Commonwealth v. Handfield

2011 PA Super 269

34 A.3d 187

COMMONWEALTH of Pennsylvania, Appellee

v.Earl Calvin HANDFIELD, II, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 4, 2011.Filed Dec. 14, 2011.

Sheryl J.M. Wilson, West Chester, for appellant.

Gerald P. Morano, Assistant District Attorney, West Chester, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., and GANTMAN, J.

OPINION BY STEVENS, P.J.:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Chester County following Appellant's conviction by a jury on the charges of first-degree murder, 18 Pa.C.S.A. § 2502(a), and possessing instruments of crime, 18 Pa.C.S.A. § 907(a). Appellant contends (1) the trial court erred in denying Appellant's motion to dismiss on the basis the Commonwealth met its burden of proving it did not “use or derivatively use” Appellant's immunized grand jury testimony, (2) the trial court erred in permitting defense witness Ataya Shabazz to testify on cross-examination as to prior consistent statements made by Commonwealth witness Adrienne Beckett, and (3) the trial court erred in limiting Appellant's cross-examination of Commonwealth witness David Johnson. We affirm.

The relevant facts and procedural history are as follows: During the evening of October 19, 2005, in an alley in the city of Coatesville, Pennsylvania, Charles Corey “Peen” Jennings was shot and killed. During the investigation, on October 26, 2006, the Commonwealth subpoenaed Appellant to testify before the thirteenth investigating grand jury. Appellant appeared before the grand jury; however, he invoked his Fifth Amendment privilege against compulsory self-incrimination.

On November 16, 2006, the Commonwealth obtained an order compelling Appellant to appear before the grand jury under the grant of immunity. Thus, on that same date, Appellant again appeared before the thirteenth investigating grand jury and, while testifying about the death of Mr. Jennings, Appellant implicated himself in the murder.

On November 24, 2007, the police arrested Appellant, who filed a counseled motion seeking to dismiss the prosecution under the auspices of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), and its progeny. The Commonwealth filed a reply in opposition to the motion to dismiss, and the trial court held numerous evidentiary hearings on the matter at which several police officers and members of the Chester County District Attorney's Office testified. For instance, Assistant District Attorney Peter Hobart confirmed Appellant had received immunity before the thirteenth investigating grand jury and, on November 16, 2006, ADA Hobart examined Appellant before the grand jury. N.T. 3/12/08 at 40. At the conclusion of Appellant's grand jury testimony, in which Appellant implicated himself as the shooter, ADA Hobart, accompanied by Detective Kevin Campbell, so informed his supervisor, Deputy District Attorney Steve Kelly, who in turn informed District Attorney Joseph Carroll regarding the substance of what had transpired during Appellant's grand jury testimony. N.T. 3/12/08 at 40–41, 52. DA Carroll ordered ADA Hobart and Deputy DA Kelly not to discuss the circumstances of the case with anyone, and ADA Hobart specifically testified he never violated this order. N.T. 3/12/08 at 41. ADA Hobart testified he was not involved in the decision to charge Appellant with the murder of Mr. Jennings, he did not assist in the investigation of Mr. Jennings' homicide after November 16, 2006, and he “remained silent as to the contents of [Appellant's] immunized testimony.” N.T. 3/12/08 at 43.

On cross-examination, ADA Hobart testified that, prior to examining Appellant before the grand jury, Detective Campbell told ADA Hobart that Appellant and David Johnson were both present during Mr. Jennings' homicide. N.T. 3/12/08 at 45. Additionally, Detective Campbell told ADA Hobart Mr. Jennings had stolen Appellant's chain prior to this death and, on the date of the shooting, there was an altercation between Mr. Jennings, Appellant, and Mr. Johnson. N.T. 3/12/08 at 45. ADA Hobart admitted he was “surprised” by the testimony he elicited from Appellant before the grand jury. N.T. 3/12/08 at 52.

Assistant District Attorney Thomas Ost–Prisco testified that, in late November of 2006, Deputy DA Kelly reassigned him to Mr. Jennings' homicide. N.T. 3/12/08 at 65. He was not given a specific reason as to why the case was assigned to him; however, he was specifically instructed that he could not discuss the case with Deputy DA Kelly, Deputy DA Ron Yen, Detective Campbell, ADA Hobart or DA Carroll. N.T. 3/12/08 at 66. ADA Ost–Prisco testified he did not violate the instruction. N.T. 3/12/08 at 67. He indicated he did not have much information when the case was assigned to him; however, he was told that he could speak to Detective Marty Quinn, Detective Kevin Dykes, Chief Albert DiGiacamo, and Detective Frank Martin. N.T. 3/12/08 at 67. ADA Ost–Prisco was aware Appellant's girlfriend, Adrienne Beckett, had testified before the grand jury and he reviewed her grand jury testimony in its entirety. N.T. 3/12/08 at 69. ADA Ost–Prisco did not review any other testimony from the thirteenth investigating grand jury. N.T. 3/12/08 at 69.

ADA Ost–Prisco indicated he was going to be prosecuting Appellant, and he summarized the evidence, which he intended to present at Appellant's trial. For instance, he intended to call as a witness Mr. Johnson, who began cooperating with the police in January or February of 2007. N.T. 3/12/08 at 74. Mr. Johnson gave the police a detailed statement of what occurred on the night of Mr. Jennings' murder, including the fact Appellant shot Mr. Jennings multiple times. N.T. 3/12/08 at 74.

Mr. Johnson's cooperation led to his girlfriend, Ataya Shabazz, wearing a body wire to record a conversation she had with Adrienne Beckett, which in turn led to Ms. Beckett giving the police a statement in March of 2007. N.T. 3/12/08 at 74. ADA Ost–Prisco intended to call Ms. Beckett as a witness so that she could testify consistently with her March of 2007 statement. In her statement, Ms. Beckett indicated that Mr. Jennings had stolen a gold chain from Appellant, and, after the murder, Appellant told Ms. Beckett he “did what [he] had to do.” N.T. 3/12/08 at 71. Additionally, she informed the police that, a few hours after the homicide, she drove with Appellant to Maryland, where she watched as Appellant dumped a plastic shopping bag into a dumpster in a parking lot behind a strip mall. N.T. 3/12/08 at 72.

ADA Ost–Prisco further intended to call as witnesses Dante Carter, Francis Washington, and Duron Peoples, all of whom would testify about Mr. Jennings taking Appellant's gold chain, as well as investigating police officers and the medical examiner who performed the autopsy of Mr. Jennings. N.T. 3/12/08 at 75.

On cross-examination, ADA Ost–Prisco testified he sought to secure Wendell Fields' testimony before the investigating grand jury and Deputy DA Kelly was not involved in the matter. N.T. 3/12/08 at 79–80. ADA Ost–Prisco explained that, before he was assigned to prosecute the homicide of Mr. Jennings, Mr. Fields had given a statement to the police indicating that, the day after the murder, Mr. Fields had breakfast with Appellant, who informed him Mr. Johnson had shot Mr. Jennings. N.T. 3/12/08 at 94. ADA Ost–Prisco further explained Mr. Fields' statement was the “beginning point” of his investigation and he was “looking at [Mr.] Johnson as being the possible shooter.” N.T. 3/12/08 at 97. That is, at the time ADA Ost–Prisco was assigned to handle the case, which was after Appellant had implicated himself before the grand jury, he was not specifically looking at Appellant as the shooter. N.T. 3/12/08 at 97. However, ADA Ost–Prisco later concluded Mr. Fields was lying about Appellant's claims of innocence based on subsequent statements made by Kurtis Allen and Daryl Buchanan. N.T. 3/12/08 at 94. Specifically, Mr. Allen told authorities that, while he was incarcerated in the Chester County Prison, he spoke to Mr. Fields, who told him Appellant had confessed to him that he shot Mr. Jennings and Mr. Fields concocted a story to deflect the blame onto Mr. Johnson. N.T. 3/12/08 at 94–95. Additionally, following the interview with Mr. Allen, the police interviewed Mr. Buchanan, who reported that, after the homicide, Mr. Fields told Mr. Buchanan Appellant had killed Mr. Jennings. N.T. 3/12/08 at 96.

ADA Ost–Prisco admitted he entered into negotiations with Mr. Johnson as to an unrelated case in order to “get him to talk” about the shooting of Mr. Jennings. N.T. 3/12/08 at 87–89. At this point, ADA Ost–Prisco was “still operating under the assumption that [Mr. Johnson] might have been the shooter [, ... and] [i]t was only after [the police] got to Ms. Beckett, with Mr. Johnson's help, that [ADA Ost–Prisco] felt a lot more comfortable talking to Mr. Johnson.” N.T. 3/12/08 at 88. In February or March of 2007, after speaking with Ms. Beckett and Mr. Johnson, he concluded Appellant shot Mr. Jennings. N.T. 3/12/08 at 87.

ADA Ost–Prisco admitted that, while he was never specifically advised Appellant offered immunized grand jury testimony, it was an assumption he formed shortly after he was assigned to handle Mr. Jennings' homicide. N.T. 3/12/08 at 81. ADA Ost–Prisco first learned definitively that Appellant offered immunized grand jury testimony when he read a newspaper article, which discussed Appellant's motion to dismiss. N.T. 3/12/08 at 122–23.

As to what investigative action the district attorney's office took after Appellant implicated himself during his immunized testimony before the grand jury, ADA Ost–Prisco specifically testified as follows on cross-examination:

[Defense counsel,] you ... [are] assuming that we took the focus off of Mr. Johnson and focused solely on [Appellant]. That's not the case. I was still focused on...