J-A11014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    JARED DONOVAN JONES

                             Appellant                 No. 1297 MDA 2017


         Appeal from the Judgment of Sentence Entered March 22, 2017
                In the Court of Common Pleas of Lebanon County
               Criminal Division at No: CP-38-CR-0000424-2016


BEFORE: STABILE, NICHOLS, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED SEPTEMBER 24, 2018

        Appellant, Jared Donovan Jones, appeals from the March 22, 2017

judgment of sentence imposing life imprisonment without the possibility of

parole for first-degree murder. We affirm.

        The trial court summarized the pertinent facts:

              This case arises from events that occurred on September
        19, 2015 at Vinny’s Good Time Night Club (hereafter “Vinny’s”) in
        the city of Lebanon. About ten minutes before the club was
        scheduled to close, a dispute erupted between Richard Kinnard, II
        (hereafter “Kinnard”), [Appellant], and a security officer employed
        by Vinny’s. The defendants were ejected from the premises. After
        a short hiatus, Kinnard returned to the nightclub. Shots were
        fired. Corey Bryan (hereafter “Bryan”) was struck and killed.
        Despite the fact that Vinny’s was crowded when the shooting
        occurred, most patrons left the premises at or before the arrival
        of police. No one professed to have seen the shooting. An


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*   Retired Senior Judge assigned to the Superior Court.
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     investigation ensued.         Eventually, that investigation was
     chronicled in a jury trial that took place in February of 2017.

            The centerpiece of the Commonwealth’s case in chief was
     footage from a videotape surveillance system at Vinny’s. The
     videotape showed Kinnard and [Appellant] engaged in an
     argument with security officer Bryan. The tape also depicted
     Kinnard and [Appellant] leaving Vinny’s and entering the parking
     lot. Shortly thereafter, the video depicted Kinnard returning to
     the bar entrance. Another camera showed Bryan at the door
     toward which Kinnard had been walking. The video depicted
     Bryan clutching his stomach and falling to the ground. Thereafter,
     most patrons scurried away. Kinnard was caught on video running
     to a car. None of the camera views depicted the shooter or anyone
     else in possession of a firearm.

           Vinny’s surveillance system showed Kinnard enter a car in
     the parking lot. The car then departed the parking area and
     turned north on Route 343. Shortly thereafter, North Lebanon
     Township Police were called to the scene of a one vehicle accident
     north of the City of Lebanon. Sergeant Timothy Knight of the
     North Lebanon Township Police Department arrived at the scene
     of the crash, which was approximately two miles from Vinny’s.
     When he arrived, no one was present in the vehicle. Upon
     additional investigation, Sergeant Knight learned that the vehicle
     was registered to William Kinnard. Blood was located throughout
     the vehicle. Wedged in behind the right rear headrest was a gun.
     Sergeant Knight checked the serial number of the firearm and
     learned that it had been stolen.         When the vehicle was
     subsequently processed more completely, police also found a
     payment receipt for a loan registered to Kinnard, a medical paper
     pertaining to Kinnard, a letter from the Harrisburg Area
     Community College addressed to [Appellant], an LA Fitness paper
     in the name of Kinnard, a MoneyGram with Kinnard’s name on it,
     health documents from Memorial Hospital pertaining to Kinnard,
     and insurance paperwork in the name of Patty Kinnard.

            The gun found inside the BMW vehicle was sent for ballistics
     testing. In addition, bullets were found inside Vinny’s and a
     projectile was recovered from the body of Bryan. Trooper Todd
     Neumyer, a firearms expert with the Pennsylvania State Police,
     testified that the bullets recovered from the body of Bryan and
     Vinny’s were fired from the gun that had been located in the BMW
     vehicle that crashed.


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             The parties reached a stipulation that the blood recovered
       from the BMW vehicle was transmitted to the Pennsylvania State
       Police Crimes Laboratory for serology and DNA testing. There, a
       forensic DNA scientist by the name of Sabrine Panzer-Kaelin
       completed testing that revealed the existence of blood from
       Kinnard and [Appellant] inside the crashed BMW vehicle.

              Following the crash of their BMW vehicle, both [Appellant]
       and Kinnard left the area. . . . With respect to [Appellant],
       Detective [Keith] Uhrich communicated with his mother and his
       sister. On January 27, 2016, [Appellant] was apprehended in
       Hershey, Pennsylvania.

             Following his apprehension, [Appellant] provided a recorded
       statement to police.      This statement became the focus of
       extensive pre-trial litigation[.] Eventually, the court crafted a
       statement that could be read to the jury.         This statement
       incorporated some of [Appellant’s] own words and some
       paraphrasing. The statement of [Appellant] read to the jury
       focused upon the conduct of [Appellant] and not the conduct of
       Kinnard. Specifically, [Appellant] admitted that he was at Vinny’s
       on the night of the murder. He admitted that he had an argument
       with Bryan. He admitted that he drove the BMW vehicle belonging
       to William Kinnard away from Vinny’s. He acknowledged that he
       crashed the vehicle. After regaining consciousness following the
       crash, [Appellant] acknowledged that he left the scene of the
       accident and that he left Lebanon County. In the statement,
       [Appellant] denied having any knowledge or connection to the
       shooting death of Bryan.

Trial Court Opinion, 7/17/17, at 5-8 (record citations and some capitalization

omitted).

       At the conclusion of a lengthy joint trial, the jury found Appellant guilty

of first-degree murder, third-degree murder, two counts of aggravated

assault, flight to avoid apprehension, and five counts of conspiracy.1 Appellant



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1   18 Pa.C.S.A. § 2502(a) and (c), 2702, 5126, and 903, respectively.

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filed a timely post-sentence motion, which the trial court denied on July 17,

2017. This timely appeal followed. Appellant raises nine assertions of error:

      1. Did the trial court err in trying Appellant together with co-
         defendant [Kinnard]?

      2. Did the trial court err in admitting into evidence the recorded
         telephone conversation between Charles Williams and
         [Kinnard]?

      3. Did the trial court err in allowing the jury to hear the recorded
         telephone conversation between Charles Williams and
         [Kinnard]?

      4. Did the trial court err in failing to instruct the jury that the
         recorded telephone conversation between Charles Williams and
         [Kinnard] could not be considered as evidence against
         Appellant?

      5. Did the trial court err in presenting a summarized version of
         Appellant’s statement to the police rather than allow the jury
         to hear or read Appellant’s statement in its original form?

      6. Did the trial court err in refusing to give the voluntary
         intoxication defense instruction for Appellant?

      7. Did the trial court err in refusing to compel [Kinnard] to provide
         handwriting exemplars?

      8. Did the trial court err in denying Appellant’s post-sentence
         motion challenging the sufficiency of the evidence?

      9. Did the trial court err in denying Appellant’s post-sentence
         motion challenging the weight of the evidence?

Appellant’s Brief at 4 (reordered).

      Appellant argues issues one through five together. Appellant’s Brief at

13-16. Appellant cites only one case, Bruton v. United States, 391 U.S.

123 (1968), in which the United States Supreme Court held that the facially

incriminating confession of a non-testifying defendant is inadmissible against


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a co-defendant regardless of a limiting instruction to the jury. Here, the trial

court prepared a summary of a statement, made by Appellant to police, in

order to omit any reference to Kinnard that would have been inadmissible

against him.   Subsequent to Bruton, courts have been admitting a non-

testifying defendant’s confession into evidence so long as direct references to

another   co-defendant      are   appropriately   edited.    For   example,    in

Commonwealth v. Travers, 768 A.2d 845 (Pa. 2001), the Pennsylvania

Supreme Court held that a confession edited to refer to a co-defendant as “the

other man,” accompanied by a limiting instruction, was appropriate under

Bruton.

      In our view, Bruton is merely a beginning point for analysis of several

of Appellant’s assertions of error, but Appellant relies on Bruton for the

entirety of his analysis.    Appellant does not develop any legal argument

regarding Pennsylvania law on severance motions, the admissibility of

evidence, jury instructions, or the standards governing our review of those

issues. In the three pages of argument that Appellant devotes to these five

distinct assertions of error, Appellant does not specify which portion or

portions of the trial court’s summary were inadmissible under Bruton, nor

does he indicate precisely how the trial court’s summary was prejudicial to

him. Similarly, Appellant fails to specify which portion or portions of Kinnard’s

recorded phone call were prejudicial to him, and how so.           In summary,

Appellant has failed to develop any argument upon which we can grant relief.


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      Next, Appellant claims the trial court erred in refusing to permit him to

offer a voluntary intoxication defense. Ordinarily, voluntary intoxication, or

diminished capacity, is not a defense in Pennsylvania. 18 Pa.C.S.A. § 308. In

cases of murder, however, a defendant may offer evidence of intoxication if it

is “relevant to reduce murder from a higher degree to a lower degree of

murder.” Id. “Thus, a defendant asserting a diminished capacity defense

admits responsibility for the underlying action, but contests the degree of

culpability based upon his inability to formulate the requisite mental state.”

Commonwealth v. Williams, 980 A.2d 510, 527 (Pa. 2009), cert. denied,

560 U.S. 940 (2010).        “Consequently, where a defendant has denied

committing a crime during his trial testimony, this Court has refused to find

counsel ineffective for failing to present a defense that would have conflicted

with such testimony.” Id.

      Appellant cites only one case, Williams, in support of his argument. He

claims, based on Williams, that a defendant is entitled to a voluntary

intoxication defense so long as he does not deny committing the crime during

his own testimony. Williams does not support such a broad proposition. In

that case, the PCRA court found that counsel was not ineffective for failing to

assert a diminished capacity defense because that defense was inconsistent

with the misidentification defense defendant offered at trial. Id. at 527. The

Supreme Court observed that the question was more complicated, because

Appellant alleged on collateral review that he admitted to counsel that he killed


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the victim by accident, but counsel insisted on presenting a misidentification

defense based on falsified testimony.    Id. at 527-28.    Thus, a diminished

capacity defense would have been available to the defendant had counsel

proceeded with defendant’s accidental killing theory.     The Supreme Court

affirmed the denial of the defendant’s petition because he failed to prove the

allegations in his petition, and because, given the evidence of record, counsel

had a reasonable strategic basis for seeking acquittal rather than diminished

capacity. Id.

      We find no support in Williams for Appellant’s argument.        That is,

Williams did not hold that a defendant could assert a diminished capacity

defense so long as he does not take the stand and testify to his own innocence.

To the contrary, the Williams Court wrote that a defendant asserting the

diminished capacity defense admits culpability for the underlying crime, but

contests the degree of culpability. Id. at 527. Instantly, Appellant’s defense

was that Kinnard was responsible for the murder. The trial court explained:

             In this case, [Appellant] has clearly denied any culpability
      for the killing of Corey Bryan. In a statement to police that was
      read to the jury, [Appellant] stated that he was in a car at the
      time of the shooting, he stated that he did not hear any shots
      fired, he stated that he did not have any role in bringing a gun to
      the nightclub, and he stated that he did not even know that
      anyone else in his car possessed a gun or shot someone. In
      addition, [Appellant] presented evidence in the form of a letter
      written by Defendant Kinnard that completely exculpated him
      from any involvement in the shooting. Clearly, [Appellant] has
      asserted innocence. Because of this, [Appellant] cannot take
      advantage of the diminished capacity defense.




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Trial Court Opinion, 2/13/17, at 7. Given the foregoing, we conclude that the

trial court correctly refused to allow Appellant to present a diminished capacity

defense.

      Additionally, we observe that “[i]ntoxication . . . may only reduce

murder to a lower degree if the evidence shows that the defendant was

‘overwhelmed to the point of losing his faculties and sensibilities.’”

Commonwealth        v.   Blakeney,    946   A.2d   645   (Pa.   2008)   (quoting

Commonwealth v. Breakiron 571 A.2d 1035, 1041 (1990)), cert. denied,

555 U.S. 1177 (2009).      Appellant fails to cite any evidence to support a

conclusion that he was sufficiently intoxicated in this case.

      Next, Appellant argues that the trial court erred in denying his motion

to compel handwriting exemplars from Kinnard. Appellant wished to have a

handwriting expert authenticate letters in Appellant’s possession that Kinnard

allegedly authored. Once again, Appellant’s citation to pertinent authority is

sparse.    He cites Gilbert v. California, 388 U.S. 263 (1967), and

Commonwealth v. Moss, 334 A.2d 777 (Pa. Super. 1975), for the general

proposition that compelled production of handwriting exemplars does not

violate a defendant’s right against self-incrimination under the United States

and Pennsylvania Constitutions. Appellant’s Brief at 18. Appellant argues that

his expert’s conclusion as to the authenticity of the letters Appellant

introduced into evidence was not as definitive as it might have been.




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      The record reveals that the Commonwealth provided Appellant’s counsel

with letters that Kinnard wrote while Kinnard was incarcerated, and Appellant

provided those letters to his expert.        N.T. Hearing, 12/19/16, at 19.       The

expert used those letters as a basis for comparison, and she testified at trial

that the signatures were consistent and that there was a strong probability

that the same person authored all of the letters. N.T. Trial, 2/9/17, at 516-

30. The trial court found that the letters Appellant wished to introduce into

evidence were authentic, and the trial court admitted them.              Given the

foregoing, we do not understand how the trial court’s refusal to compel

exemplars prejudiced Appellant. Appellant simply fails to acknowledge that

the Commonwealth provided letters admittedly authored by Kinnard, and that

his expert relied on those as a basis for comparison. We discern no error in

the trial court’s ruling.

      Next, Appellant challenges the sufficiency of the evidence in support of

his conviction. We must therefore determine “whether the evidence, viewed

in the light most favorable to the Commonwealth as the verdict winner,

supports the jury’s finding that every element of the offense was proven

beyond a reasonable doubt.”       Commonwealth v. Hicks, 156 A.3d 1114,

1123 (Pa. 2017). “The Commonwealth may sustain this burden by wholly

circumstantial evidence and the jury is free to believe all, part, or none of the

evidence.”      Id.     “To   obtain   a    first-degree   murder   conviction,   the

Commonwealth must demonstrate that a human being was unlawfully killed,


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the defendant did the killing, and the defendant acted with a specific intent to

kill.”       Commonwealth v. Markman, 916 A.2d 586, 597 (Pa. 2007).

Moreover, the jury may convict the defendant as an accomplice so long as the

facts adequately support the conclusion that he or she aided, agreed to aid,

or attempted to aid the principal in planning or committing the offense, and

acted with the intention to promote or facilitate the offense.” Id. Appellant

argues that the Commonwealth failed to prove the intent element for any of

his convictions. He cites Markman for the proposition that “simply knowing

about the crime or being present at the scene is not enough.” Id. at 598.

         The trial court noted the following facts, all of which find support in the

record:

             Video evidence [showed] that both [Appellant] and Kinnard
              were present at Vinny’s on the evening of the homicide.

             Testimony from witnesses and through videotape that an
              argument ensued between [Appellant], Kinnard, and Bryan
              that resulted in the ejection of [Appellant] and Kinnard from
              Vinny’s.

             Videotape evidence revealed that [Appellant] left Vinny’s in a
              highly agitated state.

             The video depicted that [Appellant] and Kinnard left the club
              and proceeded to a car. Kinnard then was depicted coming
              back to the entrance of Vinny’s. A separate camera depicted
              Bryan being shot at or near the time when Kinnard walked
              toward the entrance.

             The video depicted [Appellant] and Kinnard leaving Vinny’s and
              proceeding north on Route 343.

             A BMW vehicle was involved in a one car crash approximately
              2 miles to the north of Vinny’s at or near the time when police
              were called to the scene of a shooting at Vinny’s.

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          The occupants of the vehicle fled from the scene of the crash.

          The BMW vehicle involved in the crash was registered to
           William Kinnard, who is a relative of Kinnard. Numerous
           documents were found in the vehicle that linked Kinnard to it.
           One document that was pertaining to [Appellant] was also
           found in the vehicle.

          Blood from both [Appellant] and Kinnard was found inside the
           vehicle .

          A gun was located inside the vehicle. Ballistics testing linked
           this gun to bullets found in Vinny’s and inside the corpse of
           Bryan.

          Following the crash of the BMW vehicle, both Kinnard and
           [Appellant] left the geographic area. Kinnard went to Arizona.

          [Appellant] provided a statement in which he acknowledged
           being present at Vinny’s, he acknowledged being involved in
           an argument with Bryan and he acknowledged driving the BMW
           away from Vinny’s. In his statement, [Appellant] also admitted
           that he left the scene of the crash and left the Lebanon area
           following the shooting.

Trial Court Opinion, 7/17/17, at 14-16 (some capitalization omitted).

       Contrary to Appellant’s argument, the record, read in light most

favorable to the Commonwealth as verdict winner, establishes much more

than Appellant’s mere presence at the scene of Bryan’s murder. Appellant,

along with Kinnard, was ejected from Vinny’s by Bryan. Appellant left Vinny’s

in an agitated state. Both men entered a BMW, where Kinnard retrieved a

gun. Appellant waited in the car while Kinnard returned to Vinny’s and fatally

shot Bryan.2 Appellant drove and eventually crashed the getaway car, and


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2 One of the bullets from Kinnard’s gun hit another patron but did not seriously
injure her. This accounts for several of Appellant’s convictions.

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both men fled the jurisdiction.     This evidence is more than sufficient to

establish Appellant’s intent to be an accomplice to the shooting.

      Finally, Appellant argues the jury’s verdict was contrary to the weight of

the evidence. The law governing this issue is well settled:

             A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Rather, the
      role of the trial judge is to determine that notwithstanding all the
      facts, certain facts are so clearly of greater weight that to ignore
      them or to give them equal weight with all the facts is to deny
      justice. It has often been stated that a new trial should be
      awarded when the jury’s verdict is so contrary to the evidence as
      to shock one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail.

            An appellate court’s standard of review when presented with
      a weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

             Appellate review of a weight claim is a review of the exercise
      of discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court’s determination that the verdict is against the weight of the
      evidence. One of the least assailable reasons for granting or
      denying a new trial is the lower court’s conviction that the verdict
      was or was not against the weight of the evidence and that a new
      trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (emphasis in

original).




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      Beyond the standard of review, Appellant’s argument consists of a single

paragraph in which he notes that the Commonwealth’s case against him was

circumstantial. Appellant claims that his convictions are contrary to the weight

of the evidence because they are based on nothing more than surveillance

video and Appellant’s statement to police. Given the body of evidence we

described in connection with Appellant’s sufficiency of the evidence argument,

we disagree. We discern no abuse of discretion in the trial court’s decision

not to grant Appellant a new trial.

      Because we have found all of Appellant’s arguments lacking in merit, we

affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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