Com. v. Nealy, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANDREW NEALY :
:
Appellant : No. 1021 MDA 2019
Appeal from the Judgment of Sentence Entered January 31, 2019,
in the Court of Common Pleas of Luzerne County,
Criminal Division at No(s): CP-40-CR-0004591-2017.
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 17, 2020
David Andrew Nealy appeals from the judgment of sentence imposed
after a jury convicted him of first-degree murder and criminal conspiracy.1
The trial court summarized the pertinent trial testimony in detail as
follows:
On the night of October 12, 2013, [Nealy] and Roberto
Battle drove together to Outsiders bar in Wilkes-Barre,
Pennsylvania, in a silver 2005 Mercedes C230 sedan that
Nealy had borrowed from Michael Goodrich. As the two men
entered the bar, security overheard Nealy introduce Battle
as his “shooter.” Multiple staff and patrons of the bar
observed Nealy and Battle in the bar. As the evening
progressed, Battle fought with another patron of the bar,
and was evicted by security. Nealy left the bar shortly
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(a) & 903(a), respectively.
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thereafter, the two men departed together in the silver
Mercedes, and proceeded to the residence of Shakim Varick
and Jessica Fox. [Varick grew up with Nealy and Battle, and
Battle occasionally stayed at Varick’s residence. Battle
knew where Varick stored a Keltec handgun in his home.]
Battle entered the residence and removed Varick’s Keltec
handgun, loaded with Hornady Zombie 9mm ammunition,
then returned to Nealy in the waiting Mercedes. Shortly
after 2:00 a.m., Nealy and Battle drove back to Outsiders.
The victim, Michael Onley, was in Outsiders on the
evening of October 12, 2013, taking promotional
photographs for the bar. [Onley had several friends on the
Outsiders security staff, and was known to them and other
patrons for his work as a local DJ.] When the bar closed,
Onley exited the building with patrons and staff, but lingered
at the door where security [] typically congregated after
they made a final patrol of the parking lot. As security was
returning to the bar, [Nealy] and [Battle] drove past on
Pennsylvania Avenue, and Battle fired multiple shots out of
the passenger side window of the Mercedes into the parking
lot and building. Dalair Edwards and Prince Rodriguez, bar
security, heard gunshots and saw muzzle flashes coming
from the passing silver sedan. Rodriguez, who testified that
he could see the car clearly, identified it as the one in which
Nealy and Battle left the club earlier. Security footage
shows a passing car with muzzle flashes coming from the
passenger window. When Edwards and Rodriguez returned
to the bar entrance, they saw [the victim] lying on the
ground with a gunshot wound to his head. Damien Pitters,
a club patron in the parking lot when the shots were fired,
saw the victim fall from a chair by the bar’s door. Pitters,
an army combat medic, moved to help, but despite efforts
to revive [the victim], he died of the gunshot wound.
Following the shooting, [Nealy] and [Battle] drove
together to the home of Jamie Compton, where several
people were gathered. While there, the group learned that
the victim had been shot. In response to this news, Battle
laughed and said that he had “shot the place up.” After
leaving Compton’s residence, Nealy and Battle returned
together to Shakim Varick’s residence sometime between
3:00 [a.m] and 3:30 [a.m.], where they encountered
Varick and Jessica Fox. In response to Varick’s questions,
Battle told Varick that he and Nealy “did a drive-by” on
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Pennsylvania Avenue, and admitted that he had used
Varick’s gun. [Upon learning this, Varick checked and saw
that the gun was no longer in the nightstand. Two days
later, Battle returned the gun to Varick, empty of bullets.]
Nealy did not deny Battle’s statement.
[Nealy], when testifying on his own behalf, denied
knowing that [Battle] had a gun and intended to fire shots
into Outsider’s parking lot as staff and patrons exited the
bar, but Nealy admitted to hearing those shots being fired
and to abandoning the borrowed silver Mercedes after
learning that [the victim] had been killed. Additionally,
although Nealy expressed his remorse for [the victim’s]
death by the time the jury trial occurred, Nealy had not
aided in the investigation of the crime by divulging to the
police his knowledge of the night’s events, or [Battle’s]
identity as the shooter.
Trial Court Opinion, 12/10/19, at 6-8 (citations and footnotes omitted).
A joint jury trial commenced on December 11, 2018, and, on December
17, 2018, the jury found both Nealy and Battle guilty of first-degree murder
and criminal conspiracy. On January 31, 2019, the trial court sentenced Nealy
to a mandatory life sentence on the first-degree murder conviction, and a
consecutive seventeen to forty-year term of imprisonment on the conspiracy
conviction.2 Nealy filed a timely post-sentence motion in which he challenged
the sufficiency and the weight of the evidence supporting his convictions. The
trial court denied Nealy’s post-sentence motion on June 4, 2019. This appeal
followed. Both Nealy and the trial court have complied with Pa.R.A.P. 1925.
____________________________________________
2 The trial court imposed the same sentence on Battle. We affirmed his
judgment of sentence on June 25, 2020. See Commonwealth v. Battle,
___ A.3d ___ (Pa. Super. 2020), No. 1094 MDA 2019 (unpublished
memorandum.
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On appeal, Nealy reiterates his challenges to the sufficiency and weight
of the evidence supporting his convictions. We consider each challenge
separately.
I.
With regard to his sufficiency challenge, our standard and scope of
review are well settled:
Initially, we set forth our standard of review:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of the
witnesses and the weight of the evidence produced, is free
to believe all, part or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations
omitted). “When the evidence offered to support a verdict is 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.” Commonwealth
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v. Ortiz, 160 A.3d 230, 234 (Pa. Super. 2017) (citation omitted). A claim
challenging the sufficiency of the evidence is a question of law. Id.We first address Nealy’s challenge to sufficiency of the evidence
supporting his convictions for first-degree murder and criminal conspiracy.
Our Supreme Court has summarized the following regarding first-degree
murder:
There are three elements of first-degree murder: [(1)] a
human being was unlawfully killed; (2) the defendant was
responsible for the killing; and (3) the defendant acted with
malice an intent to kill. As set forth in the third element,
first-degree murder is an intentional killing, i.e., a willful,
deliberate and premeditated killing. Premeditation and
deliberation exist whenever the assailant possesses the
conscious purpose to bring about death. The law does not
require a lengthy period of premeditation; indeed, the
design to kill can be formulated in a fraction of a second.
Specific intent to kill as well as malice can be inferred from
the use of a deadly weapon upon a vital part of the victim’s
body. Whether the accused had formed the specific intent
to kill is a question of fact to be determined by the jury.
Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013) (quotation marks
and citations omitted).
Here, the jury convicted Nealy of first-degree murder because he acted
as Battle’s accomplice and co-conspirator. This Court has described the
concept of accomplice liability as follows:
Two prongs must be satisfied for a person to be labeled
an accomplice. First there must be evidence that the person
intended to aid or promote the underlying offense. Second
there must be evidence that the person actively participated
in the crime by soliciting, aiding, or agreeing to aid the
principal. Further, a person cannot be an accomplice simply
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based on evidence that he knew about the crime or was
present at the crime scene. There must be some additional
evidence that the person intended to aid in the commission
of the underlying crime, and then aided or attempted to aid.
For purposes of accomplice liability, no agreement is
required, only aid. With regard to the amount of aid, it need
not be substantial so long as it is offered to the principal to
assist him in committing or attempt to commit the crime.
The least degree of assistance in committing the offense is
adequate to sustain the finding of responsibility as an
accomplice.
Commonwealth v. Adams, 39 A.3d 310, 324 (Pa. Super. 2012) (quotation
marks and citations omitted). See also 18 Pa.C.S.A. § 306.
“To be guilty as an accomplice for first-degree murder, the
Commonwealth is required to establish a specific intent to kill.”
Commonwealth v. Jordan, 212 A.3d 91, 95 (Pa. Super. 2019). “[A]
defendant cannot be convicted of first-degree murder under a vicarious
liability theory, such as accomplice or conspiratorial liability, unless the fact-
finder determines, upon proof beyond a reasonable doubt, that the defendant
personally harbored a specific intent to kill.” Id. (citation omitted). Like the
sufficiency standard cited above, the Commonwealth can establish accomplice
liability by wholly circumstantial evidence. Id. Stated differently, the
Commonwealth’s evidence must establish that the accused “possessed the
requisite intent to kill, even if [the jury] determined that he was not the person
who actually pulled the trigger.” Commonwealth v. Murray, 83 A.3d 137,
151 (Pa. 2013) (citation omitted).
In order to convict a defendant of criminal conspiracy, the
Commonwealth must establish that: “(1) [he] entered into an agreement to
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commit or aid in the commission of a crime; (2) he shared the criminal intent
with that other person; and (3) an overt act was committed in furtherance of
the conspiracy.” Commonwealth v. Knox, 50 A.3d 749, 755 (Pa. Super.
2012) (citation omitted). “This overt act need not be committed by the
defendant; it need only be committed by a co-conspirator.” Id.We have further explained:
As conspiracy by its nature is often difficult to prove due
to the absence of direct evidence, cases examining the
sufficiency of the evidence often look to the conduct of the
parties and the circumstances surrounding their conduct
which may create a web of evidence linking the accused to
the alleged conspiracy beyond a reasonable doubt.
Among the circumstances that which are relevant, but
not sufficient by themselves, to prove a [criminal]
confederation are: (1) an association between alleged
coconspirators; (2) knowledge of the commission of the
crime; (3) presence at the scene of the crime; and (4) in
some situations, participation in the object of the
conspiracy. The presence of such circumstances may
furnish a web of evidence linking an accursed to an alleged
conspiracy beyond a reasonable doubt when viewed in
conjunction with each other and in the context in which they
occurred.
Other circumstances which are relevant include post-
crime conduct, such as flight, because it tends to establish
consciousness of guilt. When combined with other direct or
circumstantial evidence, that conduct may provide sufficient
evidence to establish a conspiracy.
Jordan, 212 A.3d at 97 (quotation marks and citations omitted).
Here, the trial court explained why Nealy’s sufficiency challenges were
without merit:
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In the instant case, the [trial] evidence was sufficient to
support the jury’s conclusion that (1) the victim . . . was
unlawfully killed by a gunshot; (2) that the gunshot was
fired by [Battle] from a car driven by [Nealy], his co-
conspirator[;] and (3) that the shot struck the victim in the
head, a vital part of his body, establishing a specific intent
to kill. Additionally, with regard to the conspiracy between
[Nealy] and [Battle], the evidence presented to the jury was
sufficient to support the jury’s conclusion that the two men
(1) intended to commit or aid in the commission of the
criminal act; (2) agreed to engage in the crime; and (3)
committed an overt act in furtherance of the agreed upon
crime. Because the foregoing evidence presented to the
jury was sufficient to support [Nealy’s] convictions for first
degree murder and conspiracy to commit first degree
murder, he is not entitled to appellate relief on this issue
and his judgment of sentence should not be disturbed.
Trial Court Opinion, 12/10/19, at 9-10.
Our review of the record, in light of the applicable standards, supports
the trial court’s conclusions that sufficient evidence supports Nealy’s first-
degree murder and conspiracy convictions.
In arguing to the contrary, Nealy relies upon his own self-serving trial
testimony. With regard to his first-degree murder conviction, Nealy asserts
that the Commonwealth “failed to present sufficient evidence from which the
jury could conclude beyond a reasonable doubt that the killing was committed
with deliberation and premeditation” and failed to prove that he “had the
requisite intent to kill.” Nealy’s Brief at 18. According to Nealy, because
“[t]here was no evidence presented regarding what transpired between [him]
and Battle prior to the shooting[,][t]he jury was compelled to rely upon
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speculation and conjecture in order to conclude that [he] had the requisite
intent for First Degree Murder.” Id.
Nealy makes a similar claim with regard to his conspiracy conviction.
Nealy asserts that “the Commonwealth failed to present sufficient evidence,
aside from tenuous circumstantial evidence, from which the jury could
conclude beyond a reasonable that [he] and Battle entered into an agreement
to bring about the death of [the victim].” Id. Nealy once again avers that
the jury had to resort to speculation and conjecture to conclude a conspiracy
was established, since “the only evidence regarding the alleged conspiracy
was that the parties were together that evening.” Id.
Our review of the record refutes these claims. As noted above, the
specific intent to kill may be inferred from the use of a deadly weapon on a
vital part of the victim’s body. Jordan, 65 A.3d at 323. Although as part of
his sufficiency challenge, Nealy asserts that Battle did not act with specific
intent to kill, see Nealy’s Brief at 29-31, when affirming Battle’s judgment of
sentence this Court concluded otherwise. See Battle, unpublished
memorandum at 6 (concluding that Battle “possessed the specific intent to kill
as he used a deadly weapon to shoot [the victim] in the head, a vital part of
his body”).
Nealy’s related argument that there was no “transferred intent” is also
meritless. According to Nealy, because “the Commonwealth failed to establish
that Nealy or Battle had the intent to kill anyone . . . a verdict based on any
purported transferred intent was based on insufficient evidence.” Nealy’s Brief
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at 32. Our Supreme Court has repeatedly held that an intended victim need
not be identified in order to support a first-degree murder conviction. See,
e.g., Commonwealth v. Smith, 862 A.2d 892, 895 (Pa. 2004) (concluding
that acts of defendant and his accomplices in firing multiple shots into a crowd
of people as they retreated to their vehicles after committing an armed
robbery was sufficient to support first-degree murder conviction because one
of the bullets struck a bystander in the head, killing him); Commonwealth
v. Gibson, 688 A.2d 1152, 1158 (Pa. 1997) (holding evidence sufficient to
support first-degree murder conviction when the defendant and his co-
conspirators entered a bar intending to commit a robbery and fired numerous
shots into the crowd, killing two patrons as the result of gunshot wounds to
vital parts of their bodies); Commonwealth ex rel. McCant v. Rundle, 211
A.3d 460, 461 (Pa. 1965) (explaining that, “[i]f McCant, intending to kill, shot
into a crowd, the resulting crime would be first degree murder even if he had
never before seen his eventual homicidal victim”).
In convicting Nealy as Battle’s accomplice, the Commonwealth
established that he aided Battle by driving the car. In addition, following the
shooting, Nealy abandoned the car used in the shooting and, and lied to police
when they interviewed him. See N.T., 12/11/12/17/18, 569; 606. Although
Nealy testified that he was not aware of Battle’s intentions, he was only
“present” at the time of the shooting, and he had reasons not to cooperate
with the police with regard to the shooting, it was up it was up to the jury to
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credit his testimony. Jordan, 65 A.3d at 323. Given the guilty verdict, the
jury clearly did not do so.
As to his conspiracy conviction, Nealy’s sufficiency challenge is
unavailing. Although Nealy characterizes the circumstantial evidence of an
agreement between him and Battle as “tenuous,” a guilty verdict may be
based on wholly circumstantial evidence. Hansley, supra. A security guard
testified at trial that he overheard Nealy introduce Battle to another member
of the security detail as “his shooter.” N.T., 12/11-12/17/18, at 57. Upon
inquiry, Varick agreed with the Commonwealth’s characterization that Battle
told him “they put in the work,” meaning they did a drive-by shooting. Id. at
219. Nealy did not deny Battle’s statement to Varick. Once again, although
Nealy asserts reasons why such testimony was unworthy of belief or subject
to interpretation, the credibility of that testimony, as well as all of the other
trial evidence—including the testimony Nealy provided—was within the
exclusive province of the jury to determine. Hansley, supra.3
Thus, Nealy’s sufficiency challenges are devoid of merit.
____________________________________________
3 In Battle, this Court likewise rejected Battle’s assertion that “the record is
void of any proof that there was any shared criminal intent to shoot and kill
[the victim.” Battle, unpublished memorandum at 6. Viewing the evidence
from the joint trial in the light most favorable to the Commonwealth, we
concluded that the evidence established that “[Battle] and Nealy entered into
an implicit agreement by acting in concert to kill [the victim], [Battle] as the
“shooter” and Nealy as his driver.” Id. at 7.
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II.
Nealy also challenges the weight of the evidence supporting his
convictions. When reviewing a challenge to the weight of the evidence, our
standard of review is as follows:
The essence of appellate review for a weight claim appears
to lie in ensuring that the trial court's decision has record
support. Where the record adequately supports the
trial court, the trial court has acted within the limits
of its discretion.
***
A motion for a new trial based on a claim 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. 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.
***
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. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations
omitted) (emphasis added). Absent an abuse of discretion, the trial court’s
decision will not be disturbed. See Commonwealth v. Griffin, 515 A.2d
865, 869 (Pa. 1986). An abuse of discretion “is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest
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unreasonableness or a misapplication of the law.” Commonwealth v. West,
937 A.2d 516, 521 (Pa. Super. 2007) (citation omitted). By contrast, a proper
exercise of discretion “conforms to the law and is based on the facts of record.”
Id.In denying Nealy’s weight claim, the trial court explained:
In the instant matter, following this [c]ourt’s opportunity
to hear and see the evidence presented during the course
of the five-day trial we conclude that the jury’s verdict was
not so contrary to the evidence as to shock one’s sense of
justice. This conclusion was not based on prejudice,
personal motivations, caprice or arbitrary actions. We are
confident that the record reveals that our determination
does not represent an error of judgment, much less a
manifestly unreasonable judgment, misapplication of the
law, or an action that was the result of partiality, prejudice,
bias or ill-will. As such, [Nealy’s] judgment of sentence
should not be overturned based on his allegation that his
convictions were against the weight of the evidence.
Trial Court Opinion, 12/10/19, at 12 (footnote omitted). Our review of the
record supports the trial court’s conclusions.
Once again, Nealy’s claims to the contrary are without merit. Nealy
avers that the trial court “abused its discretion in failing to adequately consider
the weight of the evidence presented at trial.” Nealy’s Brief at 19. In essence,
Nealy asks this Court to reassess the evidence and substitute our judgment
for that of the trial court. This is not a proper appellate function when
considering a weight challenge. Clay, supra. Thus, Nealy’s weight challenges
likewise fail.
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In sum, because our review of the record supports the trial court’s
conclusion that his sufficiency and weight challenges do not entitle him to
relief, we affirm Nealy’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2020
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