Com. v. Carter

• Decision Date: 04 August 1995
• Citation: 661 A.2d 390,443 Pa.Super. 231
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Daniel CARTER, Appellant.
• Court: Pennsylvania Superior Court

Page 390

661 A.2d 390

443 Pa.Super. 231

COMMONWEALTH of Pennsylvania, Appellee, v.Daniel CARTER, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 23, 1995.

Filed June 6, 1995.

Reargument Denied Aug. 4, 1995.

Patrick J. Egan, Doylestown, for appellant.

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

Before POPOVICH, HUDOCK and HESTER, JJ.

POPOVICH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County following appellant's convictions for first degree murder, ¹ possession of an instrument crime, ² possession of a prohibited offensive weapon ³ and criminal conspiracy.⁴

Appellant now raises the following questions for review:

1.Whether the trial court erred by admitting as substantive evidence the prior inconsistent statement contained in the preliminary hearing testimony of Shaw [sic] Bayne ("Ali") where, inter alia, Ali did not testify and was therefore not subject to cross-examination at appellant's murder trial in violation of Brady- Lively.⁵

2.Whether the trial court erred by admitting as substantive evidence the prior inconsistent statement contained in the preliminary hearing testimony of Shaw [sic] Bayne ("Ali") where, inter alia, Ali's statement was not trustworthy or reliable in violation of Brady- Lively and the Confrontation Clause of the Sixth Amendment to the United States Constitution.

3.Whether the defense counsel was ineffective for failing to call any witnesses where, inter alia, said witnesses were known to the defense attorney, JOSHUA BRISKIN, ESQUIRE, and whose testimonies would have cast reasonable doubt on the Commonwealth's case.

After careful review, we affirm.

On July 3, 1992, at approximately 1:30 a.m., appellant and one Jamal Jones arrived at the home of Daniel Witherspoonat 711 Mercy Street in Philadelphia.Appellant requested to speak with Shawn "Ali" Bain, who was Witherspoon's step-son and resided with him.Appellant asked Bain if he could borrow his twelve gauge sawed-off shotgun.Bain agreed and retrieved the shotgun, loaded with three shells, from his bedroom.Appellant and Jones left with the shotgun and met one Wayne "Hawk" Witherspoon.The three men proceeded to a playground, approximately one and one-half blocks from Witherspoon's house.Once inside the playground, appellant approached the victim, Darryl Chinn, who was sitting on a park bench facing the basketball court.Appellant fired a single, fatal shot into Chinn's groin and pelvis from approximately two yards away.

On September 11, 1992, Daniel Witherspoon, while in police custody for an unrelated domestic abuse offense, requested to speak to the police regarding Chinn's homicide.Witherspoon described to the police the events which transpired on the evening of July 3, 1992.Witherspoon stated that Bain gave appellant a twelve gauge shotgun, and that he observed appellant, Jones and "Hawk" enter the playground where the victim was sitting.According to Witherspoon, appellant fired one shot at the victim and then retreated north on Seventh Street.Witherspoon reviewed the verbatim transcription of his statement and signed each page.On October 29, 1992, Witherspoon gave a second statement to police, reaffirming the contents of the September 11, 1992, statement.

The police brought Bain ⁶ in for questioning on September 11, 1992, in order to corroborate Witherspoon's story.Bain gave a statement, implicating appellant, to Detective Michael Cahill.His statement established that he gave appellant his twelve gauge shotgun, loaded with three shells, on the evening of July 3, 1992.Bain stated that "Hawk" returned the gun to him approximately five to ten minutes after borrowing it, with one shell missing.Later that night, Witherspoon warned Bain, to get the gun out of the house because appellant had just killed somebody with it.Bain agreed and delivered the gun to one George Mitchell.The police retrieved the shotgun from Mitchell's house the following day.Bain reviewed the verbatim transcription of his statement and signed each page.On October 5, 1992, Bain reaffirmed the statement of September 11, 1992, in a second version that was signed and reviewed by Bain.

On October 31, 1992, appellant was arrested and charged with the murder of Darryl Chinn.A preliminary hearing was scheduled for December 6, 1992, at which both Witherspoon and Bain recanted their prior statements to police.Witherspoon testified, during questioning by the prosecution, that he was high on crack cocaine when he gave police the September 11, 1992, statement and could not remember the substance of that statement.Witherspoon denied witnessing appellant shoot Darryl Chinn.The prosecution then introduced Witherspoon's September 11, 1992, statement as both substantive and impeachment evidence.

Bain also recanted his September 11, 1992, statement.Bain contended that he gave his unloaded shotgun to Jones, not appellant, on the night of July 3, 1992.Bain testified that he lied in his September 11, 1992, statement because he was scared.Bain also stated that during his October 5, 1992, interview with police, Detective Morton did not read his September 11, 1992, statement to him.The prosecution then introduced Bain's prior inconsistent statement as both substantive and impeachment evidence.The trial court held appellant for trial based on Witherspoon's and Bain's statements as well as other evidence.

Appellant proceeded to a bench trial on January 31, 1994.Witherspoon appeared at trial and again recanted his September 11, 1992, statement.He denied witnessing appellant shoot the victim.The prosecution then introduced Witherspoon's prior inconsistent statement as substantive and impeachment evidence.

A bench warrant was issued to secure Bain's appearance at appellant's trial but the police were unable to locate him in order to compel him to testify on behalf of the Commonwealth.Apparently, Bain had fled.The prosecution attempted to introduce Bain's prior inconsistent statement pursuant to 42 Pa.C.S.A. § 5917 on the ground that Bain was "unavailable."⁷Various Philadelphia police officers testified on behalf of the Commonwealth regarding their unsuccessful attempts to locate Bain and secure his attendance at trial.The trial judge then permitted the prosecution to introduce Bain's preliminary hearing testimony which included his prior inconsistent statement made September 11, 1992.

The Commonwealth also introduced substantial evidence in addition to Witherspoon's and Bain's statements, connecting appellant to the crime.The twelve-gauge shotgun that appellant used to commit the murder and the shotgun pellets that were removed from the victim's body were introduced into evidence.The Commonwealth established that the shotgun was in working condition and that Chinn was killed by a single blast from a twelve-gauge shotgun.A ballistics report demonstrated that the shotgun fired the same type of shells that were fired at the victim.

Also, one Dr. Lieberman, the Commonwealth's forensic pathologist, stated that the victim was killed by a single shotgun blast which was fired from a distance of about two or three feet.Philadelphia police officer John Ross testified that he found the victim lying next to the bench on which Witherspoon observed him immediately before the shooting.Properly introduced evidence also established that Witherspoon could have observed the playground and the bench where the shooting occurred.Appellant offered no evidence after the Commonwealth rested.

The court found appellant guilty of first degree murder, various firearms offenses and criminal conspiracy.Prior to sentencing, appellant filed an oral motion for extraordinary relief pursuant to Pa.R.Crim.P. 1405(B), claiming that the trial court erred by admitting Bain's out-of-court statement.After a penalty phase hearing, on March 10, 1994, appellant was sentenced to life imprisonment on the murder charge.Sentence was suspended on the remaining charges.The trial court denied appellant's motion for extraordinary relief and this timely appeal followed.

Appellant now contends that the trial court erred in admitting Shawn Bain's prior inconsistent statement to police because the admission of his evidence did not qualify as a prior inconsistent statement pursuant to Brady- Lively and violated appellant's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.We agree that the trial court erred, but find the error was harmless and affirm the judgment of sentence.

The trial court determines whether evidence is relevant and admissible and the trial court's ruling on admissibility will not be disturbed absent an abuse of discretion.Commonwealth v. Owens, 437 Pa.Super. 64, 649 A.2d 129(1994).

Our supreme court established the rule for admissibility of a non-party witness' prior inconsistent statement in Commonwealth v. Brady, supraandCommonwealth v. Lively, supra.In Brady, the court held that, "otherwise admissible prior inconsistent statements of a declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein."Brady, 510 Pa. 130, 507 A.2d at 70.Lively involved a reexamination of the rule announced in Brady and resulted in our supreme court reaffirming the general principle established in Brady.Lively, 530 Pa. 468-469, 610 A.2d at 9-10.The court, in refining the Brady rule, held:

In an effort to ensure that only those hearsay declarations that are demonstrably reliable and trustworthy are considered as substantive evidence, we now hold that prior inconsistent statement may be used as substantive evidence only when the statement is given under oath at a formal legal proceeding; or the statement has been reduced to a writing signed and adopted by the witness; or a statement that is a...