Commonwealth v. Edwards, 436 EDA 2015

• Court: Superior Court of Pennsylvania
• Writing for the Court: OPINION BY OLSON, J.
• Citation: 177 A.3d 963
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Derrick EDWARDS, Appellant
• Docket Number: No. 436 EDA 2015,436 EDA 2015
• Decision Date: 19 January 2018

177 A.3d 963

COMMONWEALTH of Pennsylvania, Appellee
v.
Derrick EDWARDS, Appellant

No. 436 EDA 2015

Superior Court of Pennsylvania.

Submitted February 21, 2017
Filed January 19, 2018

Damian M. Sammons, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, and Anthony V. Pomeranz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: OLSON, STABILE AND MUSMANNO, JJ.

OPINION BY OLSON, J.:

177 A.3d 967

Appellant, Derrick Edwards, appeals from the judgment of sentence entered on January 9, 2015. On appeal, Appellant raises several objections, including, inter alia , challenges to the sufficiency of the evidence and allegations that the Commonwealth harbored racial animus in the use of its peremptory strikes. Although we hold that listing the races and genders of prospective jurors on a peremptory strike sheet, while ill-advised, does not per se violate the Equal Protection Clause of the Fourteenth Amendment as interpreted by Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), we conclude that, under the totality of circumstances, Appellant demonstrated a Batson violation by showing that the Commonwealth struck at least one juror with discriminatory intent. Accordingly, we vacate Appellant's judgment of sentence and remand for a new trial.

The factual background of this case is as follows. At approximately 5:50 a.m. on September 18, 2012, Appellant and Rasheed Thomas ("Thomas") robbed Keith Crawford ("Crawford") at gunpoint. Approximately five minutes later, Appellant and Thomas approached Kevin Cunningham ("Cunningham") as he waited at a bus stop. Appellant put a firearm in Cunningham's face and said, "You know what this is." When Cunningham did not lie down on the ground, Appellant pushed him to the ground and struck him twice in the back of the head with the firearm. Appellant and Thomas took Cunningham's cash, a set of barber clippers, a Bible, an engagement ring, and a cellular telephone.

At approximately 2:00 a.m. on October 1, 2012, two African–American males approached Whitney Coates ("Coates"). One of the males pointed a firearm at her face and said "You know what it is." Coates gave the assailants her cellular telephone. Approximately 30 minutes later, Appellant and Thomas attempted to rob Donald Coke ("Coke") at gunpoint. When Coke resisted, Appellant shot him twice in the left arm. Appellant and Thomas then fled in an SUV driven by Henry Bayard ("Bayard"). The SUV belonged to Bayard's mother.

Approximately 15 minutes later, Appellant and Bayard robbed Duquan Crump ("Crump") at gunpoint. They fled the scene with Crump's wallet, cellular telephone, and watch. Approximately 15 minutes later, Appellant and Thomas robbed Shanice Jones ("Jones") at gunpoint. They fled with Jones' wallet and cellular telephone. Approximately 15 minutes later, two African–American males approached Hector De Jesus ("De Jesus"). One of the males pointed a firearm at him and ordered him to hand over his belongings. The assailants took $150.00, an iPod touch, a wallet, and a backpack containing clothes and a taser.

Approximately 45 minutes later, an African–American male exited a vehicle and pointed a firearm at Jonas Floyd ("Floyd"). Another African–American male then exited the vehicle. The assailants took Floyd's tote bag, headphones, cellular telephone, wallet, keys, and United States currency. Shortly after this robbery, police located Appellant, Thomas, and Bayard inside the SUV that belonged to Bayard's mother. In addition to the firearms used in the robberies, police recovered a significant amount of the goods stolen from the eight victims listed above.

177 A.3d 968

The relevant procedural history of this case is as follows. On November 2, 2012, the police charged Appellant via eight criminal complaints with various offenses relating to the robberies described above. A preliminary hearing was held on February 26, 2013. At the conclusion of that hearing, Appellant was held for court on all charges. On March 6, 2013, the Commonwealth charged Appellant via eight criminal informations with essentially the same crimes as those charged in the criminal complaints.

On October 13 and 14, 2014, Appellant moved to quash the criminal informations. In those motions to quash, Appellant argued that the evidence presented at the preliminary hearing was insufficient to make out prima facie cases against him. On October 27, 2014, the trial court denied the motions to quash.

Jury selection began on October 28, 2014. Prior to jury selection, Appellant asked the trial court how it conducted voir dire. The trial court responded that it would ask prospective jurors questions and the attorneys would not be permitted to make inquiries. Appellant did not object to this procedure. The trial court's staff placed the race and gender of each prospective juror on the juror strike sheet prior to handing the sheet to counsel. Appellant objected to this process and the trial court overruled the objection. Once the parties exercised their respective peremptory strikes, Appellant, pursuant to Batson , objected to the Commonwealth striking four prospective African–American jurors.¹ The trial court determined that the Commonwealth exercised its strikes in a non-prejudicial manner and overruled Appellant's objection.

Appellant's trial commenced on October 29, 2014.² At trial, Thomas appeared as a witness for the prosecution but he refused to identify his co-conspirators. The Commonwealth, therefore, sought permission to read Thomas' confession into the record. Appellant objected and the trial court overruled that objection. The Commonwealth also presented an audio recording of Appellant from prison. Appellant objected to the admission of the recording and the trial court overruled that objection.

On November 4, 2014, the jury found Appellant guilty of eight counts of robbery,³ eight counts of conspiracy to commit robbery,⁴ eight counts of carrying a firearm without a license,⁵ eight counts of carrying a firearm on the streets of Philadelphia,⁶ eight counts of possessing an instrument of crime,⁷ attempted murder,⁸ aggravated assault,⁹ and conspiracy to commit aggravated assault.¹⁰

Over six weeks later, on December 22, 2014, Appellant moved for a mistrial. In

177 A.3d 969

that motion, based upon the statements of two American Sign Language interpreters present during jury deliberations, Appellant averred that jurors conducted research about the case during deliberations. The trial court denied the motion that same day. On January 9, 2015, the trial court sentenced Appellant to an aggregate term of 22 to 44 years' imprisonment. This timely appeal followed.

On April 6, 2015, the trial court ordered Appellant to file a concise statement of errors complained of on appeal ("concise statement"). See Pa.R.A.P. 1925(b). Appellant failed to file a timely concise statement and, on October 7, 2015, this Court remanded this case to the trial court to permit Appellant to file a nunc pro tunc concise statement. On October 28, 2015, Appellant filed his concise statement. On February 24, 2016, the trial court issued its Rule 1925(a) opinion. This case is now ripe for disposition.

Appellant raises several issues for our review, inter alia :¹¹

1. Did the trial court commit an error of law and/or abuse its discretion in failing to issue a judgment of acquittal[?]

2. Did the trial court commit an error of law and/or abuse its discretion in failing to quash the return of the magistrate's transcript ... where the Commonwealth failed to present material witnesses at a preliminary hearing or supplement a devoid record prior to trial?

3. Did the trial court commit an error of law and/or abuse its discretion in denying Appellant's Batson [ ] motion by denoting on its jury sheet the race and gender of each potential juror and allowing the prosecution to strike jurors on the basis of race?

Appellant's Brief at 5–6 (certain capitalization omitted).¹²

In his first issue Appellant argues that the evidence presented at trial as to four of the robberies was insufficient. "The determination of whether sufficient evidence exists to support the verdict is a question of law; accordingly, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Johnson , ––– Pa. ––––, 160 A.3d 127, 136 (2017) (citation omitted). In assessing Appellant's sufficiency challenge, we must determine "whether viewing all the evidence admitted at trial in the light most favorable to the [Commonwealth], there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt." Commonwealth v. Grays , 167 A.3d 793, 806 (Pa. Super. 2017) (citation omitted). "[T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.... [T]he finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part[,] or none of the evidence."

177 A.3d 970

Commonwealth v. Waugaman , 167 A.3d 153, 155–156 (Pa. Super. 2017) (citation omitted).

Appellant contends that the evidence was insufficient to...