Commonwealth v. Leaner

202 A.3d 749

COMMONWEALTH of Pennsylvania

v.Eric L.L. LEANER, Appellant

No. 471 EDA 2016

Superior Court of Pennsylvania.

Submitted April 23, 2018

Filed January 08, 2019

Henry M. Sias, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, and Anthony V. Pomeranz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS,^* P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant, Eric L.L. Leaner, appeals nunc pro tunc from the April 4, 2014, judgment of sentence entered in the Court of Common Pleas of Philadelphia County following his conviction by a jury on the charges of second-degree murder, robbery, and possession of an instrument of crime.¹ Appellant presents eleven issues, and after a careful review, we affirm.

The relevant facts and procedural history are as follows: Appellant was arrested in connection with the murder of sixty-one-year-old Thomas McNeil, and, represented by counsel, he proceeded to a jury trial. At trial, Wallace Tabron testified he assisted Mr. McNeil in moving furniture for Mr. McNeil's aunt on September 14, 2009, and that evening, they stayed at the aunt's new house. N.T., 11/19/13, at 75-76. The following morning, at approximately 6:15 a.m., as they traveled to the local U-Haul to return the truck, Mr. McNeil waved at two young men who were standing at the intersection of 32^nd and York Streets. Id. at 77.

Mr. McNeil, who was driving the rental truck, pulled into a parking lot and exited the vehicle to speak to the two young men. Id. at 78. Mr. Tabron remained inside of the vehicle and, after a while, he looked into the vehicle's side mirror and observed Mr. McNeil lying on the ground with a man wearing a rust-colored hoodie or jacket "going through his pockets." Id. at 78-80. Mr. McNeil was on his back and not responding in any manner. Id. at 79. Mr. Tabron exited the truck and picked up a crowbar, which he discovered near the truck. Id. Mr. Tabron waved the crowbar at the young men, including the one going through Mr. McNeil's pockets, so that they would leave the area. Id.

One of the young men backed way, but the young man in the rust-colored hoodie/jacket started to approach Mr. Tabron. Id. However, both young men fled when a marked police vehicle "came down the street." Id. The police vehicle "started chasing" the young men while Mr. Tabron remained with Mr. McNeil. Id.

Mr. Tabron testified that Mr. McNeil was semi-conscious and, after ambulance personnel removed him from the ground, Mr. Tabron saw Mr. McNeil's wallet on the ground. Id. at 84. Mr. McNeil's identification and credit cards were still in the wallet; there was no cash in the wallet. Id. Mr. Tabron indicated he cooperated with the police investigation and gave a statement to the police on September 15, 2009, at 7:20 a.m. Id. at 86. Mr. Tabron confirmed that he described the man going through Mr. McNeil's pockets as "[a] [b]lack male, 30s, 5-6, around 180 pounds, beard, dark complexion, low-cut hair, wearing a two-tone rust-colored jacket." Id.

Mr. Tabron testified Mr. McNeil died on January 17, 2010, and on January 18, 2010, at 6:30 p.m., he gave a second statement to the police. Id. at 87. In the second police statement, Mr. Tabron described the man who went through Mr. McNeil's pockets as wearing "an orange hoodie[.]" Id. at 89. Also, in the statement to the police, he indicated Mr. McNeil's wallet was "underneath him and it was empty. And his credit cards were all on the ground underneath him." Id.

Mr. Tabron confirmed that, on January 19, 2010, at 1:20 a.m., the police showed him a photo array and he chose Appellant's photo as "the guy who didn't run and came at me" when he picked up the crowbar. Id. at 93. Mr. Tabron indicated that, at trial, he was unable to identify whether Appellant was involved with the crime because he was losing his eyesight. Id. at 94.

Nishea Wilkerson testified she was a dancer "for tips" at a squatter house on Patton Street, and she knew Appellant by the nickname "Black." Id. at 139-40. She indicated her brother and Appellant "hung out" together. Id. at 142. Ms. Wilkerson gave the police a statement in which she indicated Appellant ran "stripper parties out of the house." Id. at 148.

At trial, Ms. Wilkerson confirmed she was "stripping" in the house on Patton Street during the night of September 14, 2009, into the morning of September 15, 2009, and Appellant was present in the house wearing an orange hoodie. Id. at 149-52. At trial, Ms. Wilkerson indicated "a couple guys" were at the party wearing orange hoodies; however, she admitted that in her statement to the police, as well as at Appellant's preliminary hearing, she testified Appellant was the only person wearing an orange hoodie at the party. Id. at 153-55.

Ms. Wilkerson testified that, when the party ended, she stayed in the house on Patton Street to sleep and, at around 6:15 a.m., she awoke to police officers pounding on the front door. Id. at 156. Ms. Wilkerson confirmed the police took her to the police station for questioning on September 15, 2009, and in her statement she told the police that an orange hoodie, which the police seized from the living room, belonged to her brother. Id. at 162. She testified at trial that she told the police the hoodie belonged to her brother, as opposed to Appellant, because her brother was a minor and she "thought he wouldn't get in trouble about anything." Id. at 163. She further confirmed that in her second statement to the police, which she made on January 19, 2010, she identified Appellant from a photo array and informed the police that he was wearing the orange hoodie on September 14-15, 2009. Id. at 170. In the second statement, she admitted to the police that she had lied in her first statement as to the owner of the orange hoodie. Id. at 171.

Police Officer Carlos Rodriguez testified he was responding to a radio call for an unrelated burglary in a marked cruiser on September 15, 2009, when, at 6:18 a.m., he observed three men standing on the corner in a vacant lot. N.T., 11/21/13, at 44-45. On direct examination, he testified as follows:

Q. When you observed the three individuals, what did you see, if anything, happen?

A. I see three individuals standing in a triangle type of way. I see the [victim], McNeil. He's like in the tip. If you can picture a triangle, he's at the top end. Then I see two black males on the two bottom end having a conversation. At first it was a glance that I seen. To me, the reason I noticed them because they fit the flash of a burglary that I was responding to at first.

Q. And specifically, what do you see then among the triangle as it progresses?

A. When I looked again to see the three individuals, I noticed an individual that was wearing an orange hoodie, dark-colored jeans strike the older gentleman, McNeil, in the head. And McNeil went down to the ground.

Q. When you say you saw a guy in the orange hoodie strike the older gentleman in the head what, if anything, did you see him strike him in the head with?

A. A crowbar.

Q. Now as you sit here in the court today, do you see the man who had the orange hoodie who held that crowbar?

A. Yes, the gentleman sitting right over there.

[ADA]: Indicating [Appellant].

Q. Now, at the time that you observed Mr. McNeil get hit in the head from where you are, did Mr. McNeil stay standing, or what did he do?

A. He drops to the ground.

Q. What's the next thing that happens that you see after Mr. McNeil drops to the ground?

A. I radioed in for more units. When I approached[,] when I started to approach the individuals and looked at them, actually. I seen a gentleman coming out of the truck who already had a crowbar and was swishing away the two individuals, trying to keep them at bay while Mr. McNeil was laying on the ground.

At that point, I radioed in for more units and I was trying to decide how I was going to approach them by car, whether the side or to the middle, because it's two of them down there and only one of me. I decided to approach them head-on and jump on to the pavement.

But by the time I reached them, [Appellant] and his colleague [saw] me—

Id. at 45-47.

Officer Rodriguez testified he made eye contact with Appellant, who was wearing an orange hoodie, and then Appellant and his apparent "friend" took off running. Id. at 48. Officer Rodriguez indicated Appellant ran towards and then past his cruiser, coming within three feet of him. Id. at 48-49.

Officer Rodriguez put the police cruiser in reverse and began following Appellant; he testified he chose to follow Appellant, as opposed to the other man, since Appellant "is the one that struck the [victim] McNeil in the head with a crowbar." Id. at 49-50. Officer Rodriguez, while radioing for assistance and keeping Appellant in sight, followed Appellant to a house on Patton Street and observed Appellant run into the house. Id. at 53. The officer stopped his vehicle in the middle of the street and tried to enter the house behind Appellant; however, the door had been locked. Id. at 54. The officer started knocking on the door and a back-up officer arrived. Id.

After several minutes of knocking, Ms. Wilkerson looked out of a window located over the door and asked what the officer needed. Id. at 54-55. He instructed her to open the door, and she complied. Id. at 55. However, by the time the police gained entry into the house, Appellant was no longer in the house, although his discarded orange hoodie was lying on the floor in the dining room. Id. at 55-56. Officer Rodriguez specifically testified at trial that he recognized the orange hoodie as being the same hoodie that he saw Appellant wearing when he struck Mr. McNeil with the crowbar. Id. at 56. The officer confirmed there was a back door to the subject house on Patton Street. Id.

Officer Rodriguez clarified he saw Appellant strike Mr. McNeil one time with the crowbar and Mr. McNeil immediately dropped to the ground. Id. at 60. He also clarified that the crowbar, which he saw...