Com. v. Davis

Decision Date26 October 2004
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Muhammad DAVIS, Appellant.
CourtPennsylvania Superior Court

Janis Smarro, Philadelphia, for appellant.

Hugh J. Burns, Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: STEVENS, BOWES, and POPOVICH, JJ.

OPINION BY STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County after a jury convicted Appellant of murder in the first degree,1 aggravated assault,2 five counts of robbery,3 four counts of possessing an instrument of crime,4 and violating the uniform firearms act.5 We affirm.

¶ 2 On December 19 and 20, 1999, Appellant committed five armed robberies within a six-seven block radius in Center City Philadelphia; during those robberies, one victim was shot in the knee, and another was shot in the head and killed. N.T. 4/16/02 at 9-24; N.T. 9/9/02 at 142-51;6 N.T. 9/10/02 at 9-20, 40, 66, 86-89, 117. Appellant was arrested on December 23, 1999, when Philadelphia Police Officers Caprara and Cavalieri observed Appellant remove a gun from the waistband of his pants and begin to approach from behind two unknown individuals who were unloading items from a parked car. N.T. 9/11/02 at 3-33. The Officers exited their vehicle, identified themselves as police officers, and ordered Appellant to stop. N.T. 9/11/02 at 3-33. Appellant fled down the street but was caught by the Officers and a struggle ensued. N.T. 9/11/02 at 3-33. Appellant was able to escape after punching Officer Cavalieri in the face and kicking Officer Caprara in the thigh. N.T. 9/11/02 at 3-33. As Appellant ran down the street he accidentally dropped his gun which was recovered by Officer Cavalieri. N.T. 9/11/02 at 3-33. Officer Caprara radioed for assistance and Police Officers Dawsonia and Norman responded to the call. N.T. 9/11/02 at 3-33. Officers Dawsonia and Norman grabbed Appellant who continued to struggle and punch them. N.T. 9/11/02 at 33-48. During the struggle, Appellant continually reached towards his waistband; believing that he was attempting to retrieve a gun, Officer Dawsonia told her partner, to "[j]ust back up, I am going to shoot him." N.T. 9/11/02 at 33-48. Appellant ceased to resist and said, "I don't have the gun anymore. I threw it. I am not going to rob anybody else." N.T. 9/11/02 at 33-48.

¶ 3 Following his arrest, Appellant waived his right to remain silent and provided several written statements and a videotaped statement in which he admitted his involvement in the five robberies, as well as the shooting of robbery victim Barry Fritchman and the murder of Robert Reitz. N.T. 9/11/03 at 70-158. Robbery victim, Dr. Leonard Levine, identified Appellant in a photo array, at his preliminary hearing, and at trial, but was unable to identify Appellant in a line-up. N.T. 9/9/02 at 141-80. Robbery victims, Bradley Hoff and Barry Fritchman, identified Appellant in a line-up, at his preliminary hearing, and at trial. N.T. 4/16/02 at 9-24; N.T. 9/10/02 at 8-38. Robbery victim Michael Drolet was unable to identify Appellant and did not testify during the proceedings.

¶ 4 A preliminary hearing took place on February 24, 2000, after which Appellant was bound over for trial. As the Commonwealth sought the death penalty, one attorney was appointed to represent Appellant during the guilt phase of the trial, and a second attorney was appointed to represent Appellant during the penalty phase. On September 14, 2001, Appellant asked that new counsel be appointed to represent him during the guilt phase. N.T. 9/14/01 at 3. Appellant complained that his attorney, Mr. McGill, did not come to see him and would not listen to him.7 N.T. 9/14/01 at 3-12. The trial court granted Appellant's request and appointed John Cotter to represent Appellant at trial. On April 16, 2002, the trial testimony of robbery victim Bradley Hoff was videotaped, as Mr. Hoff would not be available to testify at trial. On September 3, 2002, a hearing took place on Appellant's motion to suppress his pre- and post-arrest statements. On September 5, 2002, the trial court denied Appellant's motion to suppress. N.T. 9/5/02 at 129-31.

¶ 5 Jury selection began on September 4, 2002 and continued through September 6, 2002. The jurors who were selected on September 4, 2002, were told that the trial would commence on September 10, 2002, but were told to contact the court prior to that date to make sure that there were no schedule changes. On September 5, 2002, the trial court announced that there had been a change, and that trial would commence on September 9, 2002. N.T. 9/5/02 at 29-30. ¶ 6 On September 9, 2002, the trial court informed the parties that two of the selected jurors had not appeared. One of the jurors had contacted the court and stated that he was unable to serve because his employers would not compensate him while he was on jury duty. N.T. 9/9/02 at 3-8. The whereabouts of the second juror were unknown and the court was unable to locate her. N.T. 9/9/02 at 3-8. After some discussion, the parties agreed that the two alternate jurors would replace the missing jurors and a new voir dire would be held so that they could select new alternate jurors. N.T. 9/9/02 at 3-76. Following the selection of the alternate jurors, Appellant requested that his third trial counsel be removed because counsel allegedly failed to listen to his instructions with respect to several pre-trial motions. N.T. 9/9/02 at 94-99. The trial court declined the request. N.T. 9/9/02 at 94-99. On September 17, 2002, Appellant was found guilty of all charges.

¶ 7 The penalty phase took place on September 18, 2002, and the jury declined to impose the death penalty and sentenced Appellant to life imprisonment. On December 13, 2002, the trial court sentenced Appellant on the remaining charges, resulting in an aggregate sentence of life imprisonment plus forty-three to eighty-six years of incarceration.

¶ 8 Appellant filed a timely post-sentence motion, and new counsel was appointed to represent him on the motion. On May 8, 2003, an evidentiary hearing was held with respect to Appellant's claim that he received ineffective assistance of trial counsel. Further argument on the matter took place on May 15, 2003, following which the trial court denied Appellant's post-sentence motion. The instant appeal followed. Appellant was not directed to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and thus, did not file a 1925(b) statement. The trial court has not filed an opinion in this matter.

¶ 9 On appeal, Appellant argues that the trial court erred in denying his motion to suppress his statements to the police; that the trial court erred in failing to redact a portion of his statement to the police which indicated that he had committed robberies other than those with which he had been charged; that the trial court erred in allowing the Commonwealth to present testimony with regard to Appellant being interrogated by the police in an unrelated arrest; that the trial court erred in allowing the photo array shown to Dr. Levine to be published to the jury; that the trial court erred in denying Appellant's request that the jury be instructed that the arrest of the Appellant was not evidence of guilt; that the evidence was insufficient to sustain his conviction for murder in the first degree; and that Appellant received ineffective assistance of trial counsel.8 For the reasons discussed below, we affirm.

¶ 10 Initially, we note that Appellant has failed include a separate averment that the trial court did not order a 1925(b) statement as required by Pa.R.A.P. 2111(d), but rather has buried that information within his Statement of the Case. Appellant has not set forth the text of the Order in Question as required by Pa.R.A.P. 2115(a). We also note that Appellant's Statement of the Questions Involved consists of well over fifteen lines and in other respects does not comply with the requirements of Pa.R.A.P. 2116. Appellant's Statement of the Case does not contain a chronological narrative of the underlying facts as required by Pa.R.A.P. 2117(a)(4), an omission we find particularly egregious given that Appellant is challenging the sufficiency of the evidence. Lastly, Appellant's Summary of the Argument merely repeats his Statement of the Questions Involved which does not comply with the requirements of Pa.R.A.P. 2118.

¶ 11 Appellant argues that the trial court erred in denying his motion to suppress his statements to the police because: (1) his oral statements to Officer Dawsonia were obtained in the absence of a Miranda9 warning, were not obtained in the presence of counsel or an interested adult,10 and while Appellant was laboring under the effects of a physical injury; (2) his oral and written statements to Detective Santamala were obtained in the absence of counsel or an interested adult and while Appellant was laboring under the effects of a physical injury; (3) his written statements to Detective Harris were obtained in the absence of counsel or an interested adult and while Appellant was laboring under the effects of a physical injury; and (4) his videotaped statement to Detective Rocks was obtained in the absence of counsel or the opportunity to consult with an interested adult and while Appellant was laboring under the effects of a physical injury.

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by
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