Commonwealth v. Tucker

143 A.3d 955

2016 PA Super 157

COMMONWEALTH of Pennsylvania, Appellee

v.Dan TUCKER, Appellant.

No. 1411 EDA 2015

Superior Court of Pennsylvania.

Submitted April 25, 2016.

Filed July 19, 2016.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, and Alison J. Guest, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Daniel “Dan” Tucker (“Appellant”) appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County after a jury convicted him of third-degree murder, two counts of attempted murder, aggravated assault, possession of an instrument of crime (“PIC”), and two counts of violation of the Uniform Firearms Act (“VUFA”). Sentenced to consecutive sentences aggregating to a 35 to 70–year term of incarceration, Appellant challenges the legality of his sentence, the sufficiency of evidence pertaining to attempted murder, the denial of his motions for mistrial and continuance to conduct DNA testing of evidence, respectively, and an evidentiary ruling permitting the Commonwealth to introduce a witness's prior statement to bolster his testimony. We affirm Appellant's convictions but are compelled to vacate judgment of sentence and remand for resentencing consistent with this decision.¹

The trial court aptly summarizes the factual history of the case as follows:

On January 5, 2013, five members of the Philadelphia Chapter of the Wheels of Soul Motorcycle Club met at their West Philadelphia clubhouse before traveling together to Chicago to attend the funeral of another club member. They returned to the clubhouse at approximately 5:40 A.M. on Sunday, January 6, 2013 and parked at 61st and Market Street near the door of the clubhouse located at 6114 West Market Street in the City and County of Philadelphia. The street was quiet and other than the returning club members, Appellant was the only person observed on the street. Appellant was known to club member Richard Motes, Jr. (“Motes”), also known as “Ricky” or “Raw Dawg,” because Appellant, though not a member, had come to the Wheels after-hours club for years. Appellant, after exchanging greetings with Motes, pulled a gun and opened fire on the men as they attempted to enter the club.

Appellant shot Nezzer Pankey (“Pankey”) also known as “Nezz” in the face. Motes was shot in the right thigh. Rodney Turner (“Turner”) also known as “Rock” was also one of the returning travelers and he was shot four times during this same incident. Turner was shot two times in the neck, one time in the buttock, and another bullet grazed his left chest. Appellant ran out of bullets and fled down Dewey Street. Members of the club who were in the clubhouse at the time exited once the gunfire ceased, and some began to run in the direction of the Appellant. Other members who emerged from the clubhouse transported Pankey and Turner to the Hospital of the University of Pennsylvania. Appellant was not apprehended on the night of the incident. Motes was not immediately aware that he had been shot, and Police officers who arrived on the scene transported Motes to the Hospital of the University of Pennsylvania. Motes gave a statement to homicide detectives and was able to identify Appellant from a photo spread. Turner was able to identify Appellant as the shooter from a photo spread and in court but did not identify Appellant during a pretrial line up. Pankey did not survive.

Pankey was pronounced dead at 6:53 P.M. on January 6, 2013. Pa[n]key was shot one time in the left side of the face, where the bullet entered his brain. An autopsy performed by Chief Medical Examiner Dr. Gary Collins found that Pankey's cause of death was a penetrating gunshot wound to the left side of the head. The manner of death was found to be homicide.

[Mahogany] Livingston (“Livingston”) was at the Wheels after-hours club in the early morning hours of January 6, 2013. As she arrived, Appellant, who[m] she recognized from the neighborhood, was being ejected from the club by some of the club members. She remained in the club until about 5:00 A.M. then she went to her home which was nearby. Upon arrival at home, Livingston realized that she did not have her cell phone so she returned to the club to look for it. When she arrived at the club it was about 5:30 A.M. At this time Livingston observed a male on the corner with his hands in the pocket of his hooded sweatshirt and she saw an imprint of a gun. She recognized this male was the same one who had been ejected from the club earlier that evening. When Livingston entered the club she was unable to locate her phone but told club members that she had seen a man outside with a gun. Livingston heard gunfire outside of the club shortly after her arrival there. Livingston was unable to make a positive identification of Appellant at the pretrial lineup.

At trial, [Aaron] Burnett (“Burnett”), who was working security at the door of the Wheels club, testified that he and another member had, in fact, removed Appellant from the club on the night of the shooting because Appellant had become unruly. Upon leaving, Appellant said, “I will be right back.” An arrest warrant was issued for Appellant and he was located at the home of his ex-girlfriend Brianna Poole (“Poole”) and taken into custody without incident on April 10, 2013.

Trial Court Opinion, filed November 13, 2015, at 3–5.

Appellant's six-day jury trial culminated with a verdict of not guilty on the charge of first-degree murder and guilty verdicts on the remainder of charges, as noted supra. After the court imposed sentence, Appellant filed no post-sentence motion, but he filed a timely notice of appeal to this Court. He subsequently complied with the trial court's order to file a Pa.R.A.P.1925(b) statement of errors complained of on appeal, and the trial court filed a responsive Rule 1925(a) opinion.

Appellant raises the following five issues for our review:

1. Did the lower court impose an illegal sentence by sentencing Appellant to five to ten years for a felony of the third degree, a violation of Section 6106 of the Uniform Firearms Act?

2. Did the lower court err and deprive Appellant of a fair trial, by denying a defense motion for a mistrial after the Assistant District Attorney stated in a question to a witness that Appellant previously “went to jail”?

3. Was the evidence insufficient to sustain a conviction for two counts of attempted murder, as the Commonwealth failed to prove that Appellant had a specific intent to kill?

4. Did the lower court err and violate Appellant's constitutional rights to a fair trial and to present a defense by denying a continuance to conduct DNA testing of a knife recovered from the scene of the crime, testing that was not done previously because the Commonwealth provided the property receipt for the knife the day before trial?

5. Did the lower court err and violate the Rules of Evidence by permitting the Commonwealth to bolster a witness by introducing the witness's prior hearsay statement on direct examination?

Appellant's brief at 4–5.

Appellant first contends that his five to ten year sentence imposed for VUFA at 18 Pa.C.S. § 1103(3) exceeds the statutory maximum of seven years' incarceration for a felony of the third degree and, therefore, represents an illegal sentence. For its part, the Commonwealth agrees that this aspect of Appellant's sentence is illegal, may be raised for the first time on appeal, and requires remand for resentencing.

The scope and standard of review applied to determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court's application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001–1002 (Pa.Super.2006) (citations omitted). A challenge to the legality of a sentence:

is essentially a claim that the trial court did not have jurisdiction to impose the sentence that it handed down.... A trial court ordinarily has jurisdiction to impose any sentence which is within the range of punishments which the legislature has authorized for the defendant's crimes.

Commonwealth v. Cappellini, 456 Pa.Super. 498, 690 A.2d 1220, 1226 (1997), (quoting Commonwealth v. Catanch, 398 Pa.Super. 466, 581 A.2d 226, 228 (1990) ).

The statutory maximum penalty for a third degree felony is seven years' incarceration. 18 Pa.C.S. § 1103(3). Thus, we concur that the sentence imposed for VUFA is illegal as it exceeded seven years. We, therefore, vacate the sentence for VUFA and remand for resentencing consistent with Section 1103(3).

Appellant next asserts that he was denied a fair trial when the prosecutor read for a witness, Brianna Poole, a transcript of her pre-trial interview with investigators which included her statement that Appellant previously “went to jail.” N.T. 2/5/15 at 115. The prosecutor's act was particularly egregious, Appellant maintains, because the trial court had reminded the prosecutor just moments earlier to avoid reading answers that referred to Appellant's previous time in jail. See N.T. at 112.

A motion for mistrial is the appropriate means by which to challenge prosecutorial misconduct.

Pa.R.Crim.P 605(B).² The following standards govern our review:

In criminal trials, declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. By ifying the tainted process of the former trial and allowing a new trial to convene, declaration of a mistrial serves not only the defendant's interest but, equally important, the public's interest in fair trials designed to end in just judgments. Accordingly,

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