Commonwealth v. Jones

271 A.3d 452

COMMONWEALTH of Pennsylvania

v.Carl JONES, Appellant

No. 938 WDA 2020

Superior Court of Pennsylvania.

Argued November 10, 2021

FILED: December 16, 2021

Reargument Denied February 23, 2022

Stephanie M. Noel, Pittsburgh, for appellant.

Margaret B. Ivory, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.^*

OPINION BY COLINS, J.

Appellant, Carl Jones, appeals from the judgment of sentence imposed after his conviction of third-degree murder¹ at a bench trial. After careful review, we affirm.

This case arises out of Appellant's fatal shooting of another patron (Victim) at the 1313 Bar in Duquesne, Pennsylvania on the night of August 12 and 13, 2018. Appellant was charged with criminal homicide, possession of a firearm by a person prohibited, and carrying a firearm without a license. The possession of a firearm by a person prohibited charge was severed and charged under a different docket number. Appellant waived his right to a jury trial and all of the charges in both dockets were tried at a bench trial on October 28, 2019.

It was undisputed at trial that Appellant shot and killed Victim and the critical issues were Appellant's state of mind and whether he acted in self-defense or in an unreasonable belief that his life was in danger. The Commonwealth called as witnesses four detectives and a forensic investigator who investigated the scene of the shooting and the bartender and Victim's brother, both of whom were present when the shooting occurred. The Commonwealth also played video from the bar's surveillance system that showed the shooting and the events before and after the shooting. N.T. Trial at 58-61, 67-68. Appellant's counsel stipulated that the surveillance video was authentic and depicted the events that happened at the 1313 Bar on the night of the shooting, did not object to the playing of the video, and cross-examined the detective who had retrieved the video concerning what the video showed. Id. at 52-69, 154. The Commonwealth did not move for admission of the video, but the trial court, the Commonwealth, and Appellant all treated the video as admitted evidence after the Commonwealth rested. Id. at 111, 154-59, 164, 169, 173-75, 177.

Appellant testified in his own defense and called as a witness the woman who was with him at the bar, a person that Appellant called his aunt. Appellant's counsel played portions of the video in his examination of that witness and in his closing argument and argued in his closing argument that the video showed that Appellant acted in self-defense. N.T. Trial at 119-22, 155-57, 164.

The trial court found Appellant not guilty of first-degree murder, but found him guilty of third-degree murder and both firearms offenses. N.T. Trial at 176-79. In rejecting Appellant's claim of self-defense, the trial court considered and relied on the video that was played at trial. Id. at 177-79; Trial Court Opinion at 2-3, 7-10. On January 23, 2020, the trial court sentenced Appellant to 20 to 40 years' imprisonment on the third-degree murder conviction and imposed no further penalty for the carrying a firearm without a license conviction. N.T. Sentencing at 36-37; Sentencing Order. In the separate docket, the trial court imposed a consecutive sentence of 3½ to 7 years for possession of a firearm by a person prohibited. N.T. Sentencing at 36.

Appellant filed a timely post-sentence motion seeking to vacate his third-degree murder conviction on the grounds that the evidence was insufficient to disprove self-defense and seeking a new sentencing hearing. In that post-sentence motion, Appellant again asserted that the video was evidence before the trial court that could be considered in ruling on the sufficiency of the evidence and noted, without objection, that the trial court relied on the video in reaching its verdict. Post-Sentence Motion at 3, 5-8. On August 24, 2020, the trial court denied Appellant's post-sentence motion.

Appellant timely appealed the judgment of sentence in the third-degree murder case. In this appeal, Appellant argues that the evidence was insufficient to support his third-degree murder conviction and that this Court cannot consider the video recording of the shooting in determining whether the evidence was sufficient because the video was not admitted in evidence.

We first address whether the surveillance video played at trial constitutes evidence that this Court may consider in ruling on Appellant's sufficiency of the evidence claim.² Appellant argues the video is not part of the evidentiary record in this appeal because no formal motion was made at trial to admit the video and the trial court did not formally admit it into evidence. We do not agree.

Appellant is correct that exhibits that are merely marked for identification and submitted by the offering party do not constitute evidence on which a finder of fact can rely. See Department of Transportation, Bureau of Driver Licensing v. Doyle , 151 Pa.Cmwlth. 171, 616 A.2d 201, 202 n.4 (1992) ; Denver Nursing Home v. Department of Public Welfare , 123 Pa.Cmwlth. 131, 552 A.2d 1160, 1161-63 (1989). Those cases, however, do not hold that a recording that was played to the finder of fact after the trial court determined that the requirements for admission were met is not in evidence simply because no formal motion was made and granted.

Here, the video was not merely marked for identification, it was played to the trial court, the finder of fact, for its consideration as evidence after the trial court confirmed that Appellant's counsel stipulated to the video's authenticity and relevance. N.T. Trial at 52-53, 58-61. Before the trial court permitted the Commonwealth to play the video, the following colloquy occurred:

MR. ZURISKO [Commonwealth's Attorney]: Your Honor, at this time there is a stipulation to the authenticity of the contents of this disc, that it contains the events that happened at the 1313 Bar on August 12th and the 13th of 2018.

THE COURT: Do you so stipulate, Mr. Attisano?

MR. ATTISANO [Appellant's Counsel]: Yes, Your Honor.

THE COURT: We'll accept that stipulation. Are you going to play that?

MR. ZURISKO: Yes, Your Honor.

Id. at 52. Under these circumstances, where the trial court, in fact, made a determination that the video was admissible before it was played, the video was in evidence and became part of the record once it was played without objection, even though no formal motion to admit it in evidence was made. Although it appears that there is no Pennsylvania precedent addressing this situation,³ courts in other jurisdictions have recognized that when a recording is played to the fact finder for its consideration, the recording is admitted in evidence and becomes part of the record even if no formal motion is made for its admission. Cull v. Commonwealth , 2000 WL 311169 at *3 (Va. App. Mar. 28, 2000) (holding that "[i]rrespective of any characterization made by the trial judge, the contents of the tape were admitted into evidence when the jury viewed it"); Kennebrew v. State , 267 Ga. 400, 480 S.E.2d 1, 4 (1996) (defendant admitted evidence where he played tape recording even though he did not move the recording into evidence).

Moreover, Appellant is barred by waiver from contending that the video cannot be considered. Where a party does not object to the trial court's consideration of items not formally admitted into evidence despite notice that the trial court viewed the items as evidence on which it could make findings, the objection to consideration of the unadmitted items is waived. Green v. Green , 69 A.3d 282, 286-88 (Pa. Super. 2013). In this case, Appellant not only failed to object that the video was not admitted and failed to object to the trial court's consideration of it before the trial court's verdict, he stipulated to the video's admissibility and used it in his case and in argument after the Commonwealth had rested. N.T. Trial at 52, 119-22, 155-57, 164. At no time during trial, or even in his post sentence motion, did Appellant ever contend that the video was not part of the evidence before the trial court.

Appellant did raise the issue that the video was not admitted in evidence in his Pa.R.A.P. 1925(b) statement after this appeal was filed. Appellant's Concise Statement of Errors ¶¶2, 17(I), (II). That, however, does not change the fact that the issue was waived.⁴ Raising an issue for the first time in a Rule 1925(b) statement is insufficient to prevent waiver of an issue that the appellant failed to raise while the case was pending in the trial court. Steiner v. Markel , 600 Pa. 515, 968 A.2d 1253, 1257 (2009) ; Commonwealth v. Smith , 213 A.3d 307, 309 (Pa. Super. 2019) ; Commonwealth v. Rodriguez , 174 A.3d 1130, 1145-46 & nn.6 & 8 (Pa. Super. 2017).

Because this Court may properly consider the video, we include it the evidence that we review in evaluating Appellant's sufficiency of the evidence challenge. Our standard of review on this issue is well-settled:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. ... Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Brockman , 167 A.3d 29, 38 (Pa....