Commonwealth v. Bey

COMMONWEALTH OF PENNSYLVANIA Appellee

v.FREEDOM BEY Appellant

J-A35036-12

No. 1693 WDA 2010

SUPERIOR COURT OF PENNSYLVANIA

FILED JULY 12, 2013

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence September 29, 2010

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0010884-2008

BEFORE: PANELLA, J., ALLEN, J., and STRASSBURGER, J.^*

MEMORANDUM BY PANELLA, J.

Appellant, Freedom Bey, appeals from the judgment of sentence entered on September 29, 2010, by the Honorable Joseph K. Williams III, in the Court of Common Pleas of Allegheny County. After careful review, we affirm.

On June 28, 2008, between 3:00 a.m. and 4:00 a.m., Bey, Randall Bentley, Jordan Doctor and Brenda Escedy were out to eat at Eat'n Park at the Waterfront shopping complex in Homestead, Pennsylvania. See N.T. Jury Trial, 7/13-14/10, at 35, 47-46, 177. Brendan Brooks, the victim, and Daniel Wallar entered the restaurant and sat down. See id., at 67. Bey wasslamming his plate and fork down, "like normal intoxicated people would be." Id., at 49.

Bey got up from his table, walked out of the restaurant, went to the window where Brooks and Wallar were seated, and started banging his hands on his chest and called Brooks out of the restaurant. See id., at 49-50. Kristi Lynn Emery was waiting on Brooks and Wallar and testified that Brooks remained calm. See id., at 51. Angela Casale, the manager of Eat'n Park, testified that she saw Brooks start walking toward the door. See id., at 89. Casale attempted to dissuade Brooks from leaving because she did not want there to be a fight. See id. She said that Bey was irate, jumping up and down, screaming at the top of his lungs. See id., at 90. Unfortunately, Brooks did not heed Casale's advice and left the restaurant. Once Brooks was outside on the sidewalk, Emery and Casale observed Bey "pull his right hand out, extend his arm and shoot [Brooks] three times." Id., at 54.

Following a jury trial, which began on July 13, 2010, the jury convicted Bey of Murder of the First Degree¹ and Firearms Not to be Carried Without License.² On September 29, 2010, the trial court sentenced Bey to life imprisonment on the murder conviction and to a concurrent two (2) to four (4) year term of incarceration on the firearms conviction. This timely appeal followed.

On appeal, Bey raises the following issues for our review:

I. Whether [Bey's] rights were violated by the Commonwealth's failure to preserve exculpatory evidence?

II. Whether [Bey] was denied a trial by jury of his peers by:

A. The trial court denying [Bey] his right to a jury composed of a fair cross-section of the Allegheny County population

B. Denying defense counsel's request to modify the jury pool to include a reasonable number of African American candidates

III. Whether the trial court erred in denying [Bey's] motion for a mistrial by:

A. Abusing its discretion by denying [Bey's] motion for a mistrial where surprise testimony undermined defense counsel's credibility and sincerity

B. Violating [Bey's] constitutional rights by dictating the defense trial strategy

C. Depriving [Bey] of his right against self-incrimination

IV. Whether the trial court erred in ruling that the Commonwealth produced sufficient evidence to support a conviction of first degree murder and to disprove self-defense?

V. Whether the trial court abused its discretion in ruling that [Bey's] challenge that the jury's verdict was not against the weight of the evidence was waived, and that the jury's verdict was against the weight of the evidence?

Appellant's Brief, at 6-7 (underlining omitted).

In his first issue raised on appeal, Bey contends that his "rights were violated by the Commonwealth's failure to preserve exculpatory evidence." Appellant's Brief, at 22. Before we reach the merits of this issue, we must determine if it is properly before us.

In order to preserve a claim for Appellate review,

appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.1925. Any issues not raised in a Pa.R.A.P.1925(b) statement will be deemed waived.

Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005). Bey's claim that his rights were violated by the failure to preserve exculpatory evidence was not included in his Concise Statement of Matters Complained of on Appeal. In light of Bey's failure to include his first claim in his Rule 1925(b) statement, we deem this issue waived.

In his second issue, Bey contends that he "was denied his right to a trial by a jury composed of a fair cross-section of the community of Allegheny County, Pennsylvania, in violation of the Constitutions of the United States and the Commonwealth of Pennsylvania³ because the methods used by Allegheny County systematically exclude non-Caucasian individuals."⁴ Appellant's Brief, at 28. Specifically, Bey argues, "Twenty-one individuals were selected to be prospective jurors, one of which was African-American; however, the only prospective African-American juror was seated at No. 19 or No. 20, and, therefore, had no chance of being questioned to siton the jury." Id., at 32. According to Bey, this caused African-Americans to be systemically excluded from the jury pool, resulting in Bey being tried by a jury containing no African Americans. Id.

"[T]he Sixth Amendment to the United States Constitution provides for a trial by a jury of one's peers drawn from a source fairly representative of the community." Commonwealth v. Estes, 851 A.2d 933, 934 (Pa. Super. 2004). To establish a prima facie case that a jury pool selection system violates the Sixth Amendment's fair cross-section requirement, a defendant must show:

1) the group allegedly excluded is a distinctive group in the community; 2) representation of this group in the pool from which juries are selected is unfair and unreasonable in relation to the number of such persons in the community; and 3) the under-representation is due to the systematic exclusion of the group in the jury selection process. Systematic means caused by or inherent in the system by which juries were selected.

Commonwealth v. Johnson, 572 Pa. 283, 304, 815 A.2d 563, 575 (2002) (citations omitted). "Underrepresentation alone does not show an actual discriminatory practice in the jury selection process." Estes, 851 A.2d at 936. This Court has rejected various attacks on the basis that African-Americans were underrepresented in the racial composition of a jury panel drawn from voter registrations lists. See id., at 935.

While Bey has demonstrated an underrepresentation of African-Americans in Allegheny County jury pools,⁵ "he fails to address requirements set forth in Pennsylvania Supreme Court cases which mandate showing more than evidence that certain groups are underrepresented prior to finding discriminatory jury pooling practices." Id., at 934. Bey offered no evidence of a calculated discriminatory practice. He further failed to make an argument as to what discriminatory practice may be causing the systematic exclusion. See id., at 936. "The mere showing of underrepresentation, absent an actual discriminatory practice in the jury selection process," is insufficient to merit relief on appeal. Id.

Bey also claims that the trial court "abused its discretion by refusing to alter the jury pool to more adequately reflect the population of Allegheny County where [d]efense [c]ounsel made a motion for the pool to be adjusted, and the [t]rial [c]ourt relied on a misunderstanding of the law in denying [d]efense [c]ounsel's request." Appellant's Brief, at 33. Bey contends that "[d]espite acknowledging the unjust underrepresentation of African-Americans in the jury pool, the trial court wrongly believed that it was without remedy when in fact it would have been within the court'sdiscretion to order that all persons of a particular race present for jury service be interviewed." Id., at 35.

Bey fails to cite any case law that requires the trial court to modify a jury pool to include a reasonable number of minority candidates. The record reflects that the trial court denied Bey's request on the record, stating as follows:

I'm hard-pressed to find a systemic exclusion in the selection of the jury. I mean, I regret that the jury pool that Mr. Bey has is not reflective of the composition of Allegheny County which would be 13 or 14 percent African-American, but on the other hand, if I would attempt to alter the composition of the jury, it would be interpreted as tampering because I would systematically be altering the composition of the jury which could be an issue Commonwealth to appeal. So I'm sort of between two worlds. All I can do is let the system that we have in place move forward.

N.T. Jury Trial, 7/13-14/10, at 10-11. Absent contrary precedent, we find the trial court's reasoning to be rational. This issue on appeal merits no relief.

In his next issue, Bey claims that "the trial court abused its discretion by denying [Bey's] motion for a mistrial following surprise testimony that undermined the jury's confidence in [d]efense [c]ounsel's honesty and sincerity." Appellant's Brief, at 37. Specifically, Bey argues, "Mr. Wallar's testimony undermined defense counsel's credibility and sincerity by contradicting the opening statement." Appellant's Brief, at 38.

"The trial court is in the best position to assess the effect of a prejudicial statement on the jury." Commonwealth v. Begley, 566 Pa.239, 271, 780 A.2d 605, 624 (2001). "[T]he decision to declare a mistrial is within the sound discretion of the trial court and will not be reversed absent a flagrant abuse of discretion." Commonwealth v. Szakal, 50 A.3d 210, 218 (Pa. Super. 2012) (citations omitted). "The remedy of a mistrial is an extreme one that is required only when an incident is of such a nature that its unavoidable effect is to deprive the defendant of a fair and impartial trial by preventing the jury from weighing and...