Commonwealth v. Freeman

• Decision Date: 22 December 2020
• Docket Number: No. 2364 EDA 2018,2364 EDA 2018
• Citation: 245 A.3d 1092 (Table)
• Parties: COMMONWEALTH of Pennsylvania v. Isaiah FREEMAN, Appellant
• Court: Pennsylvania Superior Court

245 A.3d 1092 (Table)

COMMONWEALTH of Pennsylvania v. Isaiah FREEMAN, Appellant

No. 2364 EDA 2018

Superior Court of Pennsylvania.

Filed December 22, 2020

MEMORANDUM BY NICHOLS, J.:

Appellant Isaiah Freeman appeals from the judgment of sentence imposed after a jury convicted him of first-degree murder, conspiracy, two counts of aggravated assault, and possession of an instrument of crime. ¹ Appellant argues that the trial court abused its discretion by finding that Appellant's sister violated the trial court's sequestration order and precluding her from testifying. We affirm.

The trial court summarized the underlying facts of this matter as follows:

On July 6, 2017, at approximately 6:30pm [Appellant] stalked and, as he admitted when he took the stand at trial, fatally shot 16-year old, Jordan Scott ("Scott,") [as Scott and his friend Taye Wynder ("Wynder")] walked along Chain Street toward Blackberry Alley in Norristown, Montgomery County. Wynder was also shot but survived. Minutes before the shooting, Appellant was the front seat passenger in a dark grey 2013 Dodge Charger ... owned and operated by Appellant's 30-year[-]old co-defendant, William Wilson ("Wilson" or co-[d]efendant).... While driving, Wilson caught sight of Scott and Wynder walking along the sidewalk. Wilson and [Appellant] decided that [Appellant] would shoot them.

* * *

Seconds before the shooting ... surveillance video captured Wilson parking his Charger surreptitiously along Blackberry Alley so that [Appellant], who Wilson had armed with a black handgun drawn from beneath his driver's seat, could exit the vehicle quickly without notice and ambush the two unsuspecting victims as they walked along Chain Street. [Appellant] can then be seen sneaking up to the corner, with a dark hoody drawn over his head to conceal his identity, jumping out from around the building's corner, and repeatedly firing ... fatally wounding Scott ... and seriously injuring Wynder[.]

When Norristown Police officers responded to 623 Chain Street minutes later, they located Scott lying on the sidewalk bleeding to death, with Wynder nearby having fled to safety to a rear yard west of Chain Street. Scott, [ ] was immediately transported to the hospital, [where he] was pronounced dead ....

Trial Ct. Op., 10/25/19, at 1-3 (footnotes omitted).

Before opening arguments, the Commonwealth made the following request:

[The Commonwealth]: Your Honor, the Commonwealth would be asking for a sequestration. I'm not sure if any of these individuals are under subpoena.

THE COURT: [Counsel]?

[Appellant's Trial Counsel]: I don't know that [ sic ] , Judge. I have no objection to the gallery being asked that, if anybody has been subpoenaed, that they should wait outside.

THE COURT: Is there anybody here who has received a subpoena to testify? If so, please raise your hand or stand up.

Nobody is responding, so I guess there's no issue with sequestration.

Anything else before I bring the jury in? [Counsel]?

[Appellant's Trial Counsel]: One moment, Your Honor.

THE COURT: All right.

[Appellant's Trial Counsel]: We're ready, Judge.

THE COURT: Okay. Bring the jury in, please.

N.T. Trial, 4/17/18, at 131. Co-defendant's counsel did not object to the Commonwealth's request for the sequestration of witnesses. Id. Several times during the trial, co-defendant's counsel referred to sequestration being in effect. N.T. Trial, 4/18/18, at 90-91; N.T. Trial, 4/20/18, at 24-25.

Appellant testified in his own defense and he, in the words of the trial court, "present[ed] the jury with what can at best be characterized as a distorted imperfect self-defense; namely, that he preemptively hunted down Scott and Wynder to 'get them,' before they 'got him.'" Trial Ct. Op. at 4 (footnotes omitted).

We add that Appellant described how he and Scott used to be friends when they were in middle school, before Scott moved away. N.T. Trial, 4/20/18, at 209-12. On the date of the shooting, Appellant and his sister, Aniyah Evans ("Evans" or "sister"), were residing with their aunt after their mother kicked them out of her house. Id. at 213-14. Appellant further testified that on the day of the shooting, he had several phone calls with Evans. Id. at 242, 249-50; Ex. D-7. During those phone calls, Evans told Appellant that Scott and another man had come by their residence looking for Appellant. N.T. Trial, 4/20/18, at 242-44. Appellant indicated that Evans was sitting in the courtroom during his testimony. Id. at 214, 242.

After Appellant finished testifying, the following exchange occurred:

THE COURT: Any additional evidence, [Counsel]?

[Appellant's Trial Counsel]: We have the sister's evidence.

[The Commonwealth]: Your Honor, I object. She's been sitting here the whole time. There was a sequestration order.

THE COURT: She was certainly sitting in during the testimony, and we did have a sequestration order, as far as I knew.

[Appellant's Trial Counsel]: Okay.

THE COURT: Any additional evidence?

[Appellant's Trial Counsel]: Your Honor, I would just move for my exhibits, and the defense would rest.

Id. at 317.

During closing arguments, Appellant's trial counsel argued that Appellant committed the shooting under serious provocation, and the jury should find Appellant guilty of voluntary manslaughter instead of first-degree or third-degree murder. N.T. Trial, 4/23/18, at 63-94.

On April 23, 2018, the jury convicted Appellant of first-degree murder, conspiracy, two counts of aggravated assault, and possession of an instrument of crime. Trial Ct. Op. at 5; see also N.T. Trial, 4/23/18, at 218-19.

The trial court sentenced Appellant to an aggregate term of lifetime imprisonment without the possibility of parole on July 10, 2018. See Trial Ct. Op. at 5-6. Appellant's trial counsel did not file any post-sentence motions. ²

On August 8, 2018, Appellant filed a counseled timely notice of appeal. Appellant subsequently filed a timely court-ordered Pa.R.A.P. 1925(b) statement. On October 9, 2018, Appellant's trial counsel filed a petition to withdraw as counsel. The trial court granted the petition on November 14, 2018, and appointed new counsel to represent Appellant. The trial court issued a Rule 1925(a) opinion on December 19, 2018.

On March 29, 2019, Appellant filed an application for relief in this Court seeking a remand to the trial court for the filing of a supplemental Rule 1925(b) statement. We granted Appellant's request for a remand on April 16, 2019. Appellant timely filed his supplemental Rule 1925(b) statement on May 6, 2019. The trial court issued a supplemental Rule 1925(a) opinion on October 25, 2019.

Appellant raises a single issue on appeal:

Did the trial court err in preventing [Appellant] from presenting the testimony of his sister[, Aniyah Evans], where that testimony was admissible and proper?

Appellant's Brief at 6. Appellant divides his claim into three sub-issues: (1) the trial court did not order the sequestration of witnesses; (2) even if the court ordered the sequestration of witnesses and Evans violated that order, excluding her testimony was too severe a sanction; and (3) the exclusion of Evans's testimony was not harmless. Id. at 15-21.

The Trial Court's Sequestration Order

First, Appellant contends that the trial court erred in finding Evans violated sequestration because the trial court never ordered that witnesses be sequestered. Id. at 17. According to Appellant, at the start of the trial, the trial court inquired if anyone in the gallery had received a subpoena, and when no one replied, the trial court instructed the jury to be brought in. Id. at 17-18 (citing N.T. Trial, 4/17/18, at 131). Appellant notes that the trial court did not give "a typical instruction to the gallery that anyone who might be a witness had to step outside." Id. at 18. Appellant argues that because the trial court never ordered sequestration, Evans was permitted to remain in the courtroom during the trial. Id. Appellant concludes the trial court committed an error of law by precluding Evans's testimony. Id.

The Commonwealth responds that the record is clear that trial court did order sequestration. Commonwealth's Brief at 14-16 (citing N.T. Trial, 4/17/18, at 131). The Commonwealth also argues that Appellant waived this issue because Appellant did not argue to the trial court that sequestration was not in effect. Id. at 16, 18 (citing N.T. Trial, 4/20/18, at 317).

This Court has previously held:

[o]ur Pennsylvania Rules of Appellate Procedure and our case law set forth the well-established requirements for preserving a claim for appellate review. "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a).

Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016) (some citations omitted and some formatting altered); see also Commonwealth v. Smith, 213 A.3d 307, 309 (Pa. Super. 2019) (stating "it is axiomatic that issues are preserved when objections are made timely to the error or offense." (citation omitted and some formatting altered)), appeal denied, 223 A.3d 1286 (Pa. 2020).

Here, Appellant did not claim that the sequestration was not in effect after the Commonwealth objected to Ms. Evans testifying on the grounds that she had violated sequestration. See N.T. Trial, 4/20/18, at 317. As set forth above, Appellant simply responded, "okay" and moved on. See id. Therefore, Appellant did not raise any argument that sequestration was not in effect during the trial and this claim is waived. See Appellant's Brief at 17 (arguing for first time on appeal that trial court never ordered sequestration of witnesses); Pa.R.A.P. 302(a) ; Smith, 213 A.3d at 309 ; Phillips, 141 A.3d at 522.

Even if Appellant had not waived this argument, the record establishes the trial court ordered sequestration of witnesses at the start of the trial. See N.T. Trial, 4/17/18, at 131; see also Trial Ct. Op. at 16. Furthermore, as we noted above, cou...