Commonwealth v. Mitchell

135 A.3d 1097

2016 PA Super 53

COMMONWEALTH of Pennsylvania, Appellee

v.William MITCHELL, Appellant.

No. 913 WDA 2013

Superior Court of Pennsylvania.

Argued October 20, 2015.

Filed Feb. 29, 2016.

Alan R. Patterson, III, Pittsburgh, for appellant.

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

BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ.

OPINION BY BOWES, J.:

William Mitchell appeals from the aggregate judgment of sentence of one hundred and nineteen years to two hundred and thirty-eight years imprisonment imposed by the trial court after a jury found him guilty of second-degree murder, robbery, and conspiracy to commit robbery. After careful review, we vacate Appellant's judgment of sentence and remand for resentencing, but affirm in all other respects.

Appellant, a juvenile at the time of the commission of the underlying crimes, and Lance Dempster were involved in the shooting and robbery of Boston Smithwick, a Vocelli's Pizza delivery driver. On April 19, 2007, Vocelli's Pizza in Swissvale received a delivery order for pizza and soda from an individual named Lance. That person provided a cell phone number and asked that the order be delivered to 565 Campbell Street, Wilkinsburg. Smithwick drove to the address. Appellant, armed with a sawed-off shotgun, and Dempster attempted to rob Smithwick. Smithwick tried to grab the weapon, and was shot in the leg. The shotgun blast severed the femoral artery in his leg, causing Smithwick to bleed to death. Police later recovered a hacksaw blade with Appellant's fingerprints on it and learned from another individual that Appellant and Dempster had sawed the barrel off a shotgun on the day of the shooting.

A witness, Doreen Parker, informed police that she saw Appellant, Warren Irvin, and Dempster on the porch of 565 Campbell Street, which had been converted into an apartment building, shortly before the shooting. Ms. Parker lived in one of the apartments herself. Appellant was the son of her next door neighbor. According to Ms. Parker, Irvin was dealing drugs from the porch and the group refused to leave the porch. Ms. Parker also testified at trial that another neighbor, who lived across the street from 565 Campbell Street, and who was deceased at the time of trial, called her and told her that the pizza delivery man had been shot.

The Commonwealth charged Appellant with criminal homicide, robbery, conspiracy to commit murder and robbery, and possession of a prohibited offensive weapon. Appellant unsuccessfully litigated a pre-trial suppression motion, contending that he did not voluntarily or knowingly and intelligently waive his Miranda rights when he provided police with a statement. The matter proceeded to a jury trial. The jury found Appellant guilty of second-degree murder, robbery, and conspiracy to commit robbery on April 30, 2012. The court sentenced Appellant on November 27, 2012, after the United States Supreme Court decision in Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which declared mandatory sentences of life imprisonment without parole for juvenile homicide offenders violated the Eighth Amendment. The court imposed a sentence of ninety-nine to one hundred and ninety-eight years incarceration for the felony murder crime. It also sentenced Appellant to consecutive sentences of ten to twenty years each for robbery and conspiracy to commit robbery.

Appellant timely filed a post-sentence motion. After a hearing, the court denied that motion. Appellant timely appealed. The trial court directed Appellant to file and serve a Pa.R.A.P.1925(b) concise statement of errors complained of on appeal. Appellant complied, and the trial court authored its Rule 1925(a) opinion. The matter is now ready for this Court's consideration. Appellant raises seven issues for our review.

I. Whether the Trial Court erred or, abused its discretion or had the legal authority to sentence Appellant, upon conviction of Second Degree Murder, to a period of incarceration of ninety-nine (99) to one hundred and ninety eight (198) years, effectively a life sentence, in violation of the mandates of the Supreme Court of the United States pursuant to Miller v. Alabama [––– U.S. ––––], 132 S.Ct. 2455 [183 L.Ed.2d 407] (2012) and with no sentencing provision in effect pursuant to the Pennsylvania Crimes Code on November 27, 2012 to address Appellant's unique situation?

II. Whether the Trial Court erred or abused its discretion in sentencing Appellant to consecutive periods of ten (10) to twenty (20) years at the counts for Robbery and Conspiracy to Commit Robbery, and specifically in failing to provide a proper and sufficient statement of reasons for these sentences as required by 42 Pa.C.S. § 9721(b) and/or 204 Pa.Code § 303.1(d) ?

III. Whether the Commonwealth presented sufficient evidence to prove beyond a reasonable doubt that the Appellant committed the crimes of Murder in the Second Degree and Criminal Conspiracy to Commit Robbery?

IV. Whether the Trial Court erred by admitting, over objection, a statement allegedly made by Diane Davidson, deceased, through the testimony of Doreen Parker, when said statement was inadmissible hearsay and not subject to the excited utterance exception to hearsay?

V. Whether the Trial Court erred by admitting, over objection, a statement alleged to have been made by Diane Davidson, deceased, through the testimony of Detective Defelice, when said statement was inadmissible hearsay within hearsay and not subject to the excited utterance or the inconsistent statement exceptions to hearsay.

VI. Whether the Trial Court erred in denying a pre-trial Motion to Suppress Statement, regarding statements that were made by the Appellant during a May 1, 2007 police interrogation, and allowing them to be played in court over objection, because the Appellant's waiver of Miranda and subsequent statements were not voluntary, knowing, and intelligent?

VII. The trial court erred when denying Appellant's post-sentence motion regarding the allowance of putting before the jury the crime of Conspiracy to Commit Robbery, effectively requiring Appellant to defend on an uncharged offense after the jury was empaneled?

Appellant's brief at 9–10.

Appellant's initial two claims pertain to sentencing. It would, however, be unnecessary to reach these issues if Appellant is entitled to relief on any of his remaining claims. Accordingly, we will address issues three through seven before considering his sentencing claims. Further, it is settled that a sufficiency of the evidence claim entitles a person to discharge as to the crime in question. Hence, we address Appellant's sufficiency claim at the outset regardless of the order of his claims. Commonwealth v. Stokes, 38 A.3d 846 (Pa.Super.2011). Appellant argues that the Commonwealth failed to introduce sufficient evidence to prove beyond a reasonable doubt that he committed second-degree murder. He maintains that the Commonwealth did not establish that he killed Smithwick while facilitating, attempting, or committing a robbery or that he was an accomplice to the robbery that resulted in Smithwick's death. Appellant contends that it is speculation and conjecture that he possessed the shotgun during the robbery since none of the Commonwealth's witnesses testified to seeing him shoot Smithwick.

In addition, Appellant asserts that the evidence was insufficient to establish that he committed robbery or conspired to commit a robbery, thereby rendering both his second-degree murder and conspiracy to commit robbery convictions infirm.¹ He submits that the Commonwealth did not prove an agreement between Appellant and Dempster to rob Smithwick. Appellant posits that there was no evidence that he was aware that Dempster and his girlfriend called Vocelli's Pizza. He argues that the Commonwealth's evidence only established his presence when Dempster “acted independently and spontaneously in robbing and shooting Smithwick[.]” Appellant's brief at 32.

In reviewing a sufficiency claim, we consider the entirety of the evidence introduced, including improperly admitted evidence. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super.2013) (en banc ). We consider that evidence in a light most favorable to the Commonwealth, drawing all reasonable inferences in favor of the Commonwealth. Id. The evidence “need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented.” Id. Only where “the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances[,]” is a defendant entitled to relief. Id. We do not “re-weigh the evidence and substitute our judgment for that of the fact-finder.” Id. As the question of the sufficiency of the evidence is one of law, we consider the evidence de novo. Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24, 37 (2011).

Second-degree murder, commonly known as felony murder in Pennsylvania, requires a homicide committed while the “defendant was engaged as a principal or an accomplice in the perpetration of a felony.” 18 Pa.C.S. § 2502(b). The Crimes Code further defines the perpetration of a felony, relevant herein, as, “[t]he act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery[.]” 18 Pa.C.S. § 2502(d).² The General Assembly has further provided that,

A person is an accomplice of another person in the commission of an offense if:

(1) with the intent of promoting or facilitating the commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in planning or committing it; or

(2) his conduct is expressly declared by law to establish his complicity.

(d) Culpability of accomplice.—

When causing a particular result is an element of an offense, an accomplice in the conduct

...