Commonwealth v. Green

• Decision Date: 07 October 2021
• Docket Number: 391 EDA 2020
• Citation: 271 A.3d 393
• Parties: COMMONWEALTH of Pennsylvania v. Maurice GREEN, Appellant
• Court: Pennsylvania Superior Court

271 A.3d 393

COMMONWEALTH of Pennsylvania

v.Maurice GREEN, Appellant

No. 391 EDA 2020

Superior Court of Pennsylvania.

Submitted March 22, 2021

Filed: October 7, 2021

Reargument Denied December 13, 2021

Stephen T. O'Hanlon, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Michael L. Erlich, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

OPINION BY MUSMANNO, J.:

Maurice Green ("Green") appeals from the judgment of sentence imposed following his convictions of one count each of first-degree murder, carrying a firearm without a license, carrying a firearm on public street in Philadelphia, possessing instruments of crime, and recklessly endangering another person.¹ We reverse and remand for a new trial.²

On December 24, 2016, at approximately 8:45 a.m., Marie Buck ("Marie") was shot and killed in her convenience store located near the intersection of 6^th and Titan Streets in South Philadelphia, Pennsylvania. A man entered Marie's store, aimed a firearm at her, and shot her ten times. The man fled from the store. A short time later, at approximately 8:47 a.m., the gunman, later identified as Green, was seen on video surveillance entering a black Chevrolet Impala, located nearby.

Philadelphia Police Homicide Detective Omar Jenkins ("Detective Jenkins") was assigned to investigate the shooting death of Marie. During the investigation, he spoke to Angela White ("White"), Green's on-and-off drug dealer and paramour. White stated that Green had been selling her drugs to support her addiction. In June 2016, during one of these sales, Green left White alone in his house. After Green left, White spoke with Robert Buck ("Buck"), Marie's grandson, who conspired with White to steal Green's favorite gold chain necklace. White stole Green's gold chain and met Buck later that day. Buck thereafter pawned Green's gold chain for approximately $2,000.00 and used the money to buy drugs from a different drug dealer. White and Buck each stated that they avoided Green for approximately six months after the theft. Nevertheless, White subsequently returned to purchase drugs from Green, at which time Green assaulted White over the theft of the gold chain.

On December 28, 2016, four days after the shooting death of Marie, Green was arrested and brought to the Philadelphia Police homicide unit at approximately 10:30 p.m. A continuous audio and video recording was made of Green throughout the time he was at the police station. While there was no written statement prepared by Green, the entirety of Green's discussions with Detective Jenkins were transcribed into a 72-page transcript.³

At approximately 10:50 p.m., Green was advised of his Miranda⁴ rights, after which Green requested his attorney, Robert Gamburg, Esquire ("Attorney Gamburg"). Detective Jenkins stopped questioning Green about the homicide, but continued to ask Green for biographic and identifying information. Prior to leaving the room, Detective Jenkins offered Green food, water, and bathroom privileges. Additionally, Detective Jenkins stated that if Green "wanted to speak with him without the presence of his attorney, he should summon a detective by knocking on [the] door." N.T. (Suppression Hearing), 10/24/18, at 6. Detective Jenkins proceeded to leave the interview room.

A few hours later, Green knocked on the interview room door and asked whether Attorney Gamburg had been contacted. The detective informed Green that Attorney Gamburg had been called, but had not yet responded. Green informed the detective that he would talk, but denied doing anything wrong. Detective Jenkins informed Green that they would need to again review Green's Miranda rights with him, and Green indicated his assent.⁵ Additionally, Detective Jenkins asked another detective, Detective Billy Golphin (collectively, the "Detectives"), to sit in on the interview with Green.

Green subsequently spoke to the Detectives for several hours about the allegations. Green admitted that he owns a black Chevrolet Impala, but disputed the allegation that he was at 6th and Titan Streets on December 24, 2016. Further, Green vehemently denied the shooting and proclaimed that he had no issues with Buck. After the interview concluded, the Commonwealth charged Green with, inter alia , the above-mentioned offenses in relation to the shooting death of Marie.

The Commonwealth filed a Pre-Trial Motion in which it sought to introduce prior bad acts evidence pursuant to Pa.R.E. 404(b).⁶ In particular, the Commonwealth sought to present evidence regarding an incident that took place 14 months prior. During that incident, Green allegedly had a physical altercation over a drug dispute with an individual named "Jay," and in retaliation, shot at the house of "Jay's" grandmother, Levonya Ladson ("Ladson").⁷ However, no arrests were made regarding this incident, and no charges were filed. The Commonwealth argued that the Ladson incident was committed by Green, and demonstrated that Green had a common scheme or plan of committing retribution against the grandmothers of his protagonists. On September 6, 2018, the trial court conducted a hearing on the Commonwealth's Pre-Trial Motion and, on October 11, 2018, granted the Commonwealth's Motion.

Shortly thereafter, Green waived his right to counsel and elected to proceed pro se , with Attorney Gamburg acting as standby counsel. On October 23, 2018, Green presented a pro se oral Motion to Suppress the statements he gave the Detectives on the night he was arrested. In particular, Green claimed he had invoked his right to counsel, and had requested that the Detectives contact Attorney Gamburg. Green claimed that the Detectives did not contact Attorney Gamburg, and instead improperly re-commenced questioning Green. After a hearing, the trial court denied Green's Motion to Suppress.

On October 24, 2018, Green proceeded to a jury trial with new standby counsel, Gary Server, Esquire ("Attorney Server"). On November 6, 2018, the trial court declared a mistrial, because the jury was unable to return a unanimous verdict.

On December 3, 2019, a second jury trial commenced, with Green appearing pro se and Attorney Server again present as standby counsel. At the close of this jury trial, on December 12, 2019, Green was convicted of the above-mentioned offenses. On the same day, the trial court sentenced Green to an aggregate term of life in prison.

On December 13, 2019, Attorney Server filed a Motion to Withdraw as counsel and a post-sentence Motion on Green's behalf. On December 23, 2019, the trial court denied Green's post-sentence Motion and granted Attorney Server's Motion to Withdraw. Contemporaneously, the trial court appointed James Berardinelli, Esquire ("Attorney Berardinelli"), to represent Green. Green then filed two timely, pro se , Notices of Appeal,⁸ as well as two pro se Supplemental post-sentence Motions, and a Motion for a writ of habeas corpus . Subsequently, Attorney Berardinelli filed a timely, counseled, Notice of Appeal.⁹

Attorney Berardinelli filed an appellate brief; however, he subsequently withdrew from representation, and the trial court appointed Stephen O'Hanlon, Esquire ("Attorney O'Hanlon"), as appellate counsel for Green. Attorney O'Hanlon filed, and this Court subsequently granted, a Motion to Strike Attorney Berardinelli's appellate brief. Additionally, this Court granted Attorney O'Hanlon leave to file a new appellate brief.

On May 4, 2021, Green, through Attorney O'Hanlon, filed a counseled Motion to Remand for an evidentiary hearing on newly-discovered evidence. Green averred that the Commonwealth disclosed late-discovered materials tending to show that "Detective Jenkins and his former partner, Detective [James] Pitts, have been involved in numerous cases wherein confessions have been forced." Appellant's Motion to Remand for Evidentiary Hearing, 5/4/21, at 1, 3. The Commonwealth has filed a Response.

Green now raises the following issues for our review:

1. Did the trial court err in denying [Green]’s [M]otion to [S]uppress his inculpatory statement to police where[,] after [Green had] invoked his right to counsel, Detective Jenkins reinitiated contact with [Green] by instructing him, "if [Green] wanted to speak with him without an attorney he should summon him," in violation of Minnick v. Mississippi , 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) and its progeny?

2. Did the trial court err and abuse its discretion by allowing harmful prior bad acts evidence[,] when such evidence had a very limited evidentiary connection to [Green] and caused irreparable harm to [Green] at trial?

Brief for Appellant at 4.

In his first claim, Green argues that the trial court erred in denying his Motion to Suppress his "inculpatory" statement to the Detectives. Id. at 12. Green contends that Detective Jenkins improperly "reinitiated contact with him by instructing[,] ‘If [Green] wanted to speak with him without an attorney[,] he should summon him.’ " Id. In particular, Green argues that Detective Jenkins's statement violated Minnick , because Jenkins continued initiating contact with Green after Green had invoked his right to counsel. Brief for Appellant at 13-14.

In reviewing the denial of a suppression motion,

[w]e may consider only the Commonwealth's evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. An appellate court, of course, is not bound by the suppression court's conclusions of law.

Commonwealth v. Hampton , 204 A.3d 452, 456 (Pa. Super. 2019). Such an inquiry must take into account the totality of the circumstances. Commonwealth v. Delvalle , 74 A.3d 1081, 1085 (Pa. Super. 2013).

Additionally, our ...