not find that the verdict was
based on conjecture or that the testimony was so inherently unreliable as to
render the verdict unsupportable.
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one’s sense of justice.” Commonwealth v. Champney, 832 A.2d 403, 408
(Pa. 2003) (citations omitted). A verdict is said to be contrary to the evidence
such that it shocks one’s sense of justice when “the figure of Justice totters
on her pedestal,” or when “the jury’s verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes him to almost
fall from the bench, then it is truly shocking to the judicial conscience.”
Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super. 2004)
(citations omitted).
When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is so
unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not cognizable
on appellate review.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations
omitted).
Cambric mainly takes issue with the eyewitness’s testimony regarding
the color of the perpetrator’s pants. See Appellant’s Brief, at 28-29. We have
to agree with the trial court that Cambric’s challenge is simply a “mere conflict
in testimony” and does not constitute grounds for a new trial. Further, we
agree with the trial court that the evidence in this case was voluminous,
including not only the eyewitness testimony, but additionally video evidence
documenting nearly every aspect of Cambric’s actions throughout the day.
The video evidence alone, if believed by the fact finder, was enough to convict
Cambric. Accordingly, we find Cambric’s weight claim is without merit.
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Next, Cambric contends the trial court abused its discretion by denying
his oral motion to recuse defense counsel for a conflict of interest.
A defendant cannot prevail on a conflict of interest claim absent a
showing of actual prejudice. [T]his Court [has held] that while it
is true that prejudice is presumed when counsel is burdened by
an actual conflict of interest, this is only if the defendant
demonstrates that counsel actively represented conflicting
interests and that an actual conflict of interest adversely affected
his lawyer’s performance.
Commonwealth v. Spotz, 896 A.2d 1191, 1231-32 (citations and internal
quotation marks omitted).
Cambric takes issue with the fact that defense counsel had previously
prepared estate planning documents for a testifying detective from the
Johnstown police department. Counsel also probated the detective’s parents’
estates. Finally, counsel had an informal discussion with the detective
regarding a civil suit shortly before trial, but testified that no attorney client
relationship had been created by this conversation.
Here, Cambric has failed to demonstrate that counsel “actively
represented conflicting interests.” Id. Under these circumstances, we
conclude that this is not a case of concurrent representation because, as
alleged by Cambric, his concern regards trial counsel’s previous representation
of a Commonwealth witness in cases that were unrelated to the instant
matter, and that had been concluded prior to Cambric’s trial. Because this
case involves successive and not dual representation, Cambric must
demonstrate he was prejudiced by any potential conflict of interest. See
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Commonwealth v. Cousar, 154 A.3d 287, 310 (Pa. 2014); see also
Commonwealth v. Karenbauer, 715 A.2d 1086, 1094 (Pa. 1998) (holding
that “[a] defendant cannot prevail on a conflict of interest claim absent a
showing of actual prejudice”).
Cambric has failed to demonstrate the requisite prejudice as he provides
no nexus between trial counsel’s previous representation of the
Commonwealth witness and counsel’s performance at Cambric’s trial. His
concerns seem to be merely speculative. Additionally, the trial court took
precautionary measures to protect Cambric’s due process rights, specifically
engaging in a colloquy with Cambric to ensure a full and fair opportunity to
cross-examine the witness. Cambric was given the opportunity to ensure trial
counsel asked all questions Cambric wanted posed to the witness and that
trial counsel did not ask any questions Cambric did not want posed. Cambric
offers no evidence that trial counsel restricted his cross-examination of the
Commonwealth witness because he was laboring under a conflict of interest.
Rather, Cambric specifically testified that he was satisfied with trial counsel’s
cross-examination.
The trial court made the decision to deny Cambric’s motion to remove
trial counsel based on an alleged conflict of interest after hearing testimony
and argument from both sides. The trial court’s conclusion that Cambric failed
to demonstrate a conflict of interest is sound. Accordingly, we find Cambric is
not entitled to relief. See Commonwealth v. Spotz, 896 A.2d 1191, 1232
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(Pa. 2006) (rejecting claim based on counsel's representation of a client which
had terminated prior to his appointment to represent the defendant because
the defendant offered nothing more than bald assertions, with no evidence to
suggest that counsel's conduct was due to the alleged conflict of interest).
Next, Cambric contends the trial court abused its discretion by denying
his motions for dismissal of charges on Pa.R.Crim.P. 600 speedy trial grounds.
Our scope and standard of review on this issue are as follows.
Our standard of review relating to the application of Rule 600 is
whether the trial court abused its discretion. Our scope of review
is limited to the evidence on the record of the Rule 600 evidentiary
hearing and the findings of the trial court. We must view the facts
in the light most favorable to the prevailing party.
Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa. Super. 2006) (citation
omitted).
Additionally, when considering the trial court’s ruling, this Court is
not permitted to ignore the dual purpose behind Rule [600]. Rule
[600] serves two equally important functions: (1) the protection
of the accused’s speedy trial rights, and (2) the protection of
society. In determining whether an accused’s right to a speedy
trial has been violated, consideration must be given to society’s
right to effective prosecution of criminal cases, both to restrain
those guilty of crime and to deter those contemplating it.
However, the administrative mandate of Rule [600] was not
designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth.
Commonwealth v. Hunt, 858 A.2d 1234, 1239 (Pa. Super. 2004) (en banc)
(citation omitted; brackets in original).
Rule 600 “provides for dismissal of charges only in cases in which
the defendant has not been brought to trial within the term of the
adjusted run date, after subtracting all excludable and excusable
time.” The adjusted run date is calculated by adding to the
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mechanical run date, i.e., the date 365 days from the complaint,
both excludable time and excusable delay. “Excludable time” is
classified as periods of delay caused by the defendant. “Excusable
delay” occurs where the delay is caused by circumstances beyond
the Commonwealth's control and despite its due diligence. “Due
diligence is a fact-specific concept that must be determined on a
case-by-case basis. Due diligence does not require perfect
vigilance and punctilious care, but rather a showing by the
Commonwealth that a reasonable effort has been put forth.” Due
diligence includes, inter alia, listing a case for trial prior to the run
date, preparedness for trial within the run date, and keeping
adequate records to ensure compliance with Rule 600. Periods of
delay caused by the Commonwealth's failure to exercise due
diligence must be included in the computation of time within which
trial must commence.
Commonwealth v. Moore, 214 A.3d 244, 248-249 (Pa. Super. 2019)
(citations omitted).
“Once a violation of Rule 600 has been established ... the inquiry
becomes whether the Commonwealth exercised due diligence in bringing [a
defendant] to trial and if the circumstances occasioning the postponement
were beyond the control of the Commonwealth.” Commonwealth v. Kearse,
890 A.2d 388, 392 (Pa. Super. 2005). “The Commonwealth ... has the burden
of demonstrating by a preponderance of the evidence that it exercised due
diligence.” Commonwealth v. Cole, 167 A.3d 49, 71 (Pa. Super. 2017)
(citation and quotation marks omitted).
In its opinion, the trial court fully stood by its order dated February 1,
2017, and its opinion dated March 9, 2017. See Trial Court Opinion,
2/12/2019, at 3. In that prior opinion, the trial court thoroughly and
thoughtfully summarized and addressed Cambric’s claims concerning his Rule
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600 challenges, set forth the relevant law, and determined that, while it is
regrettable that the whole process took so long, the Commonwealth had
nevertheless exercised due diligence in bringing Cambric’s case to trial. See
Trial Court Opinion, 3/9/2017. We affirm based on the trial court’s sound, and
comprehensive, rationale with regard to this issue. See id.In his last issue on appeal, Cambric simply makes a blanket argument
that the trial court erred in denying his post sentence motions for the reasons
raised in the prior four issues. As we have already addressed each issue
separately, we need not address them again.
As we find none of Cambric’s issues on appeal merit relief, we affirm the
judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2020
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Circulated 01/16/2020 02:35 PM
IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY
CRIMINAL DIVISION
COMMONWEAL TH OF NO. 1269- 2014
PENNSYLVANIA,
VS.
.l
I
JOSHUA CAMBRIC,
Ii Defendant.
*******************
..
APPEARANCES: -,
For the Commonwealth: GREGORY SIMA TIC, ESQUIRE
Deputy Attorney General
For the Defendant: CHRISTY P. FOREMAN, ESQUIRE.
*******************
OPINION IN SUPPORT OF ORDER PURSUANT TO
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925(a)
FLEMING, J., February 5, 2019. Pursuant to Pennsylvania Rule of Appellate
Procedure l 925(a), the trial court submits the following Opinion in support of its judgment of
sentence entered on July 17, 2018:
PROCF.OlJRAL HISTORY
On June 13, 2018, a jury convicted Defendant Joshua Cambric of First Degree Murder,
Criminal Conspiracy to Commit Criminal Homicide, Aggravated Assault (two counts),
Receiving Stolen Property, and Tampering with or Fabricating Physical Evidence in the 2014
shooting death of Tony Phillips at Edder's Den, a bar in Johnstown, Cambria County. N.T.
(JUN. 13, 2018), pp. 108-109. On July 17, 2018, the trial court sentenced Defendant to life
imprisonment on the charge of First Degree Murder, a consecutive sentence of five to ten
years' incarceration for Receiving Stolen Property, and a consecutive sentence of six months to
. :,,/ _,.r;
.:-:.:
',
· ��
'·
two years' incarceration for Tampering with or Fabricating Physical Evidence.1 N.T. (JUL. 17,
2018), pp. 16-17. By Order dated July 19, 2018, the trial court amended Defendant's sentence
I
on the charge of Receiving Stolen Property to 33 months' to 120 months' incarceration, /
consecutive to the sentence imposed on the charge of First Degree Murder. AMENDED
/
SENTENCING ORDER DATED JULY 19, 2018.
I
II
On July 26, 2018, Defendant filed timely Post-Sentence Motions. DEFENDANT'S POST- i
SENTENCE MOTIONS FILED JULY 26, 2018. The trial court entertained oral argument on the II
Post-Sentence Motions on.August 31, .2018. See SCHEDULING ORDER D TED JULY 30, 2018.1
�
On October 9, 2018, the tnal court denied Defendant's Post-Sentence Motions. ORDER DA TED i
OCT. 9, 2018.
On October 30, 2018, Defendant filed a Notice of Appeal. NOTICE OF APPEAL FILED .1
OCT. 30, 2018. On November 28, 2018, Defendant filed a Concise Statement of Errors
Complained of on Appeal ["Concise Statement"]. CONCISE STATEMENT FILED Nov. 28, 2018.
lSSUES RAISED ON APPEAL
In his Concise Statement, Defendant raises the following issues on appeal:
I. The evidence in this matter was insufficient to sustain
[Defendant)'s convictions for First Degree Murder, Criminal
Conspiracy, Aggravated Assault, Receiving Stolen [Pjroperty,
and Tampering with/Fabricating Physical Evidence as the
evidence was so weak and inconclusive that, as a matter of law,
no probability of fact could be drawn from the combined
circumstances. Even viewed in a light most favorable to the
verdict winner, the wholly inconsistent and speculative evidence
presented at trial does not support the jury's verdict beyond a
reasonable doubt.
Il. The verdict in this case was against the weight of the evidence as
the jury's verdict was so contrary to the inconsistent and
speculative evidence presented at trial that it would shock one's
sense of justice, thus requiring a new trial.
1
The charges of Criminal Conspiracy to Commit Criminal Homicide and Aggravated Assault (two counts) merged
with the charge of First Degree Murder.
2
III. The Tri�l Court abused its discretion in denying [Defendant]'s
oral motion to recuse defense counsel, Gary Vitko, Esquire, for a
conflict of interest.
IV. The Trial Court abused its discretion in denying [Defendant]'s
motions for dismissal of charges pursuant to Pa.R.Crim.P. 600
and dismissal of the Information for a violation of his right to a
speedy trial.
V. The Trial Court erred in denying [Defendant]'s Post-Sentence
Motions.
CONCISE STATEMENT, �1 1-V. The trial court will address the Rule 600 issue first because it
occurred first in time.
LEGAL ANALYSIS
I. The trial court did not err in denying Def�ndant's Rule 600 Motio.n.
(On January 7, 2019, a panel of the Supenor Court2 affirmed the trial court on a nearly l
I
identical Rule 600 motion filed by a co-defendant. See Commonwealth v. Reed, No 641 WDA /
2018 (UNPUBLISHED MEMORANDUM FILED JAN. 7, 2019).)
On January 5, 2017, Defendant filed a "Motion for Dismissal of Charges Pursuant to
Pennsylvania Rule of Criminal Procedure 600"; on January 11, 2017, Defendant filed a I
"Motion for Dismissal of Information for Violation of Right to Speedy Trial" [collectively
"Rule 600 Motions"]. The trial court conducted a hearing on January 24, 2017, and denied
Defendant's Rule 600 Motions by Order dated February 1, 2017. On March 9, 2017, the trial
court filed an Opinion supplementing the decision rendered on February I, 2017.
Defendant did not renew his Rule 600 Motions at any other time prior to trial.
Therefore, the trial court stands by its Order dated February l, 2017, and its Opinion dated
March 9, 2017, which are attached to this Opinion as Appendix A and Appendix B,
respectively.
2
Shogun, J., Dubow, J., and Stephens, P.J.E. (Former Justice specially assigned to the Superior Court).
3
II. Defendant's convictions for First Degree Murder, Criminal Conspiracy, Aggravated
Assault, Rece.iving Stolen Property, and Tampering with/Fabricating Physical
Evidence were not against the weight and sufficiency of the evidence presented at
trial by the Commonwealth. '
Defendant argues that his convictions for First Degree Murder, Criminal Conspiracy to
Commit Criminal Homicide, Aggravated Assault (two counts), Receiving Stolen Property, and
Tampering with or Fabricating Physical Evidence were against the weight and sufficiency of
the evidence presented by the Commonwealth at trial. CONCISE STATE�·IENT, ir� I AND 11. As
I
stated in Commonwealth v. Whiteman. "[sjufficicncy of the evidence and weight of the
evidence are discrete inquiries .... " Com. 1•. Whiteman. 485 A.2d 459, 461 (Pa. Super. 1984)
(citations omitted). Therefore, the trial court will analyze them separately.
Sufficiencv of the Evidence
Pursuant to Pennsylvania Rule of Criminal Procedure 606, a defendant may challenge
the sufficiency of the evidence in various ways, including a motion for judgment of acquittal at
the close of the Commonwealth's case-in-chief or a challenge to the sufficiency of the evidence J
on appeal. PA.R.CRIM.P. 606(A)(l)(7). l
Defendant first raised this issue in a motion to dismiss at the close of the
Commonwealth's case-in-chief. N.T. (JlJN. 13, 2018). pp. 40-43. Specifically, Defendant
I
argued that the Commonwealth failed to identify Defendant as the alleged shooter. Id. at p. 40.
In Pennsylvania, the standard of review for a challenge to the sufficiency of the
evidence is as follows:
As a general matter. our standard of review of sufficiency claims requires that
we evaluate the record in the light most favorable to the verdict winner giving
the prosecution the benefit of all reasonable inferences to be drawn from the
evidence. 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. Nevertheless, the
Commonwealth need not establish guilt to a mathematical certainty. [T]he facts
and circumstances established by the Commonwealth need not be absolutely
incompatible with the defendant's innocence. Any doubt about the defendant's
guilt is to be resolved by the fact finder unless the evidence is so weak and
4
inconclusive that, as a matter of law, 110 probability of fact can be drawn from
the combined circumstances,
Com. v. lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013) (citations and quotations omitted).
With respect to first degree murder, the Pennsylvania Supreme Court explained:
In the case of first-degree murder. a person is guilty when the Commonwealth
proves that: (1) a human being was unlawfully killed; (2) the person accused is
responsible for the killing; and (3) the accused acted with specific intent to kill.
I
'1
An intentional killing is a killing by means of poison. or by lying in wait, or by
any other kind of willful, deliberate and premeditated killing. The
Commonwealth may prove that a killing was intentional solely through
circumstantial evidence. The finder of fact may infer that the defendant had the
specific intent to kill the victim based on the defendant's use of a deadly weapon
upon a vital part of the victim's body.
Commonwealth v. Baumhammers. 960 A.2d 59, 68 (Pa. 2008) (citations and quotations
emitted).
"To sustain a conviction for criminal conspiracy. the Commonwealth must establish that
the defendant (I) entered an agreement to commit or aid in an unlawful act with another person
or persons, (2) with a shared criminal intent and, (3) an overt act was done in furtherance of the
conspiracy." Com. v. Rios, supra, at 1030 (citations omitted); see also 18 Pa.C.S. § 903(a)(e).
For aggravated assault, the Commonwealth must show that the defendant "attempts to
cause serious bodily injury to another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference to the value of human life; ...
or ( 4) attempts to cause or intentionally or knowingly causes bodily injury to another with a
deadly weapon." Com. v. Alexander, 383 A.2d 887, 888-889 (Pa. 1978); see also 18 Pa.C.S. §
2702(a).
"To sustain a conviction for receiving stolen property. the Commonwealth must prove
I
beyond a reasonable doubt that: l ) the property was stolen; 2) the accused knew or had reason I
to believe the property was stolen; and 3) the accused received, retained or disposed of
the property." Com. v. Brady, 560 A.2d 802, 808 (Pa. Super. 1989); see also 18 Pa.C.S.A. §
3925.
I 5
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1·1
For tampering with/fabricating physical evidence, the Commonwealth must prove ,;(1)
the defendant knew that an official proceeding or investigation was pending; (2) the defendant
altered. destroyed, concealed, orremoved an item; and (3) the defendant did so with the intent
I to impair the verity or availability of the item to the proceeding or
'!
1
·
investigation." Commonwealth v. Morales, 669 A.2d 1003. 1005 (Pa. Super. 1996); see also 18
Pa.CS.A.§ 4910(1).
In the case at bar. the Commonwealth presented sufficient circumstantial evidence to
prove each element of First Degree Murder, Criminal Conspiracy to Commit Criminal I
Homicide, Aggravated Assault (two counts), Receiving Stolen Property, and Tampering with or r
Fabricating Physical Evidence beyond a reasonable doubt. With respect to First Degree j
Murder, the circumstantial evidence was sufficient to establish that (1) Tony Phillips was 1;
unlawfully killed: (2) Defendant is responsible for the killing; and (3) Defendant acted with
specific intent to kill. For Criminal Conspiracy, the circumstantial evidence was sufficient to i
establish that (1) Defendant entered into an agreement with Keith Reed and Jeremy Woodard to
murder Tony Phillips; (2) Defendant had a shared criminal intent with Reed and Woodard: and
(3) Defendant shot Phillips in furtherance of the conspiracy. With respect to Aggravated
Assault, the circumstantial evidence was sufficient to establish that Defendant intentionally
caused serious bodily injury to Phillips with a deadly weapon. For Receiving Stolen Property,
the circumstantial evidence was sufficient to establish that (I) the firearm was stolen; (2)
Defendant knew or had reason to believe the firearm was stolen; and (J) Defendant retained or
disposed of the stolen firearm. With respect to Tampering with or Fabricating Physical
Evidence, the circumstantial evidence was sufficient to establish that (I) Defendant knew an
official proceeding or investigation was pending; (2) Defendant concealed the firearm used to
kill Phillips; and (3) Defendant did so with the intent to impair the verity or availability of the
item to the proceeding or investigation. I
The Commonwealth's evidence included multiple witnesses and video surveillance
from March JO, 2014. The surveillance footage captures the actions of Woodard, Reed, and
Defendant prior to and after the shooting. The footage also corroborates the witness testimony.
6
Witness Steve Shumaker testified that he reported his black semi-automatic nme
millimeter pistol, serial number Pl 594761, stolen on November 11, 2013. N.T. (JUN. 12, 2018.
MORNING SESSION), pp. 22-23. He also testified that he did not give Defendant permission to
have the firearm or be in possession of the firearm. id at p. 23.
Detective Brett Hinterliter of the Johnstown Police Department described collecting
relev�t video �urveillance from the Fairfield Avenue Lounge (a bar) and the Johnstown
Housing Authority. N.T. (JUN. 12, 2018, AFTERNOO:"-i SESSION). pp. 55-68.
Exterior video I
I
surveillance from the Fairfield Avenue Lounge shows the three men (Woodard. Reed, and I
Defendant) arriving at the bar together in a black sport-utility vehicle (SUV) driven by
Woodard. Id. at pp. 59-60; COMM. EXHIBIT 48. The interior video surveillance shows the three i
I
t
men in the bar area for a short period of time. N. T. (JUN. 12, 2018, AFTERNOON SESSION). p. 60;
COMM. EXHIBIT 48. Before leaving, Reed buys a six-pack and a 40-ouncc bottle of beer. N.T. I
i
(JUN. 12, 2018, AFTERNOON SESSION), p. 61; COMM. EXHIBIT 48. The exterior video f
surveillance then shows the three men leaving in the same black SUV at 6:53 P.M. N.T.
:i ,
(JUN.
12, 2018 AFTERNOON SESSION), pp. 61-62; COM1vl. EXHIBIT 48.
The victim's sister, Tanya Phillips l .. Tanya"]. testified that she and her brother. Tony I
I
Phillips ["Tony"], spent part of March 30, 2014, together at her mother's house. N.T. (.ILJN. 12,
20 I 8. MORNING SESSJOi\), p. 33. Tanya loaned Tony her golden-tan-colored Chevrolet Malibu
to pick up their mother, who was nearby at their aunt's house. id at pp. 34-35. While Tony
was gone, Reed called Tanya, looking for her brother. Id. at p. 36. Tanya had known Reed for
years because his grandparents were her foster parents when she was 11 years old. Id. Tanya
reported that Reed had never called her before. so she thought it was "weird." Id. at p. 3 7.
Tanya told Reed that Tony "might be at my mother's or he might be down the street." Id. at pp.
36-37. At the time, Tony was living with his mother. Id. at p. 33.
Tony Phillipss maternal aunt, Lessie Perry, testified that she was with Tony on the
afternoon and evening of March 30, 2014. Id. at p. 44. Perry was at her sisters house with I
Tony and Tony's mother (her sister) when Reed came to the house. looking for Tony. Id. at pp.
7
!
'I
'
l
I
I
44-� 5. Perry ex plained she �d known_ Ree.ct for a long ti me. '' at p. 4 J_.. Perry testified that
.
Reed urged Tony to go _out drinking with him. Id. at p. 44. Eventually. l ony left with Reed.
II
ld.atp.47.
l
I
The Commonwealth presented three witnesses from Edders Den. including two
eyewitnesses to the shooting. Edward Gawel. the owner of Edders Den, explained that he and
I
his girlfriend, Ruth Hastie, were at the bar on March 30, 2014. N.T. (JUN. 1 L 2018), pp. 85-86.,
At approximately 7:00 P.M, Gawel and Hastie left the bar and walked to Hasiies car in the
I
�arking lot. Id. at pp 76-78. From the. f�ont p�ssenger seat Gawel noticed a gold vehicle pull
..
mto the spot next to him. close to Hastie s vehicle. Id. at pp. 88-91. Gawel testified he could
I
not see the individuals initially because the car windows were tinted. IJ. at pp. 90-91. Gawel
observed a black male exit the passenger side of the gold vehicle and walk behind Hastie's car
into the bar. id. at p. 91. Gawel identified the black male as Reed, who was a patron of
Edders Den. id.
Gawel testified that as Hastie was backing up her car, a different black male with
glasses and gray cargo pants walked in front of their vehicle with a handgun in his right harid I
I
along his "" Id. at pp. 92-93. The b_lack male shot ou� the window and took a second shot
into the vehicle through the shattered window. Id. at p. 9.J. The black male then walked away
I
I
from the 0zold car to a black SUV that was waiting- for him on the street beside Edders Den. id.
at 94. Gawel testified that the shooter had short hair with no facial hair; Gawel identified I
Defendant as the shooter in court, Id. at pp. l 09-1 IO. I
Hastie confirmed Gawel' s version of events. id. at pp. 114-136. Likewise, Hastie was
able to identify Reed as the black male who exited the gold vehicle. Id. at pp. 121-122. Hastie
was familiar with Reed as a patron of the bar. Id at p. 122. Immediately after the shooting,
Hastie drove her car across the street beside Edders Den. Id. at p. 126. When they were
across the street, Hastie stopped her vehicle at Gawels request. Id. Gawel ran over to the gold
car and Hastie went into the bar. Id. at p. J 27. Hastie saw Reed leaning against a pool table in
the front of the bar. Id. at p. 128. Hastie testified that Reed did not have a dri.nk 'm h·ts hanc\,
8
I
and he did not purchase anything at the bar. Id. When word reached the bar patrons that there
Ij
had been a shooting in the parking lot, Hastie watched Reed walk in front of her and leave the
bar. Id at p. 129. Hastie lost sight of Reed after that. Id.
A third bar patron. Debra Mickens, testified that she has known Reed for at least 20
years. Id. at p. 139. She recalled seeing Reed at Edder's Den on March 30, 2014. Id. at p. ]40.
When he arrived that day, Reed had a brief conversation with Mickens, who was seated at the
bar two or three seats away from the front door. Id. Reed and Mickens went outside "Ior a
minute, maybe two minutes" before she walked back into the bar. IJ. Mickens watched Gawel
and Hastie leave through the back of the bar. Id. From the window, Mickens watched Hastie
and Gawell pull across the street and then run back. Id. Gawel was "heading towards the
parking lot." Id. Gawel said, "[Sjornebody got shot in the parking lot, call 911. Somebody
just got shot in the parking lot." Id.
The Commonwealth offered additional video surveillance from Johnstown Housing
Authority and Edder's Den showing Edders Den, the parking lot, and the surrounding area.
N.T. (JUN. 12, 2018, MORNl7'0 SESSION). pp. 113-115; CO�I. EXl·llBIT 33� N.T. (.1U1'. 12, 2018,
MORNING SESSION), pp. 132-140; C0'.\·1. EXHIBIT 34. The footage corroborates the witnesses·
testimony. Although the videos do not capture the shooting. they depict the events immediately
before and immediately after it: Tony Phillips and Reed pulling into the parking lot at Edder's
Den in Tanya Phillips "s car, Reed entering Edders Den, Defendant walking toward the parking
lot of Edder's Den, Hasties vehicle pulling out. Defendant running and re-entering the black
SUV, Gawel! running toward Edder's Den, and Reed calmly exiting the bar and walking away.
N.T. (JUN. 12, 2018. MORNINGSESSTO�). pp. 113-115, 132-140.
The Commonwealth presented the testimony of then-Sergeant Joseph Eckcnrod, a I
former shift supervisor with the Johnstown Police Department. Id at pp. 5 1-52. On March 30,
2014, Eckenrod responded to a call regarding a gunshot victim in a vehicle outside Edder' s
Den. Id. at p. 52. After Eckenrcd arrived at the scene and assessed the situation, he returned to
his police cruiser and headed toward the station in Johnstown to norif'y tnc chain uf con.,m.=o.
9
and to call for more manpower. Id. at pp. 55-56. While he was driving. Eckenrod received a
call from Cambria County dispatch that the suspect vehicle was an all-black SUV with a black
I
male inside. Id. at p. 56. Shortly thereafter, Eckcnrod observed a black SUV across the river'
driving inbound to Johnstown. Id.
'
and!
Eckenrod foliowed the vehicle, verified that the driver was black, called for backup.
followed the car into the parking lot of Sheetz on Haynes Street in Johnstown, Id at pp. 57-59. j
I
Eckenrod activated his lights to initiate a traffic stop. id. at p. 59. A black male exited the
passenger side of the vehicle wearing a gray shirt wire-rim glasses, and jeans. Id. Eckenrod
asked the black malev ?' [W]hat's going on?" when the driver "ended up taking off at that point
and leaving the area." Id. at p. 60. Eckenrod gave chase, eventually apprehending the black
SUV in the parking lot of a Mc.Oonalds restaurant across Haynes Street. Id. Eckcnrod
ultimately identified the driver of the SUV as Jeremy Woodard. id. Following the
apprehension of Woodard, Officer Brad Christ informed Eckenrcd that a black male fitting the
description of the passenger ran across the street towards an Econo Lodge. Id. at pp. 61, 85.
Eckenrod sent Christ and other officers to the Econo Lodge to identify the passenger. Id.
Eckenrod stayed with Woodard and the SUV until both were secured. Id. In court, Eckenrode
identified Defendant as the passenger from the vehicle at Sheetz. Id. at p. 63.
Officer Christ testified that the desk clerk at the Econo Lodge told him a black male
with a gray shirt and glasses had checked into room 101. Id. at p. 85. Christ knocked on the
door of room 201, and Defendant answered the door. Id at pp. 85-86. Christ observed a gray
shirt and glasses on the bed in plain view and a strong odor of hand soap. Id. at p. 86. Christ
also observed that Defendant seemed "( vlery nervous, appeared to be sweating." id. Eckenrod
arrived a short time later and identified the man as the passenger of the black SUV from Sheetz.
Id. at 87. After Eckenrod identified Defendant. he was taken to the police station. Id. at p. 64.
Dash cam vi.deo from Eckenrods police cruiser corroborated his testimony. Id. at pp.
65-68; Co:vt. EXHIBIT 27 (CD OF DA.SH c At\·1 FOOTAGE). Dash cam video from Christ' s police
cruiser a1so corroborated his testimony. ld. at pp. 88-91; CoM. ExH1B1T 213. 1,C.D mo-.:>"._,,"' c"""' ,
I
10
FOOTAGE). Police found the six-pack of beer purchased by Reed at the Fairfield Avenue
Lounge in the SUV. N.T. (JUN. 12, 2018, AFTERNOON SESSION), pp. 8-9; EXHIBITS 42 AND 43.
!
I
Eckenrod assigned Officer William Newman to look for weapons, drugs, or other
I
I evidence at the Sheetz where the SUV had stopped. N.T. (JUN. 12, 2018, MORNING SESSIO"N),
I
pp. 64, 98. As Newman was looking in the convenience store's garbage cans, a Sheetz
employee alerted Newman to relevant security footage. id at p. 99. After watching numerous
11
videos from Sheetz, Newman located a firearm near gas pumps five and six, lodged between
. I
one of the pumps and some signage. id at pp. 108-110; COM. Ext·JIBITS 30, 31, AND 32. The
recovered firearm's serial number was 1594761. N.T. (.TUN. 12, 2018 AFTERNOON SESSION),p.
52; EXHIBIT 47. Video surveillance footage from Sheetz on Masch 30, 2014, shows the black
SUV pulling up near gas pumps five and six: Eckenrods cruiser pulling behind it with lights
activated; Defendant exiting the passenger side of the vehicle and leaning down in between the
pumps; the black SUV leaving Sheetz; Eckenrods cruiser in pursuit; and the passenger
walking toward the Econo Lodge after being left at Sheetz. N.T. (JUN. 12, :2018, MORNING
SESSIO�), pp. 100-108; COM. EXHIBIT 29.
Ashley Mclaughlin testified that she was working at the front desk of the Econo Lodge
on the evening of March 30, 2014. N.T. (JUN. 12. 2018, MORNING SESSION). p. 24. The Econo
Lodge is across the street from the Sheetz where Eckenrod stopped the black SUV. Id. at p. '27.
McLaughlin checked Defendant into the motel that evening around 7:45 P.M .. and she noted
that "he seemed real nervous." Id. at pp. 24-25. Mcl.aughlin remembered police arriving at the
motel about 15 minutes after Defendant checked in. id. at p. 27. Mcl.aughlin verified that
Defendant checked into room 201 that evening. id. at pp. 27-28; Cm.1. EXHIBIT 26.
Cambria County Coroner Jeffrey Lees concluded that a gunshot wound to the chest
caused Tony Phillips' death: N.T. (.JUN. 11, 2018), p. 42. Dr. Curtis Goldblatt, a general I
pathologist at Conemaugh Memorial Medical Center. performed an autopsy of Tony Phillips
and concluded that a gun shot caused Phillips to die of exsanguination. id. at pp. 58-75.
11
Viewing the circumstantial evidence in the light most favorable to the Commonwealth
(the verdict winner) and giving the Commonwealth the benefit of all reasonable inferences to
be drawn from the evidence, the Commonwealth's evidence is sufficient to support the verdict.
The evidence establishes each material element of First Degree Murder, Criminal Conspiracy
to Commit Criminal Homicide, Aggravated Assault (two counts), Receiving Stolen Property,
and Tampering with or Fabricating Physical Evidence beyond a reasonable doubt:
1. The evidence was sufficient for a jury to infer that Defendant unlawfully killed Tony
Phillips and acted with specific intent to kill when he shot Phillips in the Edders Den
parking lot
2. The evidence was sufficient for a jury to infer that Defendant. Woodard. and Reed
shared the criminal intent to murder Tony Phillips. The evidence was sufficient for a
jury to infer that Defendant entered into an agreement with Reed and Woodard, 1
namely, that Reed would lure Tony Phillips to Edders Den, Defendant would shoot
him, and Woodard would drive the getaway vehicle.
3. The evidence was sufficient for a jury to infer that Defendant shot the victim in
furtherance of the conspiracy.
4. The evidence was sufficient for a jury to infer that the firearm used in the killing of
Phillips was stolen; that Defendant had reason to believe the firearm was stolen; and
that Defendant possessed and later concealed the firearm.
5. The evidence was sufficient for a jury to infer that Defendant concealed the firearm at
Sheetz in an attempt to impair the criminal investigation that Defendant knew was
pending.
Therefore. the Commonwealth's evidence was sufficient to sustain the verdict.
Weight of the Evidence
Challenges to the weight of the evidence must first be presented to the trial court.
Commonwealth v. Brown, 648 A.2d 1177, 1189-91 (Pa. 1994 ).
A trial court will grant a new trial when it believes the verdict was against the
weight of the evidence and resulted in a miscarriage of justice. Although a new
trial should not be granted because of a mere conflict in testimony or because
the trial judge on the same facts would have arrived at a different conclusion, a
new trial should be awarded when the jury's verdict is so contrary to the
evidence as to shock one's sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to prevail.
12
id. at 1189 (citations omitted). After the trial court grants or denies challenges to the weight of
the evidence, the Superior Court is left to review the "exercise of discretion, not the underlying
question whether the verdict is against the weight of the evidence." Id. The appellate courts
have repeatedly said they "will not reverse the grant [ or denial) of a new trial, unless there was
a clear abuse of discretion, or an error of law which controlled the outcome of the case. id.
Here, the trial court did not abuse its discretion in denying Defendant's request for a
new trial based on the weight of the evidence. The trial court correctly assessed the voluminous
evidence as supportive of the verdicts. The Commonwealth presented video evidence and
eyewitness testimony documenting nearly every aspect of Defendant's actions, as well as those
of his co-defendants, throughout the day of the murder. See "Sufficiency of the Evidence, "
supra.
Defendant presents a general challenge to the weight of the evidence, claiming the
verdict was "contrary to the inconsistent and speculative evidence presented at trial." CONCISE
STATEMENT, 411411 11. During oral argument on Defendant's Post-Sentence Motions, appellate
counsel pointed to an inconsistent description of Defendant's clothing on the day of the
shooting.' an inconsistent location of a co-defendant at the time of the shooting, and the
4
popularity of black SUVs in the United States.5 These challenges are examples of "mere
conflict[s] in testimony" that are not grounds for a new trial. Brown, 648 A.2d at 1189.
In this case, the jury's verdict was not against the weight of the evidence. The trial
court's denial of Defendant's request for a new trial was appropriate because the verdict did not
shock one's sense of justice. And there is no abuse of discretion or error of law made by the
trial court which controlled the outcome of the case.
:: N.T. (AUG. 31, 20\ 8), p. 4.
4
Id. at p. 5.
"fd.
13
r
II
i
III. The trial court did not abuse its discretion in denying Defendant's oral motion to
I
recuse defense counsel, Gary Vitko, for an alleged conflict of interest.
On the morning of jury selection, Defendant made an oral motion to remove his then-
defense attorney, Gary Vitko ["Trial Counsel"]. N.T. (JUN. 7, 2018), p. 16. Trial Counsel had
disclosed that he formerly represented one of the Commonwealth's witnesses, Detective
Lawrence Wagner ["Witness"], in an estate matter approximately eight to ten years before. Id.
1
at pp. 6-7. Trial Counsel also admitted that Witness contacted him on April 24, 2018, for a
consultation regarding a pending lawsuit against him. Id. at pp. 7-8, 11-12. Trial Counsel
verified that he did not enter into an attorney/client relationship with Witness regarding the
lawsuit. Id. at 12. Trial Counsel did not discuss Defendant's case with Witness. Id. at pp. 9-:
10, 13. At Defendant's trial, Witness testified primarily as an evidence custodian to establish i
the chain of custody for some of the Commonwealth's evidence. Id. at pp. 24-25; N.T. (JUN.
12, 2018, MORNING SESSION), pp. 121-147; N.T. (JUN. 12, 2018, AFTERNOON SESSION), pp. 4-28.
Following testimony and argument, the trial court denied Defendant's motion to remove I
Trial Counsel. N.T. (JUN. 7, 2018), pp. 31-34. During trial, the trial court took precautionary j
measures to protect Defendant's due process rights. For example, prior to jury selection, the
trial court afforded Trial Counsel additional time to review potential stipulations to the chain of
custody, which would have eliminated the need for the Commonwealth to call Witness during
trial." Id. at p. 33. At trial, the court engaged in the following colloquy with Defendant about
the court's extra protective measures to ensure Defendant a full and fair opportunity to cross-
examine Witness:
THE COURT: 1 understand the Commonwealth has more evidence to present
through [Witness].
[TRJAL COUNSEL]: Okay, right.
THE COURT: But when you are given the opportunity to cross examine him, at
the end of that I'm going to excuse the jury on a break, regardless of what time it
is. And then I'm going to colloquy [Defendant] to make sure there isn't any
5 Defendant ultimately refused to stipulate to the chain of custody.
14
11
issue with anything that you have not asked [Witness] or, you know, any
deficiency he notes, and we're going to correct it right here.
[TRJAL COUNSEL]: Understood.
THE COURT: So, [Defendant], I would encourage you to participate in the
cross with your counsel by telling him, you know, what you want to make sure
to address on cross examination because I'm going to ask you about that just to
make sure that you believe the cross examination was fair. And anything you
think we missed we're going to correct right here. Okay?
THE DEFENDANT: Yes. I'm never going to be comfortable with the situation
that-with what the situation is. Everybody here is aware of it. And there's
nothing that's going to make me comfortable about it. I just want to wait. I
don't have a choice.
THE COURT: Okay. Well, here's what I'm trying to do to make you
comfortable with it. On Thursday when we had the lengthy discussion about
your reservations, none of us knew-except for the Commonwealth's proffer,
which is their indication of what (Witness) is going to talk about, 'we didn't have
any indication about the specifics other than that he was mainly a custodian
witness. In other words, he obtained the video from Edder's Den. He's gotten
the bullet, et cetera. I think we're going to hear some other things as well.
After today, we're going to know exactly what his role as a witness is, and then
you're going to be able to confer with your attorney about what you want to
inquire about on cross examination.
So I understand that you say you're never going to feel comfortable, but today is
going to be your opportunity to ask [Witness], through your counsel, anything
you want. And so when he's finished, when (Trial Counsel] is finished with that
cross examination, I'm going to bring you up here and I'm going to ask you if
there's anything else that you wanted [Trial Counsel] to ask [Witness] that he
didn't ask [Witness].
THE DEFENDANT: Right. That doesn't-that's not going to really change the
order that was made previously. That's not going to really-».
THE COURT: Absolutely not. Obviously you don't have a new lawyer.
15
THE DEFENDANT: Right.
THE COURT: What I'm trying to do is find out from you what specifically your
issue is. So if-you said before you don't think that, you know, [Trial Counsel]
would fully cross examine him. That's going to be your opportunity. And then
I'll bring the jury back in, and [Trial Counsel] will ask (Witness] anything that
you believe should have been asked that wasn't.
THE DEFENDANT: To be perfectly clear->,
THE COURT: So I'm trying to take what is a theoretical issue in your mind and
mike it concrete and resolve it if there's anything to be resolved.
THE DEFENDANT: Okay. To be perfectly honest, it's not only assure my
mind [sic], but [Trial Counsel] actually admitted that during the Thursday-
well, the meeting we had on Thursday. He said that subconsciously he would
struggle with what he was talking about.
THE COURT: No. What he said was he could guarantee what he does
consciously. He couldn't tell us what he would do subconsciously. He didn't
say he would subconsciously favor [Witness] because of their prior relationship.
He said he would-he couldn't-he didn't know what he would do, and I
thought that was a very candid response to the question. All right?
THE DEFENDANT: Yeah.
THE COURT: So, again, I'm trying to take a theoretical problem, which l have
resolved by denying your motion to substitute counsel at the last minute, and
I'm trying to figure out-at the end of the cross, I want to make sure that you' re
aware you are going to have to get up there. I am going to colloquy you and ask
you if there's any deficiency.
So if there's a deficiency, I want you to make sure that you're communicating
with [Trial Counsel] throughout the cross examination. And then at the end,
outside the hearing of the jury, I'm going to make sure that you're comfortable
with the cross today. Okay?
So I wanted-I wanted to give you that advance notice so you were aware that
I'm going to ask you, outside the hearing of the jury, if you perceive any
deficiencies in the way that [Trial Counsel] cross examined [Witness].
THE DEFENDANT: Okay.
16
THE COURT: I'm trying to make sure this is as fair as possible. I know my
ruling was not in your favor, so I'm going to do what I can to make sure that·
your due-process rights are protected. Okay?
THE DEFENDANT: Yes.
N.T. (JUN. 12, 2018, MORNING SESSION), pp. 148-152.
During the trial, Trial Counsel and Defendant conferred regarding Witness's cross-
examination. N.T. (JUN. 12, 2018, AFTERNOON SESSION), pp. 29-30. The trial court then
questioned Defendant to ensure that (1) Trial Counsel had asked or would ask all of the
questions Defendant wanted to pose to Witness; and (2) Trial Counsel did not ask any
questions that Defendant told Trial Counsel not to ask. Id. at pp. 29-38. Defendant actively
participated in a discussion regarding possible areas of inquiry. Id. at pp. 30-33. Defendant
testified that he was satisfied with Trial Counsel's cross-examination, saying "So far so good."
Id. at pp. 33-34. Trial counsel then asked Witness about Defendant's additional areas of
inquiry. Id. at pp. 39-40.
In Commonwealth v. Weiss, 81 A.3d 767 (Pa. 2013), a criminal defense attorney also
represented a Commonwealth witness prior to a homicide trial. The Supreme Court ruled that
defense counsel was not acting under an actual conflict at the time of defendant's trial:
On the merits of the ineffectiveness issue, we expressed disagreement with the
I I PCRA court's finding that counsel was conflicted due to simultaneous
representation of Defendant and [Commonwealth witness]. Rather, this Court's
review of the record revealed that the circumstances here involved successive,
rather than simultaneous, representation. Specifically, the public defender's
office began representing [Commonwealth witness] in an unrelated matter in
August 1995[;] [Commonwealth witness) was sentenced January 15, 1996[;] and
Defendant's trial began after [Commonwealth Witnessj's sentence was imposed.
Weiss at 780.
Successive representation alone does not eliminate the possibility of a conflict. In
Commonwealth v. Toro, the defense counsel previously represented one of the co-actors. The
Superior Court noted that there can be a conflict of interest even in cases of successive
representation:
17
While a conflict of interest may be more difficult to prove in the absence of
simultaneous representation, the courts have recognized that a conflict of
interest may arise if counsel reveals privileged communications of the former
client or otherwise divides his loyalties so that he is incapable of diligently
representing his client.
Commonwealth v. Toro, 638 A.2d 991, 997 (Pa. Super 1994) (citing Commonwealth v.
Munson, 615 A.2d 343, 347-348 (Pa. Super 1992)).
In the case at bar, Trial Counsel engaged m successive, rather than simultaneous,
representation of Witness and Defendant. Defendant's trial began long after Trial Counsel
handled Witness's estate matters. Although Trial Counsel more recently answered questions
from Witness about a pending lawsuit, the consultation did not rise to the level of an attorney-
client relationship. In any event, there is no suggestion that Trial Counsel revealed privileged i
I
communications or otherwise divided his loyalties between Defendant and Witnes�; rather, he I
diligently represented Defendant throughout the course of the trial. Furthermore, the trial court I
I
conducted several colloquies with Defendant before, during, and after Witness's testimony to I
ensure that Defendant had a full and fair opportunity to cross examine him. Defendant failed
to demonstrate any actual prejudice because of Trial Counsel's successive representation of
Witness and Defendant.
IV. The trial court did not err in denying Defendant's Post-Sentence Motions.
Defendant withdrew a claim in his Post-Sentence Motions that the trial court abused its
discretion in denying Defendant's oral motion to retain a court-appointed toxicology expert.
N.T. (AUG. 31, 2018), p. 8. All other issues are addressed above.
CONCLUSION
For the reasons set forth above, the trial court's judgment of sentence should be I
AFFIRMED.
RESPECTFULLY SUBMITTED:
I ,. ' ./
,.:/)
,L,iu.,t.t(_ y. <,\,,.l{.t..,'1 U,t,•I t,:., ·-·
Linda Rovder Fleming, J.
18