Commonwealth v. Belgrave

307 A.3d 1240

COMMONWEALTH of Pennsylvania

v.Jermaine BELGRAVE, Appellant

No. 1480 WDA 2021

Superior Court of Pennsylvania.

Submitted March .28, 2023

Filed December 28, 2023

Appeal from the Judgment of Sentence Entered November 19, 2021, In the Court of Common Pleas of Erie County, Criminal Division, at No: CP-25-CR-0001015-2019, John J. Mead, J.

Gene P. Placidi, Erie, for appellant.

Brendan P. Sala, Assistant District Attorney, Erie, for Commonwealth, appellee.

BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.^*

OPINION BY STABILE, J.:

Appellant, Jermaine Belgrave, appeals from his judgment of sentence of 7½-15 years’ imprisonment for possession with intent to deliver a controlled substance ("PWID"), reckless endangerment, and carrying firearms without a license.¹ We affirm Appellant’s convictions, but remand for further proceedings to correct Appellant’s sentence.

The charges against Appellant arise from a sale of drugs at a hotel in Erie, Pennsylvania on February 9, 2019, that ended in a gunfight. The Commonwealth presented its evidence at trial through the testimony of Erie police officials and evidence gathered during their investigation. The evidence demonstrates that on February 7, 2019, four males, including Appellant, drove from Chicago, Illinois to Erie, Pennsylvania. On the same date, one of the four men, Sheldon Morales, rented a room at a Marriott Hotel in Erie with a checkout date of February 9, 2019. The four men, including Appellant, Morales, Baizar, and another man, stayed together in this room.

The hotel’s videotape demonstrates that at approximately 5:15 p.m. on February 9, 2019, the four men were parked in a Chevrolet Impala in front of the hotel. Appellant was in the front passenger seat; Baizar was in the backseat. A dark-colored SUV arrived in the parking lot and parked nearby. Baizar and another man exited the Impala and walked toward the SUV. When Baizar attempted to enter the SUV, the SUV’s driver exited the vehicle and began shooting at Baizar. Baizar ran away and dropped a package. Appellant reacted to the gunshots by exiting the Impala and firing two shots in the direction of the SUV. Moments later, Appellant, was shot and seriously injured.

Appellant and Baizar re-entered the Impala, which then drove away. Subsequently, police stopped the Impala when it was exiting from a parking garage located across from the Marriott. At that time, Baizar was driving the Chevy Impala and Appellant was the front seat passenger. Appellant received treatment for his injuries at a local hospital. The package that Baizar dropped during the gunfight was found to contain 239 grams of heroin.

Appellant was charged with conspiracy to commit PWID and other charges. Baizar was charged with conspiracy to commit PWID. At Appellant’s preliminary hearing, defense counsel contended that the evidence merely showed that Appellant was present at the scene, and that his mere presence did not demonstrate any conspiracy between him and the other occupants of the Impala to commit PWID. N.T., 4/8/19, at 74-75. Appellant was held for court on all charges; Baizar was held for court on the conspiracy charge. In December 2019, Baizar pled guilty to conspiracy and was sentenced to a term of imprisonment.

On the first morning of Appellant’s trial, the Commonwealth moved to amend the information to charge. Appellant with PWID in lieu of conspiracy to commit PWID. N.T., 6/9/21, at 5. The Commonwealth contended it could prosecute Appellant for PWID under a theory of accomplice liability. Id. It asserted that the amendment in charges would not prejudice Appellant because the Commonwealth intended to present the "exact same facts" but simply claim that these facts made Appellant an accomplice rather than a conspirator. Id. ("we’re saying, instead of saying he’s a conspirator, we’re saying he’s an accomplice"). The charges of accomplice liability and conspiracy were "completely identical," the prosecutor continued, because there was no "functional change" in the charges. Id. at 5-6. The prosecutor added that "[o]ftentimes we heard jurors express confusion about the distinction [between these charges] and I have expressed confusion about the actual distinction." Id. at 6. Following argument, the court verbally granted the Commonwealth’s motion to amend the charge of conspiracy to commit PWID to PWID.²

During trial, the Commonwealth called Baizar as a witness. Prior to Baizar’s testimony, outside the presence of the jury, Baizar’s counsel indicated that Baizar intended to invoke his privilege against self-incrimination if called to testify. N.T., 6/9/21, at 177-78. The Commonwealth sought and obtained an order granting Baizar immunity.³ The court informed Baizar, again outside the presence of the jury, that "no testimony, information or other evidence directly or indirectly derived from the testimony of [Baizar during] trial may be used against [him], including on cross-examination … The Commonwealth explicitly includes the crime of perjury in this cloak of immunity" Id. at 180. The court instructed Baizar that he no longer had a Fifth Amendment right not to testify because the court had signed an order of immunity. Id. at 178. The court advised Baizar that he could be held in contempt if he failed to comply with the order of immunity. Id. at 180. Nevertheless, Baizar continued to state that he was not going to provide testimony. Id. at 183-84.

When the jury returned to the courtroom, Baizar was called to the stand by the prosecution. After he stated his name, the prosecutor asked eighteen questions. In response, Baizar either stated that he refused to answer questions or remained silent in response to all eighteen questions by the prosecutor. N.T., 6/9/21, at 185-91. For example, the prosecutor stated:

Q. You are citizen of Belize? He does not answer. Is it fair to say you are cousins with Mr. Belgrave? No answer. Fair to say that you came to the City of Erie to sell heroin with, Mr. Belgrave? Fair to say that that’s what you told police during your interview…

Id. at 187. At another point, the prosecutor stated:

Fair to say you gave four separate statements back on February 7th, Mr. Baizar? No answer. Fair to say you answered questions during those statements about what happened on February 7th during this incident. And I’ll note no answer. Fair to say that officers attempted to have you perform a lineup of the individuals that robbed you and you didn’t want to participate in that because you believe in criminals getting away with crimes? No answer.

Id. at 191. The court then asked Baizar whether "[it is] your intent not to answer any questions today?"⁴ Id. at 185. Baizar answered, "It’s my intention not to answer no questions at all." Id. At the conclusion of the prosecutor’s questioning, defense counsel stated that he had no questions for Baizar. The court excused Baizar from the stand without holding him in contempt. The jury did not learn that Baizar was standing on his self-incrimination privilege and that he had been granted immunity.

At the conclusion, of trial, the court instructed the jury on the elements of PWID-accomplice liability. N.T., 6/11/21, at 6-7. The jury found Appellant guilty of PWID-accomplice liability, reckless endangerment, and carrying firearms without a license. The jury did not reach a verdict on three charges of aggravated assault and simple assault. On November 19, 2021, the court sentenced Appellant to a term of imprisonment for conspiracy to commit PWID and concurrent sentences of imprisonment for reckless endangerment and carrying firearms without a license. Appellant filed a timely appeal to this Court, and both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises two issues in this appeal:

I. Whether or not the trial court erred resulting in prejudice to the Appellant by allowing the Commonwealth to continue questioning the Appellant’s co-defendant, Charles Baizar, over objection of the Appellant, when both Mr. Baizar and his attorney made it clear [that] Mr. Baizar would not be answering any questions, notwithstanding the fact that the trial court gave a cautionary instruction to the jury once Mr. Baizar was excused from the witness stand, since the questions posed to Mr. Baizar clearly implicated the Appellant regarding the charge of unlawful delivery of a controlled substance?

II. Whether or not the trial court erred in allowing the Commonwealth to amend the charge of criminal conspiracy to unlawfully deliver a controlled substance to the charge of unlawful delivery of a controlled substance, on the day trial was to commence, thus resulting in prejudice to the Appellant, since the elements or defenses to the amended charge, unlawful delivery of a controlled substance, are materially different [from] the elements or defenses to the charge of criminal conspiracy to unlawfully deliver a controlled substance?

Appellant’s Brief at 5.

[1] In his first argument, Appellant contends that the court erred by permitting the Commonwealth to question Baizar after Baizar and his attorney indicated prior to trial and on the first day of trial that Baizar would invoke his Fifth Amendment privilege against self-incrimination. Baizar maintained that his position remained unchanged even after the grant of immunity. Relying principally on Commonwealth v. DuVal, 453 Pa. 205, 307 A.2d 229 (1973), Appellant insists that Baizar’s refusal to testify prejudiced Appellant and caused the jury to convict him based on guilt by association.

In DuVal, our Supreme Court reversed the defendant’s conviction for voluntary manslaughter and ordered a new trial because the prosecutor summoned two witnesses to the stand with foreknowledge that they intended to invoke their privilege against self-incrimination. The same events took place with regard to each witness. Each witness gave her name and address when called to the stand and then asserted her Fifth amendment privilege in response to all other...