Commonwealth v. Brown

• Decision Date: 17 July 2013
• Citation: 71 A.3d 1009,2013 PA Super 194
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Leslie L. BROWN, Appellant.
• Court: Pennsylvania Superior Court

71 A.3d 1009

2013 PA Super 194

COMMONWEALTH of Pennsylvania, Appellee

v.Leslie L. BROWN, Appellant.

Superior Court of Pennsylvania.

Submitted May 28, 2013.

Filed July 17, 2013.

Scott Coffey, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

OPINION BY DONOHUE, J.:

Leslie L. Brown (“Brown”) appeals from the judgment of sentence entered on May 23, 2011, by the Court of Common Pleas, Allegheny County. Upon review, we vacate and remand for resentencing in accordance with Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Commonwealth v. Knox, 50 A.3d 749 (Pa.Super.2012), appeal granted on other grounds,––– Pa. ––––, 68 A.3d 323 (2013). In so ruling, we apply the well-established principle that a claim that a sentence violates an individual's right to be free from cruel and unusual punishment is a nonwaivable challenge to the legality of the sentence. See Commonwealth v. Howard, 373 Pa.Super. 246, 540 A.2d 960, 961 (1988); Commonwealth v. Yasipour, 957 A.2d 734, 740 n. 3 (Pa.Super.2008), appeal denied,602 Pa. 658, 980 A.2d 111 (2009).

At approximately 12:00 a.m. on the morning of September 29, 2006, 16-year-old Brown was in the Swissvale neighborhood of Allegheny County with friends Lamar Meggison (“Meggison”), Keith Smith (“Smith”), and Daniel Holmes. As the group proceeded to a local convenience store, Brown approached Michael Stepien (“Stepien” or “the victim”), who was walking in a nearby alley, and demanded money, holding a gun to Stepien's head. Stepien told Brown he had no money. Brown fired two warning shots—one in the air and one into the ground—and demanded money a second time. When Stepien again told him he did not have any money, Brown shot him in the head. Brown and his friends, who were still in the area, ran to the home of Terico Ross, another friend who lived in the neighborhood. While there, in the presence of his friends, Brown said that he killed someone.

Paramedics responded to a call of a man lying in the alley between Nied's Funeral Home and the volunteer fire department and transported the victim to the hospital. Stepien was pronounced dead from the gunshot wound to his head at approximately 3:00 a.m. on September 29, 2006. Medical personnel removed a badly damaged .22 caliber bullet from Stepien's head.

On October 6, 2006, at a bus stop in Swissvale several blocks from where the murder occurred, Brown approached Francis Yesco (“Yesco”) from behind, put a gun to his head, told him not to move, and reached into Yesco's pants pocket. Yesco brushed Brown's hand away and turned to strike Brown, at which Brown fled, still holding the gun. Yesco and Swissvale Police Officer Justin Keenan, who was patrolling in the area and observed what happened, chased Brown for approximately half a block, during which Brown discarded the firearm over a fence. Officer Keenan ultimately caught Brown and arrested him, and recovered the gun shortly thereafter.

A ballistics expert for the Commonwealth test-fired Brown's gun, a .22 caliber revolver, and compared the test bullet with the bullet removed from the victim. The bullet recovered from Stepien's head was so badly damaged it could not be matched, but because it shared certain similarities with the test bullet, Brown's gun could not be excluded as the murder weapon.

The police had no further evidence linking Brown to Stepien's murder until 2008, when they arrested Carl Smith, Smith's brother, who told police that Smith was present at the time Brown shot Stepien. This led police to interview other witnesses, who also implicated Brown in Stepien's murder. A grand jury was subsequently convened, and ultimately Brown was arrested.

The Commonwealth charged Brown by information with criminal homicide, robbery, carrying a firearm without a license, and possession of a firearm by a minor.¹ Following a three-day trial, a jury convicted Brown of second-degree murder,² robbery, carrying a firearm without a license, and possession of a firearm by a minor. On May 23, 2011, the trial court sentenced Brown to a mandatory term of life in prison without the possibility of parole for second-degree murder and to a consecutive term of three to six years of imprisonment for carrying a firearm without a license. The court imposed no further penalty on the remaining convictions.

Following sentencing, the trial court granted trial counsel's motion to withdraw. The trial court did not appoint new counsel until July 14, 2011. On September 30, 2011, Brown filed a counseled petition pursuant to the Post Conviction Relief Act seeking reinstatement of his post-sentence rights. The trial court granted his request on December 1, 2011, ordering the filing of post-sentence motions nunc pro tunc within 10 days of its order. Brown complied on December 7, 2011, raising a challenge to the weight of the evidence and two claims of trial court error. On January 20, 2012, the trial court granted Brown permission to file amended post-sentence motions, which Brown did on March 30, 2012, raising an additional claim of trial court error. On May 16, 2012, Brown's post-sentence motions were denied by operation of law.

Brown filed a timely notice of appeal, and complied with the trial court's request for a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). He then filed a supplemental 1925(b) statement, raising for the first time a claim that his mandatory sentence of life in prison without the possibility of parole is unconstitutional. The trial court issued a written opinion pursuant to Pa.R.A.P. 1925(a), addressing all of the issues raised by Brown.

On appeal, he raises three issues for our review, which we have reordered for ease of disposition:

1. Did the trial court err in denying [Brown]'s post[-]sentencing motions since [Brown]'s convictions of second[-]degree murder, robbery-[serious bodily injury], firearms not to be carried without a license and possession of a firearm by a minor were against the weight of the evidence?

2. Did the trial court err in denying [Brown]'s post[-]sentencing motions since the trial court erred in permitting the prosecutor to introduce into evidence, via expert testimony, the gun used in the 10/6/06 robbery since there was no connection established between that gun and the gun and bullet used in the instant 9/28/06 homicide/robbery?

3. Did the trial court err in denying [Brown]'s request for re-sentencing since [Brown]'s sentence of life imprisonment without the possibility of parole for then sixteen[-]year[-]old [Brown] since, pursuant to Miller v. Alabama [ ], the Eighth Amendment to the United States Constitution forbids such a sentence, [Brown] has timely raised this claim and Miller is to be retroactively applied? ³

Brown's Brief at 3.

As his first issue on appeal, Brown asserts that his convictions were against the weight of the evidence presented. Id. at 20. Specifically, he argues that Smith and Meggison, the only witnesses linking him to the crimes, were so incredible, the trial court abused its discretion by not granting him a new trial. Id. at 21–24. The trial court found that the evidence of record supported the guilty verdicts, and because they do not “shock one's sense of justice,” it did not abuse its discretion by denying Brown's post-sentence motion requesting a new trial on this basis. Trial Court Opinion, 1/18/13, at 10.

We review a weight of the evidence claim according to the following standard:

A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial court's discretion; it does not answer for itself whether the verdict was against the weight of the evidence. It is well settled that the [jury] is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the [jury's] verdict is so contrary to the evidence that it shocks one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Karns, 50 A.3d 158, 165 (Pa.Super.2012) (citation omitted).

As noted above, the record reflects that Smith and Meggison were the only eyewitnesses who testified, and both testified that they saw Brown shoot Stepien in the head. N.T., 2/23/11, at 133, 191. However, neither witness came forward and reported the murder to police willingly. The record reflects that Meggison first spoke to police and implicated Brown when he was arrested in connection with Stepien's murder in December of 2008, two years after the murder. Id. at 195, 208. In May of 2008, one year and eight months after the murder, Smith went to the police station to pick up his brother's clothes after his brother was arrested. Id. at 141–42. While there, police asked him about the murder, and Smith initially told the police he did not know anything about it. Id. at 144. He then admitted to knowing about the killing, and knowing that Brown shot Stepien, but denied that he was present when it occurred. Id. at 147. It was not until he testified before the grand jury that Smith told “the full story,” and he did so then only in response to police telling him that they could charge him with perjury if he lied under oath. Id. at 148–49. Smith subsequently left Pennsylvania, and police arrested him on a material witness warrant to ensure he would testify at trial. Id. at 149, 178.

Both witnesses explained why they did not come forward, namely out of fear of retaliation from Brown. Smith was living with his mother at the time and testified that he did not implicate...