Commonwealth v. Moore

1

COMMONWEALTH OF PENNSYLVANIA Appellee v. STEPHEN MOORE Appellant

No. 1638 EDA 2022

No. J-A17034-23

Superior Court of Pennsylvania

November 8, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered May 19, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000140-2020

Benjamin D. Kohler, Esq.

BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

KING J.

Appellant Stephen Moore, appeals from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following his jury trial convictions for first-degree murder and two counts of persons not to possess firearms.^[1] We affirm.

The trial court set forth the relevant facts and procedural history of this case as follows:

On May 16, 2022, [Appellant's] four-day trial commenced at which the following facts were established. Sergeant Michael Ponto, a patrol sergeant with the Pottstown Police Department was conducting speed enforcement on Easter Sunday April 21, 2019. He was situated at Industrial Highway in Pottstown. At 12:25 p.m., he [heard] a pop sound in the distance, and about 10 to 15 seconds later, he heard a vehicle racing toward him. Sergeant Ponto pursued the vehicle, traveling eastbound on Industrial Highway at a high rate of speed, and he activated his lights and sirens. From a distance, the sergeant observed the Jeep crash into a tree. He approached the crash scene, and observed [Appellant] jump out of the Jeep. Within seconds after the crash, [Appellant] ran away and eventually ran out of the sergeant's sight. Sergeant Ponto went back to the crash scene and secured the vehicle. There was a male there, later identified as Eugene Cabot, who had found a Taurus 9mm firearm and two cell phones on the floorboard of the vehicle. Mr. Cabot had observed the Jeep go speeding and go airborne before crashing into the tree. He got out of his own vehicle to check on the crashed Jeep, and found the firearm and cell phones. The sergeant retrieved the items, and noted that the Taurus firearm was loaded with a round in the chamber. A K9 officer also responded to the scene, but he was unable to detect [Appellant's] whereabouts.

Ian Hood, M.D., an expert in the field of forensic pathology performed an autopsy on [the victim, Joshua Smith, Appellant's good friend.] The victim presented as a 25-year-old male, 5'11", and 230 pounds. The doctor determined that the victim died as a result of gunshot wounds to the head and neck. The most obvious injury was a gunshot wound to the neck, and the doctor opined that there would have been a lot of blood loss from this injury. Dr. Hood also testified that there was an unusual gunshot wound to the back of the victim's head. There was soot and gunpowder on the hoodie that the victim had been wearing, indicating that the gun was only a few inches away when it was fired. Dr. Hood opined that this execution shot to the back of someone's head would normally cause a victim to drop and die, but in this case, the victim had an unusually thick skull that the bullet actually bounced off his skull and came back out. Putting this physical evidence together, Dr. Hood believed that the bullet to the victim's head was probably the first wound, and then the victim was shot in the neck, he ran 200 feet, pumping blood out of his severed arteries, until he went down where he was found.

Cynthia Rodriguez lived at 26 North Charlotte Street, Pottstown with the victim and her three kids at the time of the murder. In the morning on April 21, 2019, at about nine or ten, Ms. Rodriguez argued with the victim about his drug use. When the victim got "a little aggressive," Ms.Rodriguez went to her next-door neighbor's, Melissa Amey, house. At some point, Ms. Rodriguez testified that she saw "Pete" pull up outside the apartment. Ms. Rodriguez identified "Pete" as [Appellant], and she stated that [Appellant] and the victim were good friends. The victim left with [Appellant]. The victim was wearing dark jeans and a light blue hoodie at that time. [Appellant] and the victim returned about 20, 30 minutes later. The victim changed clothes into a black hoodie, black sweatpants, and black shoes. He and [Appellant] left again in [Appellant's] Jeep. Shortly thereafter, the victim sent a text to Ms. Amey, stating "I am sorry you had to come to this and I'm pretty sure you will never see me again. Love ya." The neighbor responded, "Okay Josh. I think you need to calm down. Don't do anything dumb." The victim replied, "Sorry." Ms. Rodriguez found out that something happened to the victim when police arrived at her apartment, around one or two o'clock.

Next to testify was Diane Barto, who was driving her car on Industrial Highway on April 21, 2019, in the early afternoon. She passed by Roller Mills on Industrial Highway. Roller Mills had rental trucks such as U-Hauls and she saw a car there. She heard one pop sound, and about four seconds later, she observed a man run out a few car lengths in front of her car, run around, and collapse in the middle of the road. The man was bleeding. Ms. Barto called 9-1-1.

Detective Edward Schikel, a detective with the Montgomery County Detective Bureau-Forensic Services Unit, was called to assist in the investigation to obtain forensic evidence. He responded to the crash scene, and secured the area. Inside the Jeep he located a black and silver revolver in the console area. The revolver was loaded with one live round and the four other rounds that look to have been fired. He also found a green case with an extended handgun magazine containing 31 live rounds inside the driver's side of the car. There was a Home Depot receipt dated 4/21/19, which reflected a purchase of a slotted screwdriver. Later a search warrant was obtained. Additional evidence was uncovered including three masks, one full-face cloth mask underneath the driver's seat, a full-faced knit mask on the passenger floor side, and a mask within the center console of the vehicle.

After processing the crash scene, Detective Schikel went to the location of Roller Mills at 625 Industrial Avenue. He found evidence of a bullet strike on a U-Haul van that was in the parking lot. There was black hair and fiber surrounding the bullet strike. The back of the van was significantly stained with blood, with blood on the left side taillight extending to both doors, traveling left to right. There was blood and a screwdriver on the ground and blood on the roadway. The blood trail extended about 205 feet.

Brittni Andaloro, was accepted as a forensic DNA [analyst]. She received a reference sample for the victim and from [Appellant], and she extracted a DNA profile from each. She analyzed 13 samples. In relevant part, as to the swabs from the Ruger revolver, it contained a DNA mixture that was too complex for her lab because it was at least a four person mixture, and it was forwarded to another lab for additional testing.

A DNA analyst at Cybergenetics, Jennifer Bracamontes, was accepted as an expert in DNA evidence interpretation. The statistical association between the swabs from the revolver and [Appellant's] reference sample was that a match between [Appellant] and the revolver DNA swabs was 373 trillion times more probable than a coincidental match to an unrelated African American person; 98.4 quadrillion times more probable than a coincidental match to an unrelated Caucasian person; and 131 quadrillion times more probable than a coincidence match to an unrelated Hispanic person. The victim's DNA was a match to the revolver that was 53.6 billion times more probable than a coincidence.

Detective Lieutenant William Mitchell, a lieutenant currently in charge of the Major Crimes Unit of the Montgomery County Detective Bureau, was a detective in the Homicide Unit at the time of this murder investigation. He was provided four cell phones to download; one from the victim, two from [Appellant], and one from Ms. Amey. At trial Detective Mitchell testified as to the activity between [Appellant's] two cell phones to the victim's cell phone between the time of 11:17 a.m. and 12:01 p.m.

Specifically, starting at 11:17 a.m. on April 21st, the victim made an outgoing FaceTime call to [Appellant's] 484 number. A few minutes later the victim received an incoming message from [Appellant's] 484 number. At 11:41, there was activity on [Appellant's] second phone, the 856 number, where there was an outgoing call made to the victim, but there was no duration to that call. At 11:41, the victim made an outgoing FaceTime call to [Appellant's] phone. A few second later, the victim made an outgoing FaceTime call again to [Appellant's] 856 phone number. A few seconds after, the victim received an incoming message from [Appellant's] 856 number. A few seconds after, [Appellant made] an outgoing FaceTime call to the victim. Seconds later, [Appellant] made an outgoing regular phone call to the victim that lasted 26 seconds. A minute later, [Appellant] made another outgoing call to the victim from his 856 number, which lasted 10 seconds. Looking at Ms. Amey's phone, there were several incoming messages from the victim at 11:43. [Appellant] received an incoming message on his 484 number at 11:54 and another incoming message to his 856 number at 11:59 a.m., both from unknown numbers. The last communication between the victim and [Appellant] was at 12:01 p.m., where the victim's phone made an outgoing FaceTime call to [Appellant's] 484 number. The lieutenant testified that between the victim's text message to Ms. Amey's phone at 11:43 a.m. and his contact [with Appellant], there was no other activity from the victim's phone. The lieutenant noted that the Jeep crashed around 12:26 p.m.

Detective Eric Nelson of

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