J-S38037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                        v.

    MARCUS JACKSON

                               Appellant                 No. 808 EDA 2016


             Appeal from the Judgment of Sentence January 22, 2016
      in the Court of Common Pleas of Philadelphia County Criminal Division
                        at No(s): CP-51-CR-0009181-2014

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED DECEMBER 15, 2017

        Appellant, Marcus Jackson, appeals from the judgment of sentence

imposed after a jury convicted him of third-degree murder,1 two firearm

violations,2 and possession of an instrument of crime.3 Appellant claims that

the trial court erred in admitting the preliminary hearing testimony of an

unavailable witness because he did not have an adequate opportunity to

cross-examine the witness. We affirm.

        The trial court summarized the pertinent facts as follows:

              Between    7:00 p.m. and 8:00 p.m. on April 25, 2011,
           [Appellant]   double parked his mother’s green Dodge
           Durango on    the 1500 block of Irving Street in Philadelphia
           to purchase   marijuana from “Da,” his supplier. Da entered

*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S. § 2502(c).

2   18 Pa.C.S. §§ 6106, 6108.

3   18 Pa.C.S. § 907.
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       the vehicle with his associates “Reek” and “Far” and
       exchanged punches with [Appellant] over a supposed drug
       debt. Alex Jefferson Jr. [“Jefferson Jr.”] and [the victim,
       Leon McMillan,] observed the fight from down the street and
       rushed towards the Durango, where [the victim] punched
       [Appellant] several times through the Durango’s driver side
       window. Alex Jefferson Sr., Jefferson Jr.’s father, restrained
       Jefferson Jr., who in turn restrained [the victim].

           During the fight, [Appellant’s] keys fell out of the
       Durango and onto the street. After [Appellant] stepped out
       of the vehicle to retrieve the keys, he shouted to the crowd,
       “I’ll be back,” and drove away.

          [Appellant] met Wes[t]ley Richardson near the
       intersection of 52nd and Chancellor Streets, two blocks
       away.     From there, [Appellant] drove the Durango to
       Funston Street, approximately one mile north of Irving
       Street, while [Westley Richardson] followed in his cream
       Lincoln Continental. At Funston Street, [Appellant] and
       [Westley Richardson] rendezvoused with Steffon Richmond
       and an unidentified accomplice. Approximately an hour-
       and-a-half after the fight, Richmond drove [Appellant] and
       the unidentified accomplice to 50th and Locust Street in the
       minivan, with [Westley Richardson] following in his Lincoln.

          Richmond and [Westley Richardson] parked the vehicles
       at the intersection, after which [Appellant] walked towards
       Irving Street, one block south. A few moments after
       [Appellant] turned the corner onto Irving Street, [Appellant]
       called [Westley Richardson], who remained near the
       vehicles. [Westley Richardson] answered his phone and
       heard the sound of two to three gunshots from the other
       end of the line.

          Jefferson Jr., who remained outside on the 5100 block of
       Irving Street after the fight, observed [Appellant] follow the
       victim as [the victim] walked west on Irving Street. As [the
       victim] turned to face 5107 Irving Street, Jefferson Jr. saw
       [Appellant] shoot [the victim] three times. As [Appellant]
       ran towards 51st Street, Jefferson Jr., rushed towards [the
       victim] and cradled him in his arms. [The victim] took three
       breaths and became unresponsive.

          [Appellant] returned to 50th and Locust Street and
       entered the minivan, which sped away southbound on 50 th


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         Street, with [Westley Richardson] in tow. From Spruce
         Street, one block South of Irving Street, Jefferson Sr.
         observed the minivan race past him, with [Appellant] seated
         in the vehicle. Jefferson Sr. walked north to Irving Street
         and saw his son cradle the bleeding [victim]. In a panic,
         Jefferson Jr. shouted “Pop, he came back,” and that “the
         chumpy in the car” shot [the victim].

            At 9:17 p.m., Officers Michael Kane and Jeremy Olesik
         responded to a radio call reporting shots fired and
         discovered [the victim] lying in a pool of blood on the street
         directly in front of 5107 Irving Street. Having observed
         gunshot wounds to the victim’s upper chest, left, thigh, and
         right hand, Officers Kane and Olesik carried a non-
         responsive [victim] to the back of their squad car. Medics
         arrived and transported [the victim] to the Hospital of the
         University of Pennsylvania, where he was pronounced dead
         at 9:42 p.m.

                                     ***

            [Westley Richardson] and [Appellant] drove their
         vehicles to the area of 59th Street and Woodland Avenue.
         There, [Appellant] jumped into the backseat of [Westley
         Richardson]’s Lincoln, where he told [Westley Richardson]
         that he shot the [victim] and proceed[ed] to cut off his
         dreadlocks.    Later that evening, [Westley Richardson]
         returned home, where he told his mother Donna Richardson
         that “Face,” ([Appellant]), “did some dumb shit,” and that
         the two should vacate the house to avoid retribution.

            On April 28, 2011, Detective Greg Singleton interviewed
         [Westley Richardson] at the Homicide Unit. During that
         interview, [Westley Richardson] identified [Appellant] as
         “Face” and provided Detective Singleton with both his and
         [Appellant’s] cell phone numbers.           Based on this
         information, Officer Edward Fidler of the Philadelphia Crime
         Scene Unit investigated [Westley Richardson]’s Lincoln on
         May 3, 2011, and discovered four patches of matted,
         dreadlocked hair. On August 25, 2011, Detective James
         Burns interviewed [Westley Richardson], who described the
         events leading to the shooting and restated [Appellant’s]
         confession to killing [the victim].

Trial Ct. Op., 4/19/16, at 1-5 (citations omitted).



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        Police detectives interviewed Jefferson Jr. about the shooting five times.

However, it was not until after Appellant was arrested for the murder, and the

district attorney’s office thereafter relocated Jefferson Jr. and his family, that

Jefferson Jr. informed the authorities that he actually saw Appellant shoot the

victim.    On August 14, 2014, both Westley Richardson and Jefferson Jr.

testified at Appellant’s preliminary hearing. At that time, Westley Richardson

denied that he ever referred to Appellant by the nickname as “Face,” and

generally denied making the two previous statements to police.

        Westley Richardson did not appear for trial, and the Commonwealth

moved to read his preliminary hearing testimony into the record. The trial

court     inquired   about   Richardson’s   unavailability   to   testify   for   the

Commonwealth. The Commonwealth called two police detectives who detailed

their efforts to locate him.

        Of relevance to this appeal, one detective testified that he spoke to

Donna Richardson, Westley Richardson’s mother, and reminded her that she

was to appear at trial. On cross-examination, the detective acknowledged

that Donna Richardson had given a statement to police, but that her statement

was not disclosed to defense counsel before the preliminary hearing.4 Defense


4   The relevant portion of Donna Richardson’s statement is as follows:

           Last night my son called me and it was just to tell me that
           he was staying out last night. That was about 10:30pm.
           Then tonight my son text me and said to get out of the
           house because them niggaz know where we all live. I reply



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counsel made the following argument regarding his inability to cross-examine

Westley Richardson at the preliminary hearing due to the Commonwealth’s

failure to produce Donna Richardson’s statement:

           [DEFENSE COUNSEL]:           We addressed the one
        [component] as far as efforts to locate whether or not they
        acted reasonably and towards that [sic].

            The second component is whether or not counsel at the
        prior proceeding in this case, a preliminary hearing, had a
        full and fair opportunity to cross-examine.             The
        Commonwealth provided [Westley Richardson’s] statement
        of 4/28/11.      The Commonwealth provided to defense
        counsel, myself, [Westley Richardson’s] statement of
        8/25/11. They also provided me with his criminal extract
        up until that time.

           What they did not provide me with was DM-1, the
        statement of Donna Richardson taken on 4/26/11. That was
        not given to me at the preliminary hearing. Why is that
        relevant? Had I been given that statement, I would have
        been able to cross-examine [Westley Richardson] with
        statements that he gave to his mom on the day after -- in
        fact, that day of this incident that were inconsistent with the
        statements that he told the police that were given to me.
        For instance, in DM-1, on page one, four questions down to
        Donna, What exactly did your son tell you?



        and told him to call me and then I text back and said do we
        need to move or what do we need to do. And he asked, do
        you want to move? And I said, yes if things ain’t right. And
        then I said to call me again because now I’m thinkin’ that
        someone got his phone and I wanted to make sure that this
        was my son that was texting me. And he text me telling me
        that Face [Appellant] did some dumb shit last night. So he
        does call me and I said to him, what the hell was going on?
        And he said that, [Appellant] did some dumb shit last night
        and when I asked what it was that he wouldn’t tell me. And
        then [Westley Richardson] said that he wasn’t with
        [Appellant].

Commonwealth’s Exhibit 22, at 1-2 (unpaginated) (emphasis added).


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J-S38037-17


            ANSWER: Last night my son called me and it was just
        to tell me that he was staying out last night. That was about
        10:30. Then tonight my son text me and said to get of the
        house because them -- I don’t want to use that word -- N
        know where we all live. I replied and I told him to call me
        and then I text back and said, Do we need to move or what
        do we need to do? And he asked, Do you want to move?
        And I said, Yes, if things ain’t right.

           So why would you state those -- why would you make
        those comments to your mom? Why would you have to
        leave? Why would you have to move right away? Why
        would you have to tell your mom to pack up and let’s get
        out of there unless you were there, unless you had some
        involvement, unless perhaps you knew more than what you
        were telling the police?

           This is inconsistent with what he tells the police. Those
        statements, Your Honor, had I been provided the statement
        of Donna Richardson, the cross-examination may have gone
        something like this, [Westley Richardson] did you tell your
        mom that you needed to leave the area right away? If he
        says yes, then that would lead into further cross-
        examination. Why sir, if you weren’t involved in this
        incident like you told the police in your statement that you
        weren’t even there -- I will show where that is -- would you
        need to leave the area? Why would you need to get your
        mom out unless you thought you were in danger of
        retaliation?

           So I didn’t know that he told his mom to get out of town.
        His mom also told the police that she said to him, Do you
        want to move? And according to her, he said, Yes if things
        ain’t right [sic].

           On page two at the top, in the middle of this answer
        again, Your Honor, the statement from Donna Richardson
        says, [Westley Richardson] said that he wasn’t with
        [Appellant].

N.T., 10/20/15, at 54-57.




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      Defense   counsel   then   referred   to   Westley   Richardson’s   second

statement to police, which indicated that he was in the area of the murder

scene, and argued:

            Do you see the inconsistency is what I am talking about
         here? It’s not an innocuous harmless issue, I mean, you
         can’t say I was there on one occasion and I was there to
         make sure [Appellant] wasn’t rolled on and I went with him
         and he parked and got out of his van and they say to
         someone else, I wasn’t there. Oh, by the way, we got to
         get out of town.        I mean that is fodder for cross-
         examination. That is important cross-examination, and now
         despite their efforts to locate, I’m not able to do that. I am
         not able to show this fact finder that this man provided an
         inconsistent statement within an hour [of the murder].

Id. at 60-61.

      The Commonwealth responded that Donna Richardson’s statement was

not vital impeachment evidence, noting:

         In [Westley Richardson’s] first statement, which had been
         marked on page four, date of 4/28/11, Question No. 5, this
         is the question, [d]id you have a conversation with your
         mother Donna Richardson about what happened?

         I just told her to get out of the house after she told me that
         the screen was broke. I told her that Face [Appellant] did
         some dumb shit last night. I told her to get out of the house
         and go to my aunt’s house. She asked me if I wanted to
         move and go to my grandmother’s house.

Id. at 63.

      The trial court granted the Commonwealth’s motion to present Westley

Richardson’s preliminary hearing testimony:

            THE COURT: Okay, [defense counsel]. I agree with you
         there is information in there; however, what you did not
         address and what you can do is, if you choose, have an


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J-S38037-17


          opportunity to actually impeach the witness. Once [Westley
          Richardson’s preliminary hearing testimony is] read in, you
          can present his mother to elicit all that information.

             So I’m granting the Commonwealth’s motion.

             If you want a bench warrant on [Donna] Richardson, I
          certainly have evidence on this record and I will issue one if
          you wish to call her in to impeach [Westley Richardson’s
          preliminary hearing testimony]. But I do think that the
          Commonwealth has met its burden in this particular case.
          I’m going to permit that testimony.

Id. at 62.    After discussing the matter with Appellant, defense counsel

informed the court that he would not be calling Donna Richardson. Westley

Richardson’s preliminary hearing testimony was read into the record.5

        On October 23, 2015, the jury convicted Appellant of the crimes

enumerated above.       On January 22, 2016, the trial court imposed an

aggregate sentence of twenty-three-and-one-half to forty-seven years of

imprisonment.       Appellant   timely   filed   a   post-sentence   motion    for

reconsideration of the sentence, which the trial court denied on February 2,

2016.

        Appellant timely appealed from the judgment of sentence.              Both

Appellant and the trial court have complied with Pa.R.A.P. 1925. In its Rule


5 The Commonwealth eventually compelled the presence of Donna Richardson
at trial to obtain information regarding Westley Richardson’s whereabouts. In
addition, Donna Richardson testified that she had no recollection of speaking
to homicide detectives shortly after the murder and denied making any
statement to them. See N.T., 10/21/15, at 102-21. Defense counsel did not
cross-examine Donna Richardson regarding her previous conversations with
Westley Richardson. Id. at 121-22.




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J-S38037-17


1925(a) opinion, the trial court suggested that defense counsel had a full and

fair opportunity to cross-examine Westley Richardson at the preliminary

hearing, and that defense counsel was, or should have been, aware of the

alleged impeachment information based on the statements from Westley

Richardson that the Commonwealth had disclosed. Trial Ct. Op. at 12.

      Appellant raises the following issue on appeal:

            Did the trial court err by allowing the Commonwealth to
            introduce the preliminary hearing testimony of an
            unavailable witness where [Appellant] did not have a full
            and fair opportunity to cross[-]examine that witness at
            the preliminary hearing?

Appellant’s Brief at 4.6

      Appellant asserts that had defense counsel obtained Donna Richardson’s

statement that Westley Richardson told her he was not with Appellant when

the murder occurred, defense counsel could have impeached Westley

Richardson with regard to his second statement to police that he was in fact

in the same area as Appellant “right before and right after the shooting.” Id.

at 9. According to Appellant, the denial of this opportunity to cross-examine

Westley Richardson precluded the admission of Westley Richardson’s

preliminary hearing testimony at trial. Id. In addition, Appellant avers that

the trial court “ignore[d] altogether the part of [Westley Richardson]’s




6 Appellant does not challenge the trial court’s conclusion that the
Commonwealth made reasonable efforts to locate Westley Richardson.


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J-S38037-17


statement to his mother that he was not with [Appellant] near the crime scene

[] before or after the shooting.” Id. No relief is due.

      Our standard of review is well-settled.

         “Questions regarding the admission of evidence are left to
         the sound discretion of the trial court, and we, as an
         appellate court, will not disturb the trial court's rulings
         regarding the admissibility of evidence absent an abuse of
         that discretion.” An abuse of discretion is more than a mere
         error of judgment; rather, an abuse of discretion will be
         found when “the law is overridden or misapplied, or the
         judgment exercised is manifestly unreasonable, or the
         result of partiality, prejudice, bias, or ill-will, as shown by
         the evidence or the record.”

Commonwealth v. Pukowsky, 147 A.3d 1229, 1233 (Pa. Super. 2016)

(citations omitted).

      Our Supreme Court summarized the law regarding the admissibility of

an unavailable witness’s prior testimony as follows:

         The exception to the hearsay rule which permits the
         admission of an unavailable witness’s prior preliminary
         hearing is predicated on the indicia of reliability normally
         afforded by adequate cross-examination. But where that
         indicia of reliability is lacking, the exception no longer
         applies. Therefore, in order for prior testimony to be
         admissible in a subsequent proceeding as substantive
         evidence against the accused, there must have been a full
         and fair opportunity to cross-examine. The Commonwealth
         may not be deprived of its ability to present inculpatory
         evidence at trial merely because the defendant, despite
         having the opportunity to do so, did not cross-examine the
         witness at the preliminary hearing stage as he might have
         done at trial. However, where the defense, at the time of
         the preliminary hearing, was denied access to vital
         impeachment evidence, such as prior inconsistent
         statements of the witness or the witness’s criminal record,
         a full and fair opportunity to cross-examine the unavailable



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J-S38037-17


         witness may be deemed to have been lacking at the
         preliminary hearing.

Commonwealth v. Buford, 101 A.3d 1182, 1195 (Pa. 2014) (citations and

quotation marks omitted).

      The record here reveals that although Westley Richardson placed

himself near the scene of the murder when he gave his second statement, he

denied the veracity of both statements and maintained that he had no

involvement with the crime when testifying at the preliminary hearing. See

N.T., 8/13/14, 7-77.     Therefore, Westley Richardson’s preliminary hearing

testimony was not inconsistent with his statement to Donna Richardson.

      Moreover, the information contained in Westley Richardson’s first

statement was substantially similar to the information contained in Donna

Richardson’s statement.        In Westley Richardson’s first statement, which

Appellant received before the preliminary hearing, Westley Richardson

asserted that he was on the highway coming back from the Springfield Mall

when Appellant told him he “got jumped.”        Commonwealth’s Ex. 23 at 2

(unpaginated). Westley Richardson responded that he could not do anything

to help Appellant because he was not in the area. Id. at 3. After speaking to

Appellant, Westley Richardson stated that he went home, washed up, and

went to Wawa to eat. Id. He then went to see a girl in South Philadelphia

after “riding around.”   Id.    He did not go home because he was receiving

threatening calls. Id. Additionally, Westley Richardson suggested he learned

of the shooting when the victim’s brother called him looking for Appellant. Id.


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at 3. He also acknowledged speaking with Donna Richardson the day after

the shooting and telling her to leave her home. Id. at 4. Therefore, Westley

Richardson’s first statement suggests that he was not with Appellant at the

time of the shooting and also told Donna Richardson to leave the home. Thus,

we discern no basis to disturb the trial court’s conclusion that the

Commonwealth failed to produce vital impeachment evidence before the

preliminary hearing. See Buford, 101 A.3d at 1195; Pukowsky, 147 A.3d

at 1233.

      Appellant’s further reliance on Commonwealth v. Bazemore, 614

A.2d 684 (Pa. 1992), is misplaced.      In Bazemore, while defense counsel

cross-examined the witness at the preliminary hearing, defense counsel was

unaware, and had not been informed, that the witness had made a prior

inconsistent statement to police. Id. at 685. In addition, defense counsel did

not know that the witness had a criminal record, or that the district attorney’s

office was contemplating filing homicide and conspiracy charges against him

in connection with the same incident that gave rise to Bazemore’s charges.

Id.   The witness’ credibility was of “vital importance” in that case. Id. at

687-88. Under those circumstances, the Pennsylvania Supreme Court held

that there was no fair and full opportunity for cross-examination.

      No such circumstances exist in Appellant’s case. A review of defense

counsel’s cross-examination of Westley Richardson reveals that defense

counsel had a full and fair opportunity to cross-examine Westley Richardson.



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In response to defense counsel’s questions, Westley Richardson claimed that

he had lied to police, and would have said anything to be able to leave from

police custody. See N.T., 8/13/14, 94-112. Westley Richardson’s first and

second statements, both of which Appellant received before the preliminary

hearing, contained similar inconsistencies as Westley Richardson’s statement

in Donna Richardson’s undisclosed statement.              Furthermore, Westley

Richardson’s credibility was not of “vital importance” in this case, as another

witness, Jefferson, Jr., testified that he saw Appellant fire the shots that killed

the victim.

      In sum, our review of the record supports the trial court’s determination

that Appellant was not denied vital impeachment evidence necessary for a full

and fair opportunity to cross-examine Westley Richardson at the preliminary

hearing.   Thus, we discern no error in the trial court’s ruling that Westley

Richardson’s prior testimony was admissible as substantive evidence at

Appellant’s trial.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/17




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