1.
State Court Proceedings
This
case arises from the “robbery-induced homicide”
of Brandon Johns on August 7, 2012. Commonwealth v.
McCarthy, No. 11 WDA 2014, slip op., filed Jan. 15, 2016
(unpublished) (ECF No. 15-5). McCarthy was charged by
Criminal Information with one count each of the following:
Criminal Homicide, Robbery - Inflict Serious Bodily Injury,
Tampering with Physical Evidence, and Criminal Conspiracy
(Robbery). McCarthy was represented by Lisa G. Middleman,
Esquire, of the Office of Public Defender, during the
pre-trial, trial, sentencing, and post-sentencing
proceedings. Following a jury trial presided over by the
Honorable Anthony M. Mariani, McCarthy was found guilty of
Third Degree Murder, Robbery, and Criminal Conspiracy
(Robbery) and not guilty of Tampering with Physical
Evidence.[1] On November 1, 2014, McCarthy was
sentenced to ten (10) to twenty (20) years' incarceration
for third-degree murder and three (3) to six (6) years'
incarceration for conspiracy to commit robbery, to be served
consecutively to the third-degree murder sentence. No.
further penalty was imposed on the robbery conviction.
The
Trial Court, in its Rule 1925(a) Opinion, recounted the
factual background and evidence that led to McCarthy's
arrest and conviction:
The convictions in this case are based heavily on the
testimony of Cory Estes. Mr. Estes is the nephew of Quintelle
Rankin and he is related to the defendant, Eugene McCarthy,
by marriage. At the time of trial, Mr. Estes was 19 years
old. At trial, Mr. Estes testified that on August 7, 2012, he
was at the Brinton Manor Apartments. He met Mr. Rankin and
the defendant around noon that day. They then left that area
together in the defendant's car and proceeded to the Hill
District area of Pittsburgh attempting to locate someone from
whom they could purchase marijuana. Having been unsuccessful
in their efforts to obtain marijuana, they then left that
area and drove to McKeesport, Pennsylvania, to continue their
efforts to purchase marijuana. At approximately 4:00 p.m,,
they returned to the Brinton Manor Apartments because they
were unsuccessful in reaching their goal to obtain marijuana.
While they were still in the car, defendant stated aloud that
it appeared as though there were some “licks” in
the area. Mr. Estes testified that the term
“licks” referred to persons who were potential
robbery targets. The defendant parked the car and the three
men began to walk around the area. They soon encountered two
other men and asked those men if they could get them
marijuana. One of the other men, Brandon Johns, directed Mr.
Estes, Mr. Rankin and the defendant to follow him into a
building. All four men entered the building. Mr. Estes
testified that Brandon Johns then sat down on steps and
pulled out a scale and large bag of marijuana and discussed
cost. The scale and marijuana were recovered from the scene.
At that point, the defendant attempted to steal the marijuana
by grabbing the bag of marijuana and telling Brandon Johns
that “you might as well give me all the shit”. A
few seconds later, Mr. Rankin pulled out a gun. Brandon Johns
then stated “you can have it all”. He then
reached with both hands into his pockets and he pulled out a
black handgun. Mr. Estes testified that the defendant and
Brandon Johns began to “tussle” over the black
handgun. Mr. Estes ran up the steps of the building and, as
he was running, he heard a gunshot. He testified that he did
not know who fired it. Mr. Estes heard another shot and he
observed his uncle, Mr. Rankin, slump over as though he had
been shot. Mr. Rankin then fired his weapon at Brandon Johns.
Mr. Estes believed he heard three or four gunshots. A nearby
witness, who was outside of the building, testified that he
heard approximately six gunshots. In total, eight spent
cartridges were found at the scene. Six .40 caliber Smith
& Weston cartridges were found at the scene and two .380
caliber cartridges were found. Mr. Rankin admitted at trial
that he possessed a .40 caliber handgun during the incident
and he did shoot Brandon Johns. Mr. Estes testified that
immediately after the shooting, the three men left the scene
and the defendant drove Mr. Rankin to the hospital. The
defendant and Mr. Rankin were subsequently arrested. . . .
Trial evidence included the defendant's tan cargo shorts.
DNA analysis confirmed that there were two blood spots on the
shorts that matched his DNA profile. There was also a blood
stain on the rear of the shorts that matched the DNA profile
of Brandon Johns.
Trial testimony also established that Brandon Johns died from
multiple gunshot wounds to his neck and chest. He was shot
seven times. He was shot twice in the neck. One wound was in
the back of the neck and one was in the front of the neck.
Because of the gunpowder stippling on the skin, trial
testimony indicated that these shots had been fired within
four inches of the skin. He was also shot in the right
shoulder, the right upper back, the right lower chest, the
left posterior shoulder and the right anterior thigh.
Although Mr. Rankin admitted that he shot Brandon Johns, his
trial testimony differed from the testimony of Mr. Estes. Mr.
Rankin testified that once Mr. Estes, the defendant and he
entered the building, Brandon Johns sat on the steps. The
defendant asked his two companions if they were going to
“pitch in” for marijuana. Mr. Rankin advised that
he wanted to buy his own marijuana. Then, according to Mr.
Rankin, Brandon Johns pulled out a gun. Mr. Rankin testified
that the defendant then began to scuffle with Brandon Johns
at which time a shot went off from Brandon Johns' gun. A
second shot from that gun was fired. Mr. Rankin testified
that he began firing shots from his gun. He testified that
[he] closed his eyes and began firing his weapon
“uncontrollably”. At that point, according to Mr.
Rankin, the defendant ran up the steps. After he realized
that Brandon Johns was no longer firing his weapon and was
slumped against the stairway wall, Mr. Rankin, Mr. Estes and
the defendant left the scene to take Mr. Rankin to the
hospital.
The defendant also presented the testimony of Georgia Ford, a
caretaker of the daycare facility that the defendant's
child attended. Ms. Ford testified that she saw the defendant
sometime after 4:00 - 4:30 pm on the day of the shooting
while he was waiting to pick up his child from daycare.
Trial Court 1925(a) Opinion, No. 201211401, slip op.
(C.P. Allegheny, July 17, 2014) (ECF No. 14-5).
On
December 31, 2013, McCarthy, represented by Scott B. Rudolf,
Esquire, of the Office of Public Defender, appealed his
convictions to the Pennsylvania Superior Court, presenting
four (4) issues for review, each challenging the sufficiency
of the evidence:
1. Was Appellant erroneously convicted of Third Degree Murder
and Robbery via Serious Bodily Injury Inflicted or Threatened
given that the Commonwealth failed to prove, beyond a
reasonable doubt, that Appellant's co-defendant
Quintelle Rankin, did not act justifiably when he shot and
killed the decedent, Brandon Johns such action being
justifiable since it was taken in defense of himself and of
Appellant)?
2. Was Appellant erroneously convicted of Third Degree Murder
given that the Commonwealth failed to prove, beyond a
reasonable doubt, that Appellant was
vicariously liable for Brandon Johns' death under either
the rule of accomplice liability or the rule of
conspiratorial liability, given that (a) Appellant did not
act with recklessness or extreme indifference to the value of
human life, as was necessary in order to convict him of Third
Degree Murder under the rule of accomplice liability; (b) the
rule of conspiratorial liability did not survive the
enactment of the Crimes Code; and (c) even if conspiratorial
liability was a viable option, Quintelle Rankin's fatal
shooting of Johns was not foreseeable to Appellant since
Appellant was unaware, so far as the evidence indicated, that
Rankin was even armed?
3. Was Appellant (a) erroneously convicted of Robbery via
Serious Bodily
...
