Com. v. Russell

• Decision Date: 29 September 1995
• Citation: 665 A.2d 1239,445 Pa.Super. 510
• Parties: COMMONWEALTH of Pennsylvania v. George RUSSELL, Appellant. COMMONWEALTH of Pennsylvania v. Kevin CLEVELAND, Appellant. COMMONWEALTH of Pennsylvania v. Prince HAGWOOD, Appellant.
• Court: Pennsylvania Superior Court

Page 1239

665 A.2d 1239

445 Pa.Super. 510

COMMONWEALTH of Pennsylvania v. George RUSSELL, Appellant.

COMMONWEALTH of Pennsylvania v. Kevin CLEVELAND, Appellant.

COMMONWEALTH of Pennsylvania v. Prince HAGWOOD, Appellant.

Superior Court of Pennsylvania.

Argued May 25, 1995.

Filed Sept. 29, 1995.

Daniel A. Rendine, Philadelphia, for George Russell.

Brian McMonagle, Philadelphia, for Kevin Cleveland. (Submitted)

Thomas W. Moore, Philadelphia, for Prince Hagwood. (Submitted)

Joan Weiner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Commonwealth, appellee. (Submitted)

Before CAVANAUGH, CIRILLO and HESTER, JJ.

CIRILLO, Judge:

Appellants George Russell, Kevin Cleveland, and Prince Hagwood appeal from their respective judgments of sentence ¹ entered in the Court of Common Pleas of Philadelphia County. We affirm.

On September 15 and 16, 1990, Russell was involved in several arguments with his cousins, Ronald Bradley and Joseph Bradley. One of the arguments culminated in a gunshot wound to Russell's foot. This series of confrontations climaxed on the morning of September 17, 1990, when the appellants opened fire on Ronald and Joseph Bradley as they stood outside their mother's house.

Several people witnessed this shooting and testified at trial that the appellants assembled near the Bradleys' mother's home at approximately 10:30 a.m. Aaron Hainey, who was also with the appellants, confronted Ronald and Joseph Bradley. While they were talking, appellant Clark Henderson drew a weapon and began shooting. ² All of the appellants then opened fire in the direction of the Bradleys; thirty-five to forty shots were fired.

When the shooting concluded, appellants assisted the wounded Aaron Hainey into a car and fled the scene. Ronald Bradley and Aaron Hainey died as a result of their injuries. Joseph Bradley was also wounded; he spent six weeks hospitalized in intensive care and eventually recovered.

Following a jury trial, ³ Kevin Cleveland was convicted of possession of an instrument of crime and conspiracy. Prince Hagwood and George Russell were both convicted of first-degree murder, third-degree murder, aggravated assault, possession of an instrument of crime, and conspiracy.

After the verdicts were read, appellant Clark Henderson, in the presence of the jury, stood up and alleged that his co-defendant, Denovian Royster, had paid a bribe to a juror in return for a not guilty verdict. ⁴ Post-verdict motions were filed and denied. ⁵

Kevin Cleveland was sentenced to not less than five nor more than ten years for conspiracy and to a concurrent sentence of not less than two-and-one-half nor more than five years for possessing an instrument of crime. Prince Hagwood and George Russell were each sentenced to life imprisonment for first-degree murder and to consecutive sentences of ten to twenty years for third-degree murder. Hagwood and Russell also received concurrent sentences of five to ten years for aggravated assault, two and one-half to five years for possessing an instrument of crime, and five to ten years for conspiracy.

Cleveland, Hagwood and Russell filed timely notices of appeal. They each raise the following claims for our review:

1. Is the appellant entitled to a new trial on account of allegations of jury tampering?

2. Did the court err in denying appellant's motion to dismiss which had as its basis his right not to be placed in jeopardy twice where the prosecutor acted in bad faith by deliberately withholding evidence, and by misleading counsel and the court and in doing so committed acts requiring the court to declare a mistrial during appellant's first trial?

3. Did the court err in permitting the introduction of a photograph of a wall containing various names and prejudicial phrases?

4. Is a new trial required on account of the failure of the trial court to reveal immediately that a juror had been threatened and due to ex parte contact between the court and jury?

In addition, Hagwood and Russell raise the following claim on appeal:

1. Did the court err in permitting Yolanda Tate to testify that she moved after the incident thereby permitting the jury to infer that she did so out of fear of the defendant?

Finally, Cleveland raises the following claims for our review:

1. Was the evidence sufficient to support the appellant's conspiracy conviction?

2. Was the verdict against the weight of the evidence?

This court has long recognized that upholding the sanctity of the jury system is a matter of utmost importance in our system of justice. Colosimo v. Pennsylvania Electric Co., 337 Pa.Super. 363, 369, 486 A.2d 1378, 1381 (1984); Mix v. North American Co., 209 Pa. 636, 59 A. 272 (1904). Faith in juries must remain intact "else confidence in the system which is the best achievement of civilization will be lost." Mix, 209 Pa. at 645, 59 A. at 274-75. In keeping with this principle, this court has held that any inappropriate contact with the jury about the matter before them automatically creates a " 'reasonable likelihood' of prejudice." Commonwealth v. Syre, 348 Pa.Super. 110, 114, 501 A.2d 671, 673 (1985) rev'd on other grounds, 513 Pa. 1, 518 A.2d 535 (1986).

However, another principle of law must be considered before we address appellants' first claim of error. The courts of this Commonwealth have long recognized, most recently in Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994), that this court may not substitute its judgment for that of the fact finder. "When the evidence supports the factual findings [of the trial court], we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are erroneous." Williams, 539 Pa. at 71-2, 650 A.2d at 426. Accord: Commonwealth v. Medley, 531 Pa. 279, 612 A.2d 430 (1992); Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976). This Court has further stated The refusal of a new trial on the grounds of alleged misconduct of a juror is largely within the discretion of the trial judge. When the facts surrounding the possible misconduct are in dispute, the trial judge should examine the various witnesses on the question, and his findings of fact will be sustained unless there is an abuse of discretion.

Commonwealth v. Posavek, 278 Pa.Super. 265, 274, 420 A.2d 532, 537 (1980) (citations omitted).

The allegations of juror misconduct or tampering necessitating this appeal involved a purported scheme by juror Willie Mae Moye and a friend, Cynthia Torrence, to extort money from the defendants in return for favorable verdicts. At the post-verdict motions hearing, co-defendant Denovian Royster testified that early in the trial he noticed a woman in the courtroom and later contacted her by phone. He further testified that during several conversations, the woman, Torrence, explained that she had a friend on the jury, Moye, and that if Royster and his co-defendants did not pay them $5,000.00, the jury would convict all of them.

Denovian Royster contends that he pleaded with Ms. Torrence to tell Ms. Moye that he did not have any money and that she should just decide the case on the evidence. Despite his purported concern, Royster completely neglected to tell his attorney about the alleged plot.

In contrast, Willie Mae Moye testified at the post-verdict motion hearing that she had never spoken to any of the defendants and that she had never asked any of the defendants for money. In addition, she stated that although she had spoken to Torrence before and during the trial, it was always about matters unrelated to the trial. When Torrence did ask questions about the trial, Moye testified that she told her that she could not discuss it, but because the courtroom was open to the public, Torrence could come to City Hall to observe.

We cannot determine from the cold record before us what actually transpired with regard to the allegations of jury tampering, or whether it had an adverse effect on the verdict. Denovian Royster's testimony at the post-verdict motions hearing directly contradicted that of Willie Mae Moye and her alleged accomplice. Judge O'Keefe, however, had a first-hand impression of the demeanor of each witness. It is his determination, as fact finder, to which we defer. Judge O'Keefe found Denovian Royster's testimony, as well as that of his cousin, not credible, noting that they had an obvious motive to lie. The implicated juror, Willie Mae Moye, also testified before Judge O'Keefe. Judge O'Keefe commented that her testimony was more credible. Two additional jurors testified at the post-trial hearing; they stated that they had witnessed contact between Moye and Torrence. Judge O'Keefe found that their testimony, however, demonstrated no misconduct on Moye's part.

After carefully examining all of the evidence, Judge O'Keefe concluded that the allegations of misconduct involving Willie Mae Moye were completely unsubstantiated. ⁶ Based on the testimony of the three jurors, Judge O'Keefe also concluded that there were no outside influences affecting the jury that would have possibly impaired the jury's ability to return a fair verdict based upon the evidence. Finding no error of law or abuse of discretion in Judge O'Keefe's reasoning, we find that the appellants' first claim is meritless. Williams, supra; Posavek, supra.

Next, appellant's argue that a series of prosecutorial actions entitle them to dismissal of the charges. Appellants rely upon the Pennsylvania Supreme Court's decision in Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992).

In Smith, the Court addressed the issue of when prosecutorial misconduct acts as a double jeopardy bar to retrial of an accused. The Smith Court held that the Pennsylvania Constitution's double jeopardy clause prohibits retrial where: 1) the prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial; or 2) when the prosecutorial misconduct is...