Commonwealth v. Jordan
| Decision Date | 29 May 2019 |
| Docket Number | No. 545 EDA 2017,545 EDA 2017 |
| Citation | 212 A.3d 91 |
| Parties | COMMONWEALTH of Pennsylvania v. Dante T. JORDAN, Appellant |
| Court | Pennsylvania Superior Court |
Stephen T. O’Hanlon, Philadelphia, for appellant.
Lawrence J. Goode, Assistant District Attorney, and Anne F. Palmer, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Dante T. Jordan (Jordan) appeals from the aggregate judgment of sentence imposed by the Court of Common Pleas of the First Judicial District (trial court) of 37½ to 100 years' incarceration following his convictions for Conspiracy, Attempted Homicide and other related crimes. He raises a number of challenges to his convictions contending that he is entitled to both discharge and a new trial. While we find that Jordan is not entitled to discharge, we hold that his right to a public trial was violated when the trial court excluded his family members from voir dire . We, therefore, remand for a new trial.
On June 11, 2015, Tia Hughes was driving her co-worker Troy Green home after their shifts ended, which she did every day on the same route. At approximately 5:15 p.m., while stopped at a stop sign on 5200 Akron Street, at the intersection of Akron and Pratt Street, Hughes heard gunfire.1 She froze, leading Green to step on the gas. Hughes heard more shots and saw her back window shatter. She did not see the shooter but thought the bullets came from the passenger's side. After driving the vehicle to a safe spot, Hughes realized that she and Green had both been shot and went to the hospital. Green, who did not testify, received treatment for his wounds
. Hughes received pain medication and was discharged.
Five witnesses saw parts of the incident: Milagros Rivera, April Negron, Yanielle Negron, Terrence Hailey and Elizabeth Green (no relation). All witnesses except Rivera saw the shooting and all identified Brian King as the gunman. However, a number of these witnesses testified to seeing Jordan with King near the scene of the crime. Rivera, who lived on Akron Street and knew Jordan as he lived on Akron, testified that she got home from work around 4:20 p.m. As she parked her car, she observed Jordan and King together. About an hour later, she was on her porch and heard shots but did not see the shooter. Almost immediately afterwards, she saw Jordan run past her house holding a gun, wrapped in a shirt. She then called the police.
Both Yanielle Negron and Hailey and saw Jordan with King about twenty minutes before the shooting. Elizabeth Green testified that she was on the corner smoking a cigarette when she saw "guys on the corner on the opposite side." After five to ten minutes, she saw King cross the street and shoot. She saw Jordan "before the shooting sitting at the corner" of Akron and Pratt and estimated that he was there five to ten minutes before the shooting. None of the witnesses overheard any kind of conversation between King and Jordan.
Officer Christopher Sharamatew, a member of the SWAT unit, responded to Jordan's home at 5211 Akron Street. Officer Sharamatew and his partners issued commands for the occupants to exit the residence. Two black males, approximately forty to fifty years old, exited. Jordan followed a few minutes later. Detective Robert Hagy executed a search warrant on the property the next day. In the basement, he removed the furnace door and recovered two handguns: a .40 caliber and .22 caliber; the former weapon had two live rounds. The furnace contained additional rounds of ammunition for both weapons. The Commonwealth also established that twelve fired cartridge casings were recovered from Akron street plus a bullet fragment from Hughes's vehicle. Officer Robert Stott compared the fired cartridge casings and recovered fragments to test firings from the .40 caliber pistol recovered from the furnace, and opined that all specimens were fired from that gun.2
The Commonwealth also established that Jordan had a possible motive for the shooting. Rivera testified that in the spring of 2015, she saw a heated dispute between two groups. One of the groups included Jordan and his brother while the other included Green. Rivera was cross-examined with her prior testimony, wherein she stated that Green "was screaming at [Jordan's brother] to come out of the house, that you disrespected me, you'll see what I can do to you and your house and your crew, I'll just come back and shoot everything up, and he was very loud about it." N.T., 10/14/16, at 42.
The Commonwealth charged Jordan at two separate dockets.3 At case number 2015-8738, the Commonwealth charged Aggravated Assault, Attempted Homicide, Conspiracy, Carrying a Concealed Firearm, Carrying a Firearm in Philadelphia, Possessing an Instrument of Crime, and Tampering. The first three crimes named Green as the victim. At case number 2015-8739, the Commonwealth charged Aggravated Assault and Attempted Homicide, with Hughes listed as the victim. After a jury trial, where the jury was charged that he could be found guilty if he was found to have entered into a conspiracy or was an accomplice, Jordan was convicted of all charges and received an aggregate sentence of 37½ to 100 years' incarceration.4 Jordan then timey filed the instant appeal.
While Jordan raises a number of issues on appeal, we will first address his challenges to the sufficiency of the evidence as success on that basis will result in discharge instead of retrial. See Commonwealth v. Coleman , 130 A.3d 38, 41 (Pa. Super. 2015). Jordan's sufficiency claims relate to the convictions for both counts of Aggravated Assault, Attempted Murder, Conspiracy and Possession of a Concealed Firearm.5 He claims that the Commonwealth did not establish beyond a reasonable doubt that Jordan and King had agreed to enter into a criminal conspiracy with the shared intent to kill Green or that he was an accomplice to the attempted homicide crimes. Because there is no dispute that King fired the gun and Jordan was charged as if he pulled the trigger, the question is whether the circumstantial evidence established accomplice liability and/or conspiratorial agreements beyond a reasonable doubt. To better discuss Jordan's challenges, we briefly examine those matters.
Accomplice liability is statutorily defined as follows:
18 Pa.C.S. § 306(c). To be guilty as an accomplice for first-degree murder, the Commonwealth is required to establish a specific intent to kill. "[A] defendant cannot be convicted of first-degree murder under a vicarious liability theory, such as accomplice or conspiratorial liability, unless the fact-finder determines, upon proof beyond a reasonable doubt, that the defendant personally harbored a specific intent to kill." Commonwealth v. Smyrnes , 638 Pa. 225, 154 A.3d 741, 746 (2017) (citations omitted). See also Commonwealth v. Barnett , 121 A.3d 534, 544 (Pa. Super. 2015) (). Since aggravated assault is also a specific intent crime, the same analysis applies.6
Accomplice liability requires only aid, not an agreement. See Commonwealth v. Murphy , 577 Pa. 275, 844 A.2d 1228, 1238 (2004) (). Conspiratorial liability is "a theory in which one conspirator is criminally liable for the substantive offenses committed by other members of the conspiracy that are undertaken in furtherance of the conspiracy." Commonwealth v. Chambers , ––– Pa. ––––, 188 A.3d 400, 408 (2018). Accomplice liability can be established by circumstantial evidence. In meeting its burden, the Commonwealth may rely wholly upon circumstantial evidence. See Commonwealth v. Macolino , 503 Pa. 201, 469 A.2d 132 (1983).
The Commonwealth alleges that the evidence, although circumstantial, establishes beyond a reasonable doubt that Jordan is liable for the attempted murder convictions under both accomplice and conspiratorial liability. It contends that Jordan specifically intended for Green to die as he had a motive and Jordan aided King by supplying him with the gun and/or solicited King to commit the crime on Jordan's behalf.7
The substantive crime of Conspiracy overlaps to a significant if not complete degree with conspiratorial liability since an agreement is a necessary component of both. Chambers , 188 A.3d at 410. That crime is defined as follows:
18 Pa.C.S. § 903. "Simplified, this requires proof of three elements: 1) an agreement, 2) shared criminal intent, and 3) an overt act." Commonwealth v. Johnson , 180 A.3d 474, 479 (Pa. Super. 2018).
In Chambers , our Supreme Court recently described the elements of a conspiratorial agreement and the difficulties in...
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