Commonwealth v. Le

208 A.3d 960

COMMONWEALTH of Pennsylvania, Appellee

v.Tam M. LE, Appellant

Commonwealth of Pennsylvania, Appellee

v.Tam M. Le, Appellant

Commonwealth of Pennsylvania, Appellee

v.Tam M. Le, Appellant

No. 756 CAP

No. 757 CAP

No. 758 CAP

Supreme Court of Pennsylvania.

Argued: September 25, 2018

Decided: May 31, 2019

OPINION

JUSTICE TODD

In this direct capital appeal,¹ Appellant Tam M. Le challenges the sentence of death imposed by the Philadelphia County Court of Common Pleas following his conviction by a jury of two counts of first-degree murder,² one count of attempted murder,³ three counts of kidnapping,⁴ three counts of robbery,⁵ and one count of conspiracy.⁶ For the reasons that follow, we affirm Appellant's judgment of sentence.⁷

I. Factual and Procedural History

On August 26, 2014, Tan Voong, a/k/a Sonny Voong, received multiple telephone calls from a friend, Vu Huynh, a/k/a Kevin Huynh (hereinafter "Kevin"), asking to borrow $ 100,000. Kevin and his younger brother, Viet Huynh (hereinafter "Viet"), allegedly owed the money to Appellant and several of Appellant's friends from New York. Over the next four to five hours, Voong was able to gather approximately $ 40,000, and was instructed by Kevin to bring the money to Appellant's house on South 72nd Street in Philadelphia. Voong had met Appellant previously, and had been to his house on one prior occasion. When Voong arrived at the residence, Appellant met him outside. Voong asked where Kevin was, and Appellant led him to the garage. When Voong entered the garage, he observed Kevin and Viet seated in chairs, bound, blindfolded, bleeding, and wearing only their boxer shorts and T-shirts. He also saw four individuals with masks on their faces. Voong attempted to run, but was hit in the face with a gun. He then was stripped to his underwear and T-shirt; his hands were zip-tied behind his back; his mouth, eyes, and legs were duct-taped; and he was placed in a chair. Someone asked Voong where the money was, and Voong responded that it was in his car. Several of the masked individuals began to beat Voong, who asked for time to collect the rest of the money. Appellant responded, "It's too late," N.T. Trial, 11/14/16, at 96, and Voong, Kevin, and Viet were placed in a van and driven to a location along the Schuylkill River.

As Voong was removed from the van, he felt sand under his feet. He knelt down and felt himself being stabbed in the back, chest, and neck. Chains were strapped around his legs, and he was kicked into the water. Fortunately, the water was shallow and Voong was able to breathe. He played dead, during which time he heard Kevin and Viet scream. He then heard something heavy enter the water, after which he heard Appellant state, "It's done." Id. at 109. Upon hearing the van drive away, Voong rubbed his face against a wall in order to remove the duct tape that was on his eyes. He eventually dragged himself out of the water, which he was able to do because the chain had come free from his legs. At approximately 4:00 a.m. on August 27th, two police officers discovered Voong, wearing only boxer shorts and a bloody T-shirt, sitting on the side of the highway. He was wet, shivering, and bleeding from multiple stab wounds. His hands were zip-tied behind his back, and he had duct tape around his ankles and hanging from his neck. Initially, Voong told police that his name was Fathanh Voong, which, in fact, was the name of his brother, and he stated that he had been standing on a street corner when a van pulled up and he was pulled inside. He reported that his abductors stripped him, tied him up, and robbed him, and then drove him to the river, stabbed him multiple times, and threw him in the river. He also told police that two other individuals had also been thrown into the river, but he did not know them. He directed the police to the location where he believed the other individuals to be. Voong was then taken to the hospital, where it was discovered that he had eight stab wounds, two of which were life threatening.

In the area of the river that Voong identified, police found the bodies of Kevin and Viet, clothed only in boxer shorts and T-shirts. Kevin's body was found submerged under five feet of water. He had duct tape on his head, face, neck, mouth, and legs. Under the duct tape on his eyes was fiberglass mesh construction tape. He had construction zip-ties on his wrists, and nearby was a nearly-full bucket of roof cement with a chain attached. Kevin had been stabbed 24 times in the torso, legs, and head. He also had nine cuts to his body, including four precise incisions to his face. The medical examiner was unable to determine whether Kevin died prior to being thrown in the water, or after. Viet's body was found submerged under ten feet of water. He had duct tape over his head, face, and arms. His legs were attached to a bucket of roof cement by a chain, wire ties, and duct tape. He had been stabbed in the chest, back, face, and arms. As with Kevin, the medical examiner was unable to determine whether Viet died before being put into the water.

The police conducted a videotaped interview of Voong in his hospital room at approximately 10:45 a.m. on August 27, 2014. Voong acknowledged that he previously gave the police the name of his younger brother, and described the events that occurred when he went to Appellant's house the prior evening. At trial, Voong stated that he gave the police his brother's name and date of birth when he was first found because he did not feel like he could trust anyone. Id. at 51. During the interview, Voong identified Appellant, whom he referred to as "Lam," from a photograph array by circling Appellant's picture.

On the morning of the following day, August 28, 2014, police officers searched Appellant's home and property, which he shared with his girlfriend, Bich Vo, their three children, and Vo's other two children. Amid a large amount of construction materials in the detached garage, police discovered buckets of roof cement attached to chains and a Walmart bag containing several pieces of rolled-up silver duct tape. The duct tape had both blood and hair on it, and subsequent testing revealed that the blood and hair contained both Kevin's and Viet's DNA.

On September 20, 2014, the police issued an arrest warrant for Appellant. By this time, however, Appellant had fled with his girlfriend and children to Delaware. According to the trial testimony of Vo, as she was leaving her house on August 26, 2014 to visit a friend in Baltimore, she saw Appellant, Viet, and a neighbor at her house. When she returned home that evening, Appellant was not there and his green van was not in the backyard; suspecting he was with another woman, she began to call his cell phone "[a] lot." N.T. Trial, 11/16/16, at 50. Appellant never answered the calls, and Vo began sending him text messages, to which he did not reply. Vo testified that Appellant arrived home sometime during the night with a friend named "Hai." Vo testified that Appellant and Hai left for work the next day, and that, later that afternoon, she received a phone call from Hai instructing her to drive with her children to Hai's mom's house in Delaware. When Vo and the children arrived at the house, Appellant and Hai were already there, and, that same evening, Appellant, Hai, Vo, and the children all traveled to Rochester, New York. At some point, Appellant parted ways with his family; however, Vo indicated that she knew of Appellant's whereabouts, and, indeed, she and her children were with him when he ultimately was apprehended on January 13, 2015 in a hotel room in Ashland, Virginia.

Prior to jury selection, Appellant's counsel requested permission to question potential jurors regarding Appellant's prior conviction in New York for voluntary manslaughter, the equivalent to third-degree murder in Pennsylvania. The trial court denied the request.

At trial, in addition to the testimony of Voong and Vo,⁸ the Commonwealth introduced the cell phone records of Appellant, Vo, Kevin, Viet, and Voong. In order to authenticate the records, the Commonwealth presented the testimony of Anthony Caine, a retail sales manager for AT&T, and Dominick Kaserkie, a manager in the legal compliance department at T-Mobile, both of whom testified that the cell phone records were kept in the ordinary course of business. Agent William Shute, an expert in historical cell site analysis, testified that the call detail records established, inter alia , that, on August 26, 2014, Viet and Appellant exchanged numerous calls during the afternoon, and placed Viet's phone in the area of Appellant's house that evening. The records further revealed that Kevin and Viet exchanged a series of calls after 6:32 p.m. on August 26, 2014, and, between the early evening and midnight of that same day, Kevin and Voong exchanged 35 calls. The records placed Kevin's phone in the area of Appellant's house from 7:30 p.m. until at least 11:54 p.m. on August 26, 2014, and placed Voong's phone in the area of Appellant's house from 11:15 p.m. on August 26, 2014, until at least 12:20 a.m. on August 27, 2014. The records further placed Appellant's cell phone in the area of his home from approximately 7:20 a.m. until at least 5:42 p.m. on August 26, 2014; in the area of Chinatown around 7:20 p.m. on August 26, 2014; back at home until 12:27 a.m. on the morning of August 27, 2014; and then in the area of the crime scene from between 1:45 a.m. to 1:59 a.m. that same morning. The records also showed that, during this time, Vo called or texted Appellant ten times from her cell phone while she was at the residence she shared with Appellant, and that, on the following day, she traveled from Philadelphia to Delaware between the hours of 6:30 p.m. and 7:30 p.m.

Appellant testified in his own defense, claiming that Kevin and Viet had asked to borrow money from him in order to repay a debt they owed to individuals from New York. He testified that a number of people,...