Commonwealth v. Hicks

151 A.3d 216

COMMONWEALTH of Pennsylvania, Appellee

v.Terrill Javon HICKS, Appellant

No. 1742 WDA 2015

Superior Court of Pennsylvania.

Submitted June 27, 2016

FILED NOVEMBER 18, 2016

Scott Coffey, Pittsburgh, for appellant.

Rebecca G. McBride, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,^* JJ.

OPINION BY SHOGAN, J.:

Appellant, Terrill Javon Hicks, appeals from the judgment of sentence entered on October 23, 2015, in the Allegheny County Court of Common Pleas. After careful review, we vacate and remand with instructions.

The trial court provided the following factual background in this matter:

The testimony in this case is summarized as follows. Kendall Dorsey testified that on December 23, 2006, while sitting on the front porch with his friend Kevin Harrison, he saw Appellant shooting at him and at Harrison. (Transcript of Jury Trial April 27–May 3, 2010, hereinafter TT[, at] 108–9) Dorsey saw co-Defendant Raymont Walker standing with Appellant. (TT 109) Dorsey scurried into the house and avoided injury, but Harrison was shot and killed. (TT 109–10)

Dorsey testified that a few days earlier he was at his friend John McDonald's house. (TT 97) He heard a knock on the door. Another friend, Michael Harris, answered the door. Immediately, Appellant attempted to pull Harris out of the house, but the attempt was unsuccessful as Harris was able to close the door. (TT 98) Dorsey testified that he went upstairs, looked out a window and observed Appellant and Walker in the street holding pistols. Ibid.

The following day, the day before the shooting, Dorsey testified that he had an encounter in the neighborhood with Appellant. Appellant said that he had been robbed, and that he thought that Dorsey, Harris and Harrison did it. (TT 100) Dorsey denied robbing Appellant. Ibid.

The next day, the day of the murder, Dorsey testified that Appellant and Walker drove up to Dorsey and Harrison while they were walking a dog. Appellant and Walker exited the car, and Walker said, "Where is Mike Harris at?" (TT 102) Dorsey observed that both Appellant and Walker had weapons. (TT 103) Dorsey and Harrison lied, denying that they knew Harris' location, and eventually Appellant and Walker got back in their car, a white Chevrolet Impala, and left. (TT 104)

After that incident, Dorsey testified that he and Harrison immediately returned to Harrison's house, where they knew Harris was. Ibid. Dorsey noticed a white Chevrolet Impala circling the house, the same car in which he had just seen Appellant and Walker. Ibid. He safely entered the residence but eventually went outside to the front porch with Harrison to smoke a cigarette. (TT 105–6) Dorsey told Harris not to join them on the porch because Appellant and Walker were looking for him. (TT 106) Appellant and Walker approached the house. Appellant fired approximately ten shots, killing Kevin Harrison.

John McDonald corroborated Dorsey's testimony regarding the incident at his house. McDonald said that he encountered Appellant at a gas station the day before Appellant came to his house. McDonald said Appellant was upset because he had been robbed. (TT 192) Appellant told McDonald he did not know who had robbed him. Ibid.

McDonald said that, on the following day, Appellant came to his house and attempted to forcibly remove Harris from McDonald's home when Harris answered the door. (TT 190) The day after, Appellant and Walker came to his house again. (TT 191) By that point, Appellant had become convinced that Harris, Harrison and a third individual nicknamed "Dee" had robbed him. (TT 192–3) Appellant told McDonald that he was looking for the people that he thought had robbed him, and if Appellant found them, either they would get hurt or someone would die. (TT 196) Walker added that what the robbers had done "wasn't cool" and that he "was going to ride with Appellant," his best friend. (TT 199) McDonald, an army sergeant with eight years of military experience, observed that Appellant was carrying a gun which he recognized as a "Glock 45." (TT 196)

Michael Harris testified that he was inside Harrison's house on the couch in the front living room when the shots were fired. (TT 240) He heard the shots hit the house, so he moved to the floor and exited toward the rear of the house. He also reiterated that Appellant had attempted to pull him out of McDonald's residence on the day before the shooting. (TT 239)

John Betarie, a Homestead police officer, testified that he recovered six shell casings at the scene of the shooting in the location where Dorsey said Appellant was standing, and three additional projectiles on the kitchen floor. (TT 86) These shell casings were sent to the crime lab for analysis. Ibid. Dr. Robert Levine, a forensics expert at the crime lab, testified that the 45 caliber casings found at the scene were all fired from the same weapon. (TT 347)

Dr. Abdulrezak Shakir, a forensic pathologist with the Allegheny County Medical Examiner's Office, conducted the autopsy of Kevin Harrison. (TT 357–8) Dr. Shakir stated that Harrison was shot three times. (TT 358) He concluded that Harrison died as a result of a gunshot wound to the head, and ruled the manner of death as homicide. (TT 362)

Trial Court Opinion, 2/8/12, at 3–6.

On May 3, 2010, Appellant, Terrill Hicks, was convicted by a jury of his peers of one count of Murder of the First Degree, two counts of Aggravated Assault, one count of Criminal Attempt–Homicide, one count of Possession of Firearm by a Minor and one count of Criminal Conspiracy [to commit homicide]. On August 2, 2010, this Court sentenced Appellant to life without the possibility of parole on the charge of Murder in the First Degree, a consecutive ten to twenty years for the Criminal Attempt–Homicide count, a consecutive five to ten years for the Aggravated Assault ^{[1 ]}and no further penalty on the remaining charges. Post sentence motions were denied on August 25, 2010 and Appellant did not file a timely Notice of Appeal. On June 29, 2011, Appellant filed a pro se Post–Conviction Relief Act petition seeking to have his appellate rights reinstated nunc pro tunc . On November 7, 2010, this Court reinstated appellate rights to Appellant. Appellant filed a Notice of Appeal on November 17, 2010 and a Statement of Errors Complained of on Appeal on November 30, 2010.

Trial Court Opinion, 2/8/12, at 2–3.

While this matter was pending on appeal, the United States Supreme Court issued an opinion in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The Supreme Court held that mandatory sentences of life imprisonment without the possibility of parole for defendants under the age of eighteen at the time of their crimes violate the Eighth Amendment to the United States Constitution. Miller , 132 S.Ct. at 2464. On November 21, 2013, a panel of this Court vacated Appellant's judgment of sentence and remanded for resentencing. Commonwealth v. Hicks , 1822 WDA 2011, 91 A.3d 1293 (Pa. Super. filed November 21, 2013) (unpublished memorandum).

On October 23, 201[5], after a remand from the Superior Court of Pennsylvania, [the trial court] re-sentenced Appellant, Terrill Javon Hicks, on one count each of Murder of the First Degree, Criminal Attempt–Homicide, Aggravated Assault, Possession of a Firearm by a Minor, and Criminal Conspiracy. [The trial court] sentenced Appellant to 35 years to life imprisonment for the Murder in the First Degree conviction, 10 to 20 years for the Criminal Attempt–Homicide conviction, 2½ to 5 years for the Aggravated Assault conviction, both sentences to be served consecutive to the Homicide sentence, and no further penalty on the remaining counts. This Court denied Appellant's Motion for Post Sentence Relief on October 28, 2015. Appellant filed a Notice of Appeal and a Statement of Errors Complained of on Appeal on November 3, 2015.

Trial Court Opinion on Remand, 2/29/16, at 2 (footnotes omitted).

On appeal, Appellant presents the following issues for this Court's consideration:

1. Did the trial court err in denying Appellant's post sentencing motions since the evidence was insufficient to convict Appellant of aggravated assault-[serious bodily injury ("SBI") ] of Michael Harris since Harris was inside of the house when shots were fired, and therefore could not have been the target or a possible victim of the shooter, who shot at Harrison and Dorsey, who were on the outside porch of the house. Moreover, the evidence was insufficient to convict Appellant of conspiracy (with co-defendant Raymont Walker) to commit homicide (of Harrison), attempted homicide of Dorsey, aggravated assault-SBI of Dorsey and aggravated assault-SBI of Harris since there was no evidence presented at trial of a conspiracy between Appellant and Walker to commit these crimes[?]

2. Did the trial court err in denying Appellant's post sentencing motions since Appellant's convictions of the homicide of Harrison, the attempted homicide of Dorsey, aggravated assault-SBI of Harris, aggravated assault-SBI of Dorsey, VUFA, and conspiracy with Walker were against the weight of the evidence due to the incredible and contradictory testimony of Commonwealth witnesses Harris, Dorsey, and John McDonald[?]

3. Did the trial court err in denying Appellant's post sentencing motions since the trial court erred in denying Appellant's motion in limine (pursuant to Pa.R.E. 403 ) regarding evidence surrounding the charges against Appellant at 8245–2007 (aggravated assault-SBI of Dorsey, aggravated assault-SBI of Harris, and VUFA regarding shots fired at the two victims on 4/23/07), which occurred four months after the instant homicide/shooting at 6205–2007, and which were severed by Judge Nauhaus and to be tried separately (but were eventually nolle prossed after Appellant's homicide, etc. conviction at the instant case); the prejudicial effect of the evidence outweighed its probative value, and deprived Appellant of a fair jury trial[?]

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