Com. v. Baskerville

• Decision Date: 01 August 1996
• Citation: 681 A.2d 195,452 Pa.Super. 82
• Parties: COMMONWEALTH of Pennsylvania v. Marvin BASKERVILLE, Appellant.
• Court: Pennsylvania Superior Court

Page 195

681 A.2d 195

452 Pa.Super. 82

COMMONWEALTH of Pennsylvania v. Marvin BASKERVILLE, Appellant.

Superior Court of Pennsylvania.

Submitted June 10, 1996.

Filed Aug. 1, 1996.

Charles P. Mirarchi, III, Philadelphia, for appellant.

Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before CIRILLO, President Judge Emeritus, and KELLY and MONTEMURO ^*, JJ.

CIRILLO, President Judge Emeritus:

Marvin Baskerville appeals from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County following his conviction for third-degree murder, robbery, and criminal conspiracy. We affirm.

On or about the night of March 30, 1994, Baskerville and his friend, Baron Simmons, were walking through their West Philadelphia neighborhood when they came upon the co-defendant, John Haynes, and another man, Mark Malloy. Malloy asked Baskerville if he had $100.00 that he owed him. Baskerville, realizing that Haynes had a gun, replied that he did not and began to walk away. Haynes called to Baskerville and asked him if he knew who was sitting in a car that was parked nearby. When Baskerville responded that he did not know, Haynes suggested that they investigate the occupants of the car together. Upon investigation of the auto, Baskerville discovered that he knew both the driver's side occupant, Darren Williams, and the passenger's side occupant, David Anderson. After a brief conversation with the occupants, both Baskerville and Haynes walked away from the car.

Upon reaching the street corner, Haynes asked Baskerville whether Williams or Anderson was wearing any jewelry. After Baskerville replied that both men were wearing jewelry, Haynes asked Baskerville to return to the auto and ask the occupants for a cigarette. ¹ Baskerville agreed, walked to the car and asked Anderson for a cigarette. Meanwhile, Haynes approached the driver's side window and demanded Williams' jewelry at gunpoint. As Williams was handing his watch to Haynes, he tried to push the gun aside and drive away. Once Williams stepped on the accelerator, Haynes shot him four times in the back. The car, driven by Williams, crashed into a nearby, parked car. Williams later died from massive blood loss. The day after the robbery, Baskerville saw Haynes in the neighborhood, where he promised Baskerville $50.00 for keeping quiet about the crime and also forgave Baskerville's $100.00 debt owed to Malloy.

Baskerville was tried by a jury and convicted of third-degree murder, robbery, and criminal conspiracy. He was sentenced to a term of ten to twenty years in prison for the murder charge, and to concurrent terms of five to ten years for the robbery and two to four years for criminal conspiracy. Baskerville files this appeal in which he raises the following issues for our review:

(1) Did the Commonwealth commit prosecutorial misconduct requiring a new trial when, during closing argument, the prosecutor took off his wristwatch and tried to hand it to the defendants?

(2) Was the evidence presented by the Commonwealth insufficient to sustain a conviction for third-degree murder where there was no malice proved on behalf of the defendant?

(3) Was the evidence presented by the Commonwealth sufficient to prove beyond a reasonable doubt that the defendant did not act under duress?

(4) Was the evidence presented by the Commonwealth sufficient to sustain a conviction for criminal conspiracy to commit murder where the evidence presented only went to show a possible conspiracy to commit robbery?

(5) If the conviction for third-degree murder was premised solely on the conspiracy to commit murder conviction and such a conspiracy was never proved, does not the conviction for third degree murder also fail?

Baskerville first contends that the Commonwealth committed prosecutorial misconduct warranting a new trial when, during closing argument, the prosecutor took off his wristwatch and tried to hand it to the defendants.

This Court has recently defined the standard for ordering a new trial in a case where a prosecutorial statement is deemed improper. Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982). There we concluded that, although a prosecutor's statement may be inappropriate, a new trial will not be granted unless it is inevitable that the prosecutor's remark prejudiced the defendant to such a degree that it prevents the jury from weighing the evidence and rendering a true verdict. Id., 497 Pa. at 627, 444 A.2d at 92. See also Commonwealth v. Scarpino, 494 Pa. 421, 431 A.2d 926 (1981) (New trial warranted when unavoidable effect of prosecutorial comment is to deprive defendant of fair trial); Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973). Furthermore, "[T]he prejudicial effect of the district attorney's remarks must be evaluated in the context in which they occurred." Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). However, a reversal is not an automatic formality for every intemperate or improper comment by the prosecution.

Commonwealth v. Chimenti, 362 Pa.Super. 350, 364, 524 A.2d 913, 920 (1987), allocatur denied, 516 Pa. 639, 533 A.2d 711 (1987) (quoting Commonwealth v. Maxwell, 505 Pa. 152, 166, 477 A.2d 1309, 1316-17 (1984), cert. denied, 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984)).

The alleged misconduct occurred during the prosecutor's closing argument, where the following exchange took place:

MR. CAMERON: ... Darren Williams, a 29 year old man, who is six feet under because of these people. He should be alive. He should be at home with his wife and his mom, whatever. This should have been nothing more than a robbery case, but instead, he is dead. One has to wonder what is going on in this world, in this city, that two young men after work on an evening can't sit outside of a playground to talk about their day or what happened, but instead have something like this, over a watch, his jewelry, and saying you can have it--

MR. PERRI: I object.

MR. MIRARCHI: Objection. I move for a mistrial.

MR. PERRI: I move for a mistrial also. Let the record reflect that comment was directed at Mr. Haynes.

THE COURT: I will sustain the objection.

MR. CAMERON: They asked for jewelry. The man had a watch. The medical examiner said there was no watch. Robbery was the motive.

MR. MIRARCHI: There was no testimony that Mr. Baskerville said anything. In fact, to the contrary, there was testimony he said nothing.

THE COURT: I will sustain the objection.

From our review of the record, there is no evidence that the prosecutor removed his wristwatch and handed it to Baskerville. Instead, the record indicates that the prosecutor's remarks were directed at the co-defendant, Haynes, and not Baskerville. Furthermore, Mr. Mirarchi, counsel for Baskerville, appears to be primarily concerned with the prosecutor's assertion that Baskerville voiced a demand for the jewelry, and not with the prosecutor's actions which he now attacks.

The failure to include the relevant facts for an analysis of appellate issues precludes this court from conducting a review on appeal. See Pa.R.A.P. 2119 ("[i]f reference is made to ... any other matter appearing in the record, the argument must set forth, in immediate connection therewith ... a reference to the place in the record where the matter referred appears."). We will only take the facts as presented in the certified record, and will not create unsubstantiated inferences from a party's assertions in its brief. See Commonwealth v. Rini, 285 Pa.Super. 475, 483, 427 A.2d 1385, 1390 (1981). Accordingly, we find that we are unable to review this issue. See Commonwealth v. Buehl, 403 Pa.Super. 143, 148, 588 A.2d 522, 524, allocatur denied, 528 Pa. 627, 598 A.2d 281 (1991) (only the facts that appear in the official record may be considered by an appellate court); Commonwealth v. Muntz, 428 Pa.Super. 99, 107, 630 A.2d 51, 55 (1993) (it is appellant's responsibility to offer a complete record for our review). ² See also Pa.R.A.P. 1911(a).

Baskerville's next three arguments concern the sufficiency of the evidence presented by the Commonwealth. In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992); Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103 (1994). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Swerdlow, 431 Pa.Super. 453, 458, 636 A.2d 1173, 1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988)). See also Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994). Furthermore, a mere conflict in the testimony of the witnesses does not render the evidence insufficient because "it is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence." Commonwealth v. Moore, 436 Pa.Super. 495, 501, 648 A.2d 331, 333 (1994) (citations omitted).

Baskerville claims that the evidence presented by the Commonwealth was insufficient to prove malice in order to sustain his conviction for third-degree murder. The record belies this assertion.

The Pennsylvania Criminal Code defines third-degree murder as all other kinds of murder, other than first-degree or second-degree murder. See generally 18 Pa.C.S.A. § 2502(c). Case law further explains that third-degree murder is a killing done with legal malice but without...