J-S65012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEREMIAH BUSH

                            Appellant                No. 2976 EDA 2013


             Appeal from the Judgment of Sentence May 29, 2013
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0001940-2009


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 04, 2015

        Appellant, Jeremiah Bush, appeals from the judgment of sentence

entered by the Honorable David F. Bortner, Court of Common Pleas of

Chester County. After careful review, we affirm.

        On October 21, 2006, Jonas Suber was shot to death inside his

residence in Coatesville.         Ultimately, the Commonwealth charged four

individuals as involved in the crime: Bush, Eric Coxry, Duron Peoples, and

Shamone Woods.          At trial, the Commonwealth presented evidence of a

conspiracy between the individuals to murder Suber, including a confession

by Bush that he had acted as a getaway driver after Coxry had killed Suber.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      A jury convicted Bush of First Degree Murder, Second Degree Murder,

Burglary, and Criminal Conspiracy to Commit First Degree Murder. On May

29, 2013, the trial court sentenced Bush to life imprisonment without the

possibility of parole on the First Degree Murder conviction.          All other

convictions resulted in sentences of imprisonment that are concurrent with

the life sentence. The trial court subsequently denied Bush’s post-sentence

motions, and this timely appeal followed.

      On appeal, Bush raises three issues for our review:

      I.     Whether or not the trial court erred by allowing, over
             defense objection, pre-trial testimony of Commonwealth
             witness Leon Lubiesjewski pursuant to Pa.R.Crim. P. 500A.

      II.    Whether or not the trial court erred by denying defendant’s
             post-sentence motion for new trial based upon a claim that
             the verdict was against the weight of the evidence.

      III.   Whether or not the trial court erred by denying defendant’s
             post-sentence motion challenging the sufficiency of the
             evidence.

Appellant’s Brief, at 4. For purposes of organization, we will address issues

two and three in reverse order after addressing Bush’s first issue.

      In his first issue, Bush argues that the trial court erred by allowing the

Commonwealth to present the videotaped testimony of its witness, Detective

Leon Lubiesjewski, at trial. Under the Rules of Criminal Procedure, a party

may request the court to order “the taking and preserving of the testimony

of any witness who may be unavailable for trial … or when due to

exceptional circumstances, it is in the interests of justice that the witness’


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testimony be preserved.” Pa.R.Crim.P., Rule 500(A)(1). Bush contends that

the Commonwealth failed to establish that it was entitled to this relief.

      This Court has previously set forth the standard of review applicable to

this issue:

      We evaluate the trial court’s determinations regarding the
      admissibility of evidence by an abuse of discretion standard.
      See Commonwealth v. Dengler, 586 Pa. 54, 64-66, 890 A.2d
      372, 379 (2005). We will not disturb the trial court’s ruling
      unless that ruling reflects “manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support as to
      be clearly erroneous.” Id. (citation omitted).

      Upon motion of any party, a court may order the taking and
      preserving of the testimony of a witness who “may be
      unavailable for trial or for any other proceedings, or when due to
      exceptional circumstances, it is in the interests of justice that the
      witness’ testimony be preserved.” Pa.R.Crim.P., Rule 500(A)(1),
      42 Pa.Cons.Stat.Ann. An unavailable witness is a witness who is
      not capable of appearing in court and giving testimony directly,
      for reasons such as illness or incapacitation.                   See
      Commonwealth v. Rizzo, 556 Pa. 10, 16, 726 A.2d 378, 381
      (1999) (finding the language “may be unavailable” not applicable
      to situations where a witness could feasibly be present at trial).

Commonwealth v. Einhorn, 911 A.2d 960, 972 (Pa. Super. 2006).

      Bush does not argue that Rule 500 is unconstitutional, but rather that

its application under these circumstances violated his right to confront

witnesses.    As the Commonwealth concedes, see Appellee’s Brief, at 18,

Pennsylvania    Courts   have   established   seven    conditions   to   ensure   a

defendant’s right to confront witnesses is not violated when testimony is

preserved through videotape for presentation at trial. See Commonwealth




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v. Stasko, 370 A.2d 350 (Pa. 1977).        As collated and organized by the

Commonwealth, these seven conditions are:

      (1) notice was given to the appellant by the Commonwealth that
      the deposition would be taken; (2) defendant was present at the
      deposition; (3) defense counsel extensively cross-examined the
      witness; (4) the judge who presided at the trial also conducted
      the deposition; (5) the ‘good faith effort’ of the prosecution to
      obtain the witness’s presence at trial was unquestioned; (6) the
      witness’s inability to give live testimony was not the fault of the
      state; and (7) because the deposition was videotaped the jury
      did, in fact, have the opportunity to observe the demeanor of the
      witness and judge her credibility.

Appellee’s Brief, at 18 (citing Stasko, 370). Bush alleges that three of these

conditions, notably number 3, number 5, and number 6, were not met in

this case.

      Before addressing Bush’s trifold arguments on this issue, we set forth

the pertinent procedural and factual history. On February 6, 2013, the trial

court entered an order directing that jury selection for this case would begin

on May 10, 2013, and that trial would follow on May 13, 2013. On April 16,

2013, at a hearing on Bush’s omnibus pretrial motions, the Commonwealth

orally requested to have Detective Lubiesjewski’s testimony preserved

pursuant to Rule 500. See N.T., pre-trial hearing, 4/16/13, at 62-63.

      The Commonwealth alleged that Detective Lubiesjewski had indicated

that he would be out-of-state during the week of the trial on a pre-paid one-

week vacation. See id. Bush objected, arguing that the detective was not

unavailable as defined by the Rule, and furthermore, that his confrontation

rights were being impinged in contravention of Stasko. See id., at 63-64.

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In responding to Bush’s objection, the Commonwealth stated that with

respect to the timing of its request, it had contacted Bush immediately after

Detective Lubiesjewski had informed the Commonwealth of his vacation

plans. See id., at 71.

      Turning to the arguments raised by Bush, he first asserts that he was

denied the right to extensively cross-examine Detective Lubiesjewski.        In

essence, Bush argues that having Detective Lubiesjewski testify prior to the

start of trial precluded the ability to cross-examine the detective using

information developed through the testimony of other witnesses at trial.

However, this argument proves too much.        Any preservation of testimony

would certainly limit the ability of a defendant to use trial testimony of other

witnesses to cross-examine the witness. Accepting this argument would be

the functional equivalent of declaring Rule 500 unconstitutional.       As the

Supreme Court of Pennsylvania has held that preservation of testimony by

videotape is constitutionally permissible, see Stasko, 370 A.2d at 355, we

conclude that this argument merits no relief on appeal.

      Furthermore, Bush does not specifically identify what information

developed at trial he would have used while cross-examining Detective

Lubiesjewski.   Even if Bush had a legitimate claim about specific evidence

that was only available after being developed at trial, the appropriate

response under these circumstances would have been to request the right to




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recall the detective to the stand when he returned from his one-week

vacation.

      Bush also contends that condition five, that the Commonwealth

exercised a good faith effort in obtaining the witness’s presence at the trial,

has not been met. However, Bush presents no evidence or even argument

that the Commonwealth acted in bad faith.       Rather, his argument on this

issue is identical to his argument concerning condition six.     Condition six

requires that the witness’s inability to present live testimony at trial not be

the fault of the Commonwealth.      See Stasko, 370 A.2d at 353-354 (“Of

course, the declarant’s inability to give live testimony must, in no way, be

the fault of the state.”).

      In both arguments, Bush asserts that there is no evidence that can

establish that the vacation plans were made before the trial date was

scheduled. His argument then proceeds to note that the Commonwealth did

not request relief pursuant to Rule 500 until April 16, over two months after

the trial date was scheduled. He furthermore highlights that pursuant to the

Commonwealth’s statements in requesting relief, the Commonwealth did not

verify Detective Lubiesjewski’s ability to attend the trial until approximately

the time of the motion.      Thus, Bush argues, the Commonwealth has not

established that it is faultless in failing to procure Detective Lubiesjewski’s

presence at trial.




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      Under these specific circumstances, we agree with Bush. The record is

insufficient to establish that the sixth condition set forth in Stasko was

satisfied. However, this does not end our analysis, as the Commonwealth

contends that any error in this matter was harmless. See Commonwealth

v. Marshall, 824 A.2d 323, 328 (Pa. Super. 2003) (an error is harmless if

the court determines that the error could not have contributed to the

verdict).   “[H]armless error is a technique of appellate review designed to

advance judicial economy by obviating the necessity for a retrial where the

appellate court is convinced that a trial error was harmless beyond a

reasonable doubt.”    Commonwealth v. Noel, 53 A.3d 848, 857 n.4 (Pa.

Super. 2012) (citation omitted). “The harmless error doctrine … reflects the

reality that the accused is entitled to a fair trial, not a perfect trial.”

Commonwealth v. Passmore, 857 A.2d 697, 710 (Pa. Super. 2004)

(citation omitted).

      Here, Detective Lubiesjewski’s videotaped testimony addressed solely

the issue of Bush’s alleged consciousness of guilt by evading arrest after he

was charged. This issue was tertiary to the case against Bush presented by

the Commonwealth.       See Appellant’s Brief, at 26 (“The Commonwealth’s

main evidence regarding the alleged conspiracy and/or participation was the

testimony of Brown and Milton.”). The Commonwealth presented evidence

that Bush had implicated himself and Coxry in the murder of Suber, and that




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Coxry had confessed to the murder. See N.T., Trial, 5/14/13, at 377-384;

N.T., Trial, 5/15/13, at 483-484.

      Additionally,   Detective   Lubiesjewski’s   videotaped   testimony   was

substantially cumulative to live testimony presented by Detective Grady

Patterson. Both detectives testified as to an ultimately fruitless attempt to

arrest Bush at his parents’ home in North Philadelphia in February 2009.

See N.T., Trial, 5/8/13, at 10-11; N.T., Trial, 5/15/13, at 608-609.        Both

testified that a month later Bush was found and arrested inside another

residence in North Philadelphia. See N.T., Trial, 5/15/13, at 609-613; N.T.,

Trial, 5/8/13, at 13-22.          After reviewing the detectives’ respective

testimonies, we conclude that the only relevant differences concern the

specific roles each detective played in each incident.

      Thus, given the nature of the evidence at issue, and the fact that

Detective Lubiesjewski’s videotaped testimony was substantially cumulative

to the live testimony of Detective Patterson, we are convinced beyond a

reasonable doubt that the jury’s verdict would not have been affected if

Detective Lubiesjewski’s testimony had been precluded.           We therefore

conclude that Bush’s first issue on appeal merits no relief.

      As noted above, we now address Bush’s third numbered issue on

appeal, challenging the sufficiency of the evidence supporting his conviction

for criminal conspiracy, and will address Bush’s second numbered issue

asserting that the verdict was against the weight of the evidence, last. In


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his third issue, Bush contends that there is insufficient evidence of record to

support the jury’s finding that he entered into an agreement to commit the

crime of first-degree murder, or that he had acted with any criminal intent.

      We review a challenge to the sufficiency of the evidence as follows.

      The standard we apply when reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the 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. Furthermore, when reviewing a sufficiency claim, our
      Court is required to give the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

      However, the inferences must flow from facts and circumstances
      proven in the record, and must be of such volume and quality as
      to overcome the presumption of innocence and satisfy the jury
      of an accused’s guilt beyond a reasonable doubt. The trier of fact
      cannot base a conviction on conjecture and speculation and a
      verdict which is premised on suspicion will fail even under the
      limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).




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     Both of Bush’s arguments challenge his conviction for criminal

conspiracy. A person is guilty of conspiring with another person to commit a

crime if, with the intent of promoting or facilitating its commission, he

agrees to aid another person in the planning or commission of such crime.

See 18 Pa.C.S.A. § 903(a)(2).

     The essence of a criminal conspiracy is a common
     understanding, no matter how it came into being, that a
     particular criminal objective be accomplished. Therefore, a
     conviction for conspiracy requires proof of the existence of a
     shared criminal intent. An explicit or formal agreement to
     commit crimes can seldom, if ever, be proved and it need not
     be, for proof of a criminal partnership is almost invariably
     extracted from the circumstances that attend its activities. Thus,
     a conspiracy may be inferred where it is demonstrated that the
     relation, conduct, or circumstances of the parties, and the overt
     acts of the co-conspirators sufficiently prove the formation of a
     criminal confederation.

Commonwealth v. Knox, 50 A.3d 732, 740 (Pa. Super. 2012) (citation

omitted).   The driver of a getaway car can be found guilty as a co-

conspirator if it is reasonable to infer that he was aware of the actual

perpetrator’s intention. Commonwealth v. Davalos, 779 A.2d 1190, 1194

(Pa. Super. 2001).

     In the present case, the Commonwealth presented evidence that, prior

to the murder, Bush was present when Coxry brandished a firearm and

stated that he was going to “take care of” a dispute between Suber and

Peoples. N.T., Trial, 5/15/13, at 477-481. The same witness testified that

after the murder, Bush claimed that he and Coxry had gone “and took care

of that situation.” Id., at 483-484. Finally, the witness testified that Bush



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claimed to have assisted Coxry in murdering Suber by acting as his getaway

driver. See id., at 484.

     This evidence was certainly sufficient to establish that not only had

Bush agreed to assist Coxry in the murder of Suber, but also that he had a

criminal intent in driving Coxry to and from the scene of the murder. We

therefore find no merit to this argument on appeal.

     Returning to Bush’s weight of the evidence claim, we review a

challenge to the weight of the evidence as follows:

     A claim alleging the verdict was against the weight of the
     evidence is addressed to the discretion of the trial court.
     Accordingly, an appellate court reviews the exercise of the trial
     court’s discretion; it does not answer for itself whether the
     verdict was against the weight of the evidence. It is well settled
     that the [jury] is free to believe all, part, or none of the evidence
     and to determine the credibility of the witnesses, and a new trial
     based on a weight of the evidence claim is only warranted where
     the [jury’s] verdict is so contrary to the evidence that it shocks
     one’s sense of justice. In determining whether this standard has
     been met, appellate review is limited to whether the trial judge’s
     discretion was properly exercised, and relief will only be granted
     where the facts and inferences of record disclose a palpable
     abuse of discretion.

Commonwealth v. Brown, 71 A.3d 1009, 1013 (Pa. Super. 2013) (citation

omitted; brackets in original), appeal denied, 77 A.3d 635 (Pa. 2013).

     Bush’s arguments on appeal consist of challenges to the credibility of

the Commonwealth’s primary witnesses. The trial court did not find that the

jury’s decision to credit their testimony shocked its conscience. Upon review

of the record, and specifically the evidence discussed above, we cannot



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conclude that the trial court’s decision constituted an abuse of its discretion.

As such, we conclude that Bush’s final issue on appeal merits no relief.

      As we conclude that none of Bush’s issues on appeal merit relief, we

affirm the judgment of sentence.

      Judgment of sentence affirmed. Jurisdiction relinquished.

      Judge Platt joins the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/2015




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