Commonwealth v. Stays

• Decision Date: 07 March 2012
• Citation: 40 A.3d 160,2012 PA Super 61
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Duane STAYS, Appellant.
• Court: Pennsylvania Superior Court

2012 PA Super 61

40 A.3d 160

COMMONWEALTH of Pennsylvania, Appellee

v.Duane STAYS, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 30, 2012.Filed March 7, 2012.

Samuel Alboum, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, J., MUNDY, J., and OTT, J.

OPINION BY BENDER, J.:

Duane Stays appeals the judgment of sentence imposed following his conviction of, among other things, Aggravated Assault, and Possession of Instruments of Crime (PIC), 18 Pa.C.S. §§ 2702(a), 907(a) (respectively). Stays contends that the trial court erred in admitting as substantive evidence prior statements by an eyewitness that were inconsistent with his subsequent testimony during the preliminary hearing, when the victim recanted his earlier statements identifying Stays as the assailant. Stays also contends that the evidence was not legally sufficient to establish his guilt of the either of the foregoing offenses and that the verdict is opposed to the weight of the evidence. Upon consideration of the record in view of the Rules of Evidence, as well as applicable case law, we find Stays' claims devoid of merit. Accordingly, we affirm his judgment of sentence.

The trial court, The Honorable Rosalyn K. Robinson, summarized the facts and procedural history of this case as follows:

On the afternoon of June 22, 2008, two friends, Nasir Farlow and Ivan Williams, rode in Williams'[ ] car to the 1600 block of South Frazier Street in West Philadelphia to get some lunch. When they arrived at their destination, Farlow exited the car to go into the store. Without warning, three or four gunshots rang out and Farlow was shot twice, once in each leg. Williams drove Farlow to the hospital and was later questioned by police.

When police arrived on the scene, somebody told one of the officers that some neighborhood children had kicked shell casings into the sewer. When Detective Kenneth Flaville arrived on the scene at the 1600 block of South Frazier Street, the sewer grate was lifted and a .40 caliber shell casing was indeed found inside the sewer.

Detective Flaville then questioned Ivan Williams about the shooting. Although Williams initially claimed that he did not know who had shot Nasir Farlow, he had a sudden change of heart and divulged much information about the shooter. He claimed that he had initially lied because he was afraid of what might happen to him and his family. Williams told Detective Flaville that the shooter was named Wayne, also called “Homicide Wiz,” and provided a physical description. Williams also said that Wayne and Farlow had a prior disagreement and told [D]etective Flaville where Wayne lived. Detective Flaville transcribed the entire interview and had Williams read over it to make sure that it was all correct. Williams then initialed each page and signed his name at the end. At this same interview, Williams also identified a photo of the current defendant, Duane Stays, as Wayne, circled the picture, and signed his initials.

Detective Flaville used this information to obtain a search warrant for the apartment that Ivan Williams had said Wayne lived in. Upon execution of that warrant, Duane Stays was found in the apartment. A safe was also found that included marijuana, money, and a Glock Model 27 handgun. The handgun was a .40 caliber handgun that was later matched to the shell casing found in the sewer at the crime scene. The police also recovered a pay stub with Duane Stays' name on it and the address of the apartment that he was found in.

At the preliminary hearing, Ivan Williams' testimony was vastly different than his statement to the police. Williams claimed that he did not know anybody in the courtroom, that he had not seen anybody at the time of the shooting, and that he did not sign the photo array that featured a circled picture of Duane Stays. Duane Stays and his defense counsel were present at this hearing but declined to ask any questions on cross-examination.

Between the time of the preliminary hearing and trial, Ivan Williams was murdered.... At trial, the court reporter from the preliminary hearing read Ivan Williams'[ ] testimony from that hearing into the record. In addition, Detective Flaville read Williams'[ ] statement from the police interview at trial. Flaville also testified that Williams had reviewed and signed the statement in its entirety.

Trial Court Opinion, 7/7/11, at 1–3.

The Commonwealth also called a ballistics expert from the Philadelphia Police Department, Firearms Identification Unit, who offered an expert opinion that, without “any doubt,” the shell casing recovered from the storm sewer at 1600 South Frazier Street had been fired from the Glock handgun found in Duane Stays' apartment. Stays offered no testimony on his own behalf and presented neither fact nor character witnesses. At the conclusion of the evidence, the jury found Stays guilty of both of the charges in question here. At sentencing, Judge Robinson imposed a term of ten to twenty years' incarceration for Aggravated Assault, to be followed by five to ten years' for Carrying a Firearm Without a License, and a concurrent term of one to two years' for PIC. With the aid of counsel, Stays filed a post-sentence motion which the court denied. Stays then filed this appeal, raising the following questions for our review:

1) Whether the trial court erred by admitting as substantive evidence a prior inconsistent statement, purportedly identifying the Defendant, made by a non-party declarant, who was unavailable to testify at trial?

2) Whether there was insufficient evidence as a matter of law to find the Defendant guilty beyond a reasonable doubt of the charges of Aggravated Assault and Possession of an Instrument of Crime?

3) Whether the admission into evidence of a prior inconsistent statement, purportedly identifying the Defendant, made by a non-party declarant who was unavailable to testify at trial violated Defendant's rights under the Confrontation Clause of the 6th Amendment to the United States Constitution?

4) Whether the trial court abused its discretion in denying the Defendant a new trial on the charges of Aggravated Assault and Possession of an Instrument of Crime when said verdicts were against the weight of the evidence?

Brief for Appellant at 7–8.

In his first and third questions, Stays challenges the trial court's admission of the former testimony of Ivan Williams from the preliminary hearing as well as the statement he gave to the police, and the photo array that he signed, identifying Stays as the shooter. We note, however, that the argument Stays poses in support of his third question, challenging the statements' admission as a violation of the Confrontation Clause of the Sixth Amendment, was not presented to the trial court and is absent from Stays' Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b). Thus, Stays has failed to preserve that argument for our review. Accordingly, we restrict our consideration of the issue to the statements' admissibility as argued in Stays' first question. See Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 891 (2010) (“This Court has consistently held that an appellate court cannot reverse a trial court judgment on a basis that was not properly raised and preserved by the parties. Where the parties fail to preserve an issue for appeal, the Superior Court may not address that issue sua sponte. The rule is no different in the constitutional context.”); Commonwealth v. Rolan, 964 A.2d 398, 409 (Pa.Super.2008) (citing Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998) (“Where the trial court orders an Appellant to file a concise statement of matters complained of on appeal under Pa.R.A.P. 1925, any issue not contained in that statement is waived on appeal.”)).

In support of his first question, Stays contends that the trial court erred in admitting as substantive evidence Ivan Williams' transcribed statement to the Philadelphia Police identifying Stays as the shooter, as well as the photo array that Williams signed and dated on which he also circled Stays' photo. Stays argues that, when introduced at trial, the statements constituted hearsay evidence because, inasmuch as Williams was then dead, he could no longer be cross-examined about the discrepancy between those earlier statements and his attempted recantation at the preliminary hearing. Brief for Appellant at 15–16. Stays asserts accordingly that the statements lack any indicia of reliability and properly should have been excluded. Id. at 18 (“[W]hen either prior inconsistent statements or extra judicial identifications made by a non-party/eyewitness are to be introduced as substantive evidence at trial, the declarant must be present and available for cross-examination. Otherwise the statements sought to be introduced will be hearsay, having neither indicia of reliability nor guarantee of trustworthiness.”). The trial court concluded that the statements were admissible as former testimony under Pa.R.E. 804(b) because Williams' testimony at the preliminary hearing had provided an adequate opportunity for cross-examination, following which his death allowed admission of the statements due to the unavailability of the witness. Trial Court Opinion, 7/7/11, at 3–4. We agree with the trial court's assessment. In view of the introduction of Williams' prior inconsistent statements at the preliminary hearing pursuant to Pa.R.E. 803.1, they were subsequently admissible at trial pursuant to Rule 804(b).

Our Rules of Evidence provide, in pertinent part, as follows:

Rule 803.1. Hearsay exceptions; testimony of declarant necessary

The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement:

(1) Inconsistent statement of witness. A statement by a declarant that...