Com. v. Randall

• Citation: 758 A.2d 669
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Brian RANDALL, Appellant.
• Decision Date: 01 August 2000
• Court: Superior Court of Pennsylvania

758 A.2d 669

COMMONWEALTH of Pennsylvania, Appellee, v. Brian RANDALL, Appellant.

Superior Court of Pennsylvania.

Submitted January 24, 2000.

Filed August 1, 2000.

Mitchell S. Strutin, Philadelphia, for appellant.

Catherine L. Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before JOHNSON, J., CERCONE, President Judge Emeritus, and OLSZEWSKI, J. CERCONE, President Judge Emeritus:

¶ 1 Appellant Brian Randall appeals from the judgment of sentence of life imprisonment imposed after his second trial by jury in which he was convicted of the offenses of first degree murder and possession of an instrument of crime.¹,²After careful review, we affirm.

¶ 2 The relevant factual circumstances adduced at Appellant's second trial, which was held in the Philadelphia Court of Common Pleas from December 14 to December 17, 1998, were cogently set forth by the Trial Court in its opinion as follows:

[Prosecution witness] Kuwayne El testified that he got into [Appellant's] car at approximately 9:00 p.m. on September 6, 1996, to get a ride to North Philadelphia to buy marijuana. (N.T. [Trial,] 12/15/98:6-8). The [Appellant] was driving the car, and Anthony Grant, the decedent, was in the passenger seat when Mr. El got into the back seat of the car. (N.T. 12/15/98:7-8). The three of them went to [the corner of] 9th and Indiana and bought $10.00 worth of marijuana. (N.T. 12/15/98: 9-10). After they purchased the marijuana, the three men drove to the Nicetown section of Philadelphia. (N.T. 12/15/98: 12). Mr. El started smoking a "blunt"[³] while they were driving. (N.T. 12/15/98:12) The [Appellant] pulled the car over by Stenton Park, which is located at the 4600 Block of 16th Street, and the three men got out of the car. (N.T. 12/15/98: 13). Mr. El testified that the [Appellant] pulled the car over because the car was filled with smoke. (N.T. 12/15/98:13).

Mr. El, the [Appellant, and] ... the decedent, stood in a circle while they smoked the marijuana. (N.T.12/15/98: 14-15). Mr. El testified that the decedent was standing about ten feet to his right, and the [Appellant] was standing to the right of the decedent. (N.T. 12/15/98: 17-19). The three men passed the blunt around. (N.T. 12/15/98: 20). While Mr. El was smoking the blunt, he suddenly heard three gunshots and then he saw the decedent lying on the ground. (N.T. 12/15/98: 21). Mr. El saw the [Appellant], with a gun in his hand, walk back to the car. (N.T. 12/15/98:22). Mr. El then left to walk home; he did not get back into the car with the [Appellant] because he was afraid that the [Appellant] would shoot him as well. (N.T. 12/15/98:25).

At approximately 10:00 p.m. on September 6, 1996, Officer Holt of the 35th Police District was on his regular patrol when he received a call reporting gunshots in Stenton Park. (N.T. 12/14/98: 44-46). As Officer Holt approached Stenton Park, several people, who were waiting for the police, directed him to the body of a black male, lying face down, "bleeding profusely from the head." (N.T. 12/14/98: 47). Officer Holt saw that the body was motionless and believed that the decedent was already dead. (N.T. 12/14/98: 48). When the medics arrived, they pronounced the decedent dead. (N.T. 12/14/98: 50). When [the officer] found the body, it was lying on a diagonal angle, head on the sidewalk, pointing towards the Northeast. (N.T. 12/14/98). The officer also stated that he saw two (2) .45 cartridge casings, which were placed on a property receipt, about 6 to 10 feet east of the decedent's body. (N.T. 12/14/98: 57).

Police Officer Mohammed Abdur-Rahim from the Firearm's Identification Unit, an expert in the area of firearms identification and ballistics, testified that he examined the ballistics recovered in connection with this homicide and determined that they were fired from the same gun. (N.T. 12/16/98: 40, 43, 50).

Dr. Carolyn Rivercomb, assistant medical examiner for the city of Philadelphia supervised the autopsy of Anthony Grant. (N.T. 12/16/98:7). She testified that there were three gunshot wounds that entered the right side of the head and exited on the left side of his face and neck. (N.T. 12/16/98: 11). There was no evidence of gunpowder or soot on the skin surrounding the wound or within the wound, indicating that the gun was not fired from within close-range. (N.T. 12/16/98: 16-17). Dr. Rivercomb concluded that the cause of death was multiple gunshot wounds to the head and neck and that the manner of death was homicide. (N.T. 12/16/98: 29).

Trial Court Opinion, filed 1/30/99, at 2-4.

¶ 3 As indicated, supra, at the conclusion of his jury trial, Appellant was found guilty on all charges and sentenced to life imprisonment. Trial Counsel did not file post-trial motions. Thereafter Appellant filed a pro se Notice of Appeal. New counsel, who currently represents Appellant, was appointed to represent Appellant in his direct appeal.

¶ 4 On appeal to our Court Appellant presents six (6) issues for our consideration:

I. Whether the defendant is entitled to an arrest of judgment because the evidence is insufficient to sustain the verdict of guilty as to murder of the first degree.

II. Whether the defendant's claim that he is entitled to a new trial as a result of the trial court's error in allowing the Commonwealth to present the testimony of Assistant District Attorney Richard Sax concerning the demeanor and credibility of Commonwealth witness Kuwayne El at the preliminary hearing.

III. Whether the defendant is entitled to a new trial as a result of the trial court's denial of a motion for a mistrial made after the prosecutor questioned Commonwealth witness William Whitehouse concerning the existence of photographs ruled inadmissible.

IV. Whether the defendant is entitled to a new trial as a result of trial court error in allowing the Commonwealth to present speculative testimony with regard to the existence of a third fired cartridge casing.

V. Whether the defendant is entitled to a new trial as a result of trial counsel's ineffectiveness for failing to object to the portion of the prosecutor's summation that constituted a direct comment on the defendant's election not to testify at trial.

VI. Whether the defendant is entitled to a new trial as a result of trial counsel's ineffectiveness for failing to request a jury instruction as to intoxication or drugged condition.

Appellant's Brief at 5-6. We will consider Appellant's issues in the order in which he raises them.

¶ 5 Appellant first argues that the evidence was insufficient to sustain his conviction for first degree murder. We have said in prior cases:

In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt.

Commonwealth v. Montini, 712 A.2d 761, 767 (Pa.Super.1998); Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103, 1105 (1994), appeal denied 538 Pa. 669, 649 A.2d 671 (1994). In making this determination, we must evaluate the entire trial record and consider all the evidence actually received. Commonwealth v. Rodriquez, 449 Pa.Super. 319, 673 A.2d 962, 965 (1996). It is within the province of the fact finder to determine the weight to be accorded each witness's testimony and to believe all, part, or none of the evidence introduced at trial. Commonwealth v. Molinaro, 429 Pa.Super. 29, 631 A.2d 1040, 1042 (1993). The facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence, but the question of any doubt is for the trier of fact unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. Commonwealth v. Seibert, 424 Pa.Super. 242, 622 A.2d 361, 363 (1993), appeal denied 537 Pa. 631, 642 A.2d 485 (1994) (citing Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977) and Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943)). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173, 1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988)).

¶ 6 As our Supreme Court has recently stated:

The elements of first-degree murder are that the defendant unlawfully killed a human being, the defendant killed with malice aforethought, and the killing was willful, deliberate, and premeditated. 18 Pa.C.S.A. § 2502(a), (d); Commonwealth v. Cox, 556 Pa. 368, 728 A.2d 923, 929 (Pa.1999). The willful, deliberate, and premeditated intent to kill is the element that distinguishes first-degree murder from other degrees of murder. Commonwealth v. Wilson, 543 Pa. 429, 672 A.2d 293, 297, cert. denied, 519 U.S. 951, 117 S.Ct. 364, 136 L.Ed.2d 255 (1996). The Commonwealth may prove this specific intent to kill by circumstantial evidence. Id. The use of a deadly weapon on a vital part of the victim's body may constitute circumstantial evidence of a specific intent to kill. Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308, 311 (Pa.1995).

Commonwealth v. Wesley, 562 Pa. 7, 753 A.2d 204, 208 (2000); Accord Commonwealth v. Devine, 750 A.2d 899, 904 (Pa.Super.2000)

.

¶ 7 A deadly weapon as defined in the Crimes Code is

Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.

18 Pa.C.S.A. § 2301. Commonwealth v. Scott, 561 Pa. 617, 752...