Com. v. Moore

Decision Date28 December 2007
Docket NumberNo. 396 CAP.,396 CAP.
Citation937 A.2d 1062
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Mikal MOORE, Appellant.
CourtPennsylvania Supreme Court

Larry Feinstein, for Mikal Moore, appellant.

Amy Zapp, Harrisburg, Hugh J. Burns, Jr., Philadelphia Dist. Attorney's Office, for the Com. of PA.

BEFORE: CAPPY, C.J., CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.

OPINION

Justice SAYLOR.

This is a capital direct appeal. The background is as follows.

Sometime before midnight on January 17, 1998, Appellant, Andrea Kinney, and Michael Mobley summoned an unlicensed taxicab, or a hack, to take them from North to West Philadelphia, in the vicinity of 60th and Market Streets. Kinney and Mobley separated from Appellant briefly. When they regrouped, Appellant complained that he had been "stolen" or "sucker punched" by a person whom he had previously robbed. Appellant, Kinney, and Mobley returned to the hack and, at Appellant's direction, the driver set out in pursuit. When he saw his quarry, twenty-two-year-old Donald Burroughs, Jr., Appellant exited the vehicle and gave chase on foot. Kinney and Mobley followed at some point and heard Appellant fire a shot. Appellant said, "Look up at me," and fired two more shots, and Mr. Burroughs was fatally wounded in the encounter. Appellant, Kinney, and Mobley left in the hack and subsequently fled to Wilmington, Delaware.

The police investigation soon centered on Appellant, Kinney, and Mobley. Kinney was interviewed by homicide detectives after he returned to Philadelphia, and he provided a statement implicating Appellant. After an arrest warrant was issued, Appellant was detained and returned to Pennsylvania.

At trial, the Commonwealth sought to prove that Appellant's motivation for the killing flowed from the victim's conduct in defending himself, after having suffered a long-term course of assaults, bullying, and taunting by Appellant. Appellant's counsel advanced an oral motion in limine to preclude at least a portion of this line of questioning, on the basis that it was irrelevant, outside the scope of discovery, and constituted impermissible hearsay. The trial court denied the motion, and the Commonwealth presented testimony from the victim's father, Donald Burroughs, Sr., his sister, Martina Burroughs, and Saltzer Davis, a police officer and long-time friend of the victim's, which included various hearsay references to the victim's complaints of having been robbed, assaulted, and bullied by Appellant since childhood. The Commonwealth also adduced testimony from Kinney, Mobley, and the hack driver, who all implicated Appellant as the killer. Several residents testified to having heard the gunshots, with one having seen Appellant returning to the hack after the shooting, and another having overheard the statement, "Look up at me," between the first shot and the next two. Police officers and detectives described the response to the shooting and the course of their investigation and read Kinney's and Mobley's statements into the record. A ballistics expert confirmed that the two bullet wounds to the victim's body were fired from the same gun, and a medical examiner offered a description of the victim's wounds, one of which included a piercing of the victim's heart. Finally, Kinney's brother testified that, while in jail, Appellant indicated that he would beat him and arrange for Kinney to be stabbed if Kinney continued to "snitch."

Appellant's attorney cross-examined the Commonwealth witnesses, but the defense offered no evidence of its own. After the guilt-phase evidentiary record was closed, the jury found Appellant guilty of first-degree murder and possession of an instrument of crime.

At the penalty phase, the Commonwealth pursued one aggravating factor, namely, that Appellant had a significant history of felony convictions involving the use or threat of violence to the person. See 42 Pa.C.S. § 9711(d)(9). In support of this aggravator, the Commonwealth presented evidence of two juvenile adjudications for robbery and conspiracy, including testimony from one of the victims that he was beaten, stomped, and kicked. A police officer who investigated the other robbery related that the victim was covered with a coat, held by force, and told that he would be shot in the head if he did not cooperate. Appellant sought to establish two mitigating factors, his age at the time of the offense, 42 Pa.C.S. § 9711(e)(4), and the catch-all mitigator, 42 Pa.C.S. § 9711(e)(8).

After deliberating for approximately two hours, the jurors indicated to the trial judge that they were deadlocked, with eleven jurors favoring a verdict and one juror as the holdout. After inquiring as to the nature of the jury's numerical division, the court declared that insufficient time had been dedicated to the deliberative effort and instructed the jurors to, "[g]o back, have open minds, try to deliberate and see if you can make the agreement unanimous." The jury returned approximately three hours later with a unanimous verdict for death. According to the foreperson, the jury unanimously found the aggravating factor and no mitigating factors. See N.T., July 2, 1999, at 7-8.

Trial counsel filed post-sentence motions and, subsequently, substitute counsel filed amendments, which included allegations of ineffective assistance of counsel. Prior to resolution of the motions, the trial judge died, and the matter was reassigned. The court entertained argument on Appellant's post-sentence motions, although it did not conduct an evidentiary hearing, and denied relief on all of Appellant's claims. Appellant filed a notice of appeal.

Presently, Appellant argues that the trial court erred in: admitting other-bad-acts evidence in the form of testimony from Appellant's father, his sister, and Officer Davis concerning prior assaults and bullying perpetrated against the victim by Appellant, over objections based on prejudicial impact and hearsay; permitting a detective to testify concerning "word on the street" implicating Appellant in the killing; allowing the Kinney and Mobley statements to be read into evidence; permitting the admission of "good character" evidence concerning the victim; failing to instruct the jurors concerning the use of other-bad-acts evidence; issuing an overly-restrictive charge regarding voluntary intoxication; allowing the Commonwealth to pursue the Section 9711(d)(9) aggravator based solely on two juvenile robbery adjudications; failing to issue an instruction under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994); misstating the purport of a life sentence in Pennsylvania; and coercing the holdout juror in his response to the announcement that the jury was hung. Further, Appellant asserts that the prosecutor engaged in misconduct by calling for justice in her guilt-phase closing based on the other-bad-acts evidence.

Appellant concedes that his trial counsel did not raise objections to the "word on the street" references, the admission of Kinney and Mobley's statements, the asserted references to the victim's good character, the prosecutor's closing statement, and the jury instructions on voluntary intoxication. Since the appeal was filed after the decision in Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003), which abolished the relaxed waiver doctrine in capital direct appeals filed after the date of the decision's entry, see id. at 560-61, 827 A.2d at 403, relaxed waiver is not available. Therefore, the waived claims may be considered, if at all, only as components of a challenge to trial counsel's stewardship. See Commonwealth v. Uderra, 580 Pa. 492, 500-01, 862 A.2d 74, 79 (2004).

With regard to such challenges, as well as another that Appellant has raised solely through ineffectiveness,1 in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), this Court held that a defendant "should wait to raise claims of ineffective assistance of trial counsel until collateral review." Grant, 572 Pa. at 67, 813 A.2d at 738. While the trial court relied on Commonwealth v. Bomar, 573 Pa. 426 826 A.2d 831 (2003), to consider the ineffectiveness claims, see Trial Court Opinion, at 10 n. 1, the Bomar exception to the Grant rule applies only in instances in which the post-sentence court conducts an evidentiary hearing. See Commonwealth v. Mitchell, 576 Pa. 258, 269, 839 A.2d 202, 208 (2003) ("Taking into account the strong preference set forth in Grant to postpone review of all ineffectiveness claims to the collateral process, and the limitation of the exception allowed in Bomar to consider only those ineffectiveness claims where the lower court conducted a hearing and provided a full consideration of the issue, we believe the claims raised in this case are best left to the collateral stage."). Since no such hearing was conducted in this case, Appellant's claims of ineffectiveness of counsel will be dismissed without prejudice to his ability to pursue them on collateral review. See 42 Pa.C.S. § 9543(a)(2)(ii).2

I. Sufficiency of the Evidence

In all capital cases, we review evidentiary sufficiency. To establish the offense of first-degree murder, the Commonwealth must prove the fact of the killing, the defendant's involvement, and malice and specific intent to kill on the part of the defendant. See Commonwealth v. Collins, 550 Pa. 46, 50, 703 A.2d 418, 420 (1997). Further, specific intent to kill can be inferred from the use of a deadly weapon upon a vital part of the victim's body. See Commonwealth v. Speight, 544 Pa. 451, 459, 677 A.2d 317, 321 (1996). In this assessment, the evidence is viewed in the light most favorable to the Commonwealth, as the verdict winner. See Speight, 544 Pa. at 459, 677 A.2d at 321.

Here, the evidence offered at trial is plainly sufficient to support the first-degree murder conviction. For example, the testimony of Kinney, Mobley, and the hack driver...

To continue reading

Request your trial
66 cases
  • Com. v. Fletcher, No. 545 CAP
    • United States
    • Pennsylvania Supreme Court
    • December 28, 2009
    ...as substantive evidence that a defendant acted in conformity therewith, nevertheless no relief is due here. See Commonwealth v. Moore, 594 Pa. 619, 937 A.2d 1062, 1073 (2007); Commonwealth v. Stallworth, 566 Pa. 349, 781 A.2d 110, 118 (2001). Appellant attempts to end-run the previous litig......
  • Com. v. Baumhammers
    • United States
    • Pennsylvania Supreme Court
    • November 20, 2008
    ...to Appellant's issues, even though Appellant's trial occurred prior to the effective date of the new rule. See Commonwealth v. Moore, 594 Pa. 619, 937 A.2d 1062, 1066 (2007) (holding that Freeman barred application of the relaxed waiver rule where the appellant was convicted in 1999, prior ......
  • Com. v. Smith
    • United States
    • Pennsylvania Supreme Court
    • May 27, 2010
    ...Pennsylvania means life without parole. Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243, 254 (2000); see also Commonwealth v. Moore, 594 Pa. 619, 937 A.2d 1062, 1074 (2007). Here, although counsel did not request such instruction, the trial court informed the jury that one of its two op......
  • Commonwealth of Pa. v. Birdsong
    • United States
    • Pennsylvania Supreme Court
    • May 26, 2011
    ...defendant's entire background, character, and record, id., at 675–76, and we have reiterated this holding. See Commonwealth v. Moore, 594 Pa. 619, 937 A.2d 1062, 1068 (2007); Carson, at 274–75. Thus, appellant's claim is meritless,25 and remand for further development of this claim with res......
  • Request a trial to view additional results
1 firm's commentaries
  • What’s Happening With Mallory Post-Remand
    • United States
    • LexBlog United States
    • August 21, 2023
    ...a valid judgment based on any reason appearing as of record, regardless of whether it is raised by the appellee.” Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007). [T]his Court, in its discretion, may sustain a valid judgment for any reason appearing of as of record. This right-for-any......
6 books & journal articles
  • Hearsay
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2015 Contents
    • July 31, 2015
    ...6-86 intention. Statements of the intention of one person cannot be used to prove the basis of another’s conduct. Commonwealth v. Moore , 937 A.2d 1062 (Pa. 2007). Testimony of the victim’s father, sister and friend contained statements made by the victim concerning bullying by defendant si......
  • Hearsay
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2016 Contents
    • July 31, 2016
    ...intention. Statements of the intention of one person cannot be used to prove the basis of another’s conduct. Commonwealth v. Moore , 937 A.2d 1062 (Pa. 2007). Testimony of the victim’s father, sister and friend contained statements made by the victim concerning bullying by defendant since c......
  • Declarations
    • United States
    • James Publishing Practical Law Books Trial Evidence Foundations Hearsay
    • May 5, 2019
    ...intention. Statements of the intention of one person cannot be used to prove the basis of another’s conduct. Commonwealth v. Moore , 937 A.2d 1062 (Pa. 2007). Testimony of the victim’s father, sister and friend contained statements made by the victim concerning bullying by defendant since c......
  • Hearsay
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2017 Contents
    • July 31, 2017
    ...intention. Statements of the intention of one person cannot be used to prove the basis of another’s conduct. Commonwealth v. Moore , 937 A.2d 1062 (Pa. 2007). Testimony of the victim’s father, sister and friend contained statements made by the victim concerning bullying by defendant since c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT