Com. v. Butler

• Decision Date: 15 September 1994
• Citation: 436 Pa.Super. 321,647 A.2d 928
• Parties: COMMONWEALTH of Pennsylvania v. Darryl BUTLER, Appellant.
• Court: Pennsylvania Superior Court

Page 928

647 A.2d 928

436 Pa.Super. 321

COMMONWEALTH of Pennsylvania v. Darryl BUTLER, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 1, 1994.

Filed Sept. 15, 1994.

James S. Bruno, Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

Before OLSZEWSKI, JOHNSON and FORD ELLIOTT, JJ.

OLSZEWSKI, Judge:

Darryl Butler appeals his life sentence for the first-degree murder of Shadrack Townes. On May 21, 1992, Butler and two other men drove to 3449 North Orianna Street, where they encountered Shadrack Townes and Yolanda Watson. Butler and Townes were acquainted with each other, and began to argue about an earlier incident where Townes had apparently insulted the wife of one of Butler's friends. The argument lasted several minutes, but the two stayed reasonably calm. Butler suddenly pulled out a semi-automatic pistol and shot Townes twice in the abdomen. Townes collapsed on the sidewalk. Butler began to walk away, but then turned around and shot Townes another dozen or so times. Butler put the gun to Townes' head to administer the coup de grace, but the gun merely clicked when Butler pulled the trigger--the ammunition was spent. Butler fled with his two friends.

Yolanda Watson and another eyewitness who observed the shooting later identified Butler from a photo array. Townes also noticed that Butler wore a necklace with the name "Darryl," and told police as he lay bleeding on the sidewalk that Darryl had shot him. Townes died within hours of the shooting. The next morning detectives arrived at Butler's girlfriend's apartment with an arrest warrant. There they discovered in plain view a box for a rare, heavier than normal type of nine-millimeter ammunition which matched casings found near Townes' body.

Butler chose not to testify at his jury trial. His girlfriend provided an alibi, claiming that she, Butler and their children had spent the day at the zoo. Butler specifically did not dispute the events surrounding Townes' death; he simply claimed that he couldn't have been the shooter since he wasn't there. The jury found otherwise and convicted Butler of first- degree murder and possessing an instrument of crime. Butler received the mandatory life sentence for the murder, and a concurrent one to two years for the PIC charge.

I.

Butler has shifted tactics and now disputes the events surrounding Townes' death. He acknowledges having shot Townes, but argues that he did so in self-defense when Townes stepped towards him during their argument. Alternatively, Butler argues that the homicide should be considered either voluntary manslaughter or murder in the third degree, rather than first degree.

Butler offers absolutely no citation to the record to support his current theory that Townes suddenly came at him. This is not surprising, considering that no such evidence was ever introduced at trial, where Butler offered an alibi defense instead. Since Butler did not raise the issue of self-defense at trial, the Commonwealth had no burden to disprove it. Nor can Butler argue self-defense for the first time on appeal; the claim is waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Nor did Butler mention his alternative theories of voluntary manslaughter and third-degree murder below, so they are likewise waived. Butler merely claims that "it is possible [he] was acting under serious provocation when the decedent was shot." Appellant's brief at 13. If so, then Butler should have argued this claim at his trial. Such a bald assertion, without any development or support, is unreviewable. It also contradicts the testimony from the Commonwealth's witnesses that Butler and Townes argued without any shouting or threatening gestures. N.T. 3/22/93 at 33-34.

Butler's entire third-degree murder argument is that his "actions showed an intent to inflict bodily injury, and maybe even serious bodily injury but it never showed a specific intent to kill." Appellant's brief at 14. The Commonwealth's evidence proved that after Butler dropped Townes with two shots to the abdomen, Butler began to leave, but then returned, pumped about a dozen more bullets into Townes, and would have finished Townes off with a round through the skull if he'd had any bullets left. We cannot imagine how one could possibly demonstrate a more specific intent to kill. In sum, the evidence amply sustains Butler's conviction for first-degree murder, and none of Butler's novel and undeveloped sufficiency arguments have the slightest merit.

II.

Butler also challenges the weight of the evidence. The decision to grant a new trial based on a challenge to the weight of the evidence is within the sound discretion of the trial court. Absent abuse of discretion, we will not reverse the trial court's ruling. Commonwealth v. Eddowes, 397 Pa.Super. 551, 580 A.2d 769 (1990), alloc. denied, 529 Pa. 631, 600 A.2d 951 (1991). A trial court may award a new trial on this basis only where a verdict is so contrary to the evidence so as to shock one's sense of justice and make the award of a new trial imperative. Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991), alloc. denied, 529 Pa. 668, 605 A.2d 333 (1992). ¹

Butler points to discrepancies between eyewitnesses Yolanda Watson's and Devin Boomer's trial testimony and statements they made to police after the shooting. Butler claims that the discrepancies show these witnesses to be incredible. Appellant's brief at 15. Assessing the credibility of a witness, however, is within the province of the jurors, who are entitled to believe all, part, or none of the evidence. Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987), alloc. denied, 516 Pa. 640, 533 A.2d 712 (1987). Moreover, the disputed testimony goes only to how long Yolanda Watson remembered seeing Butler in the neighborhood before the shooting, and whether Devin Boomer attended junior high school with Butler. These issues are wholly collateral to the central evidence supporting the verdict: how carefully the witnesses observed the shooting itself and the soundness of their identification. Hence, the verdict was not against the weight of the evidence.

III.

As Shadrack Townes lay dying on the sidewalk, Police Officer Gaul informed him that he didn't look too good, might not make it, and asked him who had shot him. Townes repeated several times that "Darryl did it." N.T. 3/19/93 at 77-78. The trial court allowed Officer Gaul to testify to this hearsay statement as a dying declaration. Butler asserts that this ruling was error, because before Townes made the declaration to Officer Gaul, he told Yolanda Watson's sister not to worry, that he wasn't going to die. N.T. 3/22/93 at 54. The trial court reconsidered the testimony concerning the grave extent of Townes' injuries, the imminence of his death, and the timing of his declarations (i.e., his initial response that he wasn't going to die, followed by the poor prognosis from Officer Gaul and subsequent declaration that Darryl did it) and decided that the statement was properly admitted as a dying declaration. Trial court opinion, 3/18/94 at 7. Like all evidentiary matters, we will not reverse this ruling absent an abuse of discretion. Commonwealth v. Frederick, 508 Pa. 527, 498 A.2d 1322 (1985).

We agree with the trial court that the statement satisfied the requirements for the dying declaration exception to the hearsay rule. The medical examiner testified that Townes' wounds were so grave that he could have died in a matter of minutes, although he lasted for three hours. Considering all of the relevant factors, the trial court properly concluded that Townes believed his own death was at hand, and his forceful, repeated declarations that "Darryl did it" bore the solemn reliability of this most grim occasion. One isolated remark, in all likelihood made to comfort a concerned bystander, will not automatically remove Townes' identification of Butler from the purview of the dying declaration exception. See Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972) (admissibility of dying declaration depends on all surrounding circumstances).

IV.

The court instructed the jury in the usual manner that the value of eyewitness identification testimony depends upon the witness' capacity to observe and recollect events. N.T. 3/29/93 at 100-02. Butler claims that the trial court should have gone further and given a Kloiber instruction, which would have admonished the jury to view especially weak identification testimony with added caution. See Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820, cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954). Butler asked for the special instruction for the same reasons he claims his conviction is against the weight of the evidence: because eyewitness Yolanda Watson claimed to have seen Butler around the neighborhood for a longer period than Butler was actually there, and eyewitness Devin Boomer was mistaken about attending junior high school with Butler.

A Kloiber instruction is only required where the witness did not clearly observe the defendant, or where the identification is equivocal, or the witness has had past problems identifying the defendant. See Commonwealth v. Johnson, 419 Pa.Super. 625, 615 A.2d 1322 (1992), alloc. denied, 533 Pa. 657, 625 A.2d 1191 (1993). The trial court correctly observed that no such factors were present in the instant identifications; both witnesses observed the murder close up, and had no trouble identifying Butler afterward. The issues Butler raises have nothing to do with the quality of the identification testimony, and did not require a Kloiber instruction.

V.

Butler's final issue concerns allegedly inflammatory remarks in the prosecutor's closing argument. Because his trial counsel did not request a mistrial for these remarks, Butler raises the issue in terms of ineffective assistance of counsel. After carefully reviewing the trial...