Commonwealth v. Purnell

233 A.3d 824

COMMONWEALTH of Pennsylvania

v.Sheron Jalen PURNELL Appellant

No. 1646 EDA 2019

Superior Court of Pennsylvania.

Submitted February 24, 2020

Filed May 28, 2020

Maria T. Heller, West Chester, for appellant.

Nicholas J. Casenta, Jr., Assistant District Attorney, and Erik T. Walschburger, Assistant District Attorney, West Chester, for Commonwealth, appellee.

BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.^*

OPINION BY COLINS, J.:

Appellant, Sheron Jalen Purnell, appeals from the aggregate judgment of sentence of 20½ to 47 years of confinement, which was imposed after his jury trial convictions for murder of the third degree and firearms not to be carried without a license.¹ We affirm.

The facts underlying this appeal are as follows. On the evening of October 3, 2016, in the area of Belmont Street and Sixth Avenue in Coatesville, Kevin Jalbert was shot seven times and killed. N.T., 11/29/2018, at 107. At the time of the shooting, Stacie Dausi, Justin Griest,² and Sharon and Robert Swisher were inside the Swishers’ residence on Belmont Street and saw a group of black males in an adjacent alley and heard their voices grow louder and angrier. N.T., 11/26/2018, at 117 (Ms. Swisher), 146 (Mr. Swisher); N.T. 11/27/2018, at 70 (Griest); N.T., 11/28/2018, at 31, 35 (Dausi). Griest and Mr. Swisher witnessed the murder and identified Appellant as the shooter, although Griest later recanted after he was assaulted on September 2, 2018. Exhibits C10-G1 to C10-G6, C10-I; N.T., 11/26/2018, at 140-45; N.T., 11/27/2018, at 56-57, 88-89, 93-95, 97, 104-06, 119-123, 131; N.T., 11/28/2018, at 110-11; Trial Court Opinion, dated August 23, 2019, at 1, 8, 10-11 (not paginated).

Jalbert's murder and Griest's assault were also witnessed by A.H., an autistic minor. N.T., 11/28/2018, at 110-11; Trial Court Opinion, dated August 23, 2019, at 10-11. Prior to trial, the Commonwealth filed a motion asking the trial court to allow A.H. to have a "comfort dog" with her on the stand. The motion explained: "The comfort dog would enter the courtroom prior to the jury's entrance. The comfort dog would exit the courtroom once all the jurors are excused from the courtroom. The comfort dog would remain in the witness stand outside the presence of the jury." Commonwealth's Motion for Special Procedures During the Presentation of the Testimony of Child Witnesses, at 1-2 ¶ 4; see also N.T., 11/19/2019, at 50 (Commonwealth suggests same procedure).

During a pretrial hearing on the motion, Appellant objected to the dog's presence in the court, expressing his concern that "the jury is going to see the dog somehow and they're going to feel sympathy for [A.H.]" N.T., 11/19/2018, at 50. The trial court asked the Commonwealth why it was requesting a comfort dog for A.H. alone, when there were other minor witnesses in the case, and the Commonwealth answered: "A.H. has expressed to law enforcement that she is concerned about her safety coming to court and it's for that reason the Commonwealth is asking for the dog to accompany her to the stand." Id. at 53. The trial court granted the Commonwealth's motion. Without withdrawing his objection to the dog's attendance, Appellant further argued that, if the trial court was going to allow the dog in the courtroom, the dog should be "out of the view of the jurors." Id. at 55.

At trial, on November 26, 2018, the Commonwealth presented the testimony of Corporal Shawn Dowds of the City of Coatesville Police Department.

Corporal Dowds gave extensive testimony on Coatesville's system of surveillance cameras, including over fifty exhibits in the form of videos and still images from those cameras. While discussing the background of the surveillance cameras, Dowds mentioned that the system is very useful because police in Coatesville "don't have a lot of cooperation in the community in the city. It's, you know, people don't want to talk to the police as much as what we may find other places, I'm not sure if this is the only place that's worse." N.T., 11/26/18, p. 165. As the prosecution probed that testimony further, an objection was raised by defense counsel:

Q. [By the Assistant District Attorney] Corporal, you said something interesting I wanted to follow up with the jury, you said that people aren't often willing to come forward or something to that effect. Does that have anything to do with what's known as the snitch culture?

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: Grounds? In a word or two, what's the basis for your objection?

[DEFENSE COUNSEL]: I think it's inappropriate, Your Honor. It's a broad generalization and -

THE COURT: Well, sustained as to the form of the question. It seemed a little pointed to a particular answer but I'll let you lay the foundation and the general subject matter is relevant.

N.T. 11/26/18, pp. 165-66.... Corporal Dowds then testified that the video cameras are useful to identify potential witnesses that are reluctant to be seen speaking to the police, which precipitated another objection:

... And with these video cameras, like I previously said, it kind of helps us like identify these people who were around the area at the time, so we can contact them later, have them speak to us at a later date in a different location, and I believe a lot of it is, you know, they're something big happened here, something awful happened here, they don't want to be a part of it. They don't want to be seen talking to police about it. They don't want to be threatened, harassed.

[DEFENSE COUNSEL]: Objection, Your Honor. This is going too far.

[THE COMMONWEALTH]: This is entirely within Your Honor's ruling, Judge.

THE COURT: Well, to the extent that he can quantify how many times, for example, he has seen this type of situation, that might minimize the objection that [Appellant] has.

[THE COMMONWEALTH]: That is actually my next question, Judge. I was waiting for the Corporal to finish his answer.

THE COURT: Objection overruled, but let's get some groundwork laid for his further testimony.

N.T., 11/26/18, p. 167.... [T]he testimony continued:

Corporal, you personally, you said that you worked patrol, now you work CID, you said you were on the scene initially, have you had to make contact with people on the street before?

A. You try.

Q. What happens when you try?

A. They tend to say I didn't see anything or they'll walk away. Some people may say talk to me later, not here, not now.

Q. Why do they say talk to me later, not here, not now? [DEFENSE COUNSEL]: Objection. Calls for speculation.

THE COURT: Yeah, not why do they, but specific instances, if he has it, in the past I think would be a predicate to my permitting it to continue down this line.

N.T., 11/26/18, p. 168...

Q. Can you think of specific instances, you don't have to say the case name, but can you think of specific instances where someone on the scene has said I won't talk to you here, I'll only talk to you somewhere else?

A. Absolutely.

Q. And can you think of specific instances, you don't have to mention case names, where someone has said I won't - I don't want to talk to you?

[DEFENSE COUNSEL]: Objection, Your Honor. I don't know what the relevance of this is. It's not this case.

THE COURT: Well, is this all background as to why they have surveillance, why they beefed up their surveillance cameras?

[THE COMMONWEALTH]: That is part of it, Judge, yes, and, in fact, in this case - can we go to side bar?

THE COURT: We can, but I think I'm about to overrule [Appellant]’s objection.

[THE COMMONWEALTH]: Then I'll stay here.

THE COURT: But again, try to be - I think you're trying to be, and I don't know if your question was objected to midway though it or a third of the way through it. But let's do it this way: Repeat your question and be careful as you phrase it and see what that produces from the defense side. I don't want to generalize and have the jury apply generally some general statements as to the particulars in this case. That's [Appellant]’s objection as I understand it.

[DEFENSE COUNSEL]: That is my objection.

THE COURT: Okay. So let's avoid that.

N.T., 11/26/18, pp. 169-170.... Corporal Dowds's testimony on this matter concluded as follows:

Q. Have there been instances where witnesses have said I was not present when the cameras clearly show they were?

A. Yes.

Q. Can you cite - or not have to cite, but have you seen that in numerous other cases?

A. Yes.

Q. When you approach witnesses with camera footage of them at a scene, is it easier to have them make statements at that time?

A. Many times, yes.

Q. Can you also use camera footage to corroborate what witnesses tell you that they witnessed?

A. Absolutely.

N.T., 11/26/18, p. 170. Corporal Dowds then moved to the precise location and method of operation of certain cameras that captured the events of this case, followed by the introduction of what those cameras captured on the day of the murder.

Trial Court Opinion, dated August 23, 2019, at 12-15.

On November 27, 2018, an issue also arose concerning Griest's testimony:

Griest was an eyewitness to this murder who made clear, multiple times, his unwillingness to cooperate with the Commonwealth. ... [T]he Commonwealth alleged at trial that Mr. Griest was the victim of witness intimidation when he was assaulted on September 2, 2018.^[3] At the time of trial, Mr. Griest was being held in Chester County Prison on a material witness warrant issued by the court to ensure he would appear to testify. During Mr. Griest's testimony, the following exchange took place:

Q. No. Just a minute ago you testified to the jury that you saw it?

A. I don't ...

Q. This is the problem of lying, isn't it, Justin -

A. I don't know what-

Q. - it's hard -

[DEFENSE COUNSEL]: Objection.

THE WITNESS: Listen, you coming at me all the time -

THE COURT: Hold it. Hold it, everybody, except for me. Your objection, [Defense Counsel]?

[DEFENSE COUNSEL]: He's already amended it. He's accusing the witness of lying.

[THE COMMONWEALTH]: I am.

[DEFENSE COUNSEL]: It's not a question.

[THE COMMONWEALTH]: I can rephrase it, Judge.

THE

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