Opinion
J-A17037-16 No. 1005 EDA 2015
10-07-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. JAMIR WILLIAMS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 20, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002378-2012 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Jamir Williams, appeals from the judgment of sentence entered in the Delaware County Court of Common Pleas, following his jury trial convictions for one count each of first-degree murder, attempted murder, aggravated assault, and possession of an instrument of crime ("PIC"). We affirm.
18 Pa.C.S.A. §§ 2502(a), 901(a), 2702(a)(1), and 907(a), respectively.
The relevant facts and procedural history of this appeal are as follows. On the night of October 29, 2010, and early morning of October 30, 2010, Appellant was involved in an altercation with Robert Adams and Emerson Price at Ess's Bar in Chester, Pennsylvania. After Appellant left the bar on October 30, 2010, Appellant's then-girlfriend, Sijourney Yokley, drove Appellant back to the vicinity of the bar. Appellant exited the car and approached Robert Adams and Emerson Price, who were outside near the bar. Appellant shot both Robert Adams and Emerson Price, fatally wounding Emerson Price. Allante Johnson witnessed both the earlier altercation and the shooting of Robert Adams and Emerson Price.
The Commonwealth charged Appellant with several offenses arising from the shooting, including first-degree murder, attempted murder, aggravated assault, and PIC. Allante Johnson testified at Appellant's preliminary hearing on April 13, 2012. Mr. Johnson stated he had witnessed the altercation among Appellant, Robert Adams, and Emerson Price at Ess's Bar late on October 29, 2010, and in the early morning of October 30, 2010. Mr. Johnson explained how shortly after, he saw a woman drive Appellant to the vicinity of Ess's Bar, where Appellant exited the car and walked toward Robert Adams and Emerson Price. Mr. Johnson testified he saw Appellant shoot Robert Adams and Emerson Price.
After the preliminary hearing, Mr. Johnson provided Appellant's trial counsel with a written statement that recanted Mr. Johnson's preliminary hearing testimony. The statement said Mr. Johnson did not see Appellant shoot Robert Adams and Emerson Price. Appellant proceeded to a jury trial on December 16, 2014. Although the Commonwealth issued Mr. Johnson a subpoena, Mr. Johnson failed to appear at trial to testify as a Commonwealth witness. For an unrelated reason, Appellant's first trial ended in a mistrial on December 17, 2014.
Appellant proceeded to a second jury trial on February 10, 2015. At this trial, Mr. Johnson appeared and testified on behalf of the Commonwealth. Mr. Johnson explained the written recantation statement he had provided to Appellant's counsel was false. Mr. Johnson said he provided the statement and did not appear at Appellant's initial trial because he feared for his and his family's safety if he gave incriminating testimony against Appellant. Mr. Johnson testified he received several threats after the preliminary hearing. Mr. Johnson indicated his car was damaged and the words "die rat" were written on the back of his car. Mr. Johnson added his telephone lines were cut and his home was burglarized. He also said he received threats while in prison and in his neighborhood. In sum, Mr. Johnson reaffirmed that his prior testimony at Appellant's preliminary hearing was true and his subsequent written statement was false. ( See N.T. Trial #2, 2/11/15, at 107-211.)
Sijourney Yokley also testified for the Commonwealth at Appellant's second trial. During her testimony, the prosecutor began to ask Ms. Yokley about the statement she had provided police in February 2012, regarding the shooting. Defense counsel suddenly objected to the anticipated impeachment of Ms. Yokley, arguing how her testimony might be perjury if it differed from her prior statement, and she could be incriminating herself. After sending the jury out, the court instructed Ms. Yokley she might commit perjury through her testimony at trial, and she had the right to consult with counsel before continuing to testify. Ms. Yokley responded that she did not want to continue her testimony at that time and stepped off the stand. The court instructed the Commonwealth to issue Ms. Yokley a material witness warrant and placed Ms. Yokley under arrest until she had the opportunity to speak with counsel the next morning. Within fifteen minutes, Ms. Yokley returned to the stand to continue her testimony. Ms. Yokley stated that in the early morning of October 30, 2010, Appellant told her about the altercation at Ess's Bar. Ms. Yokley stated she drove Appellant to the vicinity of Ess's Bar, where Appellant asked Ms. Yokley to stop the car because he recognized at least one of the two males who were on the street. Ms. Yokley explained Appellant reentered the car after Ms. Yokley heard gunshots. Ms. Yokley also stated Appellant threatened her months later not to speak about the shooting. ( See N.T. Trial #2, 2/10/15, at 315-46.)
Following a three-day trial, the jury found Appellant guilty of one count each of first-degree murder, attempted murder, aggravated assault, and PIC. The court sentenced Appellant on March 20, 2015, to life imprisonment for murder, a consecutive 140-280 months' incarceration for attempted murder, and a consecutive 30-60 months' incarceration for PIC (aggravated assault merged with attempted murder for sentencing). Appellant filed a timely notice of appeal on April 6, 2015. On April 14, 2015, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Rule 1925(b). After the court granted an extension, Appellant timely complied on June 17, 2015.
Appellant raises two issues for our review:
COMMONWEALTH WITNESS ALLANTE JOHNSON TESTIFIED THAT HE WITNESSED [APPELLANT] SHOOT THE TWO VICTIMS. HE ALSO TESTIFIED THAT HE WROTE AND SIGNED A STATEMENT TO COUNSEL FOR [APPELLANT] ACKNOWLEDGING THAT HIS POLICE STATEMENT AND PRELIMINARY HEARING TESTIMONY WAS FALSE AND HE DID NOT WITNESS THE SHOOTING. THIS WITNESS TESTIFIED AT TRIAL THAT HE DID NOT RESPOND TO A COMMONWEALTH SUBPOENA TO APPEAR FOR TRIAL IN DECEMBER 2014 THAT ENDED IN A MISTRIAL BECAUSE HE WAS "SCARED." OVER OBJECTION FROM COUNSEL, THE COMMONWEALTH WAS PERMITTED TO EXAMINE THE WITNESS ABOUT HIS CAR BEING VANDALIZED AND THE WORDS "DIE RAT" WRITTEN ON HIS CAR. IN RESPONSE TO THE COMMONWEALTH'S QUESTION, "WERE THERE ANY OTHER INSTANCES?" THE WITNESS RESPONDED BY DESCRIBING "MY PHONE LINES GOT CUT AND A COUPLE OF WEEKS AGO SOMEBODY HAD [COME] IN THE CRIB...." THE COMMONWEALTH PRE-EMPTIVELY STOPPED THE WITNESS FROM FURTHER TESTIMONY. THE LEARNED TRIAL COURT ERRED WHEN IT PERMITTED THE WITNESS TO DESCRIBE INCIDENTS THAT HE FELT WERE DESIGNED TO INTIMIDATE HIM AS A WITNESS AS THERE WAS NO SHOWING THAT THE CONDUCT WAS CONNECTED DIRECTLY OR INDIRECTLY TO [APPELLANT]. HE WAS INCARCERATED WHEN ALL OF THE EVENTS OCCURRED. THE ERROR IS AMPLIFIED WHEN THE WITNESS, IN RESPONSE TO QUESTIONS FROM THE COMMONWEALTH, TESTIFIED THAT HE WAS THREATENED AFTER HE TESTIFIED AT THE PRELIMINARY HEARING. THE COUNSEL OBJECTED AND THE COURT SUSTAINED THE OBJECTION BUT THE COMMONWEALTH CONTINUED TO PURSUE THE THEME OF WITNESS INTIMIDATION WITHOUT CONNECTING IT TO [APPELLANT]. COUNSEL OBJECTS AGAIN AND ASKS FOR AN INSTRUCTION. THE COURT SUSTAINS THE OBJECTION AND TELLS THE ATTORNEY
FOR THE COMMONWEALTH TO STRIKE THE LAST RESPONSE BUT DOES NOT INFORM THE JURY TO DISREGARD THE ANSWER. THE COURT ACKNOWLEDGES THAT THE STATEMENTS OF THE WITNESS ARE HEARSAY BUT ALLOWED THE JURY TO HEAR THE TESTIMONY WITHOUT CLARIFYING INSTRUCTIONS.(Appellant's Brief at 3-4) (citations to record omitted).
SIJOURN[E]Y YOKLEY IS THE SISTER OF CARLOS COLON AND THE FORMER GIRLFRIEND OF [APPELLANT] AND THE MOTHER OF HIS CHILD. MS. YOKLEY'S TESTIMONY WAS INTERRUPTED WHEN SHE HESITATED IN HER TESTIMONY AND THE COMMONWEALTH ATTEMPTED TO REFRESH HER RECOLLECTION WITH A PRIOR STATEMENT. AFTER AN OBJECTION BY DEFENSE COUNSEL, THE COURT DISMISSED THE JURY AND CONDUCTED AN INQUIRY OF THE WITNESS AND ADVISED HER THAT SHE MAY BE INCRIMINATING HERSELF AND SHE HAS THE RIGHT TO CONSULT WITH AN ATTORNEY. THE WITNESS RESPONDED TO THE COURT'S INQUIRY THAT SHE DID NOT WISH TO CONTINUE HER TESTIMONY AND BY IMPLICATION WISHED TO CONSULT WITH AN ATTORNEY. THEREAFTER, THE WITNESS WAS DETAINED WHEN THE COURT TOLD THE COMMONWEALTH TO ISSUE A MATERIAL WITNESS WARRANT. THE WITNESS WAS TAKEN INTO CUSTODY. THE WITNESS RETURNED TO THE WITNESS STAND LATER THAT SAME AFTERNOON AND THE COMMONWEALTH PROCEEDED TO EXAMINE THE WITNESS ABOUT HER STATEMENT TO THE POLICE THAT WAS INCRIMINATING TO [APPELLANT]. THE RECORD DOES NOT REFLECT THAT THE WITNESS SPOKE TO AN ATTORNEY ABOUT HER 5TH AMENDMENT PRIVILEGE TO REFRAIN FROM GIVING INCRIMINATING TESTIMONY AGAINST HERSELF. THE LEARNED TRIAL COURT ERRED WHEN IT DID NOT AFFORD THE WITNESS AN OPPORTUNITY TO SPEAK TO COUNSEL DESPITE ASSURING HER THAT SHE WOULD HAVE THE OPPORTUNITY TO DO SO BEFORE REAPPEARING AS A WITNESS. THE LEARNED TRIAL COURT COMPOUNDED THE ERROR WHEN IT TOLD THE WITNESS THAT SHE WAS BEING PLACED IN THE CUSTODY OF THE SHERIFF AND SUA SPONTE ASKING THE COMMONWEALTH TO PREPARE A MATERIAL WITNESS WARRANT AND DETAIN THE WITNESS WHEN THE COMMONWEALTH DID NOT ASK THE COURT TO DO SO.
In his first issue, Appellant avers Allante Johnson's testimony that he was threatened, his car was vandalized, and his telephone lines were cut, unduly prejudiced Appellant. Appellant submits Mr. Johnson's testimony inappropriately suggested Appellant intimidated Mr. Johnson so Mr. Johnson would not testify against Appellant. Appellant maintains the Commonwealth did not demonstrate Appellant was responsible for the threats to Mr. Johnson. Appellant alleges the court erred when it allowed Mr. Johnson to testify that he received threats and when it did not instruct the jury to disregard Mr. Johnson's testimony about the threats. Appellant concludes this Court should award Appellant a new trial. We disagree.
The standard of review for admission of evidence is as follows. "The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error." Commonwealth v. Ballard , 622 Pa. 177, 197-98, 80 A.3d 380, 392 (2013), cert. denied, ___ U.S. ___, 134 S.Ct. 2842, 189 L.Ed.2d 824 (2014).
The term discretion imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.Commonwealth v. Goldman , 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal denied, 624 Pa. 672, 85 A.3d 482 (2014). "To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party." Commonwealth v. Lopez , 57 A.3d 74, 81 (Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).
"In general, 'threats by third persons against...witnesses are not relevant [and thus not admissible into evidence] unless...the defendant is linked in some way to the making of the threats.'" Commonwealth v. Bryant , 462 A.2d 785, 788 (Pa.Super. 1983) (quoting Commonwealth v. Carr , 436 Pa. 124, 127, 259 A.2d 165, 167 (1969)) (brackets in original). "Nevertheless, an exception to the rule exists where the evidence in question was not offered to prove the accused's guilt 'but to explain a [witness's] prior inconsistent statement.'" Bryant , supra (quoting Carr , supra ) (brackets in original). Generally, this kind of evidence is used "to rehabilitate the witness after the defense, in an effort to discredit the witness, has questioned the witness about the previous testimony." Commonwealth v. Rickabaugh , 706 A.2d 826, 838 (Pa.Super. 1997), appeal denied, 558 Pa. 607, 736 A.2d 603 (1999) (emphasis in original). Nonetheless, "the order of proof is a matter within the realm of...judicial discretion which will not be interfered with in the absence of an abuse thereof." Commonwealth v. Smallwood , 497 Pa. 476, 484, 442 A.2d 222, 225 (1982) (citing Commonwealth v. Burns , 409 Pa. 619, 627, 187 A.2d 552, 561-62 (1963)) (internal quotation marks omitted). See also Commonwealth v. Smith , 518 Pa. 15, 40, 540 A.2d 246, 258 (1988) (explaining trial court did not abuse its discretion when it permitted prosecution to admit prior consistent statements of witness in anticipation of announced defense before defense counsel had impeached witness on cross-examination); Commonwealth v. Mokluk , 444 A.2d 1214, 1217 (Pa.Super. 1982) (stating: "A trial court normally has discretion to admit out of order evidence in rebuttal of an anticipated defense. This discretion is abused only if it unduly prejudices one of the parties").
Due to the potential that the jury could use the evidence for some impermissible reason, a defendant is usually entitled to a cautionary instruction when evidence is admitted for a limited purpose. Commonwealth v. Billa , 521 Pa. 168, 180, 555 A.2d 835, 842 (1989). To establish the defendant suffered undue prejudice from the absence of a limiting instruction, he must demonstrate a reasonable probability that the outcome of the trial would have been different if the trial court had issued the instruction. Commonwealth v. Hutchinson , 611 Pa. 280, 306, 25 A.3d 777 (2011), cert. denied, ___ U.S. ___, 132 S.Ct. 2711, 183 L.Ed.2d 70 (2012). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Commonwealth v. Chambers , 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002). In determining unjustifiable prejudice, a court "must consider the totality of the evidence before the judge or jury." Commonwealth v. Simmons , 569 Pa. 405, 430, 804 A.2d 625, 640 (2001).
Instantly, Allante Johnson testified at Appellant's preliminary hearing that he had witnessed Appellant shoot Robert Adams and Emerson Price. After the preliminary hearing, Mr. Johnson executed a written statement recanting his preliminary hearing testimony. Mr. Johnson also failed to appear at the first trial to testify for the Commonwealth. At Appellant's second trial, Mr. Johnson testified as a Commonwealth witness. On direct examination, Mr. Johnson explained he received several threats after the preliminary hearing, which caused him to fear for his and his family's safety if he testified against Appellant. Due to his fear of retaliation, Mr. Johnson stated he provided his written recantation statement and he did not appear to testify at the first trial. Mr. Johnson testified his written recantation was false and his preliminary hearing testimony was true. Defense counsel did not object to the order of proof regarding the Commonwealth's questioning Mr. Johnson about his prior inconsistent statement and the threats he received. Defense counsel also did not request a limiting instruction on Mr. Johnson's testimony about the threats.
Appellant does not establish the trial court acted with partiality, ill-will, or lack of support when it admitted Allante Johnson's testimony about the threats he received. The court correctly determined Mr. Johnson's testimony regarding the threats was admissible to explain his prior inconsistent statement. See Goldman , supra ; Bryant , supra. The court also did not abuse its discretion when it permitted the Commonwealth to question Mr. Johnson about his prior inconsistent statement before defense counsel had attempted to impeach Mr. Johnson. See Smith supra ; Mokluk supra. Moreover, Appellant failed to object to the Commonwealth's examination of Mr. Johnson as out of order. See Pa.R.A.P. 302 (stating issues not raised in trial court are waived and cannot be raised for first time on appeal). See also Commonwealth v. York , 465 A.2d 1028, 1032 (Pa.Super. 1983) (stating new and different theory of relief may not be successfully advanced for first time on appeal).
Additionally, Appellant cannot show he suffered unfair prejudice due to the absence of a limiting instruction regarding Mr. Johnson's testimony or a reasonable probability that the instruction would have led to a different outcome at trial. The Commonwealth presented testimony from other witnesses, in addition to Allante Johnson, who identified Appellant as the shooter. The absence of a limiting instruction as to Mr. Johnson's testimony had no bearing on portions of his or any other witness' testimony that identified Appellant as the shooter, so Appellant's first issue merits no relief. See Hutchinson , supra.
In his second issue, Appellant asserts Sijourney Yokley said she did not want to continue to testify, and Appellant infers Ms. Yokley wished to consult with counsel before she resumed her trial testimony, after the court advised her of her Fifth Amendment rights. Appellant submits Ms. Yokley did not speak with an attorney before she stepped back onto the witness stand. Appellant maintains the trial court erred when it permitted Ms. Yokley to resume her testimony at trial without speaking with counsel. Appellant avers the trial court also erred when it sua sponte ordered the Commonwealth to issue Ms. Yokley a material witness warrant. Appellant concludes this Court should award Appellant a new trial. We disagree.
Preliminarily, to preserve a claim of error for appellate review a party must make a specific objection to an alleged error before the trial court in a timely fashion and at the appropriate stage of the proceedings. Commonwealth v. Charleston , 16 A.3d 505 (Pa.Super. 2011), appeal denied, 612 Pa. 696, 30 A.3d 486 (2011); Pa.R.A.P. 302(a). Failure to raise a proper objection results in a waiver of the underlying issue on appeal. See Charleston , supra. Instantly, Appellant did not object at trial to Ms. Yokley's testimony on the basis that she had not spoken with counsel before she resumed her testimony. Appellant also did not object to the court's sua sponte instruction to the Commonwealth to issue a material witness warrant to Ms. Yokley. Accordingly, Appellant has waived his second issue for review on appeal.
Even if Appellant had not waived his second issue, we would conclude Appellant's second issue merits no relief, as the trial court opinion properly disposed of the issue. ( See Trial Court Opinion, filed on July 31, 2015, at 21-22) (finding: Appellant does not have standing to assert Fifth Amendment rights on behalf of Sijourney Yokley because Fifth Amendment rights are personal rights, which attach to testifying individual alone; Sijourney Yokley voluntarily chose to re-take witness stand after she stepped down; and Appellant did not object when Sijourney Yokley resumed her testimony). Moreover, the trial court properly permitted Ms. Yokley to testify at trial regarding her prior statement for the purposes of impeachment and/or confirmation of her statement. Therefore, we affirm the judgment of sentence.
We observe Appellant similarly lacks standing to assert the court erred when it sua sponte instructed the Commonwealth to issue Sijourney Yokley a material witness warrant.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/7/2016
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