Commonwealth v. Miller

231 A.3d 981

COMMONWEALTH of Pennsylvania, Appellant

v.Steven MILLER

Commonwealth of Pennsylvania

v.Steven Miller, Appellant

No. 3558 EDA 2018

No. 74 EDA 2019

Superior Court of Pennsylvania.

Argued March 4, 2020

Filed April 17, 2020

Reargument Denied June 18, 2020

Matthew H. Davis, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Cheryl J. Sturm, Chadds Ford, for appellee.

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

The Commonwealth of Pennsylvania appeals the order of the Court of Common Pleas of Philadelphia County which granted Appellee Steven Miller's petition pursuant to the Post-Conviction Relief Act (PCRA)¹ and awarded Appellee a new trial. Appellee filed a cross-appeal, arguing that the PCRA court erred in denying four of the remaining claims in his petition. We vacate the PCRA court's order and remand for further proceedings.

The trial court summarized the evidence presented at trial as follows:

On the afternoon of June 10, 2013, [Appellee] arrived at the home of Randy Coleman at roughly 1:30 p.m. for a cookout. During the festivities, [Appellee] saw Aleeya McFadden, a friend of roughly two years. Ms. McFadden arrived at the cookout with Shana Sherman. [Appellee] and Ms. Sherman had not met each other prior to that night. Around 10:00 p.m., the three individuals left the cookout and agreed to meet at PYT, a restaurant and bar located in the Piazza in the Northern Liberties section of the city; [Appellee] drove himself to the bar, and the two ladies drove to PYT in their own vehicle. En route to PYT, [Appellee] saw a friend from school, Twan (full name not given), walking; after [Appellee] told Twan of his intent to go to PYT, Twan joined [Appellee] and drove his vehicle because [Appellee] was feeling the effects of the alcoholic beverages he had consumed at the Coleman residence. At PYT, the four sat together at a table and ordered some food and a round of drinks.

PYT provides mostly outdoor seating, and [Appellee's] party was seated at one of these outdoor tables in close proximity to another party of four. This other party included four individuals – Maurice Ronnie Kimble [ ("the victim") ], Wiair Hand, Jamal Chapman and Davi Son, Mr. Chapman's girlfriend. While seated at their table, Ms. Sherman and Ms. McFadden drew the attention of several people at PYT based on their attire and because they were dancing and taking photographs and posting the photos to Instagram, a social media site. One of the photos showed Ms. Sherman sitting on [Appellee's] lap.

Shortly after arriving, Ms. Sherman proceeded to use the bathroom. The bathroom at PYT is unisex, accommodating both men and women in one bathroom but offering privacy through individual stalls. [The victim] followed Ms. Sherman into the bathroom and waited until she exited her stall. At this point, [the victim] tried to talk to Ms. Sherman. After she spurned his advances, [the victim] tried to impress her with his two-thousand dollar shoes, his Gucci watch, and his wealth in general. Ms. Sherman tried to walk away, and twice, [the victim] grabbed Ms. Sherman's arm in an effort to get her phone number.

When Ms. Sherman arrived back at the table, she was visibly upset. When asked what happened in the bathroom, Ms. Sherman recounted the incident to the rest of her party. [The victim] was already seated at his table with the rest of his party. The incident was followed by an exchange of words between [the victim] and [Appellee] while each was seated at a separate table. Upon [the victim's] arrival back at his table, [the victim's] friends had already decided to pay their tab and leave for another establishment.

As [the victim's] party began to leave PYT, [the victim] kept directing comments to [Appellee] and his table. [The victim], behind the three other members of his party, eventually called [Appellee] over to talk with them. According to [Appellee], [the victim] wanted to fight [Appellee] and [Appellee] responded by lifting up his shirt and exposing a weapon and remarked to [the victim] that he could not fight [the victim] because he had a weapon on him; at this point, Mr. Hand began to run away from [the victim] and [Appellee].

According to [Appellee], he then turned and began to walk back to his table. According to [Appellee], [the victim] asked [Appellee] why he was leaving. [Appellee] testified that he heard [the victim] say he was not scared of guns; [Appellee] turned and saw [the victim] with his shirt raised, exposing a gun; he testified that he saw [the victim] reaching for the gun. In response, [Appellee] pulled out his gun and fired four shots, two of which hit [the victim] and eventually killed him. At that point, [Appellee] fled the scene and discarded the gun in a sewer grate.

Several workers and patrons immediately grabbed towels and tried to tend to [the victim's] wounds. No gun was found on or within the immediate vicinity of the [victim]. One member of [the victim's] party – Mr. Wiair Hand – did discard a firearm in a dog park some distance away. It was recovered by police.

Several witnesses testified regarding what they had seen. Ellen Clenney was the waitress attending to [Appellee's] party. Ms. Clenney was serving [Appellee's] party for roughly a half hour before the shooting occurred. Ms. Clenney stated that she saw the shooting and that the [victim] did not have a gun. Ms. Clenney testified that she saw [Appellee] follow [the victim], say something to [the victim], and, after words were passed between both men, shoot him. Ms. Clenney testified that the shooting occurred between a breezeway and that she was roughly four (4) feet away at the time. Prior to giving her statement to homicide detectives, detectives showed Ms. Cheney [sic] the photos which had been published on Instagram. They showed [Appellee] and Ms. Sherman together. She recognized [Appellee] as the shooter.

Each member of [the victim's] party testified. Davi Son stated that when one of the ladies, later identified as Ms. Sherman, left to go to the bathroom, [the victim] followed her. When Ms. Sherman returned to [Appellee's] table and [the victim] returned to his, Ms. Son described the attitude of [Appellee's] table as agitated with gesturing toward [the victim's] table. Jamil Chapman, Ms. Son[’s] boyfriend at the time, asked [the victim] what he had said to Ms. Sherman. [The victim] chuckled, but did not describe what happened. Mr. Chapman and Wiair Hand also confirmed these events when they testified.

Ms. Son told Mr. Chapman to pay the bill, because she wanted to leave. Ms. Son started to walk to her vehicle, but before she reached her car, she turned around to walk back to PYT to see why the rest of the party was delayed. As Ms. Son was walking back, she heard four or five gunshots and saw [the victim] fall to the ground. Prior to the gunshots, Ms. Son saw [the victim] with his arms raised above his head in a Y-shape.

Mr. Hand testified that prior to going to PYT, he, Ms. Son and Mr. Chapman were at Mr. Chapman's apartment located in an adjoining apartment complex to PYT. When these three knew that [the victim] had arrived, they proceeded to meet him at PYT. As they were walking downstairs, Mr. Chapman gave Mr. Hand a gun to hold for "protection."

After the party had ordered their food and drinks, Mr. Hand stated that [the victim] followed Ms. Sherman to the bathroom. After [the victim] returned, Mr. Hand estimated that the [victim's] party remained at the table for roughly five or ten minutes before leaving PYT. When [the victim] returned from the bathroom, Mr. Hand stated that members of [Appellee's] party kept staring at them. When the [victim's] party left, Mr. Hand stated that Ms. Son left through the breezeway first, followed by Mr. Chapman, Mr. Hand and [the victim], who was walking slowly and arguing with [Appellee]. Mr. Hand stated that [the victim] asked [Appellee] to step outside. Mr. Hand saw [Appellee] lift up his shirt and expose a weapon. Mr. Hand's visceral reaction was to run into the lobby of the apartment complex. After Mr. Hand heard several shots, he came from the lobby and saw [the victim] lying on the ground. Mr. Hand then realized that he was still in possession of the weapon that Mr. Chapman had previously given him; he ran across the street to hide the gun under some weeds. Mr. Hand disclosed that, prior to testifying, he had pled guilty to a violation of the Uniform Firearms Act and was expecting a sentence of two years of reporting probation.

During cross-examination, [Appellee] questioned Mr. Hand's actions immediately prior to the fight. Although Mr. Hand testified the he had been given the gun for protection, [Appellee] questioned why the group needed protection. Mr. Hand testified that the group was going out later, but denied that the future events had anything to do with potential drug deals. [Appellee] questioned why Mr. Hand, as the protector of the group, ran when he saw the gun exposed. Mr. Hand denied being the "protector." Mr. Hand, standing roughly ten yards away, stated unequivocally that [the victim] did not have a gun and never lifted up his shirt.

Ms. Sherman also testified and recounted the bathroom incident. Ms. Sherman stated that after the bathroom incident but before the [victim's] party left, words were being exchanged between [the victim] and [Appellee]. When the [victim's] party left, Ms. Sherman saw [Appellee] follow [the victim]; the second round of arguments then began. Ms. Sherman was standing near the table and looking directly at [the victim] and could only see [Appellee's] back. Ms. Sherman saw [Appellee] lift his shirt and shoot [the victim] twice while standing and twice more when [the victim] had fallen to the ground. Sherman never saw [the victim] lift his shirt or expose a weapon, either during the altercation or in the bathroom.

Mr. Chapman testified that once [Appellee] raised his shirt to expose his weapon, Mr. Hand began to run. Mr. Chapman stated that

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