Commonwealth v. Wallace

244 A.3d 1261

COMMONWEALTH of Pennsylvania

v.Jamal WALLACE, Appellant

No. 2427 EDA 2019

Superior Court of Pennsylvania.

Submitted November 4, 2020

Filed January 8, 2021

Reargument Denied March 10, 2021

Zak Taylor Goldstein, Philadelphia, for appellant.

Kevin R. Steele, District Attorney, Norristown, for Commonwealth, appellee.

Robert Martin Falin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Todd N. Barnes, Assistant District Attorney, Norristown, for Commonwealth, appellee.

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

OPINION BY LAZARUS, J.:

Jamal Wallace appeals from the judgment of sentence, entered in the Court of Common Pleas of Montgomery County, after a jury convicted him of aggravated assault—serious bodily injury,¹ criminal conspiracy,² persons not to possess a firearm,³ and carrying a firearm without a license.⁴ Upon careful review, we affirm.

The trial court summarized the facts of this case as follows:

On April 6, 2018, the Norristown Police Department responded to a shooting in the area of Spruce and Willow Streets in Norristown, Montgomery County. Officers obtained video footage from several locations around the area of the shooting. Video surveillance from Pub Deli depicted [Wallace] and co-[d]efendant Mason Clary [ ] together during the hours leading up to the shooting. ...

[Wallace] and Clary were first seen there at approximately 5:03 p[.]m[.] From that time until approximately 8:04 p[.]m[.], video surveillance showed [Wallace] and Clary in and out of [ ] Pub Deli. The video shows them inside [ ] Pub Deli for periods of time, then leaving and returning throughout the late afternoon/early evening. Each time [Wallace] was at Pub Deli, he was with Clary.

During the time they were at Pub Deli, at approximately 6:04 p[.]m[.], [Wallace] went to a vehicle parked just outside the store and retrieved a firearm from the glovebox. He racked the chamber of the gun and placed the loaded firearm in the waistband of his pants. [Wallace] then went back inside [ ] Pub Deli with the firearm in the right side of his waistband. His shirt was pulled up above his pants so that a portion of the firearm was visible. Clary remained inside [ ] Pub Deli while [Wallace] was outside retrieving the firearm. When [Wallace] came back inside [ ] Pub Deli, the firearm was visible in his waistband and Clary motioned to him to put his shirt down to cover the firearm. [Wallace] pulled his shirt down over the waistband of his pants to cover the firearm, and the firearm created a visible bulge on his right side where it was located. There is no evidence that [Wallace] thereafter relinquished possession of the firearm.

[Wallace] and Clary left [ ] Pub Deli together for the last time at approximately 8:04 p[.]m[.] At that time[,] they went to the home of a minor, C.S., ... and arrived there at 8:13 p[.]m[.] [C.S.]’s home backed up to Clary's home. The three individuals then left C.S.’s house together at 8:16 p[.]m[.], and walked to the intersection of Spruce and Willow Streets in Norristown, which is located approximately three blocks from C.S.’s home. At this intersection, a pedestrian, later identified as the victim, Kamal Dutton, [ ] walked past the trio. [Dutton] was walking down the street, minding his own business[,] at the time he passed the trio of [Wallace], Clary, and C.S.

For no apparent reason, after [Dutton] walked past the trio, the three individuals turned around and confronted him together. The trio surrounded [Dutton] in a circular manner, each standing a few feet away from [him] and each other. The trio then started to fight with [Dutton], three on one. [Wallace] pulled out a firearm and pointed it at [Dutton] in full view of his fellow conspirators.

As [Dutton] started to run away from the trio, they chased him, together, running east on Spruce Street toward DeKalb Street. As the trio chased [Dutton], [Wallace] fired multiple shots at him, ultimately striking him in the head. The trio of conspirators turned and quickly ran away together. The shooting occurred at approximately 8:21 p[.]m[.] After the shooting, the three individuals fled the scene together, leaving the victim bleeding on the ground.

Officer Kevin Fritchman, of the Norristown Police Department, found [Dutton] with a gunshot wound to the head ... approximately three blocks from the scene of the shooting on Spruce Street. Police located a number of blood droplets [and four 9 mm shell casings] on Spruce Street at the scene of the shooting. ... After the shooting, [Dutton] identified [Wallace] as one of the individuals involved in the attack by circling his photograph in a photo array.

At the time of the shooting, C.S. was a seventeen (17) year[-]old juvenile. Based upon the offense, Norristown police filed charges against him for his role in the conspiracy and assault. Eventually, C.S.’s case was decertified to Juvenile Court and he entered an admission to conspiracy to commit aggravated assault.

[C.S.] identified [Wallace] and Clary as the two men he conspired with to assault the victim. He admitted that the trio acted in concert to assault the victim.

[In addition, a]t the time of the shooting, Clary wore a [Global Positioning System] (GPS) monitoring device on his ankle. Based upon data recovered from the GPS device, [ ] Clary was identified as being present at [ ] Pub Deli with [Wallace] before the assault and leaving [ ] Pub Deli approximately twenty minutes before the attack. The GPS data also identified [ ] Clary near the home of C.S. immediately before the crime, at the location of the crime, and then tracked back to the area near his and C.S.’s homes after the crime. On April 7, 2019, approximately twenty-four (24) hours after the shooting, Clary cut off his GPS monitoring device. The GPS data was corroborated by video surveillance.

Trial Court Opinion, 10/21/19, at 3-7.

On May 3, 2018, the Norristown Police Department filed a criminal complaint charging Wallace with the above-stated crimes. On October 29, 2018, the trial court ordered that Wallace's case be consolidated with co-defendant Clary's case. On March 7, 2019, following trial, a jury convicted Wallace of each charge. On May 23, 2019, the trial court imposed the following, consecutive sentences: ten to twenty years’ imprisonment for aggravated assault—serious bodily injury; ten to twenty years’ imprisonment for criminal conspiracy to commit aggravated assault; ten to twenty years’ imprisonment for persons not to possess a firearm; and two to five years’ imprisonment for carrying a firearm without a license, for a total sentence of thirty-two to sixty-five years’ imprisonment.

On June 3, 2019, Wallace timely filed a post-sentence motion, which the court denied on August 12, 2019. On August 20, 2019, Wallace timely filed a notice of appeal to this court, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. He raises the following issues for our review:

1. Whether the trial court erred in permitting the Commonwealth to display inflammatory photographs (marked C1 and C2) of [Dutton]’s injuries because the prejudice caused by the photographs substantially outweighed any relevance that they could have had in a case where [Dutton] testified in detail [as] to his injuries and the treating physician also described [his] injuries.

2. Whether the trial court erred in permitting the Commonwealth to introduce co-defendant Clary's GPS records because the records were hearsay which did not qualify as a business record because they were prepared in anticipation of litigation and therefore did not qualify for the business records hearsay exception pursuant to [Pennsylvania Rule of Evidence] 803(6).^[5]

3. Whether the trial court erred in denying the jury's request to see [Dutton's] statements to police during deliberations where the statements had been admitted into evidence, were relevant, and were wildly inconsistent, and the co-defendant had conceded identification.

4. Whether the trial court erred in convicting [Wallace] of conspiracy because the evidence failed to show any prior agreement to commit a crime and instead showed[,] at most[,] that the defendants participated in an unplanned, spontaneous incident.

5. Whether the trial court erred in denying the post-sentence motion for a new trial because the verdict was against the weight of the evidence for each charge in that the identification of [Wallace] as the shooter was so questionable as to shock the conscience because the only identification of [Wallace] came from a co-defendant who had admitted to the charges in Family Court in exchange for favorable treatment and who denied identifying [Wallace] in his live testimony, and [Dutton] had repeatedly failed to identify [Wallace].

6. Whether the trial court imposed a sentence which was excessive, unreasonable, and an abuse of discretion in light of the mitigation evidence presented by [Wallace] regarding [his] background[ ] and the nature of the offense.

7. Whether the trial court erred in "double-counting" [Wallace's] prior criminal convictions and adjudications as its basis for departing from the guidelines because [Wallace]’s prior record was already factored into the applicable guideline range.

Brief of Appellant, at x-xii (reordered for ease of disposition).

In his first two issues on appeal, Wallace challenges evidentiary rulings made by the trial court. Our standard of review is well-settled:

In reviewing a trial court's ruling on the admissibility of evidence, our standard of review is one of deference. Questions concerning the admissibility of evidence are within the sound discretion of the trial court, and its discretion will not be reversed absent a clear abuse of discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill[-]will[,] or partiality, as shown by

...