Commonwealth v. Thompson

106 A.3d 742

2014 PA Super 273

COMMONWEALTH of Pennsylvania, Appellee

v.Maurquis THOMPSON, Appellant.

No. 2313 EDA 2013

Superior Court of Pennsylvania.

Submitted June 16, 2014.

Filed Dec. 10, 2014.

Earl D. Raynor, Jr., Philadelphia, for appellant.

John J. Whelan, District Attorney, Media, for Commonwealth, appellee.

BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J.

Opinion

OPINION BY MUNDY, J.:

Appellant, Maurquis Thompson, appeals from the June 21, 2013 judgment of sentence of life imprisonment plus 36 to 72 months' imprisonment imposed after a jury found him guilty of two counts each of third-degree murder, homicide by vehicle while driving under the influence (DUI), homicide by vehicle, accidents involving death, and accidents involving death while not properly licensed; and one count each of fleeing or attempting to elude a police officer, DUI (marijuana), DUI (metabolite of marijuana), and possession of marijuana.¹ After careful review, we vacate the judgment of sentence and remand for the limited purpose of correcting the clerical error contained within the underlying judgment of sentence. In all other respects, we affirm.

The trial court summarized the relevant factual and procedural history of this case as follows.

On December 9, 2011[,] Officer Michael Fiocca, an officer with the Folcroft police department, was on duty and working patrol. At approximately 9:35 P.M. Officer Fiocca observed a vehicle traveling westbound on Chester Pike at a very high rate of speed. Based upon his observations, Officer Fiocca activated his emergency lights and siren and attempted to stop the vehicle. The driver of the vehicle, who was later identified as [Appellant], stopped for several seconds, then fled the scene at a very high rate of speed, entering the intersection of Chester Pike and Glenolden Avenue, and failing to stop at the steady red light. As he did so, the Appellant struck two young boys that were then crossing the street [on foot] in front of his vehicle's path. Appellant did not stop after striking these boys.

Ashley Hochstuhl and David Macintosh were stopped at the red light on Chester Pike at Glenolden Avenue at the time of the incident. Ms. Hochstuhl observed the boys in the crosswalk before [ ] Appellant entered the intersection. Ms. Hochstuhl watched as the boys were hit by [Appellant's] vehicle. David Macintosh was seated in the passenger seat of Ms. Hochstuhl's vehicle and exited the vehicle after he heard the collision. Mr. Macintosh saw that one of the boys, [M.M.], was moving, and he spoke to him until the paramedics arrived on the scene. [M.T.] was not moving and was pronounced dead on the scene. [M.M.] was transported to Crozer–Chester Medical Center and died the next day.

Within minutes of the accident, officers located an unoccupied Chevy Lumina on Chester Pike near Cleveland Avenue, which was approximately two to three blocks from the scene of the hit and run. Officers also located and stopped [ ] Appellant, who was walking along West Winona Avenue, three blocks from where the Lumina had been located. Appellant was charged with several crimes related to the hit and run and the resultant deaths of [M.M.] and [M.T.]

Following a five day trial, a jury found Appellant guilty of [the aforementioned offenses]. On May 17, 2013[,] the Commonwealth filed notice of its intent to seek a life sentence pursuant to 42 Pa.C.S.A. § 9715 for a second or subsequent conviction of murder in the third degree.

Trial Court Opinion, 2/28/14, at 1–2 (citations to transcript and footnote omitted).

On June 21, 2013,² the trial court sentenced Appellant as follows. Count 1 (third-degree murder)—20 to 40 years' imprisonment; Count 2 (third-degree murder)—mandatory term of life imprisonment to run concurrent with Count 1; Count 3 (homicide by vehicle while DUI)—42 to 84 months' imprisonment to run concurrent with Count 2; Count 4 (homicide by vehicle while DUI)—42 to 84 months' imprisonment to run consecutive to Count 3; Count 5 (homicide by vehicle)—18 to 36 months' imprisonment to run consecutive to Count 2; Count 6 (homicide by vehicle)—18 to 36 months' imprisonment to run consecutive to Count 2; Count 7 (fleeing or attempting to elude)—6 to 12 months' imprisonment to run concurrent with Count 2; Count 8 (accidents involving death)—12 to 24 months' imprisonment to run concurrent with Count 2; Count 9 (accidents involving death)—12 to 24 months' imprisonment to run concurrent with Count 2; Count 10 (accidents involving death when not properly licensed)—12 to 24 months' imprisonment to run concurrent with Count 2; Count 11 (accidents involving death when not properly licensed)—12 to 24 months' imprisonment to run concurrent with Count 2; and Count 14 (possession of marijuana)—15 to 30 days' imprisonment to run concurrent with Count 2.³ Accordingly, Appellant's aggregate sentence is life imprisonment plus 36 to 72 months' imprisonment.

On July 1, 2013, Appellant filed a timely post-sentence motion, which the trial court denied on July 12, 2013. On August 7, 2013, Appellant filed a timely notice of appeal.⁴

On appeal, Appellant raises the following issues for our review.

1. Whether the trial court abused its discretion in denying [a] Batson challenge, where [the] Commonwealth's rationale for striking [an] African–American juror, was [a] mere pretext, not [a] legitimate race[-]neutral explanation, thereby prejudicing Appellant's right to a fair trial?

2. Whether [the] trial court abused its discretion in denying Appellant's motion for mistrial, where the Commonwealth elicited testimony of Detective [Lythgoe] on direct examination that [a] recorded conversation of Appellant[,] stating to his Uncle that he did not see [the] victims at [the] time of [the] collision, was acquired at Delaware County prison, [i.e., George W. Hill Correctional Facility,] in violation of [an] explicit agreement that the Commonwealth was not to elicit that Appellant was incarcerated at [the] time of [the] recording, as well as [the] general common law prohibition against references to criminal defendants involvement in other crimes?

[3.] Whether the trial court abused its discretion in admitting [ ] Appellant's text messages on the day of the incident, where the Commonwealth did not disclose or turn over the evidence prior to trial, thereby prejudicing Appellant's right to a fair trial?

[4.] Whether there was insufficient evidence to support Appellant's convictions for two counts of Third Degree Murder, where there was no evidence that Appellant intentionally, deliberately, or with malice ran over the victims, and his conduct in fatally striking [the victims] after [driving] through a red light, while heavily under the influence of marijuana, clearly constituted gross negligence, conduct which is only actionable as Homicide by Vehicle while [D]riving [U]nder the Influence, Involuntary Manslaughter and/or Homicide by Vehicle?

[5.] Whether the verdict finding Appellant guilty of two counts of Third Degree Murder was against the weight of the evidence, where the medical examiners[,] who performed the autopsies of both victims, concluded that the manner of death for both victims was an accident, not homicide, and Appellant, who was under the influence of marijuana, clearly did not act with malice, where he did not see either victim at the time of the collision and was unaware that he had struck anyone, [either] coincident with the accident or its aftermath?

[6.] Whether the term of Life [Imprisonment] imposed by the trial court, pursuant to the Mandatory Life Imprisonment provision, under 42 Pa.C.S.A. [§] 9715, for Appellant's [second] conviction for Third Degree Murder, arising from a single fatal automobile accident, involving two [victims], is an illegal sentence, where the General Assembly clearly did not inten[d] such an absurd and unreasonable disposition?

[7.] Whether the term of Life [Imprisonment] imposed by the trial court, pursuant to the Mandatory Life Imprisonment Provision, under 42 Pa.C.S.A. [§] 9715, for Appellant's second conviction for Third Degree Murder, constitutes cruel and unusual punishment, under the Eighth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania [ ] Constitution, and is therefore, illegal?

[8.] Whether the trial court abused its discretion in [imposing] a manifestly excessive sentence, which violates the fundamental norms of sentencing established in 42 Pa.C.S.A. [§] 9721(b), where the court's decision to sentence to an excessive level[,] in light of the criminal conduct at issue in the case, [caused] the sentence [to] far exceed[ ] what is necessary to protect the public or provide for Appellant's rehabilitative needs?

Appellant's Brief at 10–12.⁵

Initially, Appellant maintains the trial court abused its discretion when it denied his Batson⁶ challenge during voir dire. Id. at 26–33. Specifically, Appellant, who is African American⁷ , objected to the Commonwealth's use of a peremptory challenge to exclude an African American woman from the jury, i.e., Juror 82.⁸ N.T., 4/5/13, at 231–234.

We review a trial court's denial of a Batson claim for clear error. Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 603 (2008) (stating that the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact that is accorded great deference on appeal and will not be overturned unless clearly erroneous).

Batson and its progeny established a three-part inquiry for evaluating a claim of racial discrimination in jury selection.

[T]he [movant] has to initially establish a prima facie showing that the circumstances give rise to an inference that the [opposing party] struck one or more prospective jurors on account of race. If the prima facie showing is made, the burden shifts to the [opposing party] to articulate a race-neutral explanation for striking the juror(s) at issue. The trial court ultimately makes a determination of whether the [movant] has carried [the] burden of proving

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