Commonwealth v. Gethers

1

COMMONWEALTH OF PENNSYLVANIA v. GERARD GETHERS Appellant

No. 912 EDA 2022

No. J-S03020-23

Superior Court of Pennsylvania

May 23, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered February 3, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000845-2021

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM

McCAFFERY, J.

Gerard Gethers (Appellant) appeals from the judgment of sentence imposed in the Montgomery County Court of Common Pleas following his jury conviction of first-degree murder^[1] and related charges for the November 3 2020, shooting death of Jerry White. On appeal, he challenges three evidentiary rulings, as well as the sufficiency and weight of the evidence supporting his convictions. As we discuss infra, we vacate the sentence imposed on Appellant's firearms conviction and remand for resentencing on the offense; in all other respects, we affirm.

I. FACTS & PROCEDURAL HISTORY

The trial court summarized the evidence presented at Appellant's jury trial as follows:

[Appellant] shot and killed Jerry White on November 3, 2020, at approximately 3:35 p.m., in front of West Cali Tattoo at 518 West Marshall Street in Norristown, Montgomery County. At the time, White was the sole eyewitness against [Appellant] in a pending[, unrelated] aggravated assault case, a fact known to [Appellant] when he killed White.

In the aftermath of the shooting of White, law enforcement collected video surveillance from more than a dozen nearby businesses and residences, constituting hours of footage from both before and after the shooting. The footage, when viewed in chronological order, showed [Appellant] leave a residence at 518 West Lafayette Street in Norristown at approximately 3:24 p.m. He was wearing a black Nike jacket with a zipper front. He had the hood pulled tight around his face and was wearing a "Covid" mask. He also wore black pants with three stripes down the side and white high top sneakers.³

³ Further analysis of the surveillance video footage would reveal that [Appellant] wore a large-faced watch on his left wrist and had a distinctive tattoo on his left hand.

The surveillance footage showed [Appellant] walk from West Lafayette Street to the corner of Chain and Marshall Streets. At the time, White and four other males⁴ were standing nearby, outside of West Cali Tattoo. Rather than continue to walk toward them, thereby being seen, [Appellant] turned around and went back down Chain Street, then up Haws Alley, which runs behind West Marshall Street. [Appellant] came back around to West Marshall Street at 3:35 p.m., such that the was able to approach the males more surreptitiously.⁵ He then pulled out a .380 caliber pistol and fired three shots in the direction of White. The four other males standing nearby scattered, but White, having been hit by at least two of the bullets, took a few steps before collapsing into the street, almost being struck by a passing vehicle. White suffered gunshot wounds to his left armpit, left forearm and back.

The bullet that entered White's back pierced several organs and his aorta, resulting in White's rapid death.

⁴ Jayden Guidici, Quadir Miller, Stephon Windbush and an unidentified bystander.

⁵ Norristown Police Detective Brian Saxon testified that he is familiar with the route [Appellant] walked from West Lafayette Street to the tattoo shop and that it is reasonable given the pace observed that . . . it would take approximately 11 minutes.

After firing the fatal shots, [Appellant] returned on foot to the West Lafayette Street residence he had left earlier in the afternoon. Nearby surveillance footage showed him follow a woman into the residence at 3:41 p.m.⁶

⁶ Detective Saxon testified that [Appellant] took a more direct route back to West Lafayette Street and that it was reasonable for this return trip to take about six minutes. The woman who entered the residence with [Appellant] would be identified as Jackie McNelly, who lives at the property. She testified that [Appellant] is a family friend who came to her house on the afternoon of the day of the shooting. [Appellant] left for a while and returned later that afternoon. She identified [Appellant] as the man who followed her into her house. At some point during her encounter with [Appellant] that day, McNelly saw him sitting in a black four-door vehicle, which was parked in an alley near her house. Surveillance video of [Appellant] outside of McNelly's house, compared with footage of the shooter, not only showed similar clothing but also revealed an identical scuff mark on the right sneaker and identical sneaker tread.

No one at the scene of the shooting identified the shooter. Detective Charles Leeds of the Norristown Police Department immediately thought of [Appellant], however, upon hearing that White had been killed. Detective Leeds had known White for many years and knew he was an eyewitness against [Appellant] in connection with [Appellant's] alleged non-fatal shooting of Rodney Harris on May 12, 2019, in Norristown.⁷ Because Harris had refused to cooperate with police after he had been shot, White was the lone witness against [Appellant]. Indeed, [Appellant] was charged with aggravated assault for the shooting of Harris after White had identified [him] from a photo array and had given a statement to police. [Appellant] was arrested in that case in October 2019 and held on cash bail. At his preliminary hearing on November 6, 2019, he learned that White, whom [Appellant] knew as "Spider," was a witness against him.

⁷ A subsequent check of law enforcement databases indicated that White, at the time of his death, was not involved as a party or a witness in any other criminal cases pending in Norristown or Philadelphia.

The following day, during a recorded prison telephone call, the person speaking with [Appellant] asked when [Appellant] would get his discovery so he could find out who was snitching. [Appellant] responded that he had found out the day before and that he was going to "pin" that person. In a second prison. telephone call that same day, [Appellant] referenced "Spider," and described him as hanging out at the tattoo shop all the time. He also said that the person "would be gone" if [Appellant] ever caught him.

At a bail hearing on July 31, 2020, [Appellant's] then-attorney argued in favor of his release by suggesting the case was weak because, inter alia, someone identified as "Spider" was the only witness against [Appellant]. [Appellant] was released on bail that day, but reincarcerated on September 1, 2020. He was released again, this time on house arrest with electronic monitoring, on October 8, 2020, and eventually began working at a local Wendy's restaurant. He did not appear for his scheduled shifts, however, on November 2 and November 3, 2020. Electronic monitoring also showed [Appellant] did not return to his residence by the approved time of 2:00 a.m., on November 3.⁸

⁸ [Appellant] subsequently removed his electronic monitoring device and was not wearing it when he was arrested in this case.

Instead, [Appellant] arrived at some point on November 2 to the Lafayette Hill, Montgomery County, home of Demesha Bruce, the mother of his young child. Bruce saw [Appellant] driving a black car that day and believed it to be a Cadillac.

[Appellant] left Bruce's house on the morning of November 3 and arrived at McNelly's house at approximately 2:52 p.m. He then left McNelly's house on foot at 3:24 p.m. The shooting occurred at 3:35 p.m., and [Appellant] reentered McNelly's house at approximately 3:41 p.m. The black Cadillac drove away from the area at 3:46 p.m. [Appellant] then returned in the vehicle⁹ to Bruce's house around 5:50 p.m.¹⁰

⁹ Law enforcement subsequently located the black Cadillac in Bucks County. The vehicle was registered to Todd Green, who previously had agreed to sell the vehicle to [Appellant] and had allowed [Appellant] to have possession of it. A subsequent search of the vehicle revealed [Appellant's] Wendy's uniform.

¹⁰ During police questioning, Bruce identified [Appellant] from still photos of surveillance footage and indicated that [Appellant] had a similar looking jacket, pants, sneakers and watch. Law enforcement obtained a video Bruce had received on her cell phone from [Appellant] on October 13, 2020, which showed [him] wearing a similar jacket as the shooter and bearing a similar tattoo on his left hand. They were aware from [Appellant's] arrest in the underlying aggravated assault case that [Appellant] had a distinctive tattoo on his left hand. A still photo of [Appellant] taken in August 2020 and retrieved from Bruce's cell phone depicted him wearing pants and sneakers similar to those worn by the shooter.

Trial Ct. Op., 6/2/22, at 1-6 (record citations & some footnotes omitted). The Commonwealth also presented the following evidence regarding Appellant's actions after the shooting:

[Appellant] walked out of Bruce's residence in Lafayette Hill in the early morning hours of November 4 and the Cadillac is seen driving away. At approximately 5:45 a.m. that same morning, a black Cadillac is seen parked in front of 1225 Route 313 in Bucks County. Around the same time and near the same location, [Appellant] got into a white van and drove to the Cadillac. He stopped briefly to retrieve some items before getting back in the van and driving to Norristown. At approximately 6:45 a.m., [Appellant] parked the van in the same general area as where the Cadillac had been parked in Norristown the day before and entered McNelly's house.

Id. at 10-11 (record citations omitted).

Appellant was subsequently arrested and charged with first-degree murder, third-degree murder,...