Commonwealth v. Herring

• Decision Date: 07 March 2022
• Docket Number: 329 EDA 2021,No. 329 EDA 2021
• Citation: Commonwealth v. Herring, 271 A.3d 911 (Pa. Super. Ct. 2022)
• Parties: COMMONWEALTH of Pennsylvania v. Cole HERRING, Appellant
• Court: Pennsylvania Superior Court

271 A.3d 911

COMMONWEALTH of Pennsylvania

v.Cole HERRING, Appellant

No. 329 EDA 2021

Superior Court of Pennsylvania.

Submitted January 31, 2022

Filed March 7, 2022

Aaron J. Marcus, Public Defender, Philadelphia, for appellant.

Keir N. Barros-Bradford, Public Defender, Philadelphia, for appellant.

Cheryl A. Brooks, Public Defender, Philadelphia, for appellant.

Owen W. Larrabee, Public Defender, Philadelphia, for appellant.

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

Samantha R. Sandfort, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.^*

OPINION BYSTEVENS, P.J.E.:

AppellantCole Herring appeals from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County after the trial court convicted Appellant of first-degree murder, unlawful restraint, abuse of a corpse, and possession of an instrument of crime.Appellant claims the lower court erred in denying his motion pursuant to Pa.R.Crim.P. 600 and abused its discretion in refusing to admit evidence of his father's prior convictions in order to cast doubt on Appellant's guilt.After careful review, we affirm.

Appellant was charged with the aforementioned offenses in connection with the November 27, 2017 stabbing death of 15-year-old Sabriiyah McLean("the victim"), whose body was ultimately discovered under a pile of leaves behind the apartment where 24-year-old Appellant lived with his family.The Philadelphia Police Department became involved in this case when Appellant's parents, Colon "Kenny" Swaringer and Cynthia Swaringer, came to the police station on the morning of November 28, 2017, to report Appellant had committed the murder of a young girl.N.T., 11/16/20, at 10-13, 143-44.

Swaringer told officers that, on the previous evening, after midnight, when he returned to his apartment after watching a televised football game with friends, Appellant confessed to Swaringer that he had killed a girl.Id . at 13, 144.Appellant showed Swaringer the victim's body, which was lying on the fire escape, just outside Appellant's bedroom.Id . at 13-14.Appellant told Swaringer not to tell anyone or "something else [would] happen to someone" in the house.Id . at 13-15.Swaringer indicated that his wife and other son were sleeping in the house.Id .

While Swaringer asserted that he did not sleep that night, he explained that he did not wake his wife and other son up as he was afraid they would become alarmed and that Appellant would hurt them.Id . at 17-19, 55-57, 59, 67.In the morning, Swaringer made up excuses to get his wife and other son out of the apartment.Id .Swaringer indicated that he went directly to the police station, gave the officers keys to enter the apartment, and told them to hurry to get there before Appellant left.Id . at 21, 27-29, 76, 145.

Philadelphia police officers proceeded to Appellant's apartment where they observed blood on the landing of the fire escape when viewing it from the outside of the apartment building.Id . at 13, 146.The officers then entered the dwelling with the assistance of the building supervisor.N.T.10/22/20, at 26.When the officers entered the apartment, they observed Appellant sitting on the couch, covered by a blanket.Id .In searching for evidence of a crime on the fire escape, which was accessible from Appellant's bedroom, the officers noted a strong odor, which they surmised was gasoline or lighter fluid.Id . at 26-27, 36.Officers discovered a pool of blood on the fire escape and blood on the walls of Appellant's bedroom.Id . at 27, 37-40;N.T.11/16/20, at 186, 191-92.

Officers subsequently uncovered the victim's body under a pile of leaves near a dumpster behind Appellant's apartment building.N.T., 11/16/20, at 177.The officers also recovered a black leather jacket and a pair of women's underwear near the dumpster.Id . at 171-72.

When the officers arrested Appellant and transported him to the police station, they discovered Appellant had blood stains on his sweatpants and boxer shorts.Id . at 195-98.During a further search of the apartment, the officers recovered bloody scissors from a trash can as well as a black Puma hooded sweatshirt and a white T-shirt with blood stains in the laundry basket in a nearby bathroom.Id . at 182, 201-202.

After an autopsy, the medical examiner determined that the victim sustained seventy-seven stab wounds and had burns covering nearly 40% of her body.N.T., 11/17/20, at 130-132.The investigating officers also recovered surveillance video that captured footage of Appellant outside the apartment complex near the dumpster on the relevant date and time wearing a Puma sweatshirt.N.T., 11/16/20, at 95-98;N.T., 11/17/20, at 11-19.

On November 28, 2017, Philadelphia police detectives met with Taaysia Jones, who gave the officers a statement in which she indicated that on the late evening hours of November 27, 2017, Appellant came to visit her at the Hospital of the University of Pennsylvania (HUP) where Jones was being treated for an unrelated matter.N.T., 11/17/20, at 75, 77-79.Jones indicated that Appellant was frantic and stated that he had "fucked up" by killing a girl he met on Facebook.Id . at 76, 89-93.Jones explained that Appellant had shared the details of the killing, how he set the victim's body on fire, and how he had disposed of the body in a pile of leaves.Id . at 83.

At trial, Jones testified that she did not remember telling the detectives that Appellant had confessed to the murder, but also claimed that she did not want to testify as she feared for her safety.Id . at 84.The Commonwealth presented video surveillance footage from the HUP emergency room taken on November 27, 2017, at approximately 11:30 p.m., showing a male and female conversing for about twenty minutes.Id . at 49-58.Jones admitted that she and Appellant were the two individuals recorded in the video.Id . at 97-99.

The Commonwealth also presented subpoenaed records from Facebook demonstrating that Appellant and the victim exchanged over 400 messages in the month before the victim's murder.Id . at 23-45.In those messages, on the day before the victim's murder, Appellant invited the victim to come to his apartment in Philadelphia and gave her directions on how to get there by bus.Id . at 38-44.

At trial, Appellant's defense theory was that his father, Kenny Swaringer, killed the victim and directed Appellant to dispose of her body.When defense counsel cross-examined Swaringer and suggested he was responsible for the victim's death, Swaringer adamantly denied this accusation and expressed outrage at defense counsel's suggestion that he killed the victim, who Swaringer referred to as a "little girl."N.T., 11/16/20, at 54.

Swaringer asserted that he was not home that evening, as he was watching Monday Night Football at his friend Orlando Eakins’ home.Id . at 47.Swaringer admitted he had been released from prison on October 3, 2017 and was on probation at the time of the victim's murder.Id . at 37.

In response to the defense's theory that Swaringer was the perpetrator of the victim's murder, the Commonwealth called Eakins to testify and he confirmed that Appellant was at his home the evening of November 27, 2017, watching a football game with a couple of friends.Id . at 109.

Eakins further testified that on the same night, Appellant had been calling his phone trying to reach Swaringer, who did not have a cell phone.Id .When Appellant asked to speak to Swaringer, Eakins indicated that Swaringer declined to do so as he was watching the football game.Id . at 115.Eakins indicated that Appellant would not tell him what was wrong, but Appellant indicated that he"got himself into something and was going to get out of it."Id . at 113.

At the conclusion of Appellant's bench trial, the Honorable Rose Marie DeFino-Nastasi convicted of Appellant of the aforementioned charges.¹The trial court sentenced Appellant to life in prison without parole for the murder conviction along with consecutive sentences of 2½ to 5 years’ imprisonment for possession of an instrument of crime, 1-2 years’ imprisonment for abuse of a corpse, and 1-2 years’ for unlawful restraint.This timely appeal followed.

Appellant raises the following issues for our review on appeal:

1.Did not the lower court err by falling to evaluate whether the Commonwealth exercised due diligence before denying Appellant's motion for dismissal pursuant to Pa.R.Crim.P. 600 ?

2.Did not the lower court err by applying an incorrect standard in determining whether evidence of a witness's prior offenses was relevant before ruling the evidence inadmissible?

Appellant's Brief, at 3.

We first review Appellant's challenge to the lower court's decision to deny his pretrial motion pursuant to Pa.R.Crim.P. 600.In doing so, we employ the following standard of review:

[i]n evaluating Rule [600] issues, our standard of review of a trial court's decision is whether the trial court abused its discretion.Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration.An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.

Commonwealth v. Leaner , 202 A.3d 749, 765-66(Pa.Super.2019)(citation omitted; brackets in original).An appellate court's scope of review is "limited to the evidence on the record of the Rule 600 evidentiary hearing" and the trial court's findings of fact.Commonwealth v. Watson , 140 A.3d 696, 698(Pa.Super.2016).Appellate courts must construe the facts in the light most favorable to the prevailing party.Id .

Rule 600 states that: "[t]rial in a court case in which a...