J-S66004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANDRE LAMAR DAVIS

                            Appellant                  No. 1069 WDA 2014


              Appeal from the Judgment of Sentence June 4, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003840-2012


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                            FILED JANUARY 12, 2016

        Appellant, Andre Lamar Davis, appeals from the aggregate judgment

of sentence of life imprisonment plus 20 to 40 years in prison, entered on

June 4, 2014, after a jury convicted him of two counts of first degree

murder, one count of attempted murder, and one count of aggravated

assault.1 We affirm.

        The trial court recited the factual background of this case as follows:

        On March 12, 2012, [Appellant] spent the day hanging out with
        friends that he had known for years, Andre Frazier and Valdez
        Lanauze. At some point during that afternoon, the men called
        [Mr. Lanauze’s] mother, Karen Lanauze, for a ride to the “Quick
        Cash” store because Andre Frazier needed to cash a check. Ms.
        Lanauze drove them to the store, and afterwards the group
        drove to Giant Eagle because Ms. Lanauze needed to pick up a
        few groceries.
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 901(a), and 2702(a), respectively.



*Retired Senior Judge assigned to the Superior Court.
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     On their way to Giant Eagle, [Appellant], also known as “Big
     Dre” got into a very loud, heated argument with Andre Frazier,
     who is also known as “Little Dre.” They were arguing because
     [Appellant] wanted Mr. Frazier to help him commit a robbery,
     and Mr. Frazier did not want to get involved. Although they
     were told to calm down, they were still fighting in the car when
     Ms. Lanauze finished her grocery trip. When she returned to the
     vehicle, [Appellant] was standing “outside of the car on the
     driver’s seat side” screaming at [Mr.] Frazier as he was “hitting
     and beating his chest.” Ms. Lanauze told [Appellant] to get back
     in the car, and she dropped the three men off at the BP gas
     station down the street.

     Upon being dropped off at the gas station, [Mr.] Frazier
     separated from the group and went his own way. [Appellant]
     and Mr. Lanauze went to another friend’s house, where they
     remained until the late evening. After they left the house, the
     two men walked home together and then separated when Mr.
     Lanauze arrived at his house. However, as he was walking up to
     his porch, Mr. Lanauze reached into his pocket and realized that
     he had enough money to buy a small quantity of marijuana for a
     nightcap. He called his friend Manning Proctor and told him that
     he was coming over to buy some weed. He then caught up with
     [Appellant], and the two men walked over to Manning Proctor’s
     house together.

     [Appellant] and Mr. Lanauze arrived at [Manning Proctor’s]
     house at approximately 12:30 a.m., and they found [Mr.] Frazier
     . . . [lying] on the couch in the living room. Mr. Frazier often
     [stayed] with Manning Proctor, and [Manning Proctor’s] mother,
     Angela Proctor, so his presence at their residence was not
     surprising. Mr. Lanauze walked into the apartment, gave Mr.
     Frazier a handshake, then walked back to Manning Proctor’s
     bedroom to make his purchase. Mr. Lanauze was in the back
     bedroom with Manning Proctor when they heard two gunshots.
     The men ran into the living room, where they were confronted
     with a gunshot fired in their direction. Mr. Lanauze ducked and
     ran out of the house as soon as he saw the light from the
     muzzle. Before he ran away, [Mr.] Lanauze saw [Appellant]
     holding a gun [and] standing over [Mr.] Frazier; he also saw
     [Appellant] swing the gun over and point it at Manning Proctor.
     Mr. Lanauze ran down the street and called his mother to come
     pick him up.



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        When authorities responded to the scene, they found Manning
        Proctor lying on the floor, with a gunshot wound to his left chest.
        Although he was seriously injured, he was coherent enough to
        tell the officer, three separate times, that “Dre” shot him.
        Manning Proctor was transported to the hospital, where he was
        pronounced dead later that morning.         Authorities found his
        mother, Angela Proctor, lying dead on the floor of a bedroom,
        and they discovered [Mr.] Frazier wounded, lying on a bed in the
        same bedroom where Angela Proctor’s body was found.
        Although he was shot three [] times from close range, Mr.
        Frazier survived the shooting and had even managed to call 911
        after being shot.

        [Appellant] was questioned by the authorities on March 14,
        2012, after his mother called the police to inform them of his
        involvement in the shootings. He was arrested and charged with
        the murders of Manning and Angela Proctor, as well as the
        shooting of [Mr.] Frazier.     The arrest was made after Mr.
        Lanauze told the police that [Appellant] was the shooter. After
        he was confronted with Mr. Lanauze’s statement and the other
        evidence against him, [Appellant] told the officers that he
        wanted to “tell the truth about what happened.” In a recorded
        statement, [Appellant] confessed to the shootings. He said that
        he was enraged after an argument with Mr. Frazier, that he
        “snapped,” and that he shot the victims because they were
        charging at him. He told the officers that he had hid[den] the
        firearm behind an abandoned house. He was able to direct
        investigators to the specific location of the gun, where it was
        successfully retrieved.

Trial Court Opinion, 2/3/15, at 3-6 (citations to notes of testimony omitted).

        Following Appellant’s jury trial, the trial court, on June 4, 2014,

sentenced Appellant to mandatory life imprisonment for the first-degree

murder convictions, plus a consecutive term of 20 to 40 years’ of

imprisonment for the attempted murder conviction, with no further penalty

for the aggravated assault conviction.       Appellant filed a timely notice of

appeal.    Both Appellant and the trial court have complied with Pa.R.A.P.

1925.

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      On appeal, Appellant presents a single issue for our review:

      Did the [trial] court err in permitting the statement of Andre
      Frazier to be read into evidence after Mr. Frazier had been
      dismissed as a witness, violating [] Appellant’s right to confront
      his witnesses and [the] rules of evidence pertaining to hearsay?

Appellant’s Brief at 5.

      It is uncontroverted that when Mr. Frazier testified at Appellant’s trial,

he “contradicted the statements that he made to police at the hospital on

March 15, 2012[.]”        Trial Court Opinion, 2/3/15, at 13.   The trial court

explained:

      Mr. Frazier immediately provided a statement to the police
      within two (2) days of the incident; Detective Miller and his
      partner interviewed Mr. Frazier on March 15, 2012, while he was
      still at the hospital recovering from his injuries. Mr. Frazier was
      “very cooperative” with the police at that time because he was
      motivated to “do what was right by the Proctor Family.” Based
      on Mr. Frazier’s report of the incident, the officers put together a
      police report and asked him if he would be willing to record his
      statement. Mr. Frazier declined to have his statement recorded,
      so the officers memorialized his oral statement into a written
      document and asked him to read it in order to ensure that the
      facts contained therein were accurate. Mr. Frazier reviewed the
      statement, and he signed it in the presence of Detective Miller
      after he confirmed that it was factually accurate. Mr. Frazier’s
      statement, in essence, confirmed that [Appellant] was angry
      with him because he had refused to help [Appellant] commit a
      robbery and that [Appellant] began shooting at him, and
      everyone else at the Proctor residence, without any provocation.

      Although Mr. Frazier was very cooperative at the time of the
      incident, he [] changed his tone dramatically by the time of trial.
      Mr. Frazier took the stand and claimed not to remember
      anything, including the length of time that he had been friends
      with [Appellant]. While it is true that Mr. Frazier repeatedly
      testified that he did not recall any details from the incident,
      there were several instances where he outright denied his


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       previous statements. For example, when asked whether he told
       the police that he had an “uneasy feeling about [Appellant] being
       in the [Proctor] house” on the night of the incident, Mr. Frazier
       replied “no.” The prosecutor then asked: “you are saying you
       never told the police that?” and Mr. Frazier responded “nope . . .
       I ain’t told them nothing.” When asked whether he observed
       [Appellant] shoot at him, Mr. Frazier initially replied that he did
       not remember, but when the prosecutor said “so [Appellant]
       may have [shot at you], you are not sure about it,” Mr. Frazier
       firmly responded “No, he didn’t.” Later in his testimony, he was
       directly asked whether he had told the officers that [Appellant]
       was the person responsible for shooting him and the Proctor
       family, and Mr. Frazier stated “no.”

Id. at 13 (citations to notes of testimony omitted).

       Based on the foregoing, the trial court determined that Mr. Frazier’s

“statements that he made to police at the hospital on March 15, 2012, and

his contradictory testimony opened the door for the introduction of his

out-of-court statement as a prior inconsistent statement under Pa.R.Evid.

803.1.” Id.

       On appeal, the crux of Appellant’s evidentiary claim relative to the

admission of Mr. Frazier’s signed statement is that “it is the timing of the

Commonwealth’s offer of the statement that should [have made] it

inadmissible at [Appellant’s] trial.”     Appellant’s Brief at 12 (italics in

original).   Appellant emphasizes, “[t]he Commonwealth only discussed the

content of Mr. Frazier’s statement to police after [Mr.] Frazier had been

dismissed as a witness at trial and left the courthouse.” Id. Appellant avers

that   the   signed   statement   was   inadmissible   because   Appellant   was

prevented from cross-examining Mr. Frazier “about both the circumstances



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surrounding the statement and the particulars of the statement itself.” Id.

at 11.

         We initially recognize that a trial court has broad discretion to

determine whether evidence is admissible, and a trial court's ruling on an

evidentiary issue will be reversed only if the trial court abused its discretion.

See, e.g., Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super.

2013), reargument denied (July 11, 2013), appeal denied, 80 A.3d 775 (Pa.

2013). A ruling admitting evidence “will not be disturbed on appeal unless

that ruling reflects manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support to be clearly erroneous.” Id.

         Here, Appellant argues that when introduced at trial, Mr. Frazier’s

signed statement constituted inadmissible hearsay because Mr. Frazier had

been dismissed as a witness, left the courthouse, and could no longer be

cross-examined about the inconsistency between his statement and his trial

testimony.

         The trial court disagreed and concluded that the statement was

admissible as a prior inconsistent statement under Pa.R.E. 803.1, relying on

Commonwealth v. Stays, 70 A.3d 1256 (Pa. Super. 2013) and stating that

“the fact that defense counsel chose to forego cross-examination of Mr.

Frazier does not change the analysis because the question of admissibility

does not center on whether the declarant is actually cross-examined on the

statement, but whether an opportunity for cross-examination existed.” Trial

Court Opinion, 2/3/15, at 14.

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      Appellant counters that Stays is distinguishable because “although the

defense had the opportunity to cross-examine [Mr.] Frazier at trial, his prior

inconsistent statements had not been placed into evidence at that time.”

Appellant’s Brief at 20. The trial court rebutted this assertion as follows:

      [T]he fact that Mr. Frazier’s statement was not admitted into
      evidence until after his testimony was complete is of no
      consequence. The record clearly indicates that the defense had
      “full knowledge” of Mr. Frazier’s witness statement prior to the
      time of trial. Because the defense was fully aware of the nature
      of Mr. Frazier’s statement, there was ample opportunity to
      question Mr. Frazier about his statement while he was still
      subject to cross-examination. The fact that defense counsel
      chose to forego cross-examination of Mr. Frazier does not
      change the analysis because the question of admissibility does
      not center on whether the declarant is actually cross-examined
      on the statement, but whether an opportunity for cross-
      examination existed. See Stays, supra, at 1262 (“Significantly,
      it is not imperative that the defendant actually cross-examine
      the witness; if the defendant had an adequate opportunity to do
      so with full knowledge of the inconsistent statement, the
      mandate of Rule 803.1 is satisfied.”). Such an opportunity
      existed in this case as Mr. Frazier was present at trial and was
      available for cross-examination, and his statement was thus
      properly admitted under Rule 803.1. Because Mr. Frazier’s
      statement was properly admitted as a prior inconsistent
      statement, [Appellant’s] confrontation clause argument must
      fail. See [Commonwealth v. Hanible, 30 A.3d 426, 444 (Pa.
      2011)] (“It is well-settled that admitting a declarant’s prior
      inconsistent statement does not violate the Confrontation Clause
      of the Sixth Amendment when the declarant, himself, testifies as
      a witness at trial and is subject to cross-examination.”).

Trial Court Opinion, 2/3/15, at 14-15 (citations to notes of testimony

omitted). Upon review, we agree with the trial court.

      Our Rules of Evidence provide, in pertinent part, as follows:




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     Rule 803.1.     Hearsay    exceptions;   testimony    of   declarant
     necessary

     The following statements, as hereinafter defined, are not
     excluded by the hearsay rule if the declarant testifies at the trial
     or hearing and is subject to cross-examination concerning the
     statement:

     (1) Inconsistent statement of witness. A statement by a
     declarant that is inconsistent with the declarant's testimony, and
     (a) was given under oath subject to the penalty of perjury at a
     trial, hearing, or other proceeding, or in a deposition, or (b) is a
     writing signed and adopted by the declarant, or (c) is a verbatim
     contemporaneous recording of an oral statement.

Pa.R.E. Rule 803.1(1).

     In Stays, we explained:

     [P]ursuant to [Pa.R.E. 803.1], inconsistent statements made by
     a witness prior to the proceeding at which he is then testifying
     are admissible as substantive evidence of the matters they
     assert so long as those statements, when given, were adopted
     by the witness in a signed writing or were verbatim
     contemporaneous      recordings   of   oral   statements.    See
     Commonwealth v. Presbury, 665 A.2d 825, 831–832 (Pa.
     Super. 1995) (applying the same rule in review of a trial court's
     admission of prior inconsistent statements before formal
     adoption of the Pennsylvania Rules of Evidence).          At the
     subsequent proceeding, the declarant of the original statement
     need not (indeed, cannot) adopt the original statement, as the
     statement's inconsistency with the declarant's testimony at the
     present hearing renders the former statement admissible. See
     id. In this instance, [the witness] declined to identify Stays at
     the preliminary hearing despite his earlier identification of the
     same man in the photo array, and disavowed the statement he
     had given earlier. He conceded only that his signature appeared
     on the last page of the statement, while offering contradictory
     answers concerning the appearance of his initials on the
     remaining pages. He denied having signed the photo array.

     Under those circumstances, Rule 803.1 rendered the signed
     photo array and Williams’ written statement fully admissible at
     the preliminary hearing, so long as the witness had been
     available for cross-examination. See Pa.R.E. Rule 803.1(1).


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     Significantly, it is not imperative that the defendant
     actually cross-examine the witness; if the defendant had
     an adequate opportunity to do so with full knowledge of
     the inconsistent statement, the mandate of Rule 803.1 is
     satisfied. Cf. Commonwealth v. Bazemore, 614 A.2d 684,
     686 (Pa. 1992) (recognizing the admissibility at trial of prior
     inconsistent preliminary hearing testimony on the proviso that
     the defendant must have knowledge of the existence of the
     inconsistency and an opportunity to cross-examine the witness
     about it). As the trial court recognized, Stays was offered the
     opportunity at the preliminary hearing to cross-examine Williams
     about the original statement and the photo array identification,
     as well as Williams’ attempted recantation. At the very least,
     we would expect Stays to have explored Williams’ motive for
     distancing himself from his earlier statements if only to dispel
     the inference of Stays’ guilt should Williams’ recantations be
     attributed to fear of retribution. Nevertheless, Stays declined to
     conduct any cross-examination at all. Consequently, Williams’
     preliminary hearing testimony rendered both his identification of
     Stays on the photo array and his signed statement to the
     Philadelphia Police admissible at the preliminary hearing as prior
     inconsistent statements.

     After the preliminary hearing, but before trial, Williams became
     unavailable by reason of his murder. At trial, in the absence of
     his testimony, the Commonwealth introduced Williams’ prior
     testimony from the preliminary hearing and the court reporter
     who had recorded that testimony read Williams’ written police
     statement into the record. Stays contends that the trial court
     erred in admitting the prior testimony based on decisions
     suggesting that hearsay and extra-judicial identifications can be
     admitted only if the witness is present in court and subject to
     cross-examination.

     Contrary to Stays’ argument, we do not find Williams’ prior
     testimony excludable under the hearsay rule. The cases on which
     Stays relies emphasize the importance of cross-examination as a
     vehicle to assure the trustworthiness of a witness’s out of court
     statements and uphold the admission of such statements where
     the respective witnesses were available for cross-examination.

Stays, 70 A.3d at 1261-1263 (parallel case citations omitted; citations to

notes of testimony omitted; emphasis added).


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       Although the witness in Stays, unlike Mr. Frazier, was unavailable to

testify at trial, we agree with the trial court that Stays is authoritative in this

case. The Commonwealth accurately stated:

       At the end of direct examination in the instant matter, shortly
       after the prosecutor had shown [Mr.] Frazier the statement and
       asked if he had signed it, [A]ppellant was given the opportunity
       to cross-examine [Mr.] Frazier regarding the statement, but he
       elected to ask no questions at all of this witness, despite having
       full knowledge of the statement prior to trial.

Commonwealth Brief at 21.

       Our review of the record comports with the Commonwealth’s account,

as well as the trial court’s rationale in allowing Mr. Frazier’s signed

statement to be read into the record by Detective Miller after Mr. Frazier had

been excused from the trial. See N.T., 2/26/14-3/4/14, at 273-278.

       Prior to the introduction of Mr. Frazier’s statement, Mr. Frazier testified

that Appellant was “his man” and “cool.” Id. at 226. He answered “I don’t

remember” to a multitude of the Commonwealth’s questions regarding

whom he knew and what transpired on the night of the shooting.              Id. at

225-248. For example, Mr. Frazier did not remember being interviewed by

Detective Miller or even being at the hospital on March 15, 2012.           Id. at

232.   Mr. Frazier also asserted that he “got no answer” to several of the

Commonwealth’s questions.        See, e.g., id. at 235-236, 239-240.           The

Commonwealth presented Mr. Frazier with the written statement, and Mr.

Frazier specifically testified that he did not sign it and did not “remember

none of that.”      Id. at 244.      When the Commonwealth was finished

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questioning Mr. Frazier, and offered him for cross-examination, Appellant’s

attorney replied, “No further questions of the witness.”         Id. at 248.

Furthermore, after Detective Miller testified, and read into the record Mr.

Frazier’s three-page signed statement, the trial court asked Appellant’s

attorney, “Any cross?” to which defense counsel replied, “No questions.” Id.

at 278.

      Given the foregoing, Appellant had the “adequate opportunity” to

cross-examine, i.e., confront, both Mr. Frazier and Detective Miller, “with the

full knowledge of the inconsistent statement.” Stays, supra. We therefore

discern no abuse of discretion by the trial court in determining that Mr.

Frazier’s recorded statement was admissible pursuant to Pa.R.E. 803.1, and

thus affirm the June 4, 2014 judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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