Commonwealth v. Smith

COMMONWEALTH OF PENNSYLVANIA Appellee v. KURTAVIUS JERMON SMITH Appellant

J-S58045-14

No. 1092 WDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MARCH 9, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence February 25, 2014

In the Court of Common Pleas of Fayette County

Criminal Division at No(s): CP-26-CR-0001172-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.^*

MEMORANDUM BY GANTMAN, P.J.:

Appellant, Kurtavius Jermon Smith, appeals from the judgment of sentence entered in the Fayette County Court of Common Pleas, following his jury trial conviction of third degree murder.¹ We affirm.

The trial court opinion sets forth the relevant facts of this appeal as follows:

The incident giving rise to this case occurred during the early morning hours of May 13, 2012 in Pershing Court located in Uniontown, Fayette County, Pennsylvania. At approximately 4:45 a.m., Officer Jamie Holland of the Uniontown City Police Department was dispatched to the housing complex for a report of a male lying on the ground with possible gunshot wounds. Officer Delbert DeWitt, who was also dispatched to the scene, had noticed a white Jeep SUV leaving Pershing Court when he was entering it. The vehicle's headlights were off.

When Officer Holland arrived first, he observed a non-responsive male with a single gunshot wound to the head. The male was identified as Marlin Crawford (street name "Zeus")² [("Victim")] and was pronounced dead.... The cause of death was a gunshot wound to the head, which went through to his skull and brain. Two firearms, two cards with envelopes, and a red rose were found on [Victim]. The firearms were a .357 revolver with six live rounds in it located in [Victim's] pocket and a fully loaded 9mm Taurus semiautomatic pistol that was partially tucked underneath his right hip.

After receiving further information on the white Jeep's whereabouts, officers traveled to Millview Street in Uniontown. The Jeep was parked in an unnamed alley, and the hood was warm. An unidentified witness told the officers that he observed two males exit the Jeep and enter a residence at 20 Millview Street. The officers approached the residence and demanded that all occupants exit with their hands up. It took between five and ten minutes for the first occupant to exit the residence and an additional twenty minutes for [Appellant] and the final remaining occupant to exit.

[Appellant] was interviewed by Captain David Rutter, who read [Appellant] his Miranda³ warnings. [Appellant] acknowledged his rights and waived them. When he was asked about the shooting, [Appellant] indicated that he had no knowledge of the shooting, the victim, or the white Jeep SUV in question. He was then escorted into a holding cell while other interviews were being conducted. While in the cell, [Appellant] asked to speak with Captain Rutter alone. After several exchanges with Captain Rutter while in the holding cell, [Appellant] was escorted back into the

interview room approximately five hours after his initial interview.

[Appellant] was again read his Miranda warnings, which he again acknowledged and waived. [Appellant] told Captain Rutter that his girlfriend at the time, Kimberly Johnson, had been involved with [Victim], and he went to [Victim's] home in Pershing Court to confront him about the relationship the night before the shooting. [Appellant] said he was beating and kicking the front door, and that he and [Victim] exchanged gunfire. [Appellant] claimed [that he] fled the scene.

The next evening, [Appellant] said he was in Pershing Court and saw [Victim] on the street. He indicated that he walked over to [Victim] in order to confront him again. This time it had to do with negative remarks [Victim] allegedly made about [Appellant]. [Appellant] claimed that another African-American male got in between them and punched [Appellant] in the face. When [Appellant] jumped to his feet, he claimed that [Victim] fired shots at him, and he saw a gun on the ground, picked it up, and fired at [Victim] as [Appellant] ran away. [Appellant] said that he did not know if he had hit [Victim] because [Appellant] was running for his life. He claimed to have thrown the gun in a very specific area, but the officers were unable to locate it.

Meanwhile, Captain Rutter was aware of text messages that [Appellant] sent to Ms. Johnson, which included, "...ima kill him thats my [fucking] word," and he mentioned to [Appellant] these text messages would be used against him. [Appellant] remained in the holding cell where he was eventually charged in connection with the shooting.

On January 3, 2013, [Appellant] and his counsel volunteered another statement, and [Appellant] was interviewed again by Detective Donald Gmitter at the Fayette County District Attorney's Office. He was read his Miranda warnings, which he acknowledged and waived. [Appellant] said that on the evening in question a person named Paige Fairfax was driving the rented Jeep SUV. He had gone to a club in Morgantown, West Virginia, and then returned to [Jason] Miller's home on Millview Street.

Another individual named Deaundrey Fielder (street name "K-Dub") was with them and carried a 9mm semiautomatic firearm. [Appellant] and Fielder were dropped off at the entrance of Pershing Court in order to make a drug purchase. It was there that they had encountered [Victim] with some unidentified African-American males. [Appellant] and [Victim] exchanged words and a physical altercation between all of the men occurred. [Appellant] saw the gun fall out of one of the men's [waistbands] and took it. While he was leaving, he claimed to have heard shots but did not know who was shooting. He observed Fielder running towards [Victim] but [Appellant] admitted to firing some shots as he ran away.

Further, according to the latest statement: Fairfax picked up [Appellant] and Fielder, and [Appellant] claimed to have thrown the gun in an alley on Millview Street before purchasing drugs elsewhere and returning to Miller's home. Fielder then retrieved the gun and put it, the drugs, and a scale in the floorboard at Miller's house.

[Appellant] was ultimately charged with [c]riminal [h]omicide and [f]irearms not to be [c]arried without a [l]icense. On August 10, 2012, following a Preliminary Hearing before Magisterial District Judge Michael Metros, all charges were bound over to the Court of Common Pleas. Following his waiver of formal arraignment, [Appellant] filed an Omnibus Pretrial Motion, which was denied by the Honorable Gerald R. Solomon, Senior Judge on March 28, 2013.

(Trial Court Opinion, filed July 7, 2014, at 2-5).⁴

Following a full hearing on March 27, 2013, concerning Appellant's omnibus pre-trial petition for writ of habeas corpus and motion to suppressstatements, the court denied relief. On February 10, 2014, a jury convicted Appellant of third degree murder and acquitted him of the firearms charge. The court sentenced Appellant on February 25, 2014, to eighteen (18) to forty (40) years' incarceration. On March 3, 2014, Appellant timely filed post-sentence motions, which the court denied on July 7, 2014. Appellant timely filed a notice of appeal on July 8, 2014. The court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b); and Appellant timely complied on July 9, 2014.

Appellant raises the following issues for our review:

1. [WHETHER] THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE LAW SINCE THE COMMONWEALTH DID NOT ESTABLISH MALICE AND WHETHER THE EVIDENCE WAS OTHERWISE INSUFFICIENT TO SUSTAIN THE VERDICT AS THE COMMONWEALTH FAILED TO PROVE THE CHARGE AGAINST APPELLANT BEYOND A REASONABLE DOUBT[?]

2. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE LAW SINCE THE COMMONWEALTH DID NOT ESTABLISH THAT APPELLANT DID NOT ACT IN JUSTIFIABLE SELF-DEFENSE; AND WHETHER THE COMMONWEALTH'S EVIDENCE WAS INSUFFICIENT TO PROVE OTHERWISE BEYOND A REASONABLE DOUBT?

3. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE LAW SINCE THE COMMONWEALTH DID NOT ESTABLISH THAT APPELLANT, IF HE DID NOT ACT IN JUSTIFIABLE SELF-DEFENSE, THAT APPELLANT ACTED UNDER SUDDEN AND INTENSE PASSION RESULTING FROM SERIOUS PROVOCATION FROM THE VICTIM AND THE DEGREE OF CRIMINAL HOMICIDE ONLY ROSE TO THE LEVEL OF VOLUNTARY MANSLAUGHTER OR INVOLUNTARY MANSLAUGHTER AND NOT TO THE LEVEL OF THIRD DEGREE [MURDER]?

4. DID THE COURT [ERR] IN DENYING APPELLANT'S OMNIBUS PRE-TRIAL MOTION[?]

5. DID THE COURT [ERR] IN PERMITTING THE POLICE OFFICER [TO TESTIFY] AS TO WHAT A CONFIDENTIAL INFORMANT DISCLOSED?

6. DID THE COURT [ERR] IN PERMITTING THE POLICE OFFICER [TO TESTIFY] ABOUT A BULLET HOLE THAT WAS ADMITTEDLY NOT PART OF THIS CRIME SCENE?

(Appellant's Brief at 8).⁵

In issues one through three, Appellant argues the Commonwealth failed to prove Appellant acted with malice, a necessary element of third degree murder. Specifically, Appellant contends the Commonwealth presented no evidence that Appellant was "the shooter." Appellant also states without any developed argument that the verdict was against the weight of the evidence because his actions were justified and/or in self-defense. Appellant submits the Commonwealth's evidence was insufficient to establish third degree murder, and the jury's verdict was likewise against the weight of the evidence. Appellant concludes he is entitled to an acquittal or, in the alternative, a new trial. We disagree.

This Court has observed:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not

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