J. A25039/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
MONTRELL GAINEY,                            :
                                            :
                            Appellant       :     No. 1055 EDA 2014

             Appeal from the Judgment of Sentence March 12, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0014125-2011

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 30, 2015

        Appellant, Montrell Gainey, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a jury

trial and conviction for first-degree murder,1 aggravated assault,2 firearms

not to be carried without a license,3 and possessing instruments of crime.4

He challenges the sufficiency of the evidence for first degree murder and

claims the trial court erred in denying his motion in limine to preclude

certain statements made by the Commonwealth in its opening statement

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 2702.
3
    18 Pa.C.S. § 6106.
4
    18 Pa.C.S. § 907.
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regarding a feud between a faction at Richard Allen Home and Penn Town.

We affirm.

      Appellant’s conviction arises from the shooting of Lamar Spencer and

Tracy Capers on May 11, 2011. Trial Ct. Op., 9/23/14, at 2. The incident

occurred during Spencer’s work break in front of an appliance shop owned

by his father. See N.T., 3/6/14, at 15-16, 25. DePaul Babbs, an employee

of the shop, called 911 during the shooting. Id. at 190-91, 201. Spencer

died soon after the shooting from a “single penetrating gunshot wound to

the back. . . .”    Trial Ct. Op. at 3.    Capers was shot three times, but

survived.    Id. at 2-3; N.T., 3/7/14, at 4-5.   Investigators found ten .45-

caliber casings at the scene. N.T., 3/7/14, at 34-36. The parties stipulated

that all ten casings came from the same weapon. Id. at 125-26.

      Police interviewed Babbs on the afternoon of the shooting, but he said

he had only seen “a gun and nothing else.” N.T., 3/10/14, at 21. On May

12, 2011, Detective Micah Spotwood and Detective McDermott,5 interviewed

Babbs again.    Id. at 22.   At trial, Detective Spotwood read the two page

interview to the jury. Id. at 23. In pertinent part, it stated:

         [Q:] [Babbs], were you previously interviewed on
         Wednesday, May 11th, 2011 by Detective Glenn in regards
         to the shooting death of Lamar Spencer?

         A: Yes.


5
 We note that our review of the record did not reveal some individual’s first
names.



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         Q: During the interview, did you tell Detective Glenn
         everything that you can recall about the shooting of Lamar
         Spencer and a second individual at 1927 Ridge Avenue?

         A: No.

         Q: Please tell us what information you did not give to
         Detective Glenn.

         A: I didn’t tell him that I saw a side view of the shooter.

         Q: Can you now give Detective McDermott and I a
         description of the shooter?

         A: Yes. He was a black male with a mustache, white T-
         shirt, blue jeans. I believe the jeans had pockets on the
         sides or legs. Black sneaks, ankle high. He was darker
         than me. He was medium dark complexion. About 150 to
         160 pounds. About five-feet-11. I believe that he might
         be between the ages of 30 to 35 years but he could be a
         little bit younger. It’s just an estimate.

Id. at 24-25 (quotation marks omitted).6 During this interview, he said he

had withheld information during his initial interview with police, “[b]ecause

[he] was afraid there could be repercussions.” Id. at 28.

      Detective Spotwood testified that on May 12, 2011, investigators

spoke with Capers in his hospital room. Id. at 28-29. At that time, he did

not identify his assailant.   Id. at 29-30.   Detective Spotwood was shown

Capers’ statement and the attached photographs from the second interview

held on June 6, 2011. Id. at 30-31. Capers identified each of the people in

the photographs that were there with him when the incident happened. Id.


6
 Detective Micah Spotwood read the two page interview to the jury. Id. at
24-28.



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at 31-32.      Capers identified Appellant as the man who shot him and

Spencer. Id. at 32. Detective Spotwood identified Appellant as the person

Capers identified from the photographs. Id. Capers testified that he knew

Appellant for “[a] couple years” prior to the shootings. N.T., 3/6/14, at 21.

      On June 15, 2011, police arrested Appellant and executed a search

warrant at his home.      N.T., 3/7/14, at 89-91.    When they entered the

property, they found Appellant standing outside of the front bedroom on the

third floor.   Id. at 79-80.   The following items were recovered during the

course of the execution of the search warrant:

         [O]ne Remmington [sic] ammunition box containing one
         live .357 round; one magazine tech ammunition box; .38
         Special empty; one Paritizan ammunition box containing
         14 live, .380 rounds, 23 live .45 caliber rounds of
         ammunition; one Winchester ammunition box, a .45
         caliber, empty and proof of residence.

Id. at 91-92. The proof of residence, viz., a letter addressed to Appellant,

and the aforementioned items were found “in the third floor front bedroom

of the property.” Id. at 92-93.

      Prior to trial, counsel for Appellant indicated to the court that he had

received a letter from the Commonwealth “regarding his intention to

introduce evidence of an ongoing feud . . . between Richard Allen Projects

and Penn Town area as the motivation or the underlying cause of this

particular incident.”   N.T. Pretrial/Voire Dire, 3/4/14, at 4.   Counsel for

Appellant objected to the introduction of this evidence and stated to the

court:


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              Obviously an ongoing problem between two groups can
           be a basis for motivation of a particular defendant to do an
           act. Obviously that can be admissible. Here’s my problem
           with the analysis as the government would portray it here.
           For it to be admissible against [Appellant] as a motive for
           him doing what he’s been doing, one has to show that he
           was part of─not just that he lived at 10th and Brown.[7]
           That he somehow was part of a group that was feuding
           with another group. . . .

           [A] shooting[8] can occur by someone who lives at 10th
           and Brown but has nothing to do with Richard Allen or has
           nothing to do [sic] Penn Town. . . . So that’s why I’m
           saying there has to be a basis in the testimony to link
           [Appellant’s] activity to the Richard Allen mentality,
           retaliation for a homicide that occurred some two months
           earlier.

Id. at 11-12. The trial court denied the motion and opined, “there wouldn’t

be any reason for the jurors not to know the surrounding circumstances. To

have   a    complete   picture   of   what   was   going   on   generally   in   the

neighborhood.” Id. at 12.

       At trial, Capers testified:

              I was coming from my girlfriend’s house. And I was on
           my way to my mother’s house where I had─I had seen
           [Spencer]. And he flashed me down because I had seen
           him. So I go have a conversation with him. We wound up
           having a conversation. . . . Then I see [Appellant] coming
           up on the other side of the street. He actually spoke to
           him. So I think nothing of it.



7
  The Commonwealth explained that the area around 10th and Brown is
associated “as Richard Allen.” Id. at 7.
8
 The Commonwealth noted that Capers referred to a shooting in March of
2011 in the area. Id. at 8.



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             Then [Spencer] suddenly is having a conversation. The
          next thing I know, shots go off. I run and I got shot in the
          leg. I got shot. I went down.

N.T., 3/6/14, at 8. He stated that he did not tell the detectives the truth

when they interviewed him on May 12th. Id. at 30. He did not “want to go

through this process. [He] didn’t want to come to court and take the stand

and testify.”    Id.   At trial he stated he identified the photograph of

Appellant, which was attached to his June 6th statement, when he told the

detectives the truth about what happened. Id. at 33-34, 36-37.

      Babbs testified at trial that he was working in the appliance store when

he heard a gunshot. Id. at 199. He went to the door and heard “a couple”

of gunshots. Id. at 200. When the shooting stopped he went to the front

door and saw Spencer on the ground and called 911.         Id. at 201.   In his

second interview, he gave the detective a description of the shooter. Id. at

207-08.    He explained that he did not give a description of the shooter

during the first interview because of the possible repercussions. Id. at 215-

16.   When asked to clarify his previous assertion that he feared the

repercussions of making statements to police, Babbs testified, “[y]ou might

get hurt for speaking up, talking.” Id. at 216.




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      On March 12, 2014, the trial court sentenced Appellant to life

imprisonment for first-degree murder.9        This timely appeal followed.10

Appellant filed a court ordered Pa.R.A.P. 1925(b)11 statement of errors

complained of on appeal. The trial court filed a responsive opinion.

      Appellant raises the following issues for our review:

9
  The certified record transmitted on appeal did not initially include the notes
of testimony from the March 12, 2014 hearing in which the verdict was read
and the trial court sentenced Appellant. Upon informal inquiry by this Court,
the trial court provided the transcript. We remind Counsel that the appellant
bears the burden of “ensur[ing] the record certified on appeal is complete in
the sense that it contains all of the materials necessary for the reviewing
court to perform its duty.” See Commonwealth v. B.D.G., 959 A.2d 362,
372 (Pa. Super. 2008) (en banc) (citations omitted).
10
   We note that Appellant did not file post-trial motions. See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”). At sentencing, the trial court did not
apprise Appellant of the need to file post-sentence motions to preserve
issues for appeal. In Commonwealth v. Malovich, 903 A.2d 1247 (Pa.
Super. 2006), this Court opined:

            We will not conclude that [the a]ppellant forwent the
         opportunity to raise issues via post-sentence motions when
         the sentencing court did not tell him he could file such
         motions. Given that [the a]ppellant was unaware of the
         need to preserve claims in a motion for reconsideration,
         we find that he has not waived those claims on appeal.

Id. at 1252 (citations omitted).
11
    Appellant also raised the following issue in his Pa.R.A.P. 1925(b)
statement: “The sentence was excessive and an abuse of discretion where
the Court did not sufficiently consider mitigating factors presented by
[Appellant] and over emphasized the criminal acts.” Appellant’s Pa.R.A.P.
1925(b) Statement, 6/13/14, at 1. This issue was abandoned on appeal as
it was not raised in Appellant’s brief. See Commonwealth v. Dunphy, 20
A.3d 1215, 1218 n.2 (Pa. Super. 2011).




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         A. Whether the verdict of first degree murder was
         insufficient as a matter of law where it was based on
         unreliable identification evidence and there was no
         additional corroborative physical evidence to support the
         verdict?

         B. Whether the court erred in denying the defense motion
         to preclude statements regarding the feud between a
         faction at Richard Allen Home and Pen[n] Town and/or the
         murder in Commonwealth’s opening statements?

Appellant’s Brief at 5.

      We recite verbatim Appellant’s argument that the evidence was

insufficient as a matter of law to sustain his conviction for murder.

            With regard to first-degree murder, the Appellant
         believes the evidence did not establish that he was the
         perpetrator of the homicide, an element of the crime as a
         matter of law. He again admitted to not being truthful at
         the preliminary hearing including a different description of
         a person other than the Appellant.

            The evidence indicated the Mr. Caper[s], who was the
         only one to identify the Appellant did not do so until over a
         month after the shooting and after multiple contacts with
         the police. He admitted that he did not tell the truth to
         detectives when he was first interviewed by them in the
         hospital about where he was during the night of the
         shooting. He stated that he was reluctant to come to court
         and there was a bench warrant and he had to be taken
         into custody to appear. (N.T. 3/6/14, pp. 10-180).[12]
         DePaul Babbs, a witness at the scene who could not
         identify the shooter, testified that Mr. Caper[s] did not
         identify anyone as the shooter at the time of the shooting.
         (N.T. 3/6/14, pp. 189-195).[13]

12
  Appellant has not identified with particularity the “place in the record
where the matter referred to appears.” See Pa.R.A.P. 2119(c).
13
   We note that there is no reference to Capers in the notes of testimony
referenced to by Appellant.



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            The Commonwealth did not prove beyond a reasonable
         doubt that the accused was the individual who committed
         the shooting. A single identification that was given one
         month after the shooting is not sufficient as a matter of
         law to prove that the accused committed a murder. As a
         result, the conviction should be vacated.

Id. at 9-10.

     Our review is governed by the following principles:

         Our standard of review regarding challenges to the
         sufficiency of the Commonwealth’s case is well settled. In
         reviewing the sufficiency of the evidence, we consider
         whether the evidence presented at trial, and all reasonable
         inferences drawn therefrom, viewed in a light most
         favorable to the Commonwealth as the verdict winner,
         support the jury’s verdict beyond a reasonable doubt. The
         Commonwealth can meet its burden by wholly
         circumstantial evidence and any doubt about the
         defendant’s guilt is to be resolved by the fact finder unless
         the evidence is so weak and inconclusive that, as a matter
         of law, no probability of fact can be drawn from the
         combined circumstances. As an appellate court, we must
         review the entire record . . . and all evidence actually
         received[.] [T]he trier of fact while passing upon the
         credibility of witnesses and the weight of the evidence
         produced is free to believe all, part or none of the
         evidence. Because evidentiary sufficiency is a question of
         law, our standard of review is de novo and our scope of
         review is plenary.

Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa. Super. 2014),

(citations and quotation marks omitted), appeal denied, 118 A.3d 1107 (Pa.

2015).

     “To obtain a first-degree murder conviction, the Commonwealth must

demonstrate that a human being was unlawfully killed, the defendant

perpetrated the killing, and the defendant acted with malice and a specific


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intent to kill.” Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013)

(citations omitted).   “In addition to proving the statutory elements of the

crimes charged beyond a reasonable doubt, the Commonwealth must also

establish the identity of the defendant as the perpetrator of the crimes.”

Commonwealth v. Brooks, 7 A.3d 852, 857 (Pa. Super. 2010).

      In Commonwealth v. Hanible, 836 A.2d 36 (Pa. 2003), the

Pennsylvania Supreme Court rejected a defendant’s claim that the evidence

was insufficient to support his first degree murder conviction.

         [The a]ppellant argues, however, that the evidence was
         not sufficient to sustain his first-degree murder conviction
         because the conviction was based primarily on [a
         witness’s] statement to the police, which [the witness]
         subsequently recanted at trial.            Contrary to [the
         a]ppellant’s assertion, the mere fact that [the witness]
         recanted a statement he had previously made to the
         police certainly does not render the evidence
         insufficient to support [the a]ppellant’s conviction.
         Rather, the jury was free to evaluate both [the witness’s]
         statement to police as well as his testimony at trial
         recanting that statement, and free to believe all, part, or
         none of the evidence. It is not for this Court to reweigh
         the evidence and substitute its judgment for that of the
         fact-finder. Moreover, in making his claim, [the a]ppellant
         ignores the additional circumstantial evidence that pointed
         to him as the killer . . . . Thus, [the a]ppellant’s claim that
         the evidence was insufficient to support his first-degree
         murder conviction fails.

Id. at 39-40 (citations omitted and emphasis added).

      Instantly, Appellant solely argues the evidence was insufficient to

establish his identity as the perpetrator of the murder. Appellant’s Brief at

10.   He does not contest the sufficiency of the evidence in relation to the



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specific elements of the crime itself.    Capers was the second victim in the

underlying incident, was in close proximity to the victim during the shooting,

and gave a detailed description of events.         Capers, like the witness in

Hanible, knew Appellant prior to the shooting and identified him by name.

See Hanible, 836 A.2d at 39. While Capers sometimes denied being able to

identify Appellant, the jury found his identification of Appellant credible.

See id.

      In the case sub judice, another witness, Babbs, gave statements

corroborating details of Capers’ account of events. See id. Babbs also gave

a detailed description of the shooter. See id. While Babbs originally denied

being able to give the police details about the crime, the jury found his later

statements credible. See id.

      Appellant   claims   Capers’   eyewitness         identification   alone    was

insufficient to prove he committed the underlying murder as a matter of law,

however, as in Hanible, Appellant “ignores the additional circumstantial

evidence that pointed to him as the killer.” See id. The parties stipulated

that all of fired cartridge casings were from the same gun and were the .45

caliber Winchester brand.      The Commonwealth presented evidence to

support Capers’ eyewitness identification, including the partially empty box

of .45 caliber rounds found in Appellant’s home and Babbs’ statements and

testimony.    See    id.    Viewed   in   the   light    most    favorable   to   the




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Commonwealth, the evidence was sufficient to support the jury verdict. See

id.; Brooker, 103 A.3d at 330; Brooks, 7 A.3d at 857.

     Lastly, Appellant argues the trial court erred in denying his motion in

limine “to preclude statements regarding the feud between a faction at

Richard Allen home and Pen[n] Town . . . in [sic] Commonwealth’s opening

statements.”14   Appellant’s Brief at 11.   We state Appellant’s argument

verbatim:

           In the instant matter, a motion in imine was litigated on
        March 4, 2015. At that time, defense counsel sought to
        exclude any reference to an ongoing feud between the
        Richard Allen Projects and the Penn Tower area. The
        Commonwealth did not have any evidence establishing
        that the Appellant was part of a gang.

            Despite the court stating that it would reserve its
        ruling,[15] the Commonwealth referenced it in its opening


14
   We note that Appellant also states the Court erred in denying the motion
to preclude the reference to “the murder in Commonwealth’s opening
statements.” Appellant does not present any argument in relation to this
averment in his brief.
15
   Contrary to Appellant’s assertion, the court ruled on the motion prior to
trial.

           So your motion as I understood it was to preclude
        information about any disturbances that had happened
        between the residence [sic] of Richard Allen and some of
        the residence [sic] of Richard Allen and some of the
        residents at Penn Town.

            At this point I’m going to deny that motion. . . .

N.T., 3/4/14, at 12-13 (emphasis added).




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        argument (N/T 3/5/14, pp. 108-109)[16] and in its cross-
        examination of a witness, Andrew Fabry (N/T 3/5/14, pp.
        173-175).[17]

16
   For clarity we note that immediately preceding the notes of testimony
referenced by Appellant, the Commonwealth stated on page 107: “That
afternoon Tracy Capers was walking from his girlfriend’s apartment in”

        another part of North Philadelphia heading to his mom’s
        place. Took a route that took him down Ridge Avenue.
        Right there at Ridge Avenue you have 19th Street, you
        have Thompson Street and you have a gas station just
        down the street. Some of you might be familiar with.
        Well, that’s where Lamar Spencer’s dad’s appliance shop
        was located at. They fixed appliances. Sold appliances.
        Some of them out in front of his store. That’s where
        Lamar Spencer worked.

           Tracey Capers on his route from his girlfriend’s house
        sees another young man that he knows from Richard Allen.
        A young man named Roger Washington. He knows when
        he sees Roger Washington and Roger Washington looked
        at him, he needs to be leery; be aware of his surroundings
        because of the violence that is going back and forth. He
        did not consider Roger Washington a friend.             He
        considered Roger Washington someone he needed to look
        out for.

            Well, he makes his way down passing the appliance
        shop and sees Lamar and stops to talk to him. He’s a
        friend of his. Lamar and him are outside─right outside the
        front door of the shop. There’s a telephone pole. You will
        see pictures, exactly what the area looked like that
        afternoon. They are standing by the telephone pole. And
        up the street comes Roger Washington and up the other
        direction comes [Appellant]. Tracey Capers has known for
        years. Good friends with Roger.

           Someone else that he’s looking out for. Someone that
        is not a friend of Tracy Capers. Someone from Richard
        Allen. What the evidence will show is that as Lamar and
        Tracey are standing right by the telephone pole talking,
        that [Appellant] and Roger meet up almost where they are



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           The admission of any reference to the fight between the
        two housing projects was far more prejudicial than
        probative. The identifications of the Appellant by the two
        witnesses were tenuous at best. No one was able to name
        any suspect at the time of the incident. The mention of a
        “gang war” was only raised to prejudice the Appellant and
        imply that the witnesses were being intimidated. It did not
        shed light on any other aspect of the cases and therefore,
        should have been excluded.       Therefore, the Appellant
        should be granted a new trial.

Id. at 11-12.

     In reviewing the denial of a motion in limine,

        we apply an evidentiary abuse of discretion standard to the
        denial of a motion in limine.

            Questions concerning the admissibility of evidence lie
            within the sound discretion of the trial court, and we
            will not reverse the court’s decision on such a
            question absent a clear abuse of discretion.

Commonwealth v. Zugay, 745 A.2d 639, 645 (Pa. Super. 2000) (citation

omitted).

        Abuse of discretion is not merely an error of judgment, but
        rather where the judgment is manifestly unreasonable or

        standing.    And in fact, Monte, as Tracy Capers calls
        [Appellant] and either Lamar or Tracy exchange a what’s
        up; a short greeting as they cross path [sic].

N.T., 3/5/14, at 108-09.
17
   In support of this claim, Appellant refers to the March 5, 2014 notes of
testimony on pages 173-75. A review of the record belies this assertion.
The jury was excused prior to the discussion between defense counsel and
the court, which is transcribed on pages 173-75. See N.T., 3/5/14, at 172-
75.




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        where the law is not applied or where the record shows
        that the action is a result of partiality, prejudice, bias or ill
        will. Furthermore, because the trial court indicated the
        reason for its decision . . . our scope of review is limited to
        an examination of the stated reason.

Commonwealth v. Stephens, 74 A.3d 1034, 1037 (Pa. Super. 2013)

(quotation marks and citations omitted).

     In Commonwealth v. Broaster, 863 A.2d 588 (Pa. Super. 2004),

this Court opined:

        According to Pa.R.E. 401, “‘Relevant evidence’ means
        evidence having any tendency to make the existence of
        any fact that is of consequence to the determination of the
        action more probable or less probable than it would be
        without the evidence.”

                                   *     *      *

              Because all relevant Commonwealth evidence is
              meant to prejudice a defendant, exclusion is limited
              to evidence so prejudicial that it would inflame the
              jury to make a decision based upon something other
              than the legal propositions relevant to the case. As
              this Court has noted, a trial court is not required to
              sanitize the trial to eliminate all unpleasant facts
              from the jury’s consideration where those facts
              form     part   of the history         and    natural
              development of the events and offenses with
              which [a] defendant is charged.

Id. at 592.

     We limit our review to the trial court’s reasoning. See Stephens, 74

A.3d at 1037.       The trial court found the evidence of hostilities in the

neighborhood would be admissible as part of the “history and natural

development” of the instant murder. See Broaster, 863 A.2d at 592. The



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ruling was not clearly erroneous.   See Stephens, 74 A.3d at 1037.   We

discern no abuse of discretion. See Zugay, 745 A.2d at 645.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2015




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