Commonwealth v. Davis, 1964 EDA 2019

CourtSuperior Court of Pennsylvania
Writing for the CourtNICHOLS, J.
Docket Number1964 EDA 2019,J-A05019-21
Decision Date06 October 2021



No. 1964 EDA 2019

No. J-A05019-21

Superior Court of Pennsylvania

October 6, 2021


Appeal from the Judgment of Sentence Entered January 18, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006720-2017




Appellant Jahleel C. Davis appeals from the judgment of sentence entered following his jury trial conviction for attempted murder and related offenses. Appellant claims that the Commonwealth failed to provide requested discovery and violated Brady v. Maryland, 373 U.S. 83 (1963). After review, we affirm in part, vacate in part as to the sentence for conspiracy to commit murder, and deny Appellant's application for remand.

We affirm. Additionally, we deny Appellant's application for remand for an evidentiary hearing.

We adopt the facts and procedural history set forth in the trial court's opinion. See Trial Ct. Op., 12/27/19, at 1-17. Briefly, on the night of August 8, 2017, Appellant and Jamal Jones (co-defendant) shot Kendall Rosendary in Norristown, Pennsylvania.[1] At that time, Rosendary was walking on Cherry Street near a playground. Rosendary heard people yelling, and ran when he saw someone with a gun. Appellant and his co-defendant shot Rosendary multiple times. Rosendary was rushed to a hospital and survived. Rosendary could not identify who shot him, but told police that at least three men, all of them armed, had attacked him. Rosendary also recalled that two of the attackers were wearing dark hooded sweatshirts.

Norristown Police chased a Chevrolet Impala that left the vicinity of the shooting at high speed. The Impala pulled onto Cherry Street and three individuals fled the Impala on foot. The police recovered a .38 Special caliber revolver containing six fired cartridge casings from the Impala's interior.

The police searched the area around where the Impala stopped and arrested Appellant in the early morning hours of August 9, 2017. The police recovered a .45 caliber Para-Ordnance handgun and a black hooded sweatshirt near the area where they arrested Appellant. The police also recovered a cell phone from Appellant. The police arrested co-defendant and another male (the third individual) nearby hiding under a back porch. The police recovered a .40 caliber Glock Model 27 handgun from the area where they arrested co-defendant and the third individual.

The police recovered both fired cartridge casings of various calibers and bullet fragments from the scene of the shooting. Detective Eric Nelson of the Montgomery County Detective Bureau, an expert in the field of forensic firearms identification and analysis, testified that he examined the aforementioned firearms as well as fired cartridge casings, bullets, and bullet fragments that the police recovered from the scene of the Rosendary shooting. Detective Nelson opined that the Glock 27 firearm recovered near co-defendant fired the .40 caliber fired cartridge casings he examined. Detective Nelson also concluded that a single firearm had fired the recovered .45 caliber cartridge casings, but the Para-Ordnance pistol the police recovered when they arrested Appellant did not fire those .45 caliber cartridge casings. Detective Nelson further testified that some of the bullets and bullet fragments that were recovered from the scene of the shooting were consistent with bullets fired from the Glock 27 pistol and others were consistent with bullets fired from the .38 Special caliber revolver. The police also recovered several 9mm caliber fired cartridge casings from the scene of the shooting, but the police never recovered a 9mm caliber firearm after the shooting.

The Pennsylvania State Police Harrisburg Regional Crime Lab found gunshot residue on the sweatshirt recovered near Appellant. Albert Lattanzi of the Harrisburg Crime Lab testified that the presence of this residue on the sweatshirt was consistent with the recent firing of a gun by the wearer of the shirt or that the shirt's wearer was near someone else firing a gun.

The police performed swabs on the firearms they recovered from Appellant, his co-defendant, and the Impala to test for DNA. The parties stipulated, in relevant part that the DNA swabs taken from the grip of the .38 Special caliber revolver found in the back of the Impala contained a mixture of DNA from at least three individuals, and it was 19, 660 times more likely that Appellant was one of those three individuals than a random person.

Appellant's cell phone contained videos and photographs depicting various firearms. Appellant made numerous posts on Facebook expressing his desire to get revenge for the death of Scott, that he intended to "grab bigger guns," "mask up," and "catch another body."

Appellant testified that he, co-defendant, and the third individual attended a party in Norristown on August 8, 2017. Appellant stated that after the three of them left the party and were walking down the street, someone called to them. Appellant saw a man pointing a gun at him. Appellant could not identify Rosendary as that gunman. Appellant testified that he and his companions ran away from the gunman, who opened fire. Appellant stated that he then drew his gun and returned fire, and that he and his companions got into co-defendant's Impala and fled from the shooter. Appellant and the others then abandoned the car and fled on foot after police vehicles blocked their path. Appellant claimed his comments on social media were references to the music he listens to.

On November 2, 2018, the jury convicted Appellant of attempted murder, conspiracy to commit murder, aggravated assault, conspiracy to commit aggravated assault, and possession of an instrument of a crime.[2]

During the sentencing hearing, Lieutenant Todd Dillon of the Norristown Police Department testified that during his investigation, he concluded that Tyrique Lyons was the intended target of Appellant and his co-defendant. N.T. Sentencing Hr'g, 1/18/19, at 22. Lieutenant Dillon explained that Lyons, Haj Washington, and Elijah Jones had a confrontation with individuals from Pottstown about forty-five minutes prior to the Rosendary shooting and they went to the Cherry Street Park to "lay[] low". Id. at 22, 27, 30. Dillon testified that after Lyons, Washington, and Jones saw a passing vehicle that the three men recognized as one from Pottstown, they left the park. Id. at 22, 28-29, 31-32. He further stated that when Lyons and his companions returned, they saw the victim on a stoop across from the park. Id. at 22. Lieutenant Dillon stated his conclusion that Rosendary was in the wrong place at the wrong time. Id. at 22-23. Dillon explained that he knew who the intended targets were because "they," meaning Lyons, Washington, and Jones, had spoken to the police about two or three weeks after the shooting. Id. at 26-27, 32.

Ultimately, on January 18, 2019, the trial court sentenced Appellant to concurrent terms of twenty to forty years' imprisonment for attempted murder and conspiracy to commit murder. The trial court also sentenced Appellant to a consecutive term of one to two years' imprisonment for possession of an instrument of crime. Appellant's aggregate sentence is twenty-one to forty-two years' imprisonment. Appellant filed a timely post-sentence motion for a new trial, alleging, among other things, that the Commonwealth violated Pa.R.Crim.P. 573 and Brady. Specifically, Appellant alleged that he had requested copies of all witness statements related to the shooting and that the Commonwealth had not turned over the witness statements of Lyons, Washington, and Jones that Lieutenant Dillon described during the sentencing hearing. Post-Sentence Mot., 1/25/19, at ¶¶ 27-37. Appellant asserted that if this information had been disclosed to him, he could have presented evidence at trial about "plausible alternative suspects who may have possessed the two missing firearms that were not recovered from the scene of the shooting." Id. at ¶ 38. Appellant also argued that this evidence would have corroborated Appellant's trial testimony that he acted in self-defense because a group of Norristown individuals approached him and opened fire, and Appellant returned fire. Id. at ¶¶ 39-41, 43, 46.

The trial court held post-sentence motion hearings on May 10, and June 3, 2019. Lieutenant Dillon testified at the May 10, 2019 hearing that, of the three individuals who the police believed were intended targets of the shooting, only Lyons spoke to the police and his prior testimony about speaking with "them" (i.e. all three individuals) was erroneous. N.T. Post-Sentence Hr'g, 5/10/19, at 12-13. Lieutenant Dillon explained that Detectives Leeds and Sowell conducted the interview with Lyons, and he was present for most of that interview. Id. at 20-21. The interview occurred about two weeks after the Rosendary shooting. Id. at 17. Lieutenant Dillon testified that the Norristown Police Department does not have policies regarding witness interviews. Id. at 21. He stated that it is up to the individual officer to record a witness interview, and that Lyons would only speak to the police off the record, would not give a formal statement, and would not testify. Id. at 22-23. Lieutenant Dillon recalled that Lyons said that he and his companions had a confrontation with members of the Pottstown faction about forty-five minutes to an hour before Kendall Rosendary was shot. Id. at 13. Lyons, Jones, and Washington fled the confrontation and hid in Cherry Street Park. Id. at 13, 15-16. While in the park, Lyons saw a car that he thought belonged to members of the Pottstown faction pass by and Lyons believed that the Pottstown group was hunting him and his companions. Id. at 13, 31. Lyons and his companions left the park,...

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