Com. v. Gladden

• Decision Date: 26 September 1995
• Citation: 445 Pa.Super. 434,665 A.2d 1201
• Parties: COMMONWEALTH of Pennsylvania v. Samuel GLADDEN, Appellant.
• Court: Pennsylvania Superior Court

Page 1201

665 A.2d 1201

445 Pa.Super. 434

COMMONWEALTH of Pennsylvania v. Samuel GLADDEN, Appellant.

Superior Court of Pennsylvania.

Argued July 12, 1995.

Filed Sept. 26, 1995.

Thomas E. Naughton, Philadelphia, for appellant.

Anthony V. Pomeranz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before ROWLEY, P.J., and CAVANAUGH, McEWEN, DEL SOLE, TAMILIA, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

KELLY, Judge:

In this opinion, we are called upon to determine primarily whether evidence of constructive possession and accomplice liability presented at trial is sufficient to support an appellant's conviction of the crime of possession of an instrument of crime. We hold that evidence of constructive possession and accomplice liability is sufficient to support an appellant's conviction of possession of an instrument of crime. Accordingly, we affirm.

The relevant facts and procedural background are as follows. In the early evening, on March 11, 1992, Charles Jenkins and Craig Williams went to a house located at 2950 N. Lawrence Street in Philadelphia carrying $3,000.00 in cash with which they intended to purchase crack cocaine. ¹ When Jenkins and Williams arrived at the front door of Cintron's house, the appellant, Samuel Gladden, admitted them. Jenkins and Williams told the appellant what they were seeking. The appellant asked Jenkins where the money was; Jenkins displayed the $3,000.00. The appellant told Jenkins and Williams that the quantity of drugs that they wished to purchase was not available at that time. The appellant instructed them to leave and return later, implying that he would make the necessary arrangements to obtain the quantity and type of drugs that they required. After Jenkins and Williams left the house at 2950 N. Lawrence Street, the appellant went to the home of Luis Rosado at 2941 N. 4th Street. Rosado was present with his wife and a friend named "Heavy D". The appellant knocked on the front door; Rosado answered, opening the door. The appellant asked Rosado "if [he] want to do a stick up to two black males from $3,000.00 cash." (N.T. May 13, 1993 at 279). Rosado asked the appellant how he knew the males had the money. The appellant answered that they had showed it to him. Rosado refused the appellant's request because, as he explained at trial, "I'm not into doing stick-ups." (Id. at 280). The appellant left Rosado's house.

Approximately one half-hour later, the appellant returned to Rosado's house. Rosado answered the door when the appellant knocked on it. When Rosado opened the door, he saw the appellant accompanied by Wilfredo Cintron's nephew. The appellant again asked Rosado if he would participate in robbing the two black males. Rosado answered in the negative but Rosado's friend, Heavy D, agreed to help and left the house with the appellant and Wilfredo Cintron's nephew. Approximately ten minutes later, the appellant returned to Rosado's house. This time, the appellant asked Rosado if he "wanted to make a direct sale to two black males for him." (Id. at 281). Rosado agreed to conduct the sale for the appellant, and proceeded to the house at 2950 N. Lawrence Street.

Once Rosado arrived at Cintron's house, he waited in the living room with the appellant. Rosado asked the appellant if the drugs that he had agreed to sell were in the house. The appellant answered, "No." Shortly thereafter, "Julio," the appellant's supplier, arrived at the house, carrying a paper bag which contained sixty-three bundles of crack cocaine. Rosado counted twenty "blue caps" or vials of cocaine in each bundle. Rosado then placed the drugs under a table in the living room.

Soon, Jenkins and Williams returned to complete their purchase of the drugs. The appellant answered their knock on the door. Jenkins and Williams entered the living room accompanied by the appellant. Rosado asked them if they had the money. Jenkins said, "Yes," then asked if Rosado had the "material," meaning the drugs. (Id. at 284). Rosado answered, "Yes." The appellant and Rosado then advanced toward Jenkins and Williams and patted down both men for weapons. Rosado found a handgun tucked into Jenkins' waistband. Rosado asked Jenkins again if he had the money. Jenkins said, "Yes," removed the money from the right hand pocket of his leather jacket, and placed it in Rosado's hand. Rosado removed the rubber band which held the money, counted it, then wrapped the rubber band around the bills, and returned them to Jenkins, who placed the bundle back into his jacket pocket. At that point, "Heavy D" emerged from his hiding place under the stairway, holding a sawed-off shotgun. "Heavy D" told Jenkins and Williams to take out their guns and put them down. Jenkins and Williams ignored him. "Heavy D" again told the buyers to put their guns down. Williams ran to the front door as Wilfredo Cintron emerged from the kitchen wielding a .357 handgun. The appellant attempted to block the exit, but Williams then Jenkins managed to escape from the house into the street. "Heavy D" fired the sawed-off shotgun, hitting the door. Then, he ran outside into the middle of the street where he fired at least three more shots. Wilfredo Cintron fired his gun first from the kitchen where he had been hiding, then he too ran out of the house, up the street, firing approximately four shots. The appellant and Wilfredo Cintron's nephew also went outside. Rosado remained at the doorway, armed with only a BB gun which he testified did not function properly. (N.T. May 13, 1993 at 289). Rosado testified that the appellant and Wilfredo Cintron's nephew were unarmed. (Id.). Meanwhile, Jenkins was shot once he and Williams were outside. The police transported Jenkins to Episcopal Hospital where he was pronounced dead as a result of the gunshot wound. ²

Arrest warrants were issued for the appellant, Wilfredo Cintron, and Luis Rosado. On March 24, 1992, the appellant was arrested and charged with murder, voluntary manslaughter, involuntary manslaughter, robbery, possession of an instrument of crime, carrying firearms in a public street or in a public place, carrying firearms without a license, criminal conspiracy, simple assault, aggravated assault, and recklessly endangering another person. On May 11, 1993, a jury trial before the Honorable David N. Savitt ensued. ³ The appellant was found guilty of murder in the second degree ⁴ and possessing an instrument of crime. ⁵ Immediately following dismissal of the jury, Judge Savitt imposed a sentence of life imprisonment for the appellant's conviction of second degree murder. Sentencing on the possession of an instrument of crime was deferred. On March 16, 1994, Judge Savitt heard and denied post verdict motions. The court then imposed a sentence of not less than one year nor more than two years imprisonment for the crime of possession of an instrument of crime; the sentence was to be served concurrently to the appellant's sentence of life imprisonment for his conviction of the crime of second-degree murder. The appellant filed a timely appeal on March 21, 1994. Following appellate argument, and the circulation of a proposed opinion, a panel of this Court elected to certify one issue to the Court en banc. The original panel subsequently withdrew their opinion.

Appellant raises the following issues on appeal:

I. DID THE TRIAL COURT ERR IN PERMITTING THE JURY TO EXAMINE APPELLANT'S STATEMENT DURING DELIBERATIONS. [sic] THROUGH THE TESTIMONY OF A POLICE DETECTIVE?

II. WAS THERE SUFFICIENT EVIDENCE AS A MATTER OF LAW TO SUSTAIN APPELLANT'S CONVICTIONS, IN THAT:

A. THERE WAS NO EVIDENCE PRESENTED THAT APPELLANT WAS IN ACTUAL OR CONSTRUCTIVE POSSESSION OF AN INSTRUMENT OF CRIME;

B. THE UNDERLYING FELONY ENGAGED IN BY APPELLANT FROM WHICH COMPLAINANT'S DEATH AROSE WAS NOT ONE OF THE STATUTORILY ENUMERATED FELONIES REQUIRED TO SUSTAIN A SECOND DEGREE MURDER VERDICT;

C. THE EVIDENCE ONLY ESTABLISHED THE APPELLANT'S MERE PRESENCE AT THE CRIME SCENE.

Appellant's Brief at 3. ⁶

The appellant argues that the reading of his confession by the court reporter to the jury after they had been sent out to deliberate violates Rule 1114 of the Pennsylvania Rule of Criminal Procedure, which states that the jury cannot have, inter alia, a copy of any written confession by the defendant with them while they deliberate. The reading, the appellant alleges, violated the spirit of the law because it placed undue emphasis upon the testimony. We disagree.

Rule 1114 states that upon the jury's retiring for deliberations, it shall not be permitted to have, inter alia, any written confession by the defendant. Pa.R.Crim.P. 1114. ⁷ In this case, however, the rule does not apply as stated above: the jury was not given a written confession, part of the trial transcript, or any of the other things specifically prohibited by Rule 1114. Therefore, Rule 1114 is inapplicable. "When a jury requests that recorded testimony be read to it to refresh its memory, it rests within the trial court's discretion to grant or deny such request." Commonwealth v. Johnson, 421 Pa.Super. 433, 438-39, 618 A.2d 415, 418 (1992), affirmed, 538 Pa. 148, 646 A.2d 1170 (1994) (citing Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984)); Commonwealth v. Ingram, 404 Pa.Super. 560, 591 A.2d 734 (1991), allocatur denied, 530 Pa. 631, 606 A.2d 901 (1992); Commonwealth v. McBall, 316 Pa.Super. 493, 499, 463 A.2d 472, 475 (1983). Furthermore, so long as there is not a flagrant abuse of discretion, this decision should not be overturned on appeal. Id. (citing Commonwealth v. Fontaine, 183 Pa.Super. 45, 47, 128 A.2d 131, 132 (1956)).

In the instant case, there was a weekend between the time that Detective Jastrzembski testified regarding the appellant's statement to the police and the time that the jury was sent out to begin their deliberations. Seven minutes after being dismissed to begin their deliberations, the jury sent to the court the following...