Com. v. Ragan

Decision Date29 July 1994
Citation645 A.2d 811,538 Pa. 2
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Derrick RAGAN, Appellant.
CourtPennsylvania Supreme Court

Hugh J. Burns, Jr., Philadelphia, Robert A. Graci, Harrisburg, for Atty. Gen.




This a direct appeal 1 from a judgment of sentence imposing a penalty of death entered in the Court of Common Pleas of Philadelphia County following appellant's convictions for murder of the first degree 2, possessing instruments of crime generally 3, and recklessly endangering another person. 4 After a thorough review of the evidence in the instant case and the issues raised by appellant, we affirm his sentence of death.

This case arises from an incident which claimed the life of the victim, Darren Brown, on June 26, 1990. At approximately 4:00 p.m. on that date the victim's brother, Wendell Brown, became involved in an altercation over who should use a basketball court with one William Wingate, a friend of appellant's, at the Tustin playground in West Philadelphia. The fight, however, was broken up and Wendell left the playground. Wendell later returned to the playground where he encountered appellant, whom he had seen earlier with Wingate. Wendell told appellant to tell Wingate that a basketball game was not worth fighting over. Appellant said, "you're right" and claimed he would convey the message.

Believing his feud with Wingate was now over, Wendell returned to the playground later that evening with Marcus Watson and several other friends. While Wendell Brown was standing in the playground, Wingate and another man approached him from behind and began bludgeoning Mr. Brown with a baseball bat. The two men then retreated up a flight of nearby steps when Darren Brown came to his brother's aid. Wendell urged Darren that he was all right but Darren responded, "No f__k that, no one f__ks with my brother." He then pointed a finger at the top of the steps and said, "Let's go get them."

The two brothers started up the steps in pursuit of Wendell's assailants, with Darren in the lead. As the two passed appellant who was standing on the steps, Wendell turned and noticed appellant drawing a pistol from his waistband. Wendell punched appellant in the face, shouted for Darren to run, and then fled up the steps. Darren, however, froze and was shot in the chest. He fled a short distance then collapsed. Appellant fired three or four shots at Wendell, who escaped unharmed, and then pursued his already wounded victim. Standing over his victim, he pumped shot after shot into Darren Brown's prostrate body. Appellant then waved his weapon at the crowd and asked, "Does anybody else want some of this?"

Philadelphia Police Officer Rufus Harley and his partner arrived at the scene shortly after the shooting and found a crowd of approximately two hundred people scrambling for the exits of the playground. Upon entering, they found the body of Darren Brown lying face down in a pool of blood. He had been shot thirteen times. 5

After the shooting, appellant fled to the home of his girlfriend, Tameka Brown. At 5:30 a.m. the next morning, he called his friend Kerry Pleasant and arranged for Pleasant to pick him up at Tameka Brown's residence at 6:00 a.m. The two then drove to North Philadelphia where Pleasant dropped off appellant.

Appellant remained at large until July 12, 1990, when he was arrested and charged with the murder of Darren Brown. The case proceeded to a jury trial before the Honorable Paul Ribner. In addition to physical evidence recovered at the crime scene, the Commonwealth introduced the testimony of Wendell Brown and Marcus Watson. Since he had been fleeing for his life at the time of the shooting, Brown had not actually seen appellant shoot his brother; however, he did identify appellant as the individual whom he had seen pull a gun as he and his brother ran up the steps of the playground. Watson had witnessed the shooting and identified appellant as Darren Brown's slayer. In addition, both Brown and Watson had identified appellant from a photo array and in a lineup. The Commonwealth also introduced a statement made to the police by an individual named Hiram Smith on July 10, 1990, in which Smith had identified appellant as the man who had "emptied the clip" of his gun into Darren Brown. Smith, however, had moved to Georgia upon receipt of his first court notice, and at trial denied that he had been able to identify appellant.

Appellant, meanwhile, presented an alibi defense in which he claimed to have arrived at Tameka Brown's house at 5:00 p.m. on June 26, 1990, and to have been there at the time of the shooting. The defense presented the testimony of Ms. Brown to corroborate appellant's story, as well as two witnesses, Daniel Hunter and Tyrone Simmons, who claimed appellant was not at the Tustin playground at the time of the shooting. The defense also introduced the testimony of Kerry Pleasant who claimed appellant had called him from Tameka Brown's residence at the time of the shooting to arrange to have Pleasant pick him up at 6:00 a.m. the following morning.

At the close of the evidence, the jury found appellant guilty of murder in the first degree as well as possession of an instrument of crime, and reckless endangerment of another. 6

Following the jury's verdict, a sentencing hearing was held pursuant to 42 Pa.C.S. § 9711(a). At the hearing the Commonwealth offered two aggravating circumstances: 1) that appellant had previously been convicted of first degree murder for the June 15, 1990, slaying of Anthony Thomas 7 and 2) that appellant had placed others in grave risk of danger in committing the murder of Darren Brown. 8 Appellant in turn offered the testimony of himself and his mother that appellant had been a "warm and loving" son. The jury subsequently found two mitigating circumstances and one aggravating circumstance (based on appellant's previous murder conviction) and sentenced appellant to death.

On March 18, 1992, the trial court denied appellant's post-verdict motions and formally sentenced him to death, with concurrent terms of one to two years for the additional offenses. Appellant now brings the following direct appeal pursuant to 42 Pa.C.S. § 9711(h).

While appellant does not specifically contest the sufficiency of the evidence to sustain his convictions, we are nonetheless required to determine if the evidence is sufficient to support his conviction for first degree murder. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). It is well established that the test for determining the sufficiency of the evidence is whether, viewing all of the evidence admitted at trial, together with all reasonable inferences therefrom, in a light most favorable to the Commonwealth as verdict winner, the trier of fact could have found that the defendant's guilt was established beyond a reasonable doubt. Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985).

In the instant case, the Commonwealth presented eyewitness testimony identifying appellant as Darren Brown's killer. Such evidence, when viewed in a light most favorable to the Commonwealth, was clearly sufficient to sustain appellant's conviction for first degree murder. Thus, we turn to the specific issues raised by appellant.

In bringing the present appeal, appellant raises twenty-four allegations of prosecutorial misconduct and nine additional claims of error which he claims constitute grounds for a new trial. These claims fall into three general categories.

I. Appellant's Evidentiary Claims

In bringing the present appeal, appellant raises nine claims concerning the admission of evidence at trial. In reviewing such claims, we are guided by the rule of law that the admissibility of evidence is a matter addressed to the sound discretion of the trial court and that an appellate court may only reverse upon a showing that the trial court abused its discretion. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). Examination of appellant's evidentiary claims under this standard reveals them to be meritless.

Appellant's first three contentions concern the statements of Hiram Smith, a Commonwealth witness who had been an eyewitness to the shooting. At trial, Smith testified that he had been unable to identify Darren Brown's assailant. In response to this testimony, the prosecution introduced a statement made by Smith to police on July 10, 1990, in which he had identified appellant as Darren Brown's killer after viewing an array of eight photographs. Appellant now argues that the trial court erred in admitting the prior inconsistent statement of Hiram Smith as substantive evidence. This allegation is completely without merit in light of our holding in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992).

In Lively, we dealt with a defendant's challenge to his judgment of sentence for murder in the first degree and possession of an instrument of crime on the ground that the prior inconsistent statements of three Commonwealth witnesses had been improperly admitted as substantive evidence. We subsequently reversed the judgment of sentence against the defendant and remanded the case for a new trial on the ground that two of the statements challenged by the defendant had been improperly admitted as substantive evidence. In doing so, we held that a witness' prior inconsistent statement could only be admitted as substantive evidence when the statement had been given under oath at a formal legal proceeding, reduced to writing and signed by the declarant, or recorded verbatim contemporaneously with the making of the...

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