Com. Wesley, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOSEPH WESLEY :
:
Appellant : No. 1640 EDA 2022
Appeal from the Judgment of Sentence Entered February 2, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004711-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 26, 2023
Joseph Wesley appeals from the judgment of sentence, entered in the
Court of Common Pleas of Montgomery County, after a jury convicted him of
two counts of attempted first-degree murder1 and one count each of criminal
solicitation to commit first-degree murder2 and criminal conspiracy to commit
first-degree murder.3 After review, we affirm.
In April and June 2016, Wesley sold drugs and firearms to Danielle Miller
who, Wesley later learned, was acting at the direction of law enforcement.4
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1 18 Pa.C.S.A. § 901(a).
2 Id. at § 902(a).
3 Id. at § 903(a)(1).
4Wesley was charged in connection with the drug and firearms sales to Miller
and, on June 15, 2018, was convicted of, inter alia, the illegal sale or transfer
(Footnote Continued Next Page)
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On October 14, 2016, authorities were unable to locate Wesley, but served
his girlfriend, Jennifer Vance, with a warrant for Wesley’s arrest. On October
21, 2016, Wesley contacted Darelle Bean and asked him to kill Miller in
exchange for $5,000.00. See N.T. Jury Trial, 11/3/21, at 333, 335, 337. That
same day, Wesley traveled with Bean to Norristown, Montgomery County to
show him Miller’s home, her vehicle and a nearby trail that Bean could use to
flee the area after the murder. Bean took pictures of Miller’s residence and
screenshots of its location on Google Maps. Id. at 335-36, 339. Bean traveled
to Miller’s residence a few more times before recruiting Ceasar Morales to
carry out the murder due to Bean’s reservations about killing a woman. Id.
at 341, 346.
On December 2, 2016, at approximately 5:00 p.m., Miller and her
friend, Stephen Rowl entered Miller’s vehicle. Immediately after Miller sat
down in the front passenger seat, Morales fired shots into her car. Miller
suffered bullet wounds to her right hand and left bicep, resulting in two broken
bones in her hand and requiring her to wear an arm sling for approximately
two months. Rowl was shot in the back and in his right leg; he still has a
bullet in his back, which causes him pain. At approximately 5:15 p.m., Bean
called Wesley to inform him that “the job was done.” Id. at 356. Wesley
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of firearms and possession with intent to deliver a controlled substance. On
appeal, this Court affirmed his judgment of sentence. See Commonwealth
v. Wesley, 3084 EDA 2018 (Pa. Super. filed Dec. 12, 2019) (unpublished
memorandum decision).
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subsequently fled to Louisiana and was not apprehended until January 17,
2017.
During trial, Bean testified regarding lies5 he told to the police
throughout in his attempt to transfer blame to Morales. Id. at 388-91, id. at
358 (Bean testifying, “It wasn’t that I lied. It was minimizing my role.”). Bean
stated that in exchange for testifying he had been hoping for “leniency from
the court,” but that no specific amount of incarceration had been discussed.
Id. at 361; id. at 371 (Bean conceding he was testifying for selfish reasons).
Wesley was arrested and charged with the above-mentioned crimes. He
proceeded to trial on November 1, 2021. At trial, various people testified,
including, inter alia: Earnest Reed, Bean’s cousin, who had originally
introduced Bean and Wesley; Vance, with whom Wesley has a son; Ronald
Knight, with whom Miller has a child; and Detective Mark Minzola of the
Montgomery County Police Department, an expert in forensic cell phone data
analysis. The jury found Welsey guilty of all charges and, on February 2,
2022, the court imposed an aggregated sentence of 40 to 80 years’
imprisonment. On February 9, 2022, Wesley filed a timely post-sentence
motion, and, on May 5, 2022, he filed a supplemental post-sentence motion.
On June 6, 2022, the trial court denied the post-sentence motions. Wesley
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5 Bean had originally told the police that Morales purchased the gun used in
the shooting, that Morales called Wesley to tell him that the shooting was
complete, and that Morales negotiated payment for the murder. See N.T.
Jury Trial, 11/3/21, at 358. However, Bean provided the weapon, called
Wesley after the shooting, and received a partial payment of $500.00 from
Wesley.
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filed a timely notice of appeal, and both he and the trial court complied with
Pa.R.A.P. 1925. Wesley raises the following issues for our review:
1. Did the trial court impose an illegal sentence by sentencing
[Wesley] to 20-40 years’ incarceration to run consecutively for
both counts of [a]ttempted [m]urder where the maximum
sentence on the offense actually charged was 20 years’
incarceration, the Commonwealth never charged [Wesley] with
the enhanced offense of [a]ttemped [m]urder – [s]erious
[b]odily [i]njury [c]aused[—]which would allow a 40[-]year
incarceration sentence, and imposing such a sentence required
a constructive amendment to the bills of information which was
not authorized by the Rules of Criminal Procedure?
2. Whether the trial court erred in failing to conduct an evidentiary
hearing and denying [Wesley’s] motion for a new trial based
on after[-]discovered evidence of a [Brady6] violation where
the cooperating co-defendant filed a motion to withdraw his
guilty plea in which he asserted that he was promised a
“single[-]digit sentence” in exchange for his testimony against
[Wesley], the Commonwealth never provided that information
to [Wesley] prior to trial despite having a copy of the motion,
and the credibility of the cooperating co-defendant was the
only real issue in the case?
3. Whether the trial court should have granted a new trial because
the verdict was against the weight of the evidence where the
only real evidence against [Wesley] was the testimony of the
cooperating co-defendant who told multiple different stories,
admitted to lying, [and] received a favorable plea deal[;] where
the testimony was contradicted by the cell phone records[;]
and where people other than [Wesley] had expressed a desire
to kill the complainant?
Appellant’s Brief, at 6-7.
Wesley first contends that the court imposed an illegal sentence for
attempted first-degree murder with a serious bodily injury enhancement
without providing notice of its intent to seek the enhancement in the bills of
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6 Brady v. Maryland, 373 U.S. 83 (1963).
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information. Id. at 36. Wesley argues that by permitting a constructive
amendment of the bill of information during trial, the trial court violated his
due process right not to be convicted of an offense other than the one charged.
Id. at 34.
Section 1102(c) of the Crimes Code provides that the maximum
sentence for attempted murder is no more than 20 years. 18 Pa.C.S.A. §
1102(c). However, if serious bodily injury occurs during the attempted
murder, the maximum sentence increases to no more than 40 years. Id.
(emphasis added). Serious bodily injury is a fact that must be proven by the
Commonwealth, beyond a reasonable doubt, for this sentence enhancement
to apply. See Commonwealth v. Barnes, 167 A.3d 110, 117 (Pa. Super.
2017) (en banc).
Due process requires the Commonwealth to give a defendant notice if it
seeks to prove serious bodily injury. Id. Notice must “be sufficiently specific
so as to allow the defendant to prepare any available defenses should he
exercise his right to a trial.” Commonwealth v. Sims, 919 A.2d 931 (Pa.
2007) (citation omitted); see also Pa.R.Crim.P. 560(C) (information shall cite
to statute or provision of law defendant is alleged to have violated).
In Commonwealth v. King, 234 A.3d 549 (Pa. Super. 2020), this Court
determined that although the defendant’s indictment and criminal information
were facially inadequate to give notice regarding the Commonwealth’s intent
to charge the defendant with the serious bodily injury enhancement, this error
was harmless and, thus, the sentence was not illegal. Id. at 562-63. There,
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defendant received de facto notice of the Commonwealth’s intent to charge
him with the enhancement where: factual summaries in the charging
documents made clear that the victim suffered serious bodily injury; the
Commonwealth advised the defendant of the minimum sentence that could be
imposed, which was consistent with serious bodily injury enhancement
guidelines; and the Commonwealth and defense attorney reviewed and
agreed to the verdict sheets, which included a special interrogatory regarding
whether the victim suffered serious bodily injury. Id. at 566.
However, in Commonwealth v. Bickerstaff, 204 A.3d 988 (Pa. Super.
2019),7 a case that Wesley argues is “directly on point,” Appellant’s Brief, at
37, the defendant was not given de facto notice of the charge. Rather, this
Court determined that the Commonwealth “ambushed” the defendant with the
serious bodily injury charge where it had been mentioned for the first time on
the verdict sheet’s special interrogatory at the time it was provided to the
jury. Indeed, the complaint, information, and jury instructions made no
mention of the enhancement. In rejecting the Commonwealth’s harmless
error argument, this Court reasoned that the defendant was unable to defend
against the charge at trial. Id. at 997-98. That is not the case here.
Here, like in King, Wesley was given de facto notice of the
Commonwealth’s intent to prove the serious bodily injury enhancement.
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7In Bickerstaff, the notice issue was made in the context of an ineffective
assistance of counsel claim on collateral appeal from an order denying a Post
Conviction Relief Act petition.
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Wesley’s criminal complaint set forth Miller’s and Rowl’s injuries. See Criminal
Complaint, 5/9/17 at 2 (“[] Miller suffered bullet wounds to her right hand and
left bicep. [] Rowl suffered bullet wounds to his right[-]side torso and his right
leg.”). Further, on October 12, 2021, both parties were sent the proposed
verdict sheet and proposed criminal charges, which contained an interrogatory
below each count asking the jury whether the victims suffered serious bodily
injury as a result of each offense. Additionally, during the October 13, 2021
status conference, Kelly Lloyd, Esquire, the Assistant District Attorney,
explained, in relevant part, that “Wesley’s maximum exposure . . . and the
serious bodily injuries established, he’ll be looking at 20 to 40 [years]
on each of those counts, yes, on the attempted murder.” Status Conference,
10/13/21, 45-46 (emphasis added). Indeed, almost three weeks before
trial, Wesley knew of the facts alleged in the criminal complaint, that the
proposed verdict sheet included a serious bodily injury interrogatory, and that
his maximum exposure was consistent with a serious bodily injury charge.
Accordingly, unlike in Bickerstaff, Wesley was not “ambushed” regarding the
enhancement.
In light of the foregoing, we conclude that the Commonwealth gave
Wesley de facto notice that it intended to charge him with attempted first-
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degree murder with the serious bodily injury enhancement.8 See King,
supra. Accordingly, Wesley’s first claim is meritless.
Next, Wesley argues that the Commonwealth’s failure to disclose Bean’s
pro se letter to the Commonwealth, in which Bean “insisted that he had been
promised a single[-]digit prison sentence in exchange for his testimony”
constituted a Brady violation. Appellant’s Brief, at 45. Wesley contends that
it is irrelevant whether the Commonwealth actually made or meant to keep a
promise of a single-digit sentence but that “the fact [] Bean believed he would
receive [a single-digit] sentence would have shown the jury that his testimony
was fabricated.” Id. at 46.
To establish a Brady violation, a defendant must demonstrate
that: (1) the evidence was suppressed by the Commonwealth,
either willfully or inadvertently; (2) the evidence was favorable to
the defendant; and (3) the evidence was material, in that its
omission resulted in prejudice to the defendant. The mere
possibility that an item of undisclosed information might have
helped the defense, or might have affected the outcome of trial[,]
does not establish materiality in the constitutional sense.
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8 We also note that, Attorney Walker objected, on the final day of trial, to only
the sufficiency of evidence regarding the serious bodily enhancement, not the
charge itself. N.T. Jury Trial, 11/4/21, at 595-96 (Attorney Walker stating
“My argument, I guess, Your Honor, is that there was no evidence that
suggested that this was serious bodily injury to either one of the parties . . .
I suggest that the Commonwealth has not made out the elements for serious
bodily injury.”). Attorney Walker also did not object to the serious bodily
enhancement jury charge. Id. at 663; see also Pa.SSJI (Crim) § 901D
(Additional Elements). Inasmuch as Wesley was actually aware that
Commonwealth intended to charge him with the serious bodily injury
enhancement, he cannot argue that he was not given notice.
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Commonwealth v. Robinson, 122 A.3d 367, 373 (Pa. Super. 2015).
“Evidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would
have been different.” U.S. v. Bagley, 473 U.S. 667, 682 (1985); see also
Commonwealth v. Gibson, 951 A.2d 1110, 1127 (Pa. 2008).
Instantly, Bean conceded that he was testifying for selfish reasons,
including “leniency from the court,” and that the nature and extent of his
cooperation would be made known to [his] sentencing judge. N.T. Jury Trial,
11/3/21, at 360-61. He testified that no specific amount of incarceration
sentence had been discussed, but that he would be permitted to plead guilty
to two counts of attempted murder, conspiracy to commit murder, and person
not to possess a firearm. Id. Bean also admitted that he “tried to put the
blame away from [him].” Id. at 259. Accordingly, the jury was aware of
Bean’s involvement in the incident, the extent his cooperation would impact
his sentence, and that he been untruthful with law enforcement officials
throughout the investigation.
Moreover, the trial court highlights that there was no mention of the
“single[-]digit” sentence agreement at Bean’s own sentencing hearing and
that Bean was ultimately sentenced to an aggregate term of 15 to 30 years’
incarceration. Trial Court Opinion, 8/29/22, at 29. Inasmuch as Bean’s self-
serving pro se letter is the only evidence this agreement existed, the
Commonwealth had no obligation to inform Wesley of a non-existent
agreement or to correct Bean’s testimony at trial. See Commonwealth v.
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Bomar, 104 A.3d 1179, 1194 (Pa. 2014) (no Brady violation where no
credible evidence established Commonwealth promised witness parole in
exchange for his testimony).
In light of the foregoing, we conclude that there was no Brady violation
where the only evidence of Bean’s alleged promise from the Commonwealth
was a self-serving letter written by Bean; nor has Wesley established that
there is a reasonable probability that the result of the proceeding would have
been different had the evidence been disclosed. Bagley, supra.
Finally, Wesley claims that his convictions were against the weight of
the evidence. Specifically, he contends that the Commonwealth’s “entire
case” relied on Bean’s testimony, which had been “thoroughly impeached.”
Appellant’s Brief, at 54. Wesley argues that phone data showing him in the
Norristown area “proved nothing more than [] that [he] traveled to Norristown
a month and a half before the shooting.” Id. at 55. He also claims that other
people, including Reed, Vance, and Knight, each had a motive to kill Miller.
Wesley is afforded no relief.
This Court reviews weight of the evidence claims for an abuse of
discretion:
The weight of the evidence is exclusively for the finder of fact[,]
who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. [This Court] cannot
substitute its judgment for that of the finder of fact. Thus, we
may only reverse the lower court’s verdict if it is so contrary to
the evidence as to shock one’s sense of justice. Moreover, where
the trial court has ruled on the weight claim below, [this Court’s]
role is not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather, appellate
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review is limited to whether the trial court palpably abused its
discretion in ruling on the weight claim.
Commonwealth v. Hunzer, 868 A.2d 498, 506-07 (Pa. Super. 2005).
Additionally, “[a] motion for a 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
review the evidence in the light most favorable to the verdict winner.”
Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super. 2005) (citations
omitted).
The trial court’s determination that Wesley’s convictions were not
against the weight of the evidence where Bean was vigorously cross-examined
by Attorney Walker, instructions informed the jury that Bean’s testimony was
“from a corrupt and polluted source,” and Bean’s testimony was corroborated
by Detective Minzola’s cell-phone data analysis, is supported by the record.
Trial Court Opinion, supra at 10-12; see N.T. Jury Trial, 11/4/21, at 756-60,
quoting Pa.SSJI (Crim), § 4.01.
Indeed, the jury was well aware of the various lies Bean told through
the investigation and the self-serving reasons for which he was testifying.
Moreover, the jury was carefully instructed by the court regarding how to
evaluate witness credibility and accomplice testimony. See N.T. Jury Trial,
11/4/21, at 758-59. The jury also heard Detective Minzola’s cell phone data
analysis, which substantially corroborated Bean’s testimony. Bean’s
testimony that he went with Wesley to Miller’s residence on October 21, 2016
is supported by cell phone tower data. Id., 11/3/21, at 490-92 (Detective
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Minzola testifying both Bean and Wesley’s phones accessed cell towers in
Delaware County, Montgomery County, and Norristown area at 7:56 p.m.,
8:01 p.m., and 8:04 p.m., respectively). Bean also testified that, on that day,
he took screenshots of the portion of the block where Miller’s residence was
located. Id. at 488-90 (Detective Minzola testifying Bean download an image
on October 21, 2021, at 5:41 p.m., depicting 100 block of Haws Avenue,
where Miller’s home is located). Phone analysis also confirmed that Bean went
to Miller’s residence in Norristown a few more times before the shooting. Id.
at 496-98 (Detective Minzola testifying Bean’s phone accessed towers in
Norristown on October 22, 2016, and October 23, 2016).
Phone data also shows that after Bean informed Wesley that the
shooting had occurred, Welsey left Pennsylvania and spent the next three days
traveling to Louisiana. Id. at 517 (Detective Minzola testifying that on
December 2, 2016, the day of shooting, at 5:15 p.m., Bean made a 25-second
phone call to Wesley); id. at 520-22 (Detective Minzola testifying that
between December 2, 2016, and December 4, 2016, Wesley used phone
towers in Maryland, Virgina, North Carolina, South Carolina, Georgia,
Alabama, Mississippi, and, finally, Louisiana). Indeed, Wesley was later
apprehended in Louisiana.
Finally, Wesley’s claim that his conviction is against the weight of the
evidence because Reed, Vance, and Knight each had a motive to kill Miller
affords him no relief. Although Reed introduced Bean and Wesley and
accompanied them on their initial trip to Norristown, Bean’s testimony
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indicates that Wesley, not Reed, requested Bean’s assistance in murdering
someone. See N.T. Jury Trial, 11/3/21at 329, 333. Additionally, Vance
testified that although she knows that Miller was involved in Wesley’s arrest
and that she does not like Miller, Vance “place[s] the blame where it lies, on
[Wesley].” Id. at 183-84. Further, Knight testified that he has known Miller
for 12 years, and that although he has verbally threatened Miller in the past,
he has never and would never follow through on these threats. N.T. Jury Trial,
11/1/21, at 155, 158-59. Knight stated that he did tell Vance he wanted Miller
“to pay” but he explained that he meant “through the legal system” and in
regard to their child custody claims. Id. at 172-74.
In light of the foregoing, the trial court did not abuse its discretion in its
determination that Wesley’s conviction is not against the weight of the
evidence. Hunzer, supra. We, therefore, affirm Wesley’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2023
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