Commonwealth v. Stevens

• Decision Date: 11 April 2023
• Docket Number: 303 EDA 2022,J-A01041-23
• Parties: COMMONWEALTH OF PENNSYLVANIA v. MALIK STEVENS Appellant
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA v. MALIK STEVENS Appellant

No. 303 EDA 2022

No. J-A01041-23

Superior Court of Pennsylvania

April 11, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered November 15, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007289-2018

Joseph D. Seletyn, Esq.

BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM

LAZARUS, J.:

Malik Stevens appeals from the judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, after a jury convicted him of second-degree murder,^[1] robbery,^[2] firearms not to be carried without a license,^[3] carrying a firearm in public in Philadelphia,^[4] and possession of an instrument of a crime (PIC).^[5] After review, we affirm.

Kiara Thompson, the fiancée of the victim in his matter Vincent Ho (decedent),^[6] testified that on February 27, 2018, she and the decedent were driving to Breezes Café, when the decedent asked her to pull over near the intersection of 52^nd and Heston Street. See N.T. Jury Trial, 11/9/21, at 44. Thereafter, two men^[7] wearing black clothing approached the vehicle and tried to open the passenger side doors. Id. at 44, 49 (Thompson testifying "one [of the men] was tugging on the [] front passenger[-side] doorknob and [the other man was tugging] on the back passenger[-side] doorknob."). One of the men pointed his weapon into the car and the decedent said "[N]o, not her, not with her." Id. at 44, 48.

The decedent then, with his weapon on him, exited the vehicle. Id. at 48-49. Thompson "immediately" heard "a few" gunshots. Id. at 50-51 (Thompson testifying it was possible decedent fired his weapon); id. at 72 (Thompson testifying this happened within an "instant"). The decedent tried to run, and Thompson followed him in their vehicle. Id. at 46, 51. Once Thompson caught up with the decedent, the decedent tried to open the passenger side car door and then collapsed. Id. at 51. The decedent was "foaming out of the mouth" and non-responsive. Id. at 54-55. Thompson called 911. Id. at 55.

Allison Murtagh, Stevens' ex-girlfriend, testified that during the time of the incident, Stevens had been renting a room at 53^rd and Jefferson Street and that she had been staying with him. Id. at 97. On February 27, 2018, at around 9:40 p.m., Stevens was in the hallway on the phone discussing his plan to meet "with a female" and "do a robbery." Id. at 100. Thereafter, Stevens returned to the bedroom, put on his coat, took his dark grey revolver from the futon, and said he was "going to meet with a girl outside." Id. at 100-02, 113 (Murtagh testifying Stevens had been carrying revolver with him regularly for last few months). Stevens returned approximately ten minutes later and was "feeling his body," asking Murtagh if he was bleeding or if he had been shot. Id. at 102-04 (Murtagh testifying Stevens told her someone had been shot).

Murtagh testified that the next day, Stevens told his friend "Keese" that "[Stevens] tried to rob somebody and ended up shooting him." Id. at 107. Stevens also told Keese that "[Stevens] and the female were involved in [what happened on Heston Street] and [] they went to rob [someone and] it all went left [because] the guy that they shot [had] a gun[. T]hat is when [Stevens] pulled his gun out and started shooting at him." Id. at 108. Later that day, Murtagh saw an "RIP" Instagram post from the night before regarding the decedent. Murtagh showed Stevens this post a few times. Stevens admitted to Murtagh that he had shot the man in the Instagram post on Heston Street the previous night. Id. at 112.

Murtagh also testified that, two days prior to the shooting of the decedent, on February 25, 2018, she and Stevens were driving near 54^th and Euclid Streets. Id. at 114. Stevens asked her to pull over and he exited the car holding his revolver. Id. at 115. Approximately ten minutes later, Murtaugh heard four or five shots fired. Stevens returned two minutes later and Murtagh drove him back to 53^rd and Jefferson Streets. Id. at 116.^[8]Stevens later confirmed he had fired these shots. Id. at 117.

Officer Lawrence Flagler of the Philadelphia Police Department Firearms Identification Unit compared bullets recovered from the body of the decedent with bullets recovered from the area of 54^th and Euclid Streets on February 25, 2017. Id., 11/10/21, at 74. Officer Flagler testified that, to a reasonable degree of scientific certainty, the bullets had been fired from the same gun. Id. at 94, 115. Officer Flagler also testified that the .38/.357 caliber ammunition recovered is more consistent with a revolver than a semiautomatic weapon. Id. at 115.

On July 7, 2018, Stevens was arrested and charged with murder and related offenses. On November 15, 2021, he was convicted by a jury of the prior-mentioned offenses and sentenced, on the same day, to life imprisonment without the possibility of parole.^[9] On November 19, 2021, Stevens fled a post-sentence motion, which the trial court denied. On January 21, 2022, Stevens filed a timely notice of appeal. Both Stevens and the trial court have complied with Pa.R.A.P. 1925. Stevens raises the following issues for our review:

1. Whether the trial court [erred] by not including a "[s]pecial [s]crutiny" jury instruction for witness []Murtagh[] who admitted at trial that she had previously lied under oath in court?

2. Whether the trial court [erred] by admitting evidence that [Stevens] had shot the alleged murder weapon on an occasion separate from the crimes charged?

3. Whether the evidence was insufficient to convict [Stevens] of second-degree murder because the Commonwealth failed to prove beyond a reasonable doubt that [Stevens] was identified as the assailant?

4. Whether the evidence was insufficient to convict [Stevens] of robbery because the Commonwealth failed to prove beyond a reasonable doubt that the motive for the shooting was a robbery?

5. Whether the evidence was insufficient to convict [Stevens] of [PIC] and [of] carrying a firearm in public in Philadelphia [] because the Commonwealth failed to prove that [Stevens] had used a firearm in the commission of a crime or had carried a firearm in public in Philadelphia?

Appellant's Brief, at VIII.

Stevens first contends that the trial court erred in denying his request for a "special scrutiny" jury instruction.^[10] Appellant's Brief, at 8. By way of background, Murtagh admitted that she had previously pled guilty to a gun possession charge despite the fact that the gun had belonged to Stevens. Stevens argues that because Murtagh was the Commonwealth's "star witness," her credibility was directly at issue and the special scrutiny charge may have been sufficient to create reasonable doubt of his guilt in the jury's mind. Id. at 11. Additionally, Stevens cites to Commonwealth v. Rouse, 237 A.3d 483 (Pa. Super. 2020) (Table), for the proposition that the trial court's decision to forego the special scrutiny instruction because Murtagh did not admit to perjury at a "related trial" is erroneous. Id. at 10. Stevens is afforded no relief.

Our standard of review in regard to a trial court's decision on jury instructions is well-settled:

Our standard of review when considering the denial of jury instructions is one of deference-an appellate court will reverse a court's decision only when it abused its discretion or committed an error of law. Our key inquiry is whether the instruction on a particular issue adequately, accurately and clearly presents the law to the jury, and is sufficient to guide the jury in its deliberations.

Commonwealth v. Cannavo, 199 A.3d 1282, 1286 (Pa. Super. 2018) (citations and quotations omitted). Additionally, "a refusal to give a requested jury charge does not require reversal unless the [defendant] was prejudiced by that refusal." Commonwealth v. Baker, 963 A.2d 495, 507 (Pa. Super. 2005).

Pursuant to the subcommittee note to Pa. SSJI (Crim) 4.06, "a 'careful scrutiny' charge is proper when a witness testifies who admits, although he or she has not been convicted for, perjuring himself or herself at a related trial." However, it goes on to state that "the [Superior Court] did not make it clear whether the special caution was mandatory or simply permissible." Id., citing Commonwealth v. Levenson, 422 A.2d 1355 (Pa. Super. 1980) (emphasis added).

In Levenson, this Court rejected a defendant's request for a new trial due to the trial court's failure to give the jury a special scrutiny charge. The witness in Levenson, a co-conspirator, had admitted to lying at a previous trial of an individual who was involved in the same string of burglaries as the defendant. Id. at 1358. This Court determined that there was no reversible error because the court reviewed, and directed the jury to consider, the witness's criminal history and character in its credibility determination and provided a full and correct accomplice charge. Id. at 1261.

In Rouse, this Court also rejected a defendant's request for a new trial for failure to give the jury a special scrutiny charge.^[11] The witness in Rouse, admitted that he committed perjury at another trial by pleading guilty to two crimes he did not commit. Id. at 4. This Court determined that there was no reversible error where the trial court granted the defendant's other jury instruction requests, including an inconsistent statement instruction, a conflicting testimony instruction, and a "false in one, false in all" instruction. Id. at 5.

Similar to Levenson and Rouse, here, the trial court provided the jury with sufficient instructions to guide it in assessing witness credibility, including whether the witness statements are inconsistent or unreasonable,...