J-A22012-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TYRONE LAMONT WILLIAMS

                            Appellant                     No. 1682 MDA 2012


             Appeal from the Judgment of Sentence April 23, 2012
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0004623-2010


BEFORE: GANTMAN, J., ALLEN, J., and MUNDY, J.

MEMORANDUM BY GANTMAN, J.:                               FILED AUGUST 12, 2014

        Appellant, Tyrone Lamont Williams, appeals from the judgment of

sentence entered in the Dauphin County Court of Common Pleas, following

his jury trial convictions for first-degree murder, criminal conspiracy, and
                                                     1
                                                         We affirm.

        The trial court opinion fully and correctly set forth the relevant facts of

this case as follows:


           killed on May 5, 2009 at approximately 1:10 a.m. Officer


           and Crescent Streets in Harrisburg City to investigate a
           report of shots fired. The area is known for high crime and
           drug traffic. Officer Miller found [Victim] lying on the
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a); 903; 2705, respectively.
J-A22012-13


       sidewalk in front of the McFarland Building apartments, on
       his back, with a gunshot wound to the chest. [Officer]
       Miller stated that [Victim] was dressed in all black
       including black gloves, and a .40 caliber handgun was on
       the ground to the left of him. Officer Miller described the
       scene as initially chaotic as several individuals were in the
       immediate area. [Victim] was loaded into an ambulance
       for purposes of transport to the hospital for treatment


       While in the ambulance, the EMS personnel had to cut off

       caused a bag to fall out of the pants to the floor. Officer
       Cook suspected that the bag contained crack cocaine, so
       he gave it to Officer Miller who subsequently provided it to
       the forensic officer.       After arriving at the hospital
       emergency room, the ER physician pronounced [Victim]
       dead at 1:35 a.m.

       The subs



                                                     body
       was 8.2 grams of crack cocaine.  She also tested a
       substance suspected to be cocaine which had been



       Blascovich determined that the substance in the second
       baggie was crack cocaine weighing 65/100ths of a gram.

       Dr. Wayne Ross, a forensic pathologist for the Dauphin

       of [Victim]. Upon examination of the body, he discovered

       wound.     Upon further examination, Dr. Ross determined
                                                                  th

       rib on the left side, broke the rib, and went through the
       liver, heart and lungs. Dr. Ross stated that he found a
       bullet in blood that was in the lung. Dr. Ross concluded
       that, as there was no soot or residue on the outside of

                                             body was going front

                                   -2-
J-A22012-13



       within a reasonable degree of medical certainty that the

       chest and the manner of death was homicide.           Upon
       evaluation of the position in which [Victim] was found and

       opinion that when [Victim] was shot he was pulling his
       body backwards in some manner, lying on the ground or
       the shooter was pulling backward and running.



       [to] set up a deal to purchase an ounce of crack cocaine.
       Mr. Burgess had known [Victim] for several months as he
                                           ler.   [Mr.] Burgess
       contacted another drug dealer he knew, an individual


       his truck and [Victim] went out to consummate the drug
       deal. When

       meaning less than the ounce he had agreed upon. To
       remedy the situation, [Mr.] Burgess called Duke who
                                                         e

       drugs.


       house. Mr. Burgess described him as being dressed in all
       black including his pants, shirt and gloves, and acting
       uncomfortable or skittish. Duke did not show up when
       expected, so [Victim] left. Later, when Duke arrived at
                                   th
                                 and Derry Streets to make
                                                   ellphone
       number to Duke so the two of them could handle the

       house the second time that day, Appellant, [whom] [Mr.]

       unexpectedly arrived first, a minute or two before Duke.
       The police first learned that Appellant was at [Mr.]


                                    -defendant,] Ronald Burton,

                                 -3-
J-A22012-13


       who is also
       Appellant from previously buying drugs from him and,
       when [Appellant] would sell to [Mr.] Burgess, he would

       that Appellant had been stopped by police for a traffic
       violation, in a black Ford Expedition SUV, in May 2010.


       and walked toward the corner of Sylvan Terrace. Mr.
       Burgess testified that after they left, his girlfriend returned
       home and they imm

       approximately ten (10) minutes of Appellant and Duke
       leaving, they heard several gunshots fired, one after
       another. From a police photo array, Mr. Burgess identified
       Ronald Burton as the person he knew as Duke.

       On the night of the murder, two individuals, Greta


       Hummel Avenue and Mulberry Street.         Both of them
       testified that they saw two individuals dressed in black
       with hoods on[,] get out of a dark colored SUV and walk
       quickly through the alley towards Mulberry Street. Mr.
       Lynch did not see them carrying guns, but Ms. McAllister
       did. Mr. Lynch stated he recognized one of the men as an

       bought cocaine. Mr. Lynch testified that he heard the man

       a parked car and a light pole at the end of the alley. [Mr.]

       same time he saw another man walking on the opposite
       side of Mulberry Street. Mr. Lynch said that once the man
       on the opposite side of Mulberry [Street] was out of his
       sight, the two men in the alley where he was located ran
       toward the man across the street. Both Ms. McAllister and
       Mr. Lynch were headed in the other direction, still in the
       alley, toward Hummel [Avenue], when shots rang out. Mr.
       Lynch stated that at least 10 shots, of two different caliber
       bullets, were fired. Ms. McAllister and Mr. Lynch testified
       that, after the shots were fired, the men ran back down
       the alley, toward Hummel Avenue and got back into the
       dark colored SUV.      Later, while being interviewed by
       De

                                    -4-
J-A22012-13



       as Ronald Burton.

       At the murder scene, HBP forensic investigator Karen Lyda

       casings on the south side of Mulberry Street, grouped

       found. An additional grouping of five (5) spent .45 caliber
       shell casings was found at the same intersection, across
       Crescent Street. Officer Lyda also recovered a live .40
       caliber bullet and a .40 caliber shell casing.        Other
       evidence obtained at the scene included a mutilated bullet
       jacket, a cellphone and a left sneaker. Officer Lyda later
       learned from other investigating officers that a casing was
       jammed in the recovered .40 caliber hand gun and there
       were 3 unfired cartridges in the magazine.


       the [PSP], Bureau of Forensic Sciences processed the
       firearms evidence submitted by the HBP and presented
       expert testimony on firearm and tool mark examination.
       The HBP provided Cpl. Garret with a Beretta
       semiautomatic .40 caliber pistol, a magazine with three (3)
       undischarged Remington .40 caliber cartridges, one (1)
       discharged mutilated bullet jacket, one (1) discharged
       Remington .40 caliber Smith and Wesson cartridge and
       five (5) discharged Winchester .45 automatic cartridge
       cases. After examination and forensic testing of these
       items, Cpl. Garrett concluded that the five (5) discharged
       .45 cartridges were all discharged from the same gun, but
       were definitely not discharged from the .40 caliber Beretta
       handgun found by [Victim] at the crime scene.

       On August 10, 2009, a 2000 gold Cadillac Deville was
       stopped by police while Appellant was operating the
       vehicle. In furtherance of the investigation, on August 13,

       HBP was asked to obtain and execute a search warrant for
       the vehicle operated by Appellant. Det. Shoeman had
       been informed that Ronald Burton had been seen in that
       particular vehicle. Lead investigator Detective Ryan Neal


       on photo identification by [Mr.] Lynch and [Mr.] Burgess.

                                  -5-
J-A22012-13


       During the search, plastic bags of clothing and toiletry
       items were found in the trunk of the car along with a green
       plastic storage tote. In the green storage tote, Detective
       Shoeman found documents belonging to Ronald Burton.
       The documents which were recovered were a 2008 W-2
       income reporting form, a letter and a PPL electric utility bill
       all in the name of Ronald Burton.


       recovered at the scene of the murder and, in the address
       book, found a number that he confirmed had belonged to
       Ronald Burton/Duke. By way of search warrant, Det. Neal

       phone number for May 4 and May 5, 2009. From the
       records, Det. Neal reviewed the particular cellphone
       numbers and call history that belonged to Duke/[Mr.]
       Burton and [Mr.] Burgess/Pepsi.       Upon review of the
       records for the interactions between [Mr.] Burton, [Mr.]
       Burgess and [Victim] on the night of the murder, Det. Neal
       determined that multiple calls were made from [Mr.]

       evening, but they eventually ceased as [Mr.] Burgess gave

       remainder of the night, all of the calls placed were
       between [Victim] and Duke.    The last phone call on

       5th, when call activity ceased until approximately 7:00 a.m.

       Det. Neal also interviewed Appellant in connection with the
       shooting of [Victim]. Between the first interview, which
       was recorded by audio and second interview, which was
       not recorded, he changed his story. Appellant initially said

       dropped him off and picked him up then spent several
       hours at the Hollywood casino. His second version of
       events had him dropping off [Mr.] Burton with another
       man named Roni, going back to his own house to shower
       and smoke marijuana before picking up [Mr.] Burton and
       going to the casino.

       Detective Donald Heffner of the HBP assisted Det. Neal by

       data records for May 4 and May 5, 2009.               More
       particularly, he reviewed the cell tower data to determine

                                    -6-
J-A22012-13



          a 13.8 mile radius, during the timeframe surrounding the
          murder. Det. Heffner analyzed the data and mapped the
          cell tower utilization locations and determined that all of
          the calls made from his phone, around 1:00 a.m. on May
          5, 2009, hit cell towers within .5 miles to 2 miles of the



          at the Hollywood Casino. The purpose of the card is to
                             s gaming history for reporting and
          promotional purposes. The record which Trooper Kohl
          analyzed was dated May 12, 2010. Trooper Kohl testified

          use his card during a particular visit, the last three uses of

          18, 2009[,] and April 16, 2009.

(Trial Court Opinion, filed May 19, 2014, at 2-10) (internal citations and

footnotes omitted).

        Procedurally, police arrested Appellant on May 7, 2010 in connection

                                                                       Miranda2

warnings, and Appellant made a statement to police.         The Commonwealth

charged Appellant with criminal homicide, criminal conspiracy, persons not

to possess firearms, firearms not to be carried without a license, and REAP.

On April 26, 2011, Appellant filed a motion to suppress his statement. The



motion on June 20, 2011. Appellant proceeded to a jury trial on January 23,

2012.     On January 27, 2012, the jury convicted Appellant of first-degree

____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).



                                           -7-
J-A22012-13


murder, criminal conspiracy, and REAP.3 The court sentenced Appellant on

April 23, 2012, to life imprisonment for his first-degree murder conviction,

twenty

conviction, and twelve (12) to twenty-

his REAP conviction; the court imposed all sentences concurrently. On May

2, 2012, Appellant timely filed post-sentence motions, which the court

denied on August 27, 2012. On September 24, 2012, Appellant timely filed

a notice of appeal.

       On October 17, 2012, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

which Appellant timely filed on November 5, 2012, challenging, inter alia,

the sufficiency of the evidence and the denial of his suppression motion.

Nevertheless, on December 18, 2012, the court issued a Rule 1925(a)

opinion, stating Appellant waived all issues for appellate review because he




December 9, 2013, this Court, having determined the relevant transcripts

were made part of the certified record, remanded the case for issuance of a

                                                               -suppression

____________________________________________


3
   Prior to trial, the Commonwealth withdrew the firearms not to be carried
without a license charge; the court severed the persons not to possess
firearms charge.



                                           -8-
J-A22012-13




directed the suppression court to issue findings of fact and conclusions of

law regarding its suppression ruling.

      Appellant raises the following issues for our review:

         DID   THE  COMMONWEALTH      PRESENT    SUFFICIENT
         EVIDENCE TO FIND APPELLANT GUILTY OF FIRST DEGREE
         MURDER, CRIMINAL CONSPIRACY, AND [REAP] BEYOND A
         REASONABLE DOUBT?

         WAS THE EVIDENCE SUFFICIENT TO FIND APPELLANT
         GUILTY  OF   FIRST DEGREE   MURDER,  CRIMINAL
         CONSPIRACY, AND [REAP] ON THE BASIS THAT
         APPELLANT AND RONALD BURTON, HIS CODEFENDANT,
         WERE ACCOMPLICES?

         DID THE COURT ERR, IN RULINGS BOTH PRETRIAL AND

         INCULPATORY RECORDED STATEMENT TO THE POLICE ON
         THE BASIS THAT THE STATEMENT WAS TAKEN AT A TIME
         WHEN APPELLANT WAS UNDER THE INFLUENCE OF A
         CONTROLLED SUBSTANCE AND, THEREFORE, WAS
         UNABLE TO GIVE A KNOWING AND INTELLIGENT WAIVER
         OF HIS RIGHT TO COUNSEL UNDER MIRANDA AND/OR
         GIVE A KNOWING, VOLUNTARY, AND FREE STATEMENT TO
         THE POLICE?

         DID THE COURT ERR BY REFUSING TO SUPPRESS AND/OR

         STATEMENT WHICH PERMITTED THE JURY TO HEAR
         EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS WHEN
         THOSE PORTIONS OF HIS STATEMENT SHOULD HAVE
         BEEN EXCLUDED FROM THE TRIAL UNDER PA. RULE[S] OF

         VALUE OF THE INCLUSION OF THOSE STATEMENTS DID
         NOT OUTWEIGH THE DANGER OF UNFAIR PREJUDICE TO
         APPELLANT, CONFUSION OF THE ISSUES, OR MISLEADING
         THE JURY?




                                        -9-
J-A22012-13


        After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Richard A.



court opinion comprehensively discusses and properly disposes of those

questions. (See Trial Court Opinion, filed May 19, 2014, at 10-17) (finding:

(1) evidence established Appellant was with his co-defendant, Mr. Burton,

before and after murder, at time when Mr. Burton was supposed to meet

Victi

Victim by cell phone multiple times around and up to time of shooting;

eyewitnesses placed Mr. Burton and another man in alley heading in

direction of crime scene, with guns, arriving and fleeing scene in dark

colored SUV; evidence showed Appellant generally operates black SUV;

strong circumstantial evidence indicated Appellant was second man whom

eyewitnesses observed in alley in pursuit of Victim immediately before shots

were    fired;   Commonwealth    presented   sufficient   evidence   to    sustain

                 -

with Mr. Burton amounted to agreement to commit or aid in unlawful act

                                                                     ;     further,

Commonwealth presented evidence that at least ten shots were fired at

scene of crime on city street nearby residential apartment building, sufficient

                                               (2)    circumstantial      evidence

established Appellant was with Mr. Burton at crime scene on night in


                                    - 10 -
J-A22012-13


question, and was one of two men eyewitnesses observed pursue Victim

before shots were fired; perpetrators ran from crime scene after shooting

and fled in dark colored SUV, which is type of vehicle Appellant generally

operates; jury reasonably inferred Appellant drove with Mr. Burton to crime

scene and pursued Victim with Mr. Burton; Victim was shot in vital organ



to sufficiency of evidence based on theory of accomplice liability fails).




marijuana shortly before police apprehended him. Appellant argues his use

of marijuana impaired his cognitive functions at the time he gave a

statement to police. Appellant maintains the Commonwealth must establish

by a preponderance of the evidence that Appellant had enough cognitive

awareness to understand his Miranda warnings and choose to waive his

rights.   Appellant asserts the Commonwealth failed to meet this burden

because Detective Heffner did not ask Appellant whether he had consumed

drugs until a majority of the interview had already occurred.    Appellant

emphasizes Detective Neal admitted at the suppression hearing that

marijuana impedes the ability to make decisions.   Appellant concludes his

consumption of marijuana rendered involuntary his waiver of Miranda rights

and subsequent statement to police, and this Court should have suppressed


                                  - 11 -
J-A22012-13




sure that the record forwarded to an appellate court contains those

documents necessary to allow a complete and judicious assessment of the

                               Commonwealth v. Wint, 730 A.2d 965, 967



facts    that    have   been   duly   certifie

Commonwealth v. Powell, 598 Pa. 224, 251-52, 956 A.2d 406, 423

(2008) (holding appellant waived challenge to admissibility of autopsy

photograph where he failed to include photograph at issue in certified

record).        See also Commonwealth v. Spotti, 2014 WL 2535265

(Pa.Super. June 5, 2014) (en banc) (explaining this Court may not review

that which appellant, despite bearing burden to do so, has failed to remit

within certified record; appellant waived challenge to sufficiency of evidence

regarding whether victim sustained serious bodily injury where he failed to



        Instantly, Appellant failed to ensure the statement at issue was

included in the certified record.          The notes of testimony from the




statement to police, which the record indicates was lengthy. Nevertheless,

Appellant


                                       - 12 -
J-A22012-13


hamper our review of this suppression issue. Without the actual statement



suppression hearing transcript, and



waived on appeal.




        findings and whether the legal conclusions drawn
        therefrom are free from error. Our scope of review is
        limited; we may consider only the evidence of the
        prosecution and so much of the evidence for the defense
        as remains uncontradicted when read in the context of the
        record as a whole. Where the record supports the findings
        of the suppression court, we are bound by those facts and
        may reverse only if the court erred in reaching its legal
        conclusions based upon the facts.

Commonwealth v. Cruz, 71 A.3d 998, 1002-03 (Pa.Super. 2013), appeal

denied, ___ Pa. ___, 81 A.3d 75 (2013).



knowingly and voluntarily waived his Miranda          Commonwealth v.

Johnson, 615 Pa. 354, 376, 42 A.3d 1017, 1029 (2012), cert. denied, ___

U.S. ___, 133 S.Ct. 1795, 185 L.Ed.2d 818 (2013). To meet this burden,



                                                                    Id.

     Importantly:

        [T]he fact that an accused [is intoxicated] does not
        automatically invalidate his subsequent incriminating
        statements. The test is whether he had sufficient mental

                                  - 13 -
J-A22012-13


          capacity at the time of giving his statements to know what
          he was saying and to have voluntarily intended to say it.
          Recent imbibing or the existence of a hangover does not
          make [a statement] inadmissible, but only goes to the
          weight to be accorded to it.

          The Commonwealth is required to show voluntariness only
          by a preponderance of the credible evidence.

Commonwealth v. Milligan, 693 A.2d 1313, 1316-17 (Pa.Super. 1997)

(quoting Commonwealth v. Smith, 447 Pa. 457, 460-61, 291 A.2d 103,



sufficient,   in   and   of   itself

Commonwealth v. Culberson, 467 Pa. 424, 427, 358 A.2d 416, 417



accused was allegedly under the influence of drugs or narcotics at the time

o                                               Id.

marijuana before questioning did not render his waiver of Miranda rights

involuntary; evidence at suppression hearing showed appellant appeared

normal, alert, and responsive to questions, and gave confession voluntarily).

      Instantly, the suppression court reasoned:

          We are satisfied that the record proves that, although he
          admitted to smoking marijuana that day, [Appellant]
          possessed sufficient cognitive awareness to effectively
          waive his Miranda rights. Detective Neal testified at the
          suppression hearing that [Appellant] stated that he
          smoked marijuana beginning at 10:30 a.m. on the day of
          the arrest. Detective Neal testified that [Appellant] did not
          appear to be under the influence during the interview.
          [Appellant] exhibited his ability to comprehend the
          questions and the significance of his answers by correcting


                                       - 14 -
J-A22012-13


        statements made by Detective Neal, and by carefully
        phrasing responses in an effort to avoid self-incrimination.

        Accordingly, we properly found that [Appellant] voluntarily
        waived his Miranda rights such that no basis existed for
        suppression of his statement.

(Suppression Court Opinion, filed June 19, 2014, at 4) (internal citations

omitted).

     Further, Detective Neal testified at the suppression hearing that he

read Appellant his Miranda rights twice before Appellant waived his rights

and gave a statement.    Detective Neal stated Appellant had no difficulty

understanding the Miranda warnings, he knew exactly what the police

wanted to talk to him about before questioning began, and he did not appear

to be under the influence of alcohol or drugs during questioning.      In fact,

Detective Neal said Appellant was calm and cooperative and gave specific

answers to the questions asked.       Additionally, Detective Neal explained

Appellant stopped and corrected some of the facts, which demonstrated

Appellant understood the situation.    The Commonwealth established by a

preponderance of the evidence that Appellant had sufficient mental capacity

at the time of his statement to know what he was saying and voluntarily



statement to police was involuntary.     See Culberson, supra; Milligan,

supra. Thus, the court proper




                                   - 15 -
J-A22012-13


      In his fourth issue, Appellant explains he made certain admissions in

his statement to police: (a) Appellant carries a revolver; (b) he robbed drug

dealers in the past; and (c) Appellant set up robberies in the past to help his

co-defendant, Mr. Burton.    Appellant argues these specific portions of his

statement were irrelevant to the present case because the Commonwealth

had not charged him with robbery, conspiracy to commit robbery, or felony

murder.   Appellant suggests his admission to carrying a revolver is also

irrelevant because the casings recovered from the crime scene cannot be

ejected from a revolver, which essentially ruled out use of a revolver during

the murder. Appellant maintains admission of these specific portions of his

statement was improper, as they showed nothing but a propensity to

commit crimes, and other bad acts.      Appellant contends the court should

have suppressed these comments, because the danger of unfair prejudice

far outweighed the probative value of their admission. Appellant concludes

the court erred in failing to suppress the challenged portions of his

statement. We cannot agree.

      Instantly, Appellant failed to include in the certified record a copy of

his statement to police. In our December 9, 2013 remand order, this Court



Therefore, Appellant was on notice that the absence of his statement could



admitted as an exhibit at both the suppression hearing and at trial, but the


                                    - 16 -
J-A22012-13


statement was not read into evidence at either proceeding. As a result, we

are unable to verify the sup



Appellant refers generally to the portions of his testimony he sought to

exclude, but we simply cannot review those statements in their proper



statement to police in the certified record precludes a complete and judicious

                                                                         See

Powell, supra; Spotti, supra; Wint, supra. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2014




                                    - 17 -
