Commonwealth v. Duson-Carter

245 A.3d 1057 (Table)

COMMONWEALTH of Pennsylvania v. Amir DUSON-CARTER, Appellant

No. 1317 EDA 2019

Superior Court of Pennsylvania.

Filed December 09, 2020

MEMORANDUM BY SHOGAN, J.:

Appellant, Amir Duson-Carter, appeals from the judgment of sentence entered December 17, 2018, following his conviction by a jury of one count each of first-degree murder, carrying a firearm on a public street in Philadelphia, carrying a firearm without a license, and possession of an instrument of crime ("PIC"). ¹ We affirm.

The trial court summarized the facts of the case, as follows:

At trial, the Commonwealth presented the testimony of Philadelphia [P]olice [O]fficers Henry Simmons, David Dohan, Michael Maresca, Norman DeFields, and Keith Samarco, Philadelphia [P]olice [D]etectives Jamal Rodriguez, Thorsten Lucke, James Dunlap, and John Harkins, Philadelphia [P]olice [F]orensic [S]cientist Andrea Williams, Philadelphia [A]ssistant [M]edical [E]xaminer Dr. Lindsay Simon, and Cedric Council. [Appellant] presented the character testimony of Courtnay Robinson, Atiyah Rahman-Anderson, and Mark Voce. Viewed in the light most favorable to the Commonwealth as the verdict winner, the evidence established the following.

On the evening of March 18, 2017, Cedric Council made arrangements to purchase marijuana from [Appellant] and to have [Appellant] bring it to Council's mother's house, where Council was staying. However, because [Appellant] took too long to show up at the house, Council eventually made other arrangements to acquire marijuana. Council then decided to walk to a store at 6400 Stenton Avenue near the corner of Stenton Avenue and Johnson Street. As he was walking to the store, [Appellant] pulled up next to Council in a white Toyota Corolla along with two passengers. [Appellant] asked Council if he still wanted to buy marijuana. Council told [Appellant] he did not want to buy marijuana and that he was walking to the corner store. [Appellant] then offered Council a ride to the store, which Council accepted. [Appellant] dropped Council off at the store and waited for him in the car. Council made a purchase, left the store, and then got back into the driver's side backseat of [Appellant's] car so that [Appellant] could give him a ride home. [Appellant] then pulled away and made a U-turn on Stenton Avenue that placed him in a small parking area that ran parallel to Stenton Avenue.

As [Appellant] was making the U-Turn, the decedent, Haneef Brown [("the victim")], walked in front of [Appellant's] car. [Appellant] stopped his vehicle and [the victim] said something to [Appellant]. In response, [Appellant] rolled down his window and both men said "What's up?" to each other. The two men had a brief conversation, during which [the victim] was pacing back and forth in front of the driver's window and seemed agitated. Then [Appellant], who was still sitting in the driver's seat of his car, shot [the victim] four times. After shooting [the victim, Appellant] drove away and, shortly thereafter, dropped Council off at his house. Officers responding to the shooting rushed [the victim] to the hospital where he was pronounced dead thereafter.

Philadelphia police officers and detectives then conducted an investigation of the shooting. Officers recovered two 9 mm Luger fired cartridge casings ("FCCs") from the crime scene. Officers also recovered surveillance video from several businesses in the area. On the same night as the murder, an officer reviewed the surveillance video from the corner store on Stenton Avenue and Johnson Street in hopes of identifying a suspect. The officer noticed a man in the store stare right into the surveillance camera, leave the store, and then enter a white sedan, which pulled away and made a U-turn. That man was later identified as Council. On March 20, 2017, detectives obtained a search warrant for Council's cell phone records and brought him to the Homicide Unit at 750 Race Street for questioning. The next day, Council gave a written statement to detectives wherein he admitted that he was in the white Toyota when [the victim] was shot, identified the driver of the vehicle as "Mir," and stated that while he had heard the sound of a gun firing multiple times, he did not see who shot [the victim].

On April 5, 2017, detectives brought Council back to the Homicide Unit for a follow-up interview. Council gave another statement to detectives in which he admitted that his previous statement was not entirely truthful. Council informed detectives that he witnessed "Mir" shoot [the victim] and that "Mir" lived on Tulpehocken Street. Using this information, detectives searched a police database that contained residents of Tulpehocken Street and obtained a photograph of [Appellant]. Council subsequently identified [Appellant] from the photograph as "Mir," the man who shot and killed [the victim].

Based on this information, detectives secured a search warrant for 31 East Tulpehocken Street, which [Appellant] had listed as his address on his driver's license. Detectives also discovered that the property was owned by Amber Carter, who is [Appellant's] mother. Upon executing the search warrant, detectives searched a bedroom in [Appellant's] apartment and recovered [Appellant's] driver's license, a small amount of marijuana, a significant amount of drug paraphernalia that is commonly used to package illegal drugs for distribution, a spent .40 caliber FCC, and a full box of 9 mm Luger bullets. The box of 9 mm Luger bullets had the same head stamp as the two 9 mm Luger FCCs recovered at the crime scene.

Detectives also discovered a white 2007 Toyota Corolla parked outside of the residence that was registered to [Appellant's] mother and towed it to a police garage. Police records indicated that [Appellant] was stopped as the driver in that vehicle several times in the months preceding the murder. Upon inspection, detectives discovered a 9 mm Luger FCC in the gap of the vehicle between the rear window and the trunk.

On May 10, 2017, officers observed a man named Anthony Spellman attempt to shoot three males who were running away from him. Spellman, however, was unable to fire the gun and the magazine fell out as he attempted to pull the trigger. Officers then arrested Spellman and confiscated the firearm. The Firearms Identification Unit later determined that the two FCCs recovered from the crime scene and the FCC recovered from [Appellant's] vehicle were all fired from that firearm. GPS tracking data from Spellman's cellphone showed that he was moving in tandem with [Appellant] on the night of the murder.

Trial Court Opinion, 8/16/19, at 2–5 (internal citations to the record omitted).

Appellant was arrested on June 7, 2017, and charged with murder and related offenses. Following a jury trial, Appellant was found guilty of the above-described charges. The trial court sentenced Appellant to life imprisonment for first-degree murder and imposed no further penalty on the remaining counts of conviction. Trial counsel filed timely, boilerplate post-sentence motions. Appellant obtained new, present counsel, who filed supplemental post-sentence motions, which the trial court denied on April 18, 2019. Appellant filed a notice of appeal. ² Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal, which we have reordered for ease of disposition:

A. Did the court below err in denying a post sentence motion to set aside the ve[r]dict where the evidence was insuffic[i]ent as a matter of law?

B. Did the court below err in denying a post senten[c]e motion where the verdict was against the weight of the evidence?

C. Did the court below err in denying the motion to suppress where the search warrant failed to state with particularity the place to be searched?

D. Did the court below err in denying post sentence motion seeking a new trial where the verdict was called into question due to prosecutorial misconduct in the prosecutor's closing?

Appellant's Brief at 6 (full capitalization omitted).

When an appellant raises both a sufficiency-of-the-evidence issue and a suppression issue, we address the sufficiency of the evidence supporting the conviction first, and we do so without a diminished record:

We are called upon to consider all of the testimony that was presented to the jury during the trial, without consideration as to the admissibility of that evidence . The question of sufficiency is not assessed upon a diminished record. Where improperly admitted evidence has been allowed to be considered by the jury, its subsequent deletion does not justify a finding of insufficient evidence. The remedy in such a case is the grant of a new trial.

Commonwealth v. Stanford , 863 A.2d 428, 431–432 (Pa. 2004) (emphasis in original).

In reviewing a sufficiency challenge, "we must decide whether the evidence admitted at trial, and all reasonable inferences drawn therefrom in favor of the Commonwealth, as verdict winner," are sufficient to support all elements of the offense. Commonwealth v. Hitcho , 123 A.3d 731, 746 (Pa. 2015). The jury, as fact-finder, is free to believe some, all, or none of the evidence. Commonwealth v. Gomez , 224 A.3d 1095, 109 (Pa. Super. 2019). Moreover, the Commonwealth may sustain its burden of proof by wholly circumstantial evidence. Commonwealth v. Diggs , 949 A.2d 873 (Pa. 2008) ; Commonwealth v. Vogelsong , 90 A.3d 717 (Pa. Super. 2014). As an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Commonwealth v. Rogal , 120 A.3d 994 (Pa. Super. 2015).

In making his argument, Appellant concedes that "the evidence that the fatal shots were fired from the white Toyota is virtually unassailable." Appellant's Brief at 24. He also acknowledges that "[o]ne may even conclude from the totality of the evidence that [he] was operating that vehicle." Id. Appellant disputes only that he was the person who shot the...